Recitals

?WHEREAS, GXi markets and sells outdoor power equipment and related products as further identified on Exhibit A, as amended by the parties from time to time (collectively, the “Product(s)”);
?WHEREAS, Vendor provides repair services on various items in its facilities, including but not limited to products similar to the Products; and
?WHEREAS, GXi seeks to engage Vendor as a provider of repair services to owners of the Products (“Customer(s)”) pursuant to product warranties (“Warranty(ies)”) provided by GXi, and Vendor is willing to provide such repair services under the terms of this Agreement
?NOW, THEREFORE in consideration of premises and the mutual covenants and promises hereinafter set forth, the parties agree as follows

Agreements

?c) Vendor shall have the right to decline to provide service in its sole and absolute discretion due to health and safety issues or other commercially reasonable reasons. Vendor shall not charge GXi or the Customer for any declined Service. Nothing in this Agreement shall preclude Vendor from entering into similar agreements with other product manufacturers or other third parties.

2. PERMITTED ACTIVITIES

?a) Vendor shall not be required to deviate from its normal marketing procedures, which includes mailing or providing Customers who receive Service pursuant to this Agreement, quality surveys, brochures, coupons, or advertisements relating to various products and services, provided that such products and services do not directly compete with any Product. In addition, GXi acknowledges that this Section 2a) shall not be deemed to prohibit Vendor from soliciting, marketing or mailing quality surveys or providing any services hereunder whether Vendor becomes acquainted with such person prior to, during or after the terms of this Agreement.

3. GXi’s RESPONSIBILITIES

?a) Publicity. GXi will advise Customers to call for Service; (i) Vendor is authorized to Service Products, (ii) in order to obtain Service the Customer must disconnect the Product and physically bring it into the Vendor’s service facility, and that (iii) Customer’s must obtain a GXi authorization number and present it to Vendor at the time of Service, otherwise the Customer will need to pay for Service. Vendor does not hereby grant any right to GXi to use Vendor’s trademarks, service marks or other intellectual property in any GXi promotional or other materials; provided however, in its sole discretion Vendor may grant its limited permission (in writing) to use Vendor’s trademarks, service marks or other intellectual property based on GXi’s request, including a sample of the proposed use.

?b) Carry-in Warranty Service. If a Customer calls GXi and is interested in Carry-in Warranty Service of a Product, GXi will be solely responsible for determining whether a Product is eligible for Warranty Service, and if so, GXi shall issue a GXi authorization number to the Vendor at the time of setting up service. Vendor must obtain a work order authorization code “WSER” prior to performing any work under warranty. Vendor may not perform work prior to contacting GXi and then later file a warranty claim. From time to time, GXi may request the service center’s input to assist with the determination of Warranty eligibility. In the event the service is not covered under warranty, the service center may charge the customer both a diagnostic assessment charge plus offer to repair the product at local market rates.

?c) Out-of-Warranty Repairs. If a Customer contacts GXi seeking carry-in repairs for a Product that is Out-of-Warranty, GXi will: (i) provide to the Customer information about the nearest Authorized service centers. Vendor will charge Customers for Out-of-Warranty repairs at local market rates.

?d) Replacement Parts. GXi shall maintain a sufficient inventory and make available to Authorized service centers at cost, all parts necessary to provide Service on Product (“OEM Parts”). Pursuant to orders from Vendor. If GXi issues vendor with a work authorization code “WSER,” and agrees to pay for parts and labor, GXi will ship the part(s) to vendor at no charge against the work authorization code. GXi will make reasonable effort to ship to destinations specified by Vendor, required stocking or Service pending OEM Part(s) for arrival within three (3-5) business days after the business day on which the order is received by GXi. If vendor wishes to stock GXi spare parts for out-of-warranty service, then vendor is eligible for the wholesale discounted rate.

?e) Warranty Information. GXi shall provide Vendor with copies of all forms of its Warranties covering Products, as may be amended from time to time by GXi, as well as information describing which Warranties cover each Product.

?f) Repair Manuals. GXi shall provide Vendor with paper and electronic copies of all Product installation, repair and operating reference materials to enable Vendor to provide Service, including but not limited to owner’s manuals, service manuals, installation manuals, training manuals, troubleshooting guides, model and serial number formats, technical and/or service bulletins, parts lists and exploded parts diagrams (collectively, “Documents”), as the same may be amended from time to time.

?g) Training. GXi shall provide training programs, technical resources and sufficient copies of training materials as reasonably requested by Vendor to enable Vendor to provide Service, as such times and locations as the parties mutually agree, for such Vendor personnel as Vendor designates from time to time.

?h) Telephone Support. GXi shall establish and maintain a technical assistance telephone number for use by Vendor’s representatives. GXi shall also establish and maintain a customer service telephone number. These telephone numbers shall be in operation from 8:00 am to 5:00 pm, Eastern Time, Monday through Saturday, excluding national holidays.

?i) Compliance with Applicable Law. GXi hereby covenants, represents and warrants to Vendor that all of its Warranties conform in all material respect with applicable laws, rules and regulations.

?j) Payment of Charges. GXi shall pay Vendor’s charges in accordance with Section 5, below.

4. Vendor Responsibilities

?a) Facilities, Equipment and Technical Personnel. GVendor will use commercially reasonable efforts to maintain carry-in service center to provide Service to Customers between the hours of 8:00 am to 5:00 pm (local time), Monday through Saturday, excluding national holidays.

?b) Warranty Coverage Verification. GXi will be solely responsible for verifying eligibility for Warranty Service of Products; Vendor must obtain the GXi authorization number prior to performing repairs./b> If customers drop off their products to Vendor prior to contacting GXi for Warranty Service authorization, Vendor shall provide GXi with customer information as required in Exhibit B (customer name, customer address, model number, serial #, customer telephone number). Once GXi approves service, GXi shall send Vendor a work order with an approval code “WSER” prior to diagnosing and servicing the product. Invoices submitted must clearly state the GXi authorization number with an WSER designation.

?c) Service. Vendor shall use commercially reasonable efforts to complete Service in a workmanlike manner according to schedule. Vendor shall determine the most productive order for Servicing Products and which Vendor’s technician is assigned to perform Service, is Vendor’s sole and absolute discretion. If service is covered under GXi warranty with a valid GXi authorization number, Vendor shall not invoice customer for service and / or parts.

?d) Out-of-Warranty. GXi may request Vendor provide repairs or service for a Product that is out-of-warranty, and in such case shall provide an authorization number and shall pay Vendor for such service as if they were covered Service.

?e) Product Not Repairable. If a Vendor’s technician believes that a Product to be Serviced pursuant to GXi’s authorization is beyond repair or if it would be uneconomical to repair the Product, the technician shall contact the GXi technical support number that GXi will establish pursuant to 3(h). If Vendor is instructed not to proceed with Service or is unable to reach a GXi technical representative, it shall not proceed with the Service.

?f) Replacement Parts. Except for supply-type parts, Vendor shall use commercially reasonable efforts to use OEM Parts from GXi for all Service performed by Vendor hereunder.

?g) Disposal of Parts. Vendor agrees to use commercially reasonable efforts to ship to GXi such parts and components as are removed from Products Serviced by Vendor. If GXi desires that parts and components be shipped, it will provide appropriate shipping containers and prepaid shipping labels, and be responsible for any expenses and risks associated with transporting or shipping parts and components. GXi’s obligation to pay Vendor’s charges under this Agreement shall not be abated or delayed by reason of Vendor’s failure to return parts or components removed from Products. Except as provided in this Section 4(g), Vendor may dispose of all parts and components removed from a Products Serviced by Vendor pursuant to this Agreement, unless otherwise required by any local, state or federal, ordinance, regulation or law.

?h) Maintenance of Records. Subject to Section 13(c), Vendor shall be responsible for incorporating as appropriate, the content of all new Documents, Warranties and amendments thereto into its policies and procedures within thirty (30) days after receipt, unless within thirty (30) days of receipt Vendor notifies GXi of a specific concern or problem with such Documents, Warranties, or amendments.

?i) Product Pick-up and Delivery. GThis Agreement contemplates Services on Products that have been disconnected and physically brought into Vendor’s repair facility by the Customer. Vendor may provide a pick-up and delivery service for Products on a case-by-case basis by special arrangement.

?j) Rework Service by Special Arrangement. Vendor agrees to assist GXi with special situations involving a large volume of similar repairs or upgrades (e.g. Products recalls, reworks, upgrades), subject to the partys’ mutual agreement regarding the terms, conditions, and pricing of such work.

5. Vendor’s Charges

?a) For completed Service on Products carried into Vendor’s service facility and authorized by GXi, Vendor shall charge GXi the applicable labor rates as set forth in Exhibit A. If Vendor provides pick up and delivery services, Vendor shall charge the product transport charge(s) stated in Exhibit A in addition to the applicable labor rate.

?b) Vendor will not charge GXi for any Product Service without GXi’s prior authorization.

?c) Vendor shall invoice GXi or GXi’s designated agent, weekly or at such other frequency as may be determined by the parties from time to time, by paper invoice for all charges during the prior period, itemizing each charge made pursuant to this Agreement. GXi shall pay such invoices within thirty (30) days of receipt. In the event that GXi disputes an invoice, it shall promptly provide Vendor with the Vendor claim number and reason for dispute. All disputed invoices that remain unresolved after ninety (90) days from the date of receipt of invoice shall be resolved in accordance with Section 11.

?d) Vendor may perform repairs of Products that are out-of-Warranty and collect from the Customer and retain Vendor’s standard charges for such services, and any applicable taxes.

6. Warranties and Disclaimers

?a) Vendor hereby warrants to GXi that Service performed by Vendor hereunder shall be performed in a workmanlike manner, and shall be free from defects in workmanship for a period of ninety (90) days from the date of Service for home-based Products, and thirty (30) days from the date of Service for Products used in commercial and rental circumstances. If Vendor is notified during such time period of a breach of this warranty, then Vendor will arrange for the necessary repairs or service to be made promptly without additional charges to either the Customer or GXi.

??EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, INCLUDING IN THE PRECEDING PARAGRAPH, Vendor MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE IT PROVIDES OR THE MATERIALS IT SUPPLIES, THEIR CONDITION, PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER MATTERS.
??THE ABOVE LIMITED WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND EXPRESSLY EXCLUDE THE PAYMENT OF INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS, LOST SALES OR ANY OTHER INCIDENTAL OR CONSEQUENTIAL LOSS) IN ANY TYPE OF CLAIM.

?b) For a period of ninety (90) days from the date Service is completed on home-based Products and thirty (30) days for Products used in commercial and rental circumstances, GXi hereby warrants to Vendor that any OEM Part fails due to defects in materials or workmanship, at GXi’s request, Vendor will promptly arrange for necessary Service and shall charge GXi for labor and replacement OEM Parts in accordance with the terms of this agreement.

??EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, INCLUDING IN THE PRECEDING PARAGRAPH, GXi MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS OR OEM PARTSIT PROVIDES, THEIR CONDITION, PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER MATTER.
??THE ABOVE LIMITED WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND EXPRESSLY EXCLUDE THE PAYMENT OF INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS, LOST SALES OR ANY OTHER INCIDENTAL OR CONSEQUENTIAL LOSS) IN ANY TYPE OF CLAIM.

7. Term, Termination and Renewal

?This Agreement shall become effective on the date hereof (the “Effective Date”) and shall continue in force and effect thereafter for three (3) years; provided, however, that this Agreement shall automatically renew for successive one year periods following the original three (3) years term unless one party hereto gives notice to the other party at least thirty (30) days prior to the end of the original three (3) year term hereof or the end of a renewal period, as the case may be, of such party’s intent to terminate this Agreement. Either party may terminate this Agreement (i) for cause if, thirty (30) days after giving written notice to the other party describing with particularity the breach or default complained of and the remedial measures desired, the other party has failed to cure such breach or default in all material respects or (ii) without cause on sixty (60) days’ prior written notice to the other party. Notwithstanding the forgoing or anything in this Agreement to the contrary, if GXi fails to meet its payment obligations hereunder. Vendor may suspend future Service upon notice to GXi, and withhold providing Service until amounts due have been paid in full. Termination or expiration of this Agreement shall not affect or impair Vendor’s obligation to perform Service on Product(s) already in its possession, GXi’s obligation to pay Vendor amounts due in accordance with this Agreement, or the respective rights and obligations of the parties under Sections 6, 8, 9, 12 and 13(a) of this Agreement.

8. Indemnity by Vendor

?Vendor shall release, indemnify and defend GXi and its affiliates, subsidiaries, officers, directors, employees and agents and hold them harmless, from and against any and all third party claims, complaints, causes of action, and resulting fines, penalties, liabilities, judgments, losses, costs, injuries, damages of every kind and character, expenses, including, reasonable attorneys’ fees, (collectively, “Vendor Claims”) to the extent they are caused by; (i) breach of or default under any covenant or provision of this Agreement by Vendor, (ii) Service of any Product that is inconsistent with the Documents or other instructions provided by GXi, or (iii) any willful misconduct or negligent acts or omissions of Vendor or its officers, employees, agents or Vendor technicians. Vendor shall, at its own option, take control of any Vendor Claim and engage counsel of its own choice to defend any Vendor Claim.

9. Unavoidable Delays

?Neither party shall be liable to the other party for any failure to perform or for delay in performance of its obligations hereunder caused by circumstances beyond its reasonable control, including, but not limited to, fire, flood, earthquake, war, insurrection, riot, sabotage, epidemic, labor disputes, labor shortages, shortage of materials, acts of God, acts of any government or agency thereof or judicial action.

9. Unavoidable Delays

?Neither party shall be liable to the other party for any failure to perform or for delay in performance of its obligations hereunder caused by circumstances beyond its reasonable control, including, but not limited to, fire, flood, earthquake, war, insurrection, riot, sabotage, epidemic, labor disputes, labor shortages, shortage of materials, acts of God, acts of any government or agency thereof or judicial action.

10. Notices

?All notices given with respect to this Agreement shall be in writing and given personal delivery, overnight delivery via nationally recognized courier service, or by certified or registered mail with postage prepaid and return receipt requested. Notices personally delivered shall be effective when delivered. Notices sent by mail shall be deemed to have been given two (2) business days after they are placed in the mail postage prepaid. Notices sent via courier service shall be deemed given one (1) business day after being deposited with the courier service for guaranteed next business day delivery.

?Notices given by GXi shall be addressed to Vendor at:

Agreements