NOTE: This is a reproduction of the online Authorized Dealer Agreement (found here), and is only shown here for reference purposes.
This Authorized Dealer Agreement (this “Agreement”) governs the relationship between Andersen Hitches (referred to herein as “Andersen”, “we”, or “our”) and our authorized dealers (referred to herein as “Dealer”, “you” or “your”). By clicking “I ACCEPT” in the online 'Authorized Dealer Agreement' form (found here), you are entering into a legally binding agreement with Andersen and you agree to be bound by the terms and conditions of this Agreement. You represent and warrant that the individual providing consent is authorized to act and enter into this Agreement on your behalf.
Andersen manufactures and distributes an innovative and proprietary line of specialized towing equipment and associated accessories;
Dealer desires to sell the Products, as defined below, on the terms set forth in this Agreement; and
Andersen desires to engage the Dealer for the purposes of marketing and selling the Products;
Therefore, in consideration of the following conditions set forth in this Agreement, you and Andersen agree to the following.
"Agreement" means this entire Agreement.
"Customer" means an end user of a Product, and specifically excludes any person who may seek to purchase Product for the purpose of reselling or further distributing the Products.
"Limited Warranty Statement" means Andersen's then-current warranty from Andersen to Customers.
"Products" means the products listed in the official price lists periodically released by Andersen. Andersen may add to, delete from, or otherwise modify the Products at any time.
2. PRODUCT TERMS
2.1 APPOINTMENT. Andersen hereby appoints you, and you accept such appointment, to resell the Products only to Customers. Sale of Products to other dealers or distributors (including resale through Amazon, eBay, and other third party online platforms) is strictly prohibited. However, resale on your own dealer website (ex: www.dealername.com) is permitted. You agree that you will only sell Products from physical store outlets or from your own dealer website(s) that are directed towards consumers and comply with the provisions of this Agreement. In addition, subject to the terms and conditions of this Agreement, the following rights shall apply to Dealer:
2.2 PRICES. The prices paid by you to Andersen for Products shall be as set forth in price lists periodically released by Andersen. We shall have the right, at any time, to change, alter, or amend product prices and will communicate such changes to you by releasing updated price lists available from your Sales Representative. Prices are exclusive of all taxes, insurance, and, in some cases, shipping and handling charges, which are your sole responsibility. You represent that you have read and understand, and agree to abide by our Unilateral Pricing Policy for Minimum Advertised Pricing attached hereto as Exhibit A (the “MAP Policy”), as updated by Andersen from time to time.
2.3 RESALE POLICY. You shall not sell or otherwise divert any Product to any other entity or individual you know or reasonably believe will resell such product. No Andersen Product shall be diverted to any swap meet, flea market, unauthorized online distributor (Amazon, eBay, etc.), or other retailer for resale or exhibition. You agree that you will educate your employees regarding this provision. In the event that any Product is sold in breach of this Agreement, we reserve the right to terminate this Agreement in whole or in part. You further agree (without prejudice to any other rights or remedies of Andersen under this Agreement or otherwise), to reimburse us for our costs in attempting to repurchase or recover any such Product sold by you in breach of this Agreement.
You represent that you have read and understand, and agree to abide by our Resale Policy for Third Party Online Selling attached hereto as Exhibit B (the “Third Party Online Selling Policy”), as updated by Andersen from time to time.
3. ORDERING AND PAYMENT
3.1 ORDERS. Orders shall be subject to acceptance by Andersen. The terms and conditions of each order shall be as provided by this Agreement, and the provisions of either party's form of purchase order, acknowledgment or other business forms will not apply to any order notwithstanding the other party's acknowledgment or acceptance of such form.
3.2 SHIPMENT. Shipment will be F.O.B. Andersen's facilities in Idaho Falls, Idaho, at which time title and risk of loss will pass to Dealer. All freight, insurance and other shipping expenses from the point of delivery, as well as any expenses related to your special packing requests, will be borne by you unless otherwise agreed to in writing by Andersen.
3.3 PAYMENT. Subject to compliance with Andersen's credit requirements, payments are due in full at the time items are shipped. For companies that qualify for net terms, payments on orders will be due and payable in full thirty (30) days from the invoice date, unless the parties have agreed in writing to other credit terms. Dealer shall pay monthly service charges of 1% per month for any past due amounts. Andersen may in its sole discretion change Dealer's credit terms and/or require C.O.D. payment for any shipments.
RETURNS. No returns will be allowed unless authorized in advance in writing by Andersen and accompanied by a return authorization number issued by Andersen. Shipments arriving at Andersen without a return authorization number will be refused and returned to Dealer. A return authorization number will be issued for defective items, warranty credit, shipping errors or repairs. Returns will not be accepted for any other reason. If reason for return is not the fault of Andersen, we have no obligation to reimburse or give credit for return freight incurred by Dealer. All returns will be subject to a restocking fee of up to 20% of the cost invoiced by Andersen for the returned Product.
5. DEALER'S OBLIGATIONS
5.1 PRODUCT PROMOTION. You agree to use commercially reasonable efforts to promote the distribution and sale of the Products in accordance with the Andersen Style Guide, currently posted on Andersen’s website at www.andersenhitches.com/styleguide.
5.2 DEALER COVENANTS. You will: (i) conduct business in a manner that reflects favorably at all times on the Products and the good name, goodwill and reputation of Andersen; (ii) avoid deceptive, misleading or unethical practices that are or might be detrimental to Andersen or Andersen Products; (iii) make no false or misleading representations with regard to Andersen or Andersen Products; (iv) not publish or employ, or cooperate in the publication or employment of, any misleading or deceptive advertising material with regard to Andersen or Andersen Products; and (v) make no representations, warranties or guarantees to customers or to the public with respect to the specifications, features or capabilities of Andersen Products that are inconsistent with the Style Guide.
5.3 USE OF TRADEMARKS. We hereby grant you a non-exclusive, limited right and license to use the names, trademarks and logos associated with the Andersen Products that you are authorized to sell (“Trademark(s)”) solely for the purpose of advertising and promoting the sale of the Products in accordance with this Agreement and the Style Guide as it may be updated from time to time. You are not entitled to use any of the Trademarks as part of your corporate and/or commercial name or as part of any URL. All rights in and to the Trademarks not expressly granted herein are reserved by Andersen and any goodwill generated by your use of the Trademarks hereunder shall inure to the benefit of Andersen. You may not remove or destroy any copyright notices, trademarks or other proprietary markings on the Products or materials related to the Products.
5.4 PACKAGING. You agree that you will not modify the packaging of the Products in any respect, including by adding any bar code or other markings, without the prior written consent of Andersen. You further expressly agree not to add materials of any sort to the original Andersen packaging box (such as, but not limited to, flyers, brochures, business cards, or any other products). You also expressly agree not to remove any Products from the boxes or packaging in which they are shipped from Andersen’s manufacturing facility. Notwithstanding the foregoing, you may place one or more Andersen products in their original packaging boxes along with other products and materials into a larger box or container solely for shipping purposes.
6. TERM; TERMINATION & OTHER REMEDIES
6.1 TERM. This Agreement shall commence on the date you first sign and submit this Agreement and shall continue until terminated as provided in this Section 6.
6.2 TERMINATION WITHOUT CAUSE. Either party may terminate this Agreement without cause, at any time, by written notice to the other party not less than thirty (30) days prior to the effective date of termination. All unfilled orders pending at the time of the date of such notice of termination shall be deemed canceled, and Andersen and Dealer hereby waive all claims against the other in connection with the cancellation of such orders.
6.3 TERMINATION FOR BREACH. Andersen may terminate this Agreement, for cause, by written notice to you not less than ten (10) days prior to the effective date of such notice, if any of the following occur: (i) you fail to pay past due invoices within thirty (30) days after notice that invoices are past due; (ii) you violate any material provision of this Agreement, including without limitation, selling Product(s) through an unauthorized channel or selling Product(s) in violation of the Resale Policy in Section 2.3; or (iii) control of Dealer is acquired, directly or indirectly, by a third party, or Dealer is merged with a third party. Upon giving its notice of termination, Andersen may alter its terms of sale, including credit terms, and take such other action as may be consistent with the termination of Dealer as an authorized Andersen dealer. All unfilled orders pending at the time of the date of such notice of termination shall be deemed canceled, and Andersen and Dealer hereby waive all claims against the other in connection with the cancellation of such orders. If we terminate this Agreement for any of the above listed reasons in this Section 6.3, we shall have the right, but not the obligation, to repurchase unsold Products in your possession, at a price equaling eighty percent (80%) of the original purchase price for such items (less discounts, price protection or other credits previously granted) (the “Reduced Rate”).The Reduced Rate will only apply to unopened Products that we deem in our sole discretion to be fit for resale. Within ten (10) days following termination for any of the above reasons, you shall furnish Andersen with an inventory of unsold Products. Within ten (10) days after receipt of such inventory, we will notify you in writing whether or not we intend to repurchase all or part of such inventory at the Reduced Rate. Andersen shall pay all transportation and other costs connected with shipping such Products to Andersen.
6.4 TERMINATION FOR INSOLVENCY. At the option of Andersen or Dealer, this Agreement shall terminate immediately if: (i) a receiver is appointed for the other party or its property; (ii) the other party becomes insolvent or unable to pay its debts as they mature or ceases to pay its debts as they mature in the ordinary course of business, or makes an assignment for the benefit of creditors; (iii) any proceedings are commenced by or for the other party under any bankruptcy, insolvency or debtors' relief law; (iv) any proceedings are commenced against the other party under any bankruptcy insolvency or debtor's relief law, and such proceedings have not been vacated or set aside within sixty (60) days from the date of commencement thereof; or (v) the other party commences to dissolve under applicable corporate law statutes.
6.5 EFFECT OF TERMINATION. All amounts payable by you to Andersen shall survive termination and become immediately due and payable. In addition, if either party terminates this Agreement (other than a termination for breach as described in Section 6.3) we shall have the right, but not the obligation, to repurchase unsold Products in your possession. Within ten (10) days following termination, you shall furnish Andersen with an inventory of unsold Products. Within ten (10) days after receipt of such inventory, we will notify you in writing whether or not we intend to repurchase all or part of such inventory at the original invoice price (less discounts, price protection or other credits previously granted). Andersen shall pay all transportation and other costs connected with shipping such Products to Andersen.
6.6 OTHER REMEDIES. In the event that you violate any term of this Agreement or the MAP Policy, Andersen may, in its sole discretion, terminate any of the licenses, authorizations, rights or privileges granted to Dealer in Section 2.1 of this Agreement. All such remedies are cumulative, and may be exercised concurrently or separately.
7. WARRANTY DISCLAIMER
7.1 CUSTOMER WARRANTY. Andersen provides a Limited Warranty Statement to Customers on certain Andersen Products. Dealer will make available to Customers a copy of the Limited Warranty Statement and will not make any representations or statements inconsistent with such Limited Warranty Statement. You acknowledge and understand that the Limited Warranty Statement only applies to Products sold in compliance with the terms of this Agreement, and that any Products sold in violation of this Agreement are sold with no warranty. IF YOU SELL PRODUCTS OTHER THAN AS EXPRESSLY AUTHORIZED BY THIS AGREEMENT, YOU WILL BE SUBJECT TO INDEMNIFICATION AND REIMBURSEMENT DUTIES DESCRIBED BELOW IN SECTION 7.2.
7.2 INDEMNIFICATION/REIMBURSEMENT. You agree to indemnify, defend and hold harmless Andersen and its affiliates, officers, directors, consultants, employees, successors and permitted assigns from and against any claim, demand or action made or brought against such indemnified parties that relates to Products sold by you in violation of this Agreement. If in our sole discretion, we choose to provide a refund or a replacement Product to a Customer who purchased an out-of-warranty Product sold by you, you agree to reimburse us for all associated costs, including without limitation the cost of the Product, refunded amounts, taxes, shipping and handling charges.
7.3 EXPRESS DISCLAIMER OF WARRANTY. AS BETWEEN ANDERSEN AND DEALER, ANDERSEN MAKES NO WARRANTIES OR REPRESENTATIONS REGARDING THE PRODUCTS EXCEPT AS SET FORTH ABOVE. ALL IMPLIED WARRANTIES AND CONDITIONS, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, ARE HEREBY DISCLAIMED.
8. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LIABILITY OF ANDERSEN AND ITS SUPPLIERS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE FURNISHING OF PRODUCTS HEREUNDER, SHALL BE LIMITED TO THE ACTUAL AMOUNTS PAID BY DEALER TO ANDERSEN FOR THE PRODUCTS PURCHASED DURING THE PREVIOUS 12 MONTHS, AND SHALL IN NO EVENT INCLUDE LOSS OF PROFITS, COST OF PROCURING SUBSTITUTE GOODS OR SERVICES, OR ANY INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF ANDERSEN OR ITS SUPPLIERS ARE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
9.1 ASSIGNMENT. Neither party may assign, delegate, or transfer the Agreement, or any of its rights or duties hereunder, without the prior written consent of the other party. Any attempted assignment or delegation in violation of this section shall be void. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties, their successors and permitted assigns. Notwithstanding the foregoing, Andersen may assign its rights and duties hereunder in connection with a merger, consolidation, spin-off, corporate reorganization, acquisition, or sale of all or substantially all the assets of Andersen.
9.2 GOVERNING LAW. This Agreement shall be governed by the laws of the State of Idaho (other than its conflicts of law principles). The parties hereby consent to the exclusive jurisdiction of and venue in the federal and/or state courts located in Bonneville County, Idaho.
9.3 INDEPENDENT CONTRACTORS. In performing their respective duties under this Agreement, each of the parties will be operating as an independent contractor. Nothing contained herein will in any way constitute any association, partnership, or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the power to bind the other party or incur obligations on the other party's behalf without the other party's prior written consent.
9.4 MODIFICATION AND WAIVER. No modification to this Agreement, nor any waiver of any rights, will be effective unless assented to in writing by the party to be charged, and the waiver of any breach or default shall not constitute a waiver of any other right hereunder or any subsequent breach or default.
9.5 NOTICES. Any required or permitted notices hereunder will be deemed given on the date received. Notices to Dealer may be sent by one of the following methods: hand delivery; registered, express, or certified mail; nationally-recognized private express courier; e-mail or facsimile, to the physical or electronic address provided by Dealer to Andersen. Notices to Andersen must be sent in writing by one of the following methods: hand delivery; registered, express, or certified mail, return receipt requested, postage prepaid; or nationally-recognized private express courier, to the following address:
3125 N Yellowstone Hwy.
Idaho Falls, ID 83401
9.6 SEVERABILITY. If for any reason any provision of this Agreement shall be held by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.
9.7 LIMITATION OF ACTION. Any legal action arising out of this Agreement shall be barred unless commenced within one (1) year of the act or omission giving rise to the action. Such limitation shall not apply to any actions asserted against Dealer by Andersen arising from any delinquencies in payment for Products.
9.8 ENTIRE AGREEMENT. This Agreement and the exhibits attached hereto constitute the entire and exclusive agreement between the parties hereto with respect to the subject matter hereof and supersede any prior agreements between the parties with respect to such subject matter.
9.9 INJUNCTIVE RELIEF. You acknowledge and agree that due to the unique nature of the subject matter of this Agreement, there may be no adequate remedy at law for breach of certain obligations hereunder, that any such breach may result in irreparable harm to Andersen. Therefore, if you breach or threaten to breach any term of this Agreement, Andersen shall be entitled to both seek monetary and equitable relief, including injunctive relief, in addition to whatever remedies it may have at law, without any obligation to post a bond.
Unilateral Pricing Policy for Minimum Advertised Pricing
For details of Andersen’s full Unilateral Pricing Policy for Minimum Advertised Pricing, see separate document “Andersen Unilateral Pricing Policy for Minimum Advertised Pricing” (available by clicking on the link below:
Resale Policy for Third Party Online Selling
For details of Andersen’s full Resale Policy for Third Party Online Selling, see separate document “Andersen Manufacturing Resale Policy for Third Party Online Selling” (available by clicking on the link below: