The Member identified above and Royal Buying Group, Inc., an Illinois corporation ("RBG") agree as follows:
1. RBG provides consulting services to businesses ("its members") to assist them in obtaining discounts, rebates, promotional allowances and other benefits resulting from volume purchasing. RBG provides these services to its members under the terms and conditions of this Agreement.
2. Pursuant to this Agreement, RBG will provide the following services to Member:
- Coordinate merchandising and marketing efforts;
- Assist the Member in obtaining discounts, rebates, promotional allowances and other benefits resulting from volume purchasing with other members;
- Act as a liaison between the Member and certain vendors;
- Negotiate on behalf of Member and other members to obtain better prices and benefits resulting from volume purchasing;
- Coordinate promotional programs and product offerings;
- Communicate with Member to explain the merchandising rebates that have been negotiated for specific products;
- Collect all rebate monies and other funds payable by vendors to Member pursuant to marketing and promotional programs which RBG arranges; and
- Periodically provide image signage for special marketing programs.
3. Member shall pay an initial annual membership fee and an annual renewal membership fee to RBG as set forth on Schedule A.
4.1 During the term of this Agreement, Member also agrees to pay to RBG ten per cent (10%) of all earned rebates and other funds (excluding advertising monies and display allowances) payable to the Member pursuant to marketing and promotional programs which RBG arranges and in which Member participates. RBG shall collect all rebate monies and other funds determined to be payable by vendors to Member. On a quarterly basis, RBG shall deduct its fee and pay the balance of such monies and funds to Member.
4.2 Member acknowledges that RBG may conduct other business activities and that Member is not entitled to any portion of the income from such activities. Such activities include, but not be limited to, the sale of goods to members or others, and the provision of services to vendors, members or others. Member shall only be entitled to compensation pursuant to the terms of this Agreement.
5. MEMBER AGREES THAT RBG MAY AT ANY TIME OR TIMES INCREASE OR DECREASE FEES TO THE MEMBER DESCRIBED IN PARAGRAPHS 3 AND 4.1 OF THIS AGREEMENT BY GIVING MEMBER 60 DAYS' PRIOR WRITTEN NOTICE OF ANY SUCH CHANGE.
6. Member shall pay all invoices issued by RBG to Member within 30 days of issuance.
7. RBG will inform Member about marketing and promotional programs in which Member is eligible to participate. Member will then decide whether to participate in any program.
8. RBG may also at any time or times arrange a "feature program" and require that Member participate in the program. In a "feature program", the vendor and RBG will determine a reasonable and appropriate quantity of goods for Member to merchandise as part of the sales promotion and the vendor will automatically ship those goods to Member for resale. Member agrees to purchase such goods and participate in the program.
9. Member acknowledges that RBG may arrange local, regional, and national programs and that Member may not be eligible to participate in all of the programs which RBG arranges.
10. Member may elect to participate in a rebate or other promotional program that a vendor establishes and for which the Member qualifies. Member acknowledges and agrees that the vendor solely determines if the rebate or other promotional payment is payable to Member in accordance with the terms of its rebate or other promotional program and that Member will need to satisfy all of the vendor's requirements, including documentation requirements, before being entitled to such payment from the vendor. Notwithstanding anything to the contrary, Member acknowledges and agrees that RBG does not determine if any such promotional payment is payable to a Member and that RBG's sole obligation is to remit such payment, less any applicable fee payable to RBG, to Member after the vendor has made the payment to RBG. If the vendor fails to make any rebate or other promotional payment for the Member to RBG, RBG will not have any obligation to cause the vendor to make such payment to the Member.
11. Member acknowledges and agrees that neither RBG, its shareholders, directors, officers, employees nor agents guarantee or promise that Member will realize any financial benefit by becoming a member in RBG and participating in one or more programs which RBG arranges.
12. On a quarterly basis, RBG will send an accounting to Member reflecting all rebates and other funds earned and payable to the Member pursuant to its participation in marketing and promotional programs which RBG has arranged. In the absence of fraud, unless Member objects in writing to an accounting within 60 days after the accounting is sent to Member, then Member will be deemed to have accepted and approved the accounting in all respects.
13. For the calendar year in which Member becomes a member, any determination based on an "annual basis" shall be prorated from the date of Member's membership through the end of such year. Any subsequent determination shall be based on a calendar year.
14. This Agreement does not constitute a partnership or joint venture between the parties. Member is not acquiring an ownership interest in RBG or in any entity created by, or related in any way to RBG.
15. Member agrees that RBG may, during the term of this Agreement, collect, compile, distribute and have a license to use information about Member's business activities for use in developing marketing and promotional programs for members.
16. Member acknowledges and agrees that RBG is acting solely as a merchandising consultant to Member. Member acknowledges that neither RBG, its shareholders, directors, officers, employees nor agents guarantee Member's credit and none of them will participate in negotiating and obtaining credit terms for Member. Member is solely responsible for obtaining credit from vendors who participate in RBG sponsored programs and for paying such vendors for goods and services which Member purchases from them.
17. Either party may terminate this Agreement by giving 30 days prior written notice to the other. Upon termination, Member shall be entitled to all net rebates earned through the date of termination, but Member shall not be entitled to any refund of the membership fee for the year of termination. All rebates and monies payable to Member on termination, less all fees payable to RBG, shall be paid as provided in paragraph 4.1.
18. Member's membership interest is not transferable or assignable.
19. Member acknowledges that RBG was formed by and is presently owned by service station dealers with whom Member may compete.
20. Member acknowledges and agrees that RBG does not operate Member's business and that Member is solely responsible for all liabilities and claims of any kind arising out of Member's conduct of its business. Member will indemnify, defend and hold RBG, its shareholders, directors, officers, employees and agents harmless from all such liabilities and claims.
21. This Agreement sets forth the entire understanding of the parties and supersedes any and all prior agreements, negotiations and arrangements concerning the subject matter of this Agreement. Furthermore, Member releases and forever relinquishes any claim, action, demand or other liability of any kind which it had, has, or may have against RBG, its shareholders, directors, officers, employees and/or agents under any such prior agreements, negotiations, and arrangements.
22.1 All notices required or permitted under this Agreement shall be in writing and shall be deemed to have been served when personally delivered or facsimile transmitted, or five (5) days after deposited in the United States Mail, certified mail, proper postage prepaid, return receipt requested to Member at the address specified above and to RBG at the following address: Royal Buying Group, Inc., 2100 Western Court, Suite 350, Lisle, Illinois 60532. Either party may change the address for service of notice by giving notice to the other party in the manner provided in this paragraph.
22.2 Member expressly invites and permits RBG to send facsimile transmissions, including advertisements and other materials, whether or not solicited, to Member. This invitation and permission includes the Member's facsimile telephone number(s) set forth in this Agreement or otherwise previously provided by Member to RBG and all other facsimile telphone number(s) that the Vendor maintains or may hereafter establish. Member also expressly invites and permits RBG to communicate with it in any other manner, including, but not limited to mail, e-mail and telephone communications.
23. Schedule A referred to herein is a part of this Agreement.
24. Except for any change in fees as provided in paragraph 5, any waiver or other modification of any of the provisions of this Agreement must be in writing and signed by the party against whom enforcement of such waiver or other modification is sought. No waiver of any provision will constitute a waiver of any other provision, nor shall any waiver be deemed continuing unless otherwise expressly so stated.
25. This Agreement is not effective until RBG accepts it at its offices in Illinois. This Agreement is deemed to have been entered into in the State of Illinois. The parties consent and agree that any action, suit or other proceeding concerning any dispute or controversy based in whole or part on this Agreement shall be litigated only in courts location in Chicago, Illinois having competent jurisdiction of such action, suit or proceeding.
26. This Agreement shall be interpreted and construed in accordance with the laws of the State of Illinois with respect to contracts made and to be enforced in such state.
27. There is no third party beneficiary of this Agreement.
28. This Agreement shall be effective as of the date RBG accepts it as set forth on Schedule A.
29. A facsimile of a party's signature to this Agreement or any other document shall be treated in all respects as if it were an originally signed document. The Agreement may be executed in counterparts, each of which shall be deemed an original.