This agreement made and entered into by and between O'ROURKE BROS., INC., an Iowa corporation, with offices at 3885 Elmore Avenue Suite 100 Davenport, IA (hereinafter referred to as "O'Rourke"), and NAME PLACEHOLDER
whose address is ADDRESS PLACEHOLDER (hereinafter referred to as "Dealer"); witnesseth that: for and in consideration of the mutual covenants and conditions hereinafter set forth, the parties hereto agree as follows:
When used in this agreement, the term Product shall be defined as those consumer electronics, appliances, goods, materials and accessories sold by O'Rourke and listed on O'Rourke's price list, as the same shall exist from time to time.
II. RESPONSIBILITIES OF THE PARTIES AND PRICES AND PAYMENT TERMS
A. O'Rourke's Responsibilities. O'Rourke hereby agrees:
(1) To sell and deliver Products at such prices as shall be established by O'Rourke from time to time and which are in effect at the time of acceptance by O'Rourke of a purchase order.
(2) To extend such credit, if any, to the Dealer as O'Rourke may, in the exercise of its sole discretion, determine to be appropriate. If credit is extended by O'Rourke, the terms thereof may thereafter be changed
unilaterally by O'Rourke at any time. If, at any time, the Dealer shall be in default with respect to any payment due under any credit arrangement with O'Rourke, then O'Rourke may, without regard to any right or claim for offset under this
agreement by the Dealer, or otherwise and in its sole and absolute discretion, and without prejudice to other remedies, withhold further shipments or deliveries to the Dealer until all past due indebtedness to O'Rourke has been fully paid.
B. Dealer's Responsibilities. The Dealer hereby agrees:
(1) To pursue sales practices to realize the maximum sales potential for the products and to maintain an inventory of Products sufficient, in both quantity and variety, to meet current sales and sales which are reasonably
expected to occur within the immediate thirty (30) day period.
(2) To pay when due all purchases for the sale of the Products in accordance with the payment terms.
C. Prices and Payment Terms. Product prices and terms of payment shall be as follows:
(1) Unless other arrangements for payment have been made in writing by the parties, all payments for Products shall be made by the Dealer C.O.D. as invoiced. Without the express written consent and authorization of
O'Rourke, any deduction for claimed offsets and credits, legitimate or otherwise, against invoices is strictly prohibited. Dealer covenants and agrees that no such unilateral offset or credit will ever be taken or made.
(2) A service charge of the lesser of (a) the maximum permissible rate of interest under applicable laws, or (b) one and one-half (1-1/2%) percent per month shall be assessed on each invoice or part thereof remaining
unpaid thirty (30) days after its due date. Dealer shall be responsible for the payment of all costs and expenses, including attorneys' fees and collection or court costs incurred by O'Rourke in connection with collection of any delinquent invoice.
(3) Dealer grants to O'Rourke a security interest in all products sold hereunder, together with all rebates, credits, discounts and proceeds of all of the foregoing. O'Rourke shall have the right to set off or to cross apply all
funds owing to Dealer by O'Rourke at its discretion. If credit terms are given to the Dealer by O'Rourke, a first position purchase money security interest in the aforementioned products, together with all rebates, credits, discounts and proceeds
thereof. Dealer agrees to obtain, at its own expense, all necessary subordination agreements and other necessary information so that O'Rourke has and maintains a first and paramount lien position in the aforementioned collateral. Dealer agrees
to furnish such credit information as is necessary for O'Rourke, in the exercise of its sole discretion, to make a determination to extend credit to Dealer, including, but not limited to, all lenders from whom subordination agreements and notices must
be provided to perfect said purchase money security interest.
(4) If Dealer is not a sole proprietorship or general partnership, Dealer's indebtedness to O'Rourke shall be personally guaranteed by such person or persons who are principals in Dealer as O'Rourke may, form time to
time, determine and said persons shall sign the personal guarantee set forth on the reverse side hereof.
III. GENERAL CONDITIONS OF DISTRIBUTION OF PRODUCTS
A. Warranty, Disclaimer. EXCEPT FOR ANY EXPRESS WARRANTY CONCERNING PRODUCTS CONTAINED IN THE ORDER TERMS, O'ROURKE MAKES NO REPRESENTATION OR WARRANTY, EXPRESS
OR IMPLIED (INCLUDING IMPLIED WARRANTIES OR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE), CONCERNING ANY PRODUCT OR OTHERWISE CONCERNING THE MATTERS CONTEMPLATED BY THIS
AGREEMENT. DEALER ACKNOWLEDGES THAT THE ELECTRONIC PRODUCTS BUSINESS IS A HIGH RISK BUSINESS AND THAT O'ROURKE SHALL NOT BE RESPONSIBLE FOR DAMAGE WHICH DEALER MAY INCUR FROM
DELAYED SHIPMENTS, PRODUCT DESIGN OR PRODUCTION DEVIATION, OR FROM ANY OTHER CAUSE, WHETHER LIABILITY IS ASSERTED IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCT LIABILITY)
OR OTHERWISE. DEALER ACKNOWLEDGES AND AGREES THAT O'ROURKE'S SOLE RESPONSIBILITY IN THE CASE OF BREACH OF THE FOREGOING WARRANTY SHALL BE FOR O'ROURKE TO COMPLY WITH O'ROURKE'S
POLICY FOR RETURN OF DEFECTIVE PRODUCTS IN EFFECT AT THE TIME OF SUCH BREACH. IN NO EVENT SHALL O'ROURKE BE LIABLE FOR LOSS OF PROFITS, LOSS OF USE, OR INCIDENTAL, CONSEQUENTIAL OR
SPECIAL DAMAGES OF ANY KIND. O'ROURKE SHALL NOT BE RESPONSIBLE FOR INCIDENTAL, CONSEQUENTIAL, CONTRACTUAL OR ANY OTHER LOSS OF PROFIT OR BARGAIN ATTRIBUTABLE TO ITS FAILURE TO SHIP
PRODUCT, ON A TIMELY BASIS OR OTHERWISE. IN NO EVENT SHALL O’ROURKE BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES RELATED IN ANY WAY TO THE PURCHASE OF ANY PRODUCT.
O’ROURKE’S LIABILITY UNDER ANY CLAIM WHERE IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, FOR ANY LOSS OR DAMAGE ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM THIS
AGREEMENT, SHALL IN NO CASE EXCEED THE PRICE OF THE PRODUCTS, OR PARTS THEREOF, TO WHICH ANY SUCH CLAIM RELATES.
IV. TERM AND TERMINATION
A. Term. This agreement for a term of one (1) year but shall automatically renew unless terminated as set forth herein. The term of this agreement will commence upon the date of acceptance hereof by O'Rourke. Notice shall be
effective upon sending. This agreement shall apply to the purchase of any and all products at any time.
B. Termination. This agreement will be terminated on the expiration date hereof and may be terminated as follows:
(1) By either party, with or without cause, upon not less than thirty (30) days' notice in writing by mail, telex, telegraph, cable or personal delivery to the other party.
(2) Notwithstanding any other provision of this agreement, it is expressly agreed by the Dealer that should any amount be due and owing from the Dealer to O'Rourke, and should such amount be past due under
O'Rourke's then current standard payment terms, this entire agreement may be terminated at the discretion of O'Rourke. The obligation of the Dealer for payment of any amounts due and owing, together with the guaranty of any such amounts by
any third-party, will survive the termination hereof.
C. Rights and Obligations Upon Expiration or Termination.
(1) O'Rourke shall not be liable to Dealer for compensation, reimbursement or damages on account of the loss of prospective profits on anticipated sales or on account of expenditures, investments, leases or
commitments in connection with the business or good will of the Dealer by reason of termination, expiration, or non-renewal of this agreement or failure by either of them to enter into a new agreement.
A. Execution and Modification. This agreement contains the entire and only agreement between the parties relating to the subject matter hereof. No change, modification, extension, renewal, ratification, recision, termination,
notice of termination, discharge, abandonment or waiver of this agreement or any of the provisions hereof nor any representation, promise or condition relating to this agreement shall be binding upon either party unless made in writing and signed
by both parties.
B. Legal Relationship; Indemnity. The relationship between O'Rourke and Dealer is that of supplier and purchaser. Dealer is an independent contractor and is not the legal representative, agent, joint venturer, partner, or employee
of O'Rourke or any purpose whatsoever and has no right or authority to assure or create any obligation of any kind or to make any representation or warranty, whether express or implied, on behalf of O'Rourke, or to bind O'Rourke in any respect
whatsoever. Dealer shall indemnify and hold O'Rourke harmless from any claims, injuries, demands, liabilities, losses, damages, judgments or settlements, including all reasonable costs and expenses related thereto such as attorneys' fees, as a
result, whether direct or indirect, of any asserted obligation of O'Rourke arising form any act, omission, obligation of or by Dealer or Dealer's agents, employees or contractors.
C. Controlling Law; Consent to Jurisdiction. This agreement and any sales of goods pursuant hereto shall be governed by and construed in accordance with the laws of the State of Iowa. The parties agree that the sole and
exclusive jurisdiction and venue of any action arising out of or related in any way to this agreement and/or the sale of any products to dealer shall be in Scott County, Iowa, and each of the parties submits itself to the sole and exclusive jurisdiction
and venue of such courts for purpose of such action.