As used herein, "Interstate" means Interstate Batteries, Inc.; “Company” means the person or entity listed as the Account on the Local Account Agreement; “Agreement” means the Local Account Consignment Agreement and these Terms and Conditions. Company and Interstate hereby agree as follows:
1. Standard Terms and Conditions. This Agreement governs Company’s consignment by Interstate Batteries, Inc. (“Interstate”) and/or its distributor-affiliates and those persons or entities a party to a Distribution Agreement with Interstate or their respective predecessor or successor entities (“Distributors”) of electrical storage devices of the type customarily sold by Interstate (“Batteries”). These terms and conditions are part of Interstate’s quotation for and acceptance of any resulting order and shall become the exclusive and binding agreement between Interstate and Company with respect to: (i) the delivery of any Batteries by Interstate or Distributors, and (ii) the consignment of Batteries at any location owned and/or operated by Company that are located in the United States (each, a “Location”), and shall apply to any document established between a Distributor or Interstate and a Location or Company identifying the type and quantity of Batteries being maintained on consignment at the Locations (each, a “Consignment Document”), regardless of whether this Agreement or its terms and conditions are expressly referenced in that Consignment Document. NO TERM OR CONDITION SET FORTH IN ANY OF COMPANY’S SOLICITATION, PURCHASE ORDER, OR CONTRACT SHALL BECOME PART OF ANY ORDER OR OTHERWISE BECOME BINDING ON INTERSTATE UNLESS EXPRESSLY AGREED TO IN WRITING BY INTERSTATE.
2. Exclusivity. Interstate and Company agree that so long as this Agreement is effect, Company and its Locations will source Batteries exclusively from Interstate, in accordance with terms described herein. Notwithstanding the foregoing, Company shall have the limited right to purchase Batteries from a non-Interstate affiliated supplier to the extent Interstate is unable or unwilling to supply Batteries in the quantity and type necessary for operation of a Location and Company has provided advance written notice of such determination.
3. Product Fulfillment. Distributors shall place inventory of consignment Batteries at each participating Location (“Consignment Inventory”). Such Consignment Inventory, as it shall be modified from time-to-time upon mutual agreement, shall be reflected in the “Consignment Document. Distributors shall conduct regularly scheduled visits to Locations to assess the current Consignment Inventory. In the event the Consignment Inventory is below the agreed upon capacity, the Distributor shall replace such Batteries at the Location. If a Distributor determines that an adjustment to the Consignment Inventory is appropriate, the Distributor shall also make such recommendation to the Location representative. Upon the consent from Location representative, the Distributor shall modify the Consignment Inventory to be consistent with the Distributor’s determination. Distributors shall endeavor to maintain Consignment Inventory at each Location comprised of Batteries that have not been at that specific Location more than one hundred twenty (120) days. To the extent a Distributor identifies a Battery that exceeds the 120-day rotate period, the Distributor shall replace that Battery with a substantially equivalent Battery.
4. Consigned Inventory. All Batteries of the Consigned Inventory shall be owned by Interstate or the Distributor respectively while in the possession of Company or the Location, and this Agreement shall be a true consignment in all respects as defined by the UCC or other applicable security law. Title to such Batteries shall transfer directly from Interstate and/or the Distributor to the purchaser when it is scanned at the point of sale, and the proceeds of all Batteries sold shall be held in trust for the benefit of and account of Interstate until fully accounted for as herein provided. Company agrees to execute and deliver to Interstate or the applicable Distributor such financing statements or other instruments as Interstate or the Distributor may deem necessary or advisable to evidence its ownership of the Batteries. Company will pay all costs and expenses of filing or recording the same, to establish, preserve, protect, and maintain Interstate’s or the Distributor’s respective right and title to and ownership of the Batteries. Upon delivery, Company (and its Locations on Company’s behalf) shall hold the Batteries at as agent and bailee of Interstate or the Distributor respectively. Company (and its Locations on Company’s behalf) shall account for each Battery received. Following delivery, Company and each Location shall preserve the Batteries and assume all risk of damage to or loss of the Batteries from any cause whatsoever, and shall procure and maintain, for the benefit of and in the name of Interstate, fire and extended coverage insurance on the Batteries payable to Interstate, until a sale and delivery thereof to the purchaser of the Batteries or until its redelivery to Interstate. Company shall from time to time at the request of Interstate furnish a certificate of the existence of such insurance executed by Company’s insurance carrier, each such certificate showing Interstate as an additional insured and as a loss payee. If such shortages occur, Company shall pay to Interstate the cost of the Batteries which are short, as reflected on the Effective Price Sheet (defined below) in effect at the time of the discovery of the shortage.
5. Pricing. The price charged to Company for each type of Battery shall be as reflected on the price sheet provided to Company by Interstate from time to time (the “Effective Price Sheet”), as may amended by Interstate during the Term of this Agreement upon notice to Company. Such price changes will be effective fifteen (15) days after notification. Prices listed on the Effective Price Sheet are based on the Location returning spent batteries (“Cores”) on a one-for-one basis for each new Battery delivered to Company or a Location. If a Location fails to return Cores on a one-for-one basis, Company shall pay the applicable Core exchange price required by Interstate.
6. Invoicing; Payment; Taxes. Company shall be solely responsible for all taxes imposed with respect to the Batteries while they are stored at Company’s or its Locations’ business and/or for so long as the Batteries remain in Company’s or its Locations’ possession. Company agrees to pay to Interstate or the applicable Distributor, on demand, the current Battery price plus the then-applicable exchange or Core fee per Battery for the Batteries removed from Company’s or its Locations’ possession or business address, unless removed by Interstate or Distributor, which Interstate or Distributor may do so at any time at its option, or upon use of or damage to the Batteries. Company agrees to pay all collection and legal cost incurred by Interstate for the collection of any amount due Interstate hereunder. Time for payment is of the essence.
7. WARRANTY; LIMITATION OF LIABILITY. Interstate warrants the Batteries only to the extent set forth at https://www.interstatebatteries.com/support/warranty. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INTERSTATE AND DISTRIBUTORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS, IMPLIED STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INTELLECTUAL PROPERTY INFRINGEMENT OR THIRD PARTY RIGHTS, OR BASED ON COURSE OF CONDUCT OR TRADE CUSTOM OR USAGE, AND IN NO EVENT SHALL INTERSTATE OR DISTRIBUTORS BE LIABLE FOR ANY LOST PROFITS OR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING FROM THIS AGREEMENT. THE PARTIES FURTHER AGREE THAT EACH AND EVERY PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES OR EXCLUSION OF DAMAGES IS EXPRESSLY INTENDED TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION SINCE THOSE PROVISIONS REPRESENT SEPARATE ELEMENTS OF RISK ALLOCATION BETWEEN THE PARTIES AND SHALL BE SEPARATELY ENFORCED. COMPANY AGREES THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. NO ACTION, REGARDLESS OF FORM, ARISING UNDER THIS AGREEMENT MAY BE BROUGHT BY COMPNAY MORE THAN ONE (1) YEAR AFTER THE OCCURRENCE OF THE EVENTS WHICH GAVE RISE TO THE CAUSE OF ACTION.
8. Term; Termination. This Agreement is effective until terminated by Company or Interstate. Company or Interstate may terminate this Agreement without cause upon ninety (90) days prior written notice to the other party. Should either party be in default of any of the terms and conditions of this Agreement, then the non-defaulting party shall give the defaulting party written notice of the alleged default and the defaulting party shall have thirty (30) calendar days from receipt of such notice to cure such default. If the defaulting party fails to cure the alleged default within the thirty (30) day period, the non-defaulting party may consider the Agreement to be terminated and shall be entitled to such relief as is available at law or in equity.
9. Effect of Termination. Immediately upon termination, all unsold Consigned Inventory in the possession of Company or its Locations shall be delivered to Interstate or its Distributor (as directed by Interstate). Furthermore, upon termination of this Agreement, all outstanding amounts due from Company to Interstate, whether or not invoiced, shall be immediately due and payable. The obligations of the parties hereunder that have arisen before or arise at or after expiration or termination shall survive the expiration or termination of this Agreement as applicable.
10. Indemnification. Interstate shall defend, indemnify, and hold harmless Company and its officers, directors, and employees, from and against any and all losses, liabilities, damages, injuries, claims, demands, costs and expenses of every kind and nature, including actual legal fees and disbursements (“Claims”), arising out of or related to: (i) any negligent act or omission of Interstate with respect to this Agreement, or (ii) any claim by a third party of personal injury (up to, and including death) or damage to personal property resulting from or arising out of a defect in design, workmanship, or material associated with the Batteries provided under this Agreement. Company agrees to indemnify, defend and hold harmless Interstate and its officers, directors and employees from and against any Claims arising out of or related to: (i) any negligent act or omission of Company, its agents or employees with respect to this Agreement, or (ii) Company’s use of Batteries not in compliance with published specifications thereto or not for their intended purposes. Each party shall promptly notify the other party of any such claims in writing, and shall provide such assistance to the other party as shall be reasonably necessary in conducting such defense.
11. Trademarks and Tradenames. The trade names, trademarks, service marks, logos, and designs of Interstate (the “Interstate Marks”) are the sole and exclusive property of Interstate. Company will not use any of the Interstate Marks without the prior written approval of Interstate, and if granted such approval shall only use the Interstate Marks in accordance with Interstate’s graphics guidelines and other guidelines regarding use provided to Company by Interstate. Nothing herein shall be construed as a license or grant of any right in and to the Interstate Marks by Interstate to Company. Any use of the Interstate Marks shall inure to the benefit of Interstate.
12. Confidentiality. The parties agree that certain information disclosed by each party to the other may be confidential and agree to refrain from disclosing such disclosing party’s Confidential Information to (a) third parties, or (ii) individuals within its own organization who do not have a strict need to know. “Confidential Information” means all information provided by the disclosing party to the receiving party in tangible or intangible form (b) that the disclosing party identifies as confidential or proprietary; or (ii) that reasonably appears to be confidential or proprietary because of legends or other markings, the circumstances of disclosure, or the nature of the information itself. Notwithstanding, the nondisclosure obligations shall not apply to information that: (i) at the time of disclosure was already known to the receiving party free of any obligation to keep it confidential (as evidenced by the receiving party’s written records); (ii) is or becomes publicly known through no wrongful act of the receiving party (such obligations ceasing at the time such Confidential Information becomes publicly known); (iii) is lawfully received from a third party, free of any obligation to keep it confidential; (iv) is independently developed by the receiving party or a third party, as evidenced by the receiving party’s written records, and wherein such development occurred without any direct or indirect use of or access to the Confidential Information received from the disclosing party; or (v) the disclosing party consents in writing to be free of restriction.
13. Force Majeure. Should the performance of either party under this Agreement be delayed as a result of fire, flood, earthquake, pestilence, epidemic, pandemic, or similar catastrophe; war, act of terrorism, civil commotion, strike, labor dispute, embargo, or inability to obtain products from a manufacturer; or any law, proclamation, or order of any governmental agency; act of God or the public enemy; or any other event or cause beyond a party’s reasonable control (a “Force Majeure Event”), such affected party, upon giving prompt written notice to the other party shall be excused from performance for a period of time equal to the duration of such delay; provided, however that the affected party shall use commercially reasonable efforts to promptly avoid or remove or remedy the cause of non-performance and give prompt written notice following their termination of such Force Majeure Event.
14. Assignment. Company shall not assign or attempt to assign any of its rights or obligations hereunder without the prior written consent of Interstate, which consent shall not be unreasonably withheld or delayed. Interstate may assign and transfer this Agreement or any interest or right hereunder or any interest or right in the Batteries and/or grant a security interest in the Batteries, in whole or in part. Subject to the foregoing, this Agreement shall inure to the benefit of, and is binding upon, the heirs, personal representatives, successors and assigns of the parties.
15. Choice of Law. With respect to all suits, actions or other legal proceedings under this Agreement, each of the parties submits to the exclusive jurisdiction of the state courts in Dallas County, Texas or of the federal courts in the Northern District of Texas. Company agrees that such courts are a reasonable venue and waives and agrees not to assert by way of motion, defense or otherwise, any claims that it is not subject to the jurisdiction of such courts, that such suit is brought in an inconvenient forum or that the venue of the suit is improper.
16. Miscellaneous. Interstate and/or its Distributors are and shall always remain an independent contractor in their performance of this Agreement. Neither party to this Agreement, nor any person engaging in any work/services at the request of such party, shall be deemed a partner, employee, or agent of the other party. This Agreement and such other written agreements, documents and instruments as may be executed in connection herewith are the final, entire and complete agreement between Company and Interstate and supersede all prior and contemporaneous negotiations and oral representations and agreements, all of which are merged and integrated into this Agreement. No purchase order or similar document provided by Company to Interstate shall be of any force and effect. Amendments to this Agreement shall be in writing and signed by both parties. If it is found that any provision of this Agreement is invalid or unenforceable, this Agreement shall be considered divisible as to such provision and the remainder of this Agreement shall be valid and binding as if such provision was not included herein. Should any litigation be commenced between the parties to this Agreement, the party prevailing in such litigation shall be entitled, in addition to such other relief as may be granted, to a reasonable sum for attorney's fees. All notices shall be given in writing by the party sending the notice and shall be effective when deposited in the U.S. Mail, addressed to the party receiving the notice at its address shown on the front of this Agreement or the Local Account Consignment Agreement (or to any other address specified by that party in writing) with postage prepaid. The failure of either party to require any performance hereunder shall not affect the right to require such performance at any time thereafter. The waiver by either party of any rights upon a breach of this Agreement shall not constitute a waiver of those rights upon any subsequent breach. The election by either party of a particular remedy shall not be exclusive of any other remedy, and all rights and remedies of the parties shall be cumulative.