This DEALER Agreement (“Agreement”) is entered into by and between BMEBIKES, located at 18247 Parthenia Street, Northridge, CA 91325, and “YOUR COMPANY” each of whom agrees to be bound by and comply with all terms and conditions contained in the Agreement.
Subject to the terms of this agreement, BMEBIKES hereby appoints “YOUR COMPANY” and hereby accepts such appointment, as a DEALER in connection with the sale of the products from retail store locations that are approved in writing by BMEBIKES. This appointment is exclusive to the area agreed between BMEBIKES and “YOUR COMPANY” and there are no other dealers who can sell the C3STROM ebikes from store locations in the same geographic area as yours.
a. Ordering. “YOUR COMPANY”may order products from BMEBIKES electronically through direct invoicing by BMEBIKES.
b. Pricing and Orders. “YOUR COMPANY” agrees that BMEBIKES may change product offerings, designs, material specifications, discounts, and pricing at any time. Prices do not include standard freight and insurance.
BMEBIKES does not guarantee that products will be available at all times during the term of this agreement.
BMEBIKES reserves the right to accept or decline any order, in whole or in part. BMEBIKES may cancel all or any part of an accepted order prior to shipment, if in its sole discretion, C3STROM determines that it has insufficient inventory to fulfill such order. Resale prices for the C3STROM ebikes are fixed for all participating dealers in Southern California, and any changes to the resale price for the C3STROM ebikes must be communicated to BMEBIKES before the sale of the product.
See C3STROM /BMEBIKES’ Minimum Advertised Price Policy set forth in Section 15 below.
c. Delivery. Title and risk of loss to all products will pass to you upon delivery by BMEBIKES at the delivery destination designated by “YOUR COMPANY” in its order.
d. Payment. “YOUR COMPANY”shall pay for the products at the time the order for such products is placed.
e. Product Returns. Products purchased are non-returnable unless defective or dead on arrival.
f. Support. BMEBIKES will provide post-sales support for the Products as described in the documentation accompanying such Products. BMEBIKES reserves the right to provide or to not provide support for any Products that have been modified.
g. This agreement is effective when it is signed electronically and expires when “Your Company” ceases to sell C3STROM products and notifies BMEBIKES just in writing. BMEBIKES does not need to repeat the agreement with Your Company if there are no changes in the contract terms.
a. “YOUR COMPANY”must follow established warranty programs and notification procedures supplied by C3STROM from time to time (the “Limited Warranty”). The supplier reserves the right to modify or change the limited warranty as conditions warrant in its sole discretion. EXCEPT AS EXPRESSLY STATED IN THE LIMITED WARRANTY, C3STROM PROVIDES NO OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
b. Asdealer’s sole and exclusive remedy for a breach of the above warranty and at BMEBIKES’ sole discretion, BMEBIKES will either replace or repair a product that does not conform to an applicable C3STROM warranty; provided, however, that BMEBIKES shall not be responsible to replace or repair a Product which has been improperly installed, damaged, repaired or altered by “YOUR COMPANY”, its representatives or its customer.
c. In no event shall BMEBIKE’s liability to you exceed the sales price of all products sold to the Distributor during the term of this Agreement. In no event shall BMEBIKE be liable to the Distributor for any indirect, special, incidental, consequential, punitive or exemplary damages, or any damages resulting from loss of profits, loss of goodwill or loss of investment.
4. Obligations of BMEBIKES and C3STROM
a. BMEBIKES and C3STROM may provide DEALER with tangible or web-based customer brochures and point of sale materials.
b. BMEBIKES and C3STROM shall designate “YOUR COMPANY”as an “Authorized Dealer” and your store as an “Authorized C3STROM Bike Store”.
c. BMEBIKES shall sell the products only to authorized dealers who agree to uphold the C3STROMRetailing Standards as set forth in Section 5 of this Agreement and as otherwise required by BMEBIKES.
d. BMEBIKES shall provide “YOUR COMPANY” with the Products in accordance with this Agreement, the applicable terms and conditions of sale as stated in the electronic or paper invoice, sales acknowledgement and other applicable BMEBIKES sales documents in effect at the time of sale.
e. C3STROM shall provide a warranty for the Products as set forth in Section 3 above.
5. BMEBIKES Retailing Standards
a. The locations where the Products are sold and any changes to such locations must be pre-approved in writing by BMEBIKES (the “DEALER Locations”). “YOUR COMPANY” shall maintain your Locations, display such signs, engage in such advertising and generally carry on its business so as to maintain an image that reflects the high quality of the Products and encourages the sale of the Products.
b. “YOUR COMPANY” shall sell all Products fully and properly assembled in accordance with all warnings and assembly instructions applicable to the Products and their components, and shall provide the Limited Warranty to each customer who purchases a Product, shall call such customers’ attention to all applicable warnings, and shall explain fully and in person the intended use of the Products and their components.
c. “YOUR COMPANY” shall provide adjustment and other services pertaining to the proper maintenance.
d. BMEBIKES shall act as an authorized C3STROM Service Center and shall perform all service and warranty for the proper maintenance of the Product, shall repair, replace or adjust the Product in accordance with appropriate Product warranties, as such warranties may change from time to time, and with all warnings and assembly instructions applicable to the Product and their components. “YOUR COMPANY” agrees that any warranty offered by you in addition to or different from BMEBIKES warranty shall not be binding on BMEBIKES and shall clearly and conspicuously state that such warranty is your warranty only.
e. “YOUR COMPANY” shall at all times abide by all terms and conditions of sale in effect at time of purchase of Products by you from BMEBIKES.
f. “YOUR COMPANY” shall sell the Products solely from your Location described above and solely to ultimate retail consumers but, not to resellers, wholesalers or others whose intent or practice is to resell bikes.
g. “YOUR COMPANY” may not use the word “C3STROM” in its business name but, may while this Agreement is in effect, indicate that it is an “Authorized C3STROM Dealer” and that its DEALER Location is an “Authorized C3STROM Dealer”.
h. “YOUR COMPANY” shall keep all C3STROM trade secret, proprietary and confidential information (the “Confidential Information”), including, but not limited to, financial information and data, personnel information, and costs or pricing data, in the strictest confidence. “YOUR COMPANY” shall use the Confidential Information only for the performance of this Agreement.
i. “YOUR COMPANY” shall pay all sales, use, service use, personal property, and excise taxes and any other fees, assessments, or taxes which may be assessed or levied by any national, state, or local government and any departments and subdivisions thereof, as a result of the performance of this Agreement or against any of the Products ordered by you.
6. Material Default
Failure of “YOUR COMPANY” to fully comply with and meet each of its obligations and agreements set forth BMEBIKES shall constitute a material default by you under this Agreement and entitle BMEBIKES to terminate this Agreement.
BMEBIKES may terminate this Agreement by written notice to “YOUR COMPANY” in the event of the bankruptcy or receivership or the breach by you of Sections 5 (f), (g), and (h) above. BMEBIKES may terminate this Agreement in the event of a material default as defined in Section 6 of this Agreement upon seven (7) days advance written notice to you. Either BMEBIKES or “YOUR COMPANY” may terminate this Agreement upon thirty (30) days advance written notice to the other party.
Immediately upon expiration or termination of this Agreement, “YOUR COMPANY” shall cease and forever abstain from holding itself out to the public as an Authorized C3STROM Dealer and as an Authorized C3STROM Bike Store, and from thereafter using any consumer brochures, point of sale materials and displays, signs, printed materials, advertising and the like which bears the C3STROM name or trademark. Immediately upon termination for any reason, “YOUR COMPANY” shall cease using any trademarks, trade names, service marks and logos of BMEBIKES and C3STROM or its third-party licensors. Within ten (10) days of termination for any reason, “YOUR COMPANY” shall (i) pay to BMEBIKES all debts owed by you to BMEBIKES; (ii) return all unpaid products to BMEBIKES; and (iii) return all sales, marketing and servicing materials with respect to the Products to BMEBIKES. Nothing herein shall preclude you from selling its remaining inventories of the Product except that BMEBIKES, at its option, may repurchase any or all of the Products owned by “YOUR COMPANY”.
“YOUR COMPANY” shall indemnify and hold BMEBIKES, its officers, directors, employees, agents, successors and assigns harmless from and against any and all costs, losses, judgments, fines, damages and expenses of whatever form or nature, including costs of legal defense, as incurred, whether direct or indirect, as incurred, that they, or any of them, may sustain or incur as a result of any breach of, or failure to perform, any obligation of “YOUR COMPANY” under this Agreement or any personal injury or property loss or damage occurring at your Locations.
9. Complete Agreement
There are no other agreements or understandings (other than C3STROM warranty, the minimum advertised price policy and terms and conditions of sale in effect as described herein) either oral or in writing, affecting this Agreement. This Agreement cancels and supersedes all previous agreements between the parties relating to the subject matter covered herein. No amendment changes or variances from this Agreement shall be binding on either party unless executed in writing by both parties.
The sections of this Agreement are severable, and in the event any section or portion of the Agreement is declared illegal or unenforceable, the remainder of the Agreement shall continue to be effective and binding on the parties. No waiver of any breach of any covenants, agreements or provisions herein contained shall be construed as a waiver of any subsequent breach of the same or any other covenant or provision.
This Agreement shall inure to the benefit of and shall be binding upon the parties hereto, their respective legal representatives, successors and permitted assigns. Neither party may assign this Agreement or any of its rights hereunder to any third person without the prior written consent of the other party, and any purported assignment without such consent shall be null and void.
12. Independent Contractors
The parties to this Agreement are independent contractors and nothing in this Agreement shall be deemed or constructed as creating a joint venture, partnership, agency relationship, franchise or business opportunity between BMEBIKES and “YOUR COMPANY”. Neither party, by virtue of this Agreement, will have any right, power, or authority to act or create an obligation, express or implied, on behalf of the other party.
Any notice or other communication permitted or required to be given between the parties hereto shall be made in writing and shall be deemed to have been duly given to a party when delivered in person or sent by courier service to such party at the relevant address set forth above. Any party may change its address for the purpose of receiving notices by giving notice in accordance with the provisions of this Section 14.
Sections 3, 7, 8, 12 and 15, and any other provisions of this Agreement which are intended (explicitly or otherwise) to survive termination or expiration, shall survive any such expiration or termination for any reason.
15. Minimum Advertised Price Policy
BMEBIKES has established a unilateral policy (the “Policy”) regarding the minimum advertised price (“MAP”) of its products in United States. BMEBIKES believes that this Policy is necessary to ensure the preservation of the superior image of our brand and the value of our products, and to ensure that retailers provide effective marketing and sales support for all C3STROM products. This Policy has been unilaterally adopted by BMEBIKES and will be unilaterally enforced. BMEBIKES is not requesting, or otherwise seeking, any agreement or acknowledgment regarding this Policy from any retailer.
All authorized resellers of the Products are required to adhere to the Policy as a condition of selling the Products. Specifically, “YOUR COMPANY” must adhere to the following guidelines, which BMEBIKES and C3STROM are implementing unilaterally, and which are not subject to negotiation.
a. The minimum advertised price for each Product has been provided to “YOUR COMPANY”. “YOUR COMPANY” is responsible for keeping its advertisements current as the price may change from time to time, at BMEBIKES sole discretion. BMEBIKES will notify you of any change in the minimum advertised price.
b. The Policy applies to all off-site advertisements (by retail distributors or their affiliates) in all media, including without limitation: print ads (inserts, magazines, newspapers, catalogs, mail order catalogs, brochures, flyers, and the like), broadcast (radio and TV), direct mail pieces, internet and other electronic ads (whether in social media, on third party sites, on auction sites, or on the your own site), text messaging, search engine advertising, posters, billboards or other out-of-store signage.
c. Including discounts, giveaways, incentives, rebates, or coupons in your advertising to bring the price below the minimum advertised price is a violation of this Policy.
d. “YOUR COMPANY” may advertise free shipping and/or handling and you may offer free financing, without violating the Policy.
e. If “YOUR COMPANY” wishes to advertise a Product bundled with free or discounted items, please contact BMEBIKES for permission in advance, or you may be in violation of the Policy if the bundle effectively discounts the price below the minimum advertised price.
f. BMEBIKES may choose to conduct a sale or other special offering on one or more items from time to time, in which case it will notify “YOUR COMPANY” in advance that the minimum advertised price has been suspended and will provide you with other relevant details.
g. No BMEBIKES employee or sales representative is authorized to grant exceptions to this Policy. Exceptions may be approved for certain products for limited times at the sole discretion of BMEBIKES and must be in writing signed by an authorized representative from BMEBIKES’ Legal Department. A violation of the terms of such a writing will constitute a violation of this Policy.
h. Should a retailer fail to comply with this Policy, BMEBIKES may, at its sole discretion, issue a warning letter. Repeated violations may lead to BMEBIKES’ refusal to accept further orders from “YOUR COMPANY” for a period of time or permanently, as this Policy is in place to ensure the continued good reputation of C3STROM and to encourage positive consumer experiences in purchasing our products.
If “YOUR COMPANY” has more than one location, enforcement actions will apply to all locations even if the violation occurred at fewer than all.
BMEBIKES is providing a copy of this Policy to all of its retailers. By agreeing below, “YOUR COMPANY” acknowledges that it has received and read the Policy. BMEBIKES encourages you to contact us with any questions “YOUR COMPANY” has about the Policy and how to comply with its requirements.
Thank you for your cooperation in ensuring that C3STROM delivers a superior shopping experience to its customers.
Compliance with this Policy is entirely within the control of each retailer. This Policy is non-negotiable, and no modifications will be made for any retailer. BMEBIKES cannot and will not discuss this Policy outside of providing the terms of the Policy and examples of compliant and noncompliant advertising.
In general, BMEBIKES gathers input and feedback from retailers about policies and practices. If you have comments or concerns about this Policy, you may submit those by email to firstname.lastname@example.org. BMEBIKES will not respond to any comments from one retailer about the activities of any other retailer.
BY SIGNING THIS AGREEMENT, “YOUR COMPANY” CERTIFIES THAT IT HAS READ, UNDERSTANDS, AND AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT, AND THIS SELECTION SHALL CONSTITUTE A SIGNATURE AUTHENTICATING ITS ACCEPTANCE OF THIS WRITING. C3STROM and BMEBIKES MAY CHANGE THESE TERMS, CONDITIONS AND NOTICES FROM TIME TO TIME.