Whirlpool Wholesale - Tubs & Appliances | B-Stock Liquidation Auctions

WHIRLPOOL CORPORATION

2015 2nd CHANNEL SALES AGREEMENT

 

 

  1. Appointment/Term.  Whirlpool Corporation (“Whirlpool”) appoints ____________________________________ __________________________________________("Dealer") as a Whirlpool 2ND Channel Dealer on and subject to the terms of this Agreement.  The term of this Agreement will begin as of January 1, 2015, or the date on which Whirlpool accepts this Agreement, whichever is later, and will end on December 31, 2015, unless it is terminated early as provided for in this Agreement.

 

2.   Definitions. In this Agreement:

 

a)   “2nd Channel Sales” means the Whirlpool department responsible for selling Class B, Class C, Class D and Refurbished Appliances.

 

      b)   “Class A” means new in carton, undamaged Appliances that have not been previously sold.

 

c)   “Damage Class B: Minor Dented and Scratched Appliance” means an Appliance manufactured by Whirlpool that is designated by Whirlpool as Class B Appliances” pursuant to Whirlpool’s product classification guidelines that are specified in attached Exhibit B (“Guidelines”).These Appliances may require repair.

 

d)   “Damage Class C: Damaged Appliance Requiring Repair” means an Appliance manufactured by Whirlpool that is designated by Whirlpool as “Damage Class C” pursuant to the Guidelines.

 

e)   “Damage Class D Scrap: Not For Consumer Sale” means an Appliance manufactured by Whirlpool that is designated by Whirlpool as “Damage Class D Scrap: Not For Consumer Sale” pursuant to the Guidelines.

 

f)    “Price List” means the most current version of the Whirlpool 2nd Channel Price List applicable to Appliances, as contained on attached Exhibit A, as revised or updated by Whirlpool. Prices on the Price List represent the starting price for each Appliance at the auction.  The price for a Premium Refurbished Appliance is 5% above the price of the same Class B Appliance model number.  The price for a Standard Refurbished Appliance is the same as the price of the same Class B Appliance model number. The price for a Class C Product is 30% of the MSRP of the same Class B Appliance model number. The price for a Class D Appliance is $30 per unit.  Upon written notice, Whirlpool in its sole discretion shall have the right to change the price of any Appliances or class of Appliances. Appliances will be sold only through Whirlpool’s third party auction website B-Stock Solutions (“B-Stock”). Each auction will be open only to authorized Whirlpool dealers. Prices on the Price List represent the starting price for each Appliance at the auction.  Appliances will not be sold at prices below the Price List, but may sell at or above the Price List depending on the number of bids for an Appliance. Whirlpool is not responsible for the functionality or content of B-Stock.

 

g) “Standards” means Whirlpool’s published Minimum Standards for Inspecting, Functional Testing, Reconditioning and Recycling of Class B and Class C Appliances, attached as Exhibit C, as revised or updated by Whirlpool.

 

h)   “Loadsheet” means the listing of model numbers, descriptions of the Appliances, quantities and unit prices of all Class B, Class C, Class D or Refurbished on pre-built truckloads of Class B, Class C, Class D or Refurbished Appliances. Pre-built truckloads of Class B, Class C, Class D and Refurbished Appliances contain an average of 65 major Appliances.

 

i)      “Reclassification” means a request by a Dealer to change the classification of a Class B or Class C Appliance based on the results of the Dealer’s inspection of an appliance.

 

j)     “Refurbished” means an Appliance manufactured by Whirlpool that has been used and/or damaged but repaired to manufacturer’s original specifications.  Refurbished appliances may not be available in all regions of the United States.

 

3.    Authorized Customers/Locations.  Dealer is ONLY authorized to sell Products to END USE retail customers for use in the United States from:


a)    Dealer’s retail store(s) located at:
    ____________________________________________________________________________________
    ____________________________________________________________________________________
    ____________________________________________________________________________________
   
     (a list of additional retail stores may be attached if extra space is needed) (“Store Locations”).

 

b)   Dealer’s sales shall be limited to END USE retail customers located within the geographic area in which Dealer can  provide, in Whirlpool’s sole judgment, comprehensive customer support and service (including but not limited to in-store display, product delivery, and warranty service) from its Store Location(s).  Dealer may not complete transactions through any website including but not limited to any third party on-line marketplace or auction site.

 

c)    Notwithstanding anything to the contrary in this Agreement, Whirlpool reserves the right to further limit in its sole discretion Dealer’s authorized customers, locations, geographic area, means of product display and/or advertising, and use of the internet to advertise any and all Products.    

 

This Agreement does NOT authorize Dealer to ship or sell Products to other dealers or to any parties other than the class of customers authorized by this Agreement, or to sell the Products through any store locations other than those authorized by this Agreement.

 

 

4.   Dealer’s Purchase of Appliances.  Whirlpool Distribution Centers assemble pre-built truckloads of Class B, Class C, Class D Appliances and Refurbished Appliances each week. Loadsheets listing the model numbers, descriptions of the Appliances, quantities and unit prices of Appliances are prepared for each load. Dealer will have the opportunity to purchase from Whirlpool, through the B-Stock auction site, quantities of Class B, Class C, Class D Appliances or Refurbished Appliances, as determined in Whirlpool's sole discretion.  Dealer's purchases of Class B, Class C, Class D or Refurbished Appliances shall be comprised of models, brands and classifications of Appliances that are purchased through B-Stock and shipped to Dealer, in Whirlpool's sole discretion. Whirlpool shall notify Dealer through B-Stock of the mix of models available for purchase in the Whirlpool facility from which shipment is to originate.  Dealer shall contact Whirlpool within 48 hours after such notice to schedule delivery within five (5) working days.  Dealer's failure to comply with the foregoing procedures and deadlines for scheduling delivery and/or taking delivery of Class B, Class C, Class D or Refurbished Appliances may result in cancellation of any orders placed by Dealer.  All orders placed by Dealer must be through B-Stock and are subject to the provisions of Paragraph 7, and Whirlpool does not guarantee the availability any minimum quantity of Class B, Class C, Class D or Refurbished Appliances.

 

5.   Resale of Class B, Class C and Refurbished Appliances. Class D Appliances may not be resold. Dealer’s obligations and agreement with respect to resale of Distressed Appliances are as follows:

 

a)   Dealer shall inspect all Class B, Class C, and Refurbished Appliances upon arrival at Dealer’s facility to confirm that the Appliances are properly classified consistent with Whirlpool’s Guidelines and that the Appliances bear appropriate disclosure labels by product class as specified in Exhibit D. Class B and Class C Appliances that pass Dealer’s inspection after functional testing and repair shall be eligible for resale by Dealer as provided in this Agreement.  Each inspection shall conform to the Standards outlined in Exhibit C.

 

b)   Dealer shall determine whether to repair or recondition each salable Class B and Class C Appliance before resale, in Dealer’s sole discretion. Repairs of a Class B and Class C Appliance must be performed with repair parts that meet all of Whirlpool’s specifications and that are appropriate for the repair application on the Appliance.

 

c)   Dealer shall affix a conspicuous and clear label on the exterior of each Class B, Class C or Refurbished Appliance to be resold by Dealer setting forth Dealer’s warranty, if any.

 

d)   Dealer shall not remove or obscure any model/serial tag or disclosure label provided by Whirlpool on a Class B, Class C or Refurbished Appliance.  The format of appropriate disclosure labels by product class is set forth on Exhibit D.

 

e)   Dealer shall provide conspicuous and effective notices and disclosures to customers that Damage Class C Appliances are sold “AS - IS” and “WITH ALL FAULTS”. Under no circumstances shall Dealer represent that a Damage Class C Appliance is warranted by Whirlpool.

 

f)    Dealer is only authorized to sell salable Class B, Class C and Refurbished Appliances to end user consumers in the United States.  This Agreement does not authorize Dealer to ship or sell Class B, Class C or Refurbished Appliances to other dealers, distributors or other resellers.

 

g)   Dealer shall sell Class B, Class C, or Refurbished Appliances only from Dealer’s authorized physical locations and not from any Internet site. Unless expressly permitted by Whirlpool Corporation, Dealer is prohibited from directly or indirectly selling or shipping any Class B, Class C, Refurbished or Class D Appliance outside the United States.

 

h)   Unless expressly permitted in writing by Whirlpool Corporation, Dealer shall not include any Whirlpool trademark, trade name or other Whirlpool Marks (as defined in Paragraph 22) in any advertisement for Class B, Class C or Refurbished Appliances in which prices appear for Class B, Class C or Refurbished Appliances.  In addition, Dealer may not include any Whirlpool model numbers, Whirlpool manufacturer’s suggested retail prices (MSRPs) or discounts from MSRPs in any advertisement for Class B, Class C or Refurbished Appliances.

 

i)    Dealer shall keep Whirlpool’s Use and Care Guides and Installation Instructions packaged with each salable Class B, Class C and Refurbished Appliance. Dealer shall instruct customers in the proper use and installation of Class B, Class C and Refurbished Appliances.

 

j)    Dealer acknowledges that Whirlpool will not provide any advertising or promotional funds with respect to Class B, Class C or Refurbished Appliances.

 

k)   The prices at which Dealer offers Class B, Class C or Refurbished Appliances for sale are to be determined by Dealer in Dealer’s sole discretion. Any agreement or understanding to the contrary is unauthorized and in conflict with Whirlpool’s policies. Dealer should notify Whirlpool in writing, by sending notice to Whirlpool Corporate Headquarters, attention General Counsel, of any attempt by a Whirlpool employee to inhibit Dealer’s resale pricing discretion.

 

6.   Class D Appliances.

 

a)     Dealer shall not sell to consumers any Appliance designated as “Class D Scrap: Not For Consumer Sale” or any Appliance that Dealer determines is not salable or that do not pass Dealer’s inspection in accordance with Whirlpool’s Standards.  Products that may not be resold to consumers shall be recycled or disposed of in accordance with Whirlpool’s Standards and all applicable laws outlined in Exhibit C.

 

b)     Dealer shall not remove or obscure any model/serial tag or disclosure label provided by Whirlpool on a Class D Appliance.  The format of appropriate disclosure labels by product class is set forth on Exhibit D.

 

c)     Dealer is prohibited from directly or indirectly selling or shipping any Class D Appliance outside the United States.

 

d)     The prices at which Dealer offers Class D Appliances for sale as scrap (not to consumers) are to be determined by Dealer in Dealer’s sole discretion. Any agreement or understanding to the contrary is unauthorized and in conflict with Whirlpool’s policies. Dealer should notify Whirlpool in writing, by sending notice to Whirlpool Corporate Headquarters, attention General Counsel, of any attempt by a Whirlpool employee to inhibit Dealer’s resale pricing discretion.

 

 

  1. Use of Parts from Class B, Class C, Class D Appliances and Refurbished Appliances.

 

a)     Under no circumstances may any part be salvaged from a Class B, Class C, Class D or Refurbished Appliance to be used in conjunction with the service or repair of a Class A Appliance.

 

b)     Under no circumstances may any part be salvaged from a Class B, Class C, Class D or Refurbished Appliance be resold or exported or be used in conjunction with a warranty repair.

 

c)     Non-functional parts may be salvaged from Class B, Class C, Class D or Refurbished Appliances and used to make repairs on Class B Appliances with the same model number, before the Class B Appliance is sold to a consumer.  Non-Functional Parts are those parts that are not critical to the performance of the product’s essential function, a part that, if missing or broken, does not result in the product being non-operational.  Examples include, but are not limited to, component parts such as:  shelves, drawers, racks, knobs, handles grates, caps and cosmetic parts. 

 

d)     Functional and Non-Functional Parts may be salvaged from Class C or Class D Appliances and used to make repairs on Class C Appliances with the same model number, before the Class C Appliance is sold to a consumer.  Functional Parts are only those component parts that are critical to the performance of the Appliance’s essential function, a component that, if missing or broken, renders the Appliance non-operational.  Examples include, but are not limited to, component parts such as: motors, timers, switches, valves, bearings, electrical wiring, compressors, sealed systems, refrigerant, thermostats, and heating elements.

 

  1. Prices, Terms of Sale and Order.  Appliances will be sold only through Whirlpool’s third party auction website B-Stock. Each auction will be open only to authorized Whirlpool dealers. Prices on the Price List represent the starting price for each Appliance at the auction.  Appliances will not be sold at prices below the Price List, but may sell at or above the Price List depending on the number of bids for an Appliance. Whirlpool is not responsible for the functionality or content of B-Stock. Whirlpool will sell Class B, Class C, Class D and Refurbished Appliances to Dealer based on the sales terms and shipping terms that are set forth on the 2nd Channel Price List and Whirlpool’s published 2nd Channel Terms and Conditions, as established and modified by Whirlpool from time to time.  Whirlpool may change Class B, Class C, Class D and Refurbished Appliance Price List prices and shipping terms of sale at any time without written notice to Dealer. Any pricing change on the Price List shall not apply to Class B, Class C, Class D or Refurbished Appliances that Dealer has already purchased through B-Stock or that have already been shipped or delivered.

 

  1. Credit Terms.  Whirlpool may change, suspend or revoke credit terms at any time.  All amounts outstanding must be paid when due under the terms of the invoice or separate written contract signed by Whirlpool.  Any amount not received by the due date may bear interest at the maximum rate allowed by law and may be subject to fees and/or penalties established by Whirlpool (i.e. fee for checks returned for insufficient funds, workout fee, reasonable attorney fees and legal expenses).  Whirlpool has the right to accelerate all balances outstanding on every invoice to Dealer if any amount is not received by the due date.

 

  1. Taxes.  Dealer shall pay any tariffs and taxes imposed on the sale of, or otherwise with respect to, the Appliances purchased by Dealer through B-Stock.  

 

11.  Invoices.  Any claim for adjustment of any invoice or off-invoice payment or credit shall be waived if Dealer fails to present it in writing to Whirlpool within thirty (30) days after the invoice date or thirty (30) days after the date on which the off-invoice payment or credit allegedly occurred, whichever is earlier.  No claim, credit or offset may be deducted from any invoice.  Whirlpool shall have the right to set off any monies owed to Whirlpool by Dealer against any monies due Dealer from Whirlpool under any contracts between the parties or any trade customer programs offered by Whirlpool.

 

12.  Request for Reclassification. Notwithstanding any adjustment period provided for above, each claim for product reclassification must be submitted to Whirlpool via the Reclassification Claim Form attached as Exhibit E within fifteen (15) business days after the appliance is delivered to Dealer.  Photos clearly showing the damage that substantiates the reclassification claim must be provided by the Dealer in support of the reclassification claim. Digital photos attached to the electronic reclassification claim are preferred. After this time period, no such adjustment will be authorized.  No claim, credit or offset may be deducted from any invoice. Whirlpool may set off any monies owed to Whirlpool by Dealer against any monies owed to Dealer by Whirlpool.

 

13. Acceptance and Processing of Orders.  Each order received by Whirlpool is subject to acceptance in Whirlpool’s sole and absolute discretion. Once accepted, Whirlpool will attempt to fill Dealer’s order from the Loadsheet selected by the Dealer depending on available inventory and acceptable credit and subject to causes beyond Whirlpool’s reasonable control. Whirlpool may, in its sole discretion, reject any orders, prioritize shipments of orders, and/or allocate Class B, Class C, Class D or Refurbished Appliances among orders.  Whirlpool will not be liable for delay in or failure to fill any order.  All sales are final. In no event shall Whirlpool be required to repurchase, retake possession or accept return of any Class B, Class C, Class D or Refurbished Appliance from Dealer.

 

14.  Audits. Dealer shall maintain thorough and complete records of all business conducted with Whirlpool. Whirlpool shall have the right during normal business hours to audit the books, records, accounts, ledgers and all other documents relating to the business that Dealer conducts with Whirlpool. The individuals conducting the audit will use reasonable efforts to minimize the disturbance they cause to the normal activities and the ordinary course of business of Dealer.

 

15.  Excused Performance. Except for Dealer’s payment obligations, neither Whirlpool nor Dealer shall be liable for loss, damage or delay resulting from its failure to perform any obligation, if the failure to perform results from (a) a transportation shortage or inadequate supplies of equipment, materials or energy; (b) compliance with any law, ruling, order, regulation, requirement, policy, decree or instruction of any governmental department or agency; (c) act of God; (d) act or omission of the other party; (e) fire, strike, embargo, war or riot; or (f) any other event or cause beyond its reasonable control.

 

16.  Insurance. Dealer shall obtain and maintain at its expense, the following insurance:

 

a)  Workers Compensation and Employer’s Liability Insurance, as prescribed by applicable law. Such insurance shall contain a waiver of the right of subrogation against Whirlpool.

 

b)  Commercial General Liability Insurance (occurrence-based) with a minimum limit of $5,000,000 per occurrence, including Products and Completed Operations Contractual Liability coverages, and a broad form Vendor’s Endorsement, and shall name Whirlpool as an additional insured using Endorsement CG 20 10.

 

c)  Automobile Liability Insurance, covering all owned, non-owned, hired and leased vehicles, with limits of no less than $2,000,000 per occurrence, that includes pollution liability coverage for sudden and accidental losses including losses arising out of collision or overturn.

 

d)  Should Dealer purchase Class D Products it must have Pollution Legal Liability Insurance, with a minimum limit of $5,000,000 per occurrence, covering sudden and non-sudden pollution conditions arising from Dealer’s or subcontractor’s premises; and transportation from Whirlpool; and transportation to any shredder, recycler or landfill, and must remain in effect for the period extending five (5) years after the expiration of this Agreement. Dealer shall name Whirlpool as an additional insured under this policy.

 

e)  All such insurance policies shall be written by a reputable insurance company rated at least A- or better by Best’s Insurance Guide and shall be primary to and not in excess of any other insurance available to Whirlpool. All such insurance shall include a requirement that the insurer provide Whirlpool with thirty (30) days written notice before the effective date of any cancellation or material change of the insurance. Dealer shall have its insurance carrier provide Whirlpool with a certificate of insurance and a copy of the Vendor’s Endorsement documenting existence of the coverage specified in this Section and shall make copies of such policies available upon request.

 

17.  Violation of Agreement.  Dealer’s violation of any term of this Agreement is grounds for Whirlpool to: (i) withhold payment for promotional programs including but not limited to volume incentive rebates; (ii) suspend sales of any or all products to Dealer; or (iii) terminate this Agreement.  All decisions regarding violations will be made independently by Whirlpool, in its sole discretion.

 

18.  Termination. This Agreement or any portion of it may be terminated in any of the following ways:

 

a)     Either party may terminate this Agreement, for any reason or no reason, by giving at least thirty (30) days prior written notice.

 

b)   Whirlpool may terminate this Agreement immediately upon written notice to Dealer in any of the following events:

 

1)   Dealer or its agent or employee makes a derogatory, misleading or deceptive statement, printed or oral, relating to Whirlpool Corporation and/or Whirlpool products;

2)   Dealer attempts to assign or delegate any portion of this Agreement without the prior written consent of Whirlpool;

3)   Dealer sells its business, makes an assignment or transfer of business assets or a change in majority control of Dealer’s business occurs;

4)   Dealer ceases to function as a going concern or ceases to conduct its operations as a retail dealer continuously and actively;

5)   Dealer becomes insolvent or subject to a petition in bankruptcy filed by or against it or is placed under control of a receiver, liquidator or committee of creditors;

6)   Dealer submits a false or fraudulent report or other statement to Whirlpool;

7)   Dealer sells a Class B, Class C or Refurbished Appliance to a buyer other than a consumer in the

      United States, or sells a Class D appliance to any consumer;

8)   Dealer fails to pay or perform any obligation when due; or

9)   Dealer or any of its owners or principal management personnel commits a felony or engages in any unethical, immoral or otherwise improper conduct that, in Whirlpool’s opinion, may impair Dealer’s ability to effectively market and sell the Products.

10)  Dealer sells, exports or uses a part for warranty service from a Class B, Class C, Class D or Refurbished Appliance.

 

c)   This Agreement and Dealer’s status as a Whirlpool Dealer may be terminated in the manner described in this Agreement whether or not Dealer shall have recovered or recouped any investment or other expenditure made to sell Appliances.

 

19.  Post Termination/Expiration Provisions.  After termination or expiration of this Agreement, the following provisions apply:

 

a)     Whirlpool shall have the option (but not the obligation) in its sole discretion to repurchase all or any part of the Class B, C, D and Refurbished Appliances in Dealer's inventory.  The repurchase price shall equal the price on the Price List in effect at the time of the sale plus freight, if applicable.

                                                                                                                                

b)    Either party may immediately cancel all pending orders.

 

c)     Dealer must immediately remove any signs, insignia or internet materials that identify or otherwise suggest that Dealer is authorized to sell Class B, Class C or Refurbished Appliances or other Whirlpool products, and Dealer shall not represent itself as authorized by Whirlpool to sell Whirlpool products.

 

d)    Dealer shall promptly pay all amounts owing Whirlpool, including any such amounts that might otherwise have become due at a future date because of deferred payment or credit agreements.

 

e)     Dealer shall immediately cease using the Whirlpool Marks, as defined below.

 

f)     Whirlpool shall not be obligated to pay Dealer compensation of any kind, whether for claimed loss of goodwill, sales or profits or for recoupment of any investment, expenditures or commitments made by Dealer to sell Class B, C or Refurbished Appliances.

 

  1. Indemnification. Dealer shall defend, indemnify and hold Whirlpool and its directors, officers, employees, agents and assignees harmless from and against any and all claims, allegations, demands, actions, lawsuits, judgments, decrees, losses, damages, liabilities, costs and expenses, including reasonable settlement payments and attorney fees, arising out of any actual or alleged death or injury to any person or loss or damage to property resulting or claimed to have resulted from (1) any act or omission or Dealer, Dealer’s customers or their representatives, employees or agents relating to any Class B, Class C, Class D and Refurbished Appliances purchased or otherwise acquired from Whirlpool, including without limitation, negligent or improper installation, transportation, storage, inspection, marketing, labeling, servicing, repair, modification, alteration, remanufacture or reconditioning or misuse; (2) the failure of printed materials that Dealer, Dealer’s customers or their representatives, employees or agents provide with Class B, Class C or Refurbished Appliances resold or otherwise transferred by Dealer to give adequate instructions or warnings to end use consumers; (3) any actual or alleged violation by Dealer, Dealer’s customers or their representatives, employees or agents of any law, statute, or ordinance or any governmental administrative order, rule or regulation; (4) any representation by Dealer, Dealer’s customers or their representatives, employees or agents that any Class C Appliances resold or otherwise transferred by Whirlpool are warranted in any way by Whirlpool, including but not limited to, failing to attach an effective exclusion of express and implied warranties by Whirlpool; (5) any representation or warranty given, or allegedly given, by Dealer or its employees, agents or representatives regarding Class B or Refurbished Appliances other than those set forth in the manufacturer’s written warranty, including but not limited to, failing to attach an effective exclusion of express and implied warranties by Whirlpool; (6) sudden and non-sudden pollution conditions arising from Dealer’s or subcontractor’s premises; and transportation from Whirlpool; and transportation to any shredder, recycler or landfill; or (7) any violation of the terms of this Agreement. These indemnity provisions shall survive the termination, cancellation or expiration of this Agreement.

 

  1. Limitations of Liability. In no event shall either party be liable to the other, based upon breach of contract, negligence, negligent misrepresentation, or any other legal theory, for any special, incidental, consequential (including lost profits), multiple or punitive damages arising from or related in any way to (1) the subject matter of this Agreement, (2) the negotiation, execution, performance or termination of this Agreement, or (3) the products provided or services performed by either party to this Agreement, or (4) representations made in connection with the negotiation, execution, performance or termination of this Agreement, however caused and whether or not the parties had been notified of the likelihood of such damages. The parties (a) shall not assert any claim against each other arising from or related in any way to the foregoing matters based upon negligence or negligent misrepresentation or any other legal theory other than breach of contract, and (b) shall not attempt to avoid the enforcement of this limitation of liability on the grounds of unconscionability or failure of essential purpose or any other ground.

 

  1. Trademarks. Dealer may not use any Whirlpool trademark, trade name, or service mark (“Marks”), or any name or mark that is confusingly similar to a Mark, as a part of Dealer’s business, partnership, assumed or corporate name, email or web site name or URL address. Dealer may use the Marks in connection with Dealer’s advertising of Class B, Class C or Refurbished Appliances, if, but only if, (1) Dealer submits the proposed advertising to Whirlpool in writing for review and approval by Whirlpool, which approval may be granted or refused in Whirlpool’s sole discretion; and (2) Dealer’s advertising includes the words “Scratch and Dent Products” with reference to the Whirlpool Class B, Class C or Refurbished Appliances. Nothing in this Agreement or in any written permission shall grant to Dealer any right to or interest in any Mark.

 

  1. Regulated Materials. Dealer shall properly remove from each Class B, Class C, Class D and refurbished Appliance, and properly dispose of, fluids and materials that are required to be removed or disposed by any federal, state or local law or regulation.  The removal and disposal, and all related activities, shall be conducted in accordance with the requirements of such laws and regulations.  At no time should the model/serial plate be removed from any Class B, Class C, Class D or Refurbished appliance.

 

  1. Relationship. The relationship between Whirlpool and Dealer shall be that of seller and buyer. Dealer and its agents and employees are not partners, joint venturers, franchisees, agents, employees, or representatives of Whirlpool. Dealer may not enter any promise, warranty, contracts or other commitment for Whirlpool or obligate Whirlpool to third parties.

 

  1. Entire Agreement. This Agreement is the entire contract between Dealer and Whirlpool relating to the purchase of Class B, Class C, Class D or Refurbished Appliances and authorization to sell Class B, Class C and Refurbished Appliances, and supersedes any prior agreement between the parties, except for any written agreements relating to service, credit or the financing of Products. This Agreement may not be extended, supplemented, or modified except in a writing signed by both parties. The terms and conditions of this Agreement shall supersede any terms and conditions which may be contained in Dealer’s purchase order, proposal, request for quotation, confirmation, acknowledgment or other form or instrument that may be delivered or signed by either party in connection with any of the transactions contemplated by this Agreement. Such form or instrument shall be for the convenience of the parties only and shall not affect, modify, limit or negate the terms and conditions of this Agreement, except as provided for herein.

 

  1. Confidential Information. During the term of this Agreement, each party may become exposed to or become informed of certain proprietary information of the other party, including but not limited to product and price lists. The receiving party shall not to disclose or use, for its own benefit or the benefit of third parties (except pursuant to this Agreement), any of the disclosing party’s price lists, product lists, operation methods, trade secrets, data or other proprietary information that the receiving party becomes exposed to or informed of by the disclosing party and to keep all such information confidential for as long as the information remains confidential information of the disclosing party. The receiving party will allow access to the aforesaid information only to those agents and employees of the receiving party who require the same in order that the receiving party may perform hereunder, each of whom will be informed by the receiving party of the confidential and proprietary nature of such information. The receiving party will, upon request of the disclosing party, promptly return to the disclosing party any and all documents containing the disclosing party’s confidential information disclosed to it, together with all copies thereof. The parties agree that confidential information shall not include information (1) which is already known by party at the time the information is received, provided such information is not subject to a separate obligation of confidentiality; (2) which is or becomes publicly known through no wrongful act of the receiving party; (3) which is rightfully received from a third party without restriction; (4) which is independently developed by a party; (5) which is furnished to a third party without a similar restriction on the third party’s rights; (6) which is approved for release by written authorization of the disclosing party.

 

  1. No Oral Representations. There are no representations of fact or opinion on which either party may reasonably rely in connection with the negotiation, execution, performance, or termination of this Agreement other than those that are set forth in this Agreement or in a properly executed written modification of this Agreement.

 

  1. Severability. If any term or provision of this Agreement shall to any extent be determined to be void, invalid or unenforceable, such provision shall automatically be voided and shall not be part of this Agreement, but the enforceability or validity of the remainder of this Agreement shall not be affected by the voiding of the provision.

 

  1. Waiver.  Whirlpool’s failure to exercise a right or remedy or Whirlpool’s acceptance of partial compliance or noncompliance with all or part of this Agreement, including without limitation any conditions of promotional funding or trailing credit programs, will not operate as a waiver of any of Whirlpool’s rights or Dealer’s obligations under this Agreement, and will not constitute a waiver of Whirlpool’s right to immediately act on any breach of this Agreement.

 

  1. Assignment. Dealer may not assign or delegate any of its rights under this Agreement without the written consent of Whirlpool. Whirlpool may refuse consent with or without cause.

 

  1. Notices. Any notice required or permitted by this Agreement shall be given in writing by personal delivery, by overnight commercial courier, or by registered or certified mail, return receipt requested, or my electronic transmission. Notices shall be sent to Dealer or Whirlpool, at the recipient’s address set forth in this Agreement.

 

  1. Compliance with Laws; Applicable Law. Dealer shall comply with all applicable laws and regulations, including without limitation, the Money Laundering Control Act of 1986, as amended. This Agreement shall be construed, interpreted and enforced according to the laws of the State of Michigan without regard to its conflict of laws principles.

 

  1. Venue and Enforcement.  All disputes arising from or relating to the buyer/seller relationship between Whirlpool and Dealer, including any disputes arising under or relating to this Agreement, shall be adjudicated exclusively in the U.S. District Court for the Western District of Michigan or, if there is no federal jurisdiction, in a state court sitting in Berrien County, Michigan.  Dealer shall pay all reasonable costs and expenses incurred by Whirlpool in connection with the enforcement of this Agreement, including all reasonable attorneys’ fees, court costs and expenses.

 

  1. Exclusion of Warranties on all Class “C” and Class “D” product. Dealer acknowledges that all Appliances purchased as Damage Class C or Class D by Dealer under this agreement are sold by Whirlpool “AS IS” and “WITH ALL FAULTS” without any warranties to Dealer, and that WHIRLPOOL EXPRESSLY DISCLAIMS ANY WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PURPOSE. Dealer is not authorized to represent or assume for Whirlpool any liability in connection with the sale of all Class C Appliances. Class D Appliances are not permitted to be resold. Where directed by Whirlpool, Dealer agrees to apply warranty exclusion notices in the manner and location as directed by Whirlpool in writing. Dealer shall not remove or obliterate any warranty exclusion notices on products shipped by Whirlpool, except as directed in writing by Whirlpool. Dealer shall provide information regarding Whirlpool’s warranty terms, or exclusions of warranty, upon request by consumers.

 

  1. Warranty on “Class B Appliances” and “Refurbished Appliances”.  Except for cosmetic damage (which is expressly excluded), Whirlpool will warrant Class B and Refurbished Appliances purchased by Dealer in accordance with, and only to the extent expressly provided in, Whirlpool’s standard warranty provisions applicable to such Appliances and in effect at the time that the Appliances  in question were purchased by Dealer (“Product Warranty”).  Such Product Warranty shall be for the exclusive benefit of Dealer and its customers. THE APPLICABLE PRODUCT WARRANTY CONSTITUTES WHIRLPOOL’S SOLE AND EXCLUSIVE WARRANTY AND REMEDY WITH RESPECT TO ANY PRODUCTS PURCHASED BY DEALER. EXCEPT TO THE EXTENT EXPRESSLY STATED OTHERWISE IN THE APPLICABLE PRODUCT WARRANTY, WHIRLPOOL DISCLAIMS ALL EXPRESS WARRANTIES (WHETHER ORAL OR WRITTEN) AND ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING BY CUSTOM OR TRADE USAGE. 

 

  1. Survival Rights. The expiration or termination of this Agreement shall not terminate vested rights of either party from any liabilities or obligations incurred under this Agreement prior to and which by their nature continue after such expiration or termination, except as expressly provided in this Agreement.

 

  1. Non-Exclusivity.  The relationship established under this Agreement is non-exclusive.  Whirlpool reserves the right to sell Class B, C, D and Refurbished Appliances to other dealers or other parties Whirlpool may select from time to time, including consumers.  Without limiting the foregoing, Dealer does not have any exclusive right to sell Class B, C, or Refurbished Appliances in any particular geographic area or to any particular customer(s) or type of customer.  Dealer reserves the right to sell other lines of appliances.

 

  1. Headings.  The headings to the paragraphs in this Agreement are included solely for the convenience of the parties and shall not have any effect upon the interpretation of any provision of this Agreement.

 

  1. Effective Date. This Agreement shall become effective upon acceptance by Whirlpool.

 

  1. Acknowledgment. The parties each acknowledge that they have read, understand and agree to the terms of this Agreement.

 

 

 

WHIRLPOOL CORPORATION

Signature:                                 ________________________________________________________________

Printed Name:                           ________________________________________________________________

Title:                                         2ND CHANNEL SALES MANAGER

Address:                                   ________________________________________________________________

Acceptance Date:                      ________________________________________________________________

 

DEALER NAME:          ____________________________________________________

Signature:                                 ________________________________________________________________

Printed Name:                           ________________________________________________________________

Title:                                         ________________________________________________________________

Address:                                   ________________________________________________________________

Date:                                        ___________________________________________________________________

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