UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): May 11, 2016
SEARS HOMETOWN AND OUTLET STORES, INC.
(Exact Name of Registrant as Specified in Charter)
Delaware | 001-35641 | 80-0808358 | ||
(State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
||
5500 Trillium Boulevard, Suite 501 Hoffman Estates, Illinois |
60192 | |||
(Address of Principal Executive Offices) | (Zip Code) |
Registrants telephone number, including area code: (847) 286-7000
(Former Name or Former Address, if Changed Since Last Report):
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions ( see General Instruction A.2. below):
¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01 Entry into a Material Definitive Agreement.
Sears Hometown and Outlet Stores, Inc. (together with its subsidiaries, we, us, our, SHO, and the Company) separated from Sears Holdings Corporation (Sears Holdings) on October 11, 2012 (the Separation). In connection with the Separation, we entered into various agreements with Sears Holdings and several of its subsidiaries the SHO-Sears Holdings Agreements). For additional information regarding the SHO-Sears Holdings Agreements see our Annual Report on Form 10-K for the fiscal year ended January 30, 2016 (filed April 1, 2016; File No. 001-35641) and our definitive proxy statement relating to our Annual Meeting of Stockholders to be held on May 25, 2016 (filed April 22, 2016; File No. 001-35641).
According to publicly available information, ESL Investments, Inc. and its investment affiliates including Edward S. Lampert (together, ESL) own approximately 51% of our outstanding shares of common stock and approximately 50% of Sears Holdings outstanding shares of common stock. Edward S. Lampert, Chairman, Chief Executive Officer, and Director of ESL Investments, Inc., is the Chairman of the Board and Chief Executive Officer of Sears Holdings.
On May 11, 2016 the Company and Sears Holdings executed and delivered to each other amendments to the SHO-Sears Holdings Agreements (the May 2016 Amendments). The Audit Committee of the Companys Board of Directors approved the May 2016 Amendments in accordance with the Companys Related-Persons Transactions Approval Policy. The Board of Directors ratified the Audit Committees approval. Shearman & Sterling LLP and FTI Consulting, Inc. advised the Audit Committee and the Board of Directors with respect to their deliberations regarding the May 2016 Amendments.
The following are brief summaries of the terms and conditions of the amendments to the SHO-Sears Holdings Agreements made by the May 2016 Amendments that the Company believes are material to it.
1. Amended and Restated Merchandising Agreement (the Restated MA) between (i) Sears, Roebuck and Co. (SRC), Sears Holdings, and Kmart Corporation, (Kmart and together with SRC and Sears Holdings for the purposes of this summary Seller), and (ii) the Company, Sears Authorized Hometown Stores, LLC (SAHS), and Sears Outlet Stores, L.L.C. (Sears Outlet and together with the Company and SAHS (for the purposes of this summary, together Buyer). SRC and Kmart are wholly owned subsidiaries of Sears Holdings. SAHS and Sears Outlet are wholly owned subsidiaries of the Company. A copy of the Restated MA is filed as Exhibit 10.1 to this Form 8-K and is incorporated herein by reference. The following brief summary is qualified by, and is subject to, the terms and conditions of the Restated MA.
The Restated MA amends and restates the Merchandising Agreement dated August 8, 2012, as amended, between Seller and Buyer (the Merchandising Agreement). Among other things the Restated MA (a) extends the initial term of the Merchandising Agreement to February 1, 2020 (the Initial Term) (which among other things extends to that date the Companys rights to purchase distressed and refurbished merchandise (DRM) and mark-out-of stock merchandise (MOS) for the Companys Outlet business at existing pricing except as noted below) and provides one three-year extension to purchase KCD-branded (KENMORE ® , CRAFTSMAN ® , AND DIEHARD ® ) products, (b) establishes the product prices, KCD royalty rates, and KCD warranty rates for purchases from Seller through the Initial Term, except that Seller may increase charges if Sellers costs increase due to a change in legislation, regulation, business conditions, or Sellers operations, (c) amends Sellers termination rights by (1) giving Seller the right to terminate if Buyer sells products or services provided by Seller in connection with a non-Sears-branded business and (2) adds a right for Seller to terminate its obligations under the Merchandise Agreement for a defined geographic market if Seller otherwise exits the geographic market, (d) adds the ability for Buyer to obtain from Seller unique products that Seller does not otherwise assort, (e) grants a license to Buyer to conduct specified commercial sales, subject to limitations, of Seller-provided products in exchange for a commission, (f) amends the dispute-resolution provisions to restrict both Buyer and
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Seller from raising specified disputes or claims against the other that relate to an act or omission occurring more than 120 days prior to the date on which such dispute or claim was asserted (the Stale Claims Agreement), (g) adds a requirement that Buyer make Seller whole in the event a value added tax is imposed in the US, its territories, or Bermuda for products supplied to Buyer, (h) requires Buyer to pay invoices within 3 days through July 31, 2016, for which Buyer may take a 37 basis-point discount) and to pay invoices within ten days after July 31, 2016 without discount (the Revised Payment Terms Agreement), (i) adds specified products to the pool of DRM that Buyer must purchase from Seller, (j) adds obligations for Seller, subject to specified restrictions, to provide Buyer credits for KCD-branded DRM that are not repairable, (k) adds clarifying language on how vendor subsidies will be calculated and allocated and removes specified products from the allocation calculation, (l) adds an obligation for Buyer to repair specified Craftsman-branded ratchets using ratchet repair kits provided by Seller (at Sellers cost), (m) removes product services provisions from the Restated MA (which are amended and restated in the Services Amendment (defined below)), (n) adds a mechanism for Buyer to request that Seller supply products to a Buyer-operated non-Sears-branded business, (o) amends the non-saleable criteria for DRM to, among other things, remove specified products from being deemed non-saleable, (p) adds Buyers right to dispose of non-saleable products through a salvage process, and (q) adds Buyers express right to relocate stores without violating specified proximity restrictions.
2. Amendment No. 4 to Merchandising Agreement (the Merchandising Amendment) between (i) SRC, Sears Holdings, and Kmart (together for the purposes of this summary Seller), and (ii) the Company, SAHS, and Sears Outlet (together for the purposes of this summary Buyer). A copy of the Merchandising Amendment is filed as Exhibit 10.2 to this Form 8-K and is incorporated herein by reference. The following brief summary is qualified by, and is subject to, the terms and conditions of the Merchandising Amendment.
The Merchandising Amendment amends the Merchandising Agreement. Among other things, the Merchandising Amendment provides that (a) Buyer will pay Seller $600,000 and Buyer waives claims against Seller relating to product repair claims, and (b) Seller waives claims against Buyer relating to alleged KCD warranty fee underpayments and other IT and service-order transfer related claims. SHO and Sears Holdings have separately acknowledged to each other that the claims waivers in the Merchandising Amendment are intended to survive the effectiveness of the Restated MA.
3. Amendment No. 4 to Services Agreement (the Services Amendment) between the Company and Sears Holdings Management Corporation (SHMC, which is a wholly owned subsidiary of Sears Holdings). A copy of the Services Amendment is filed as Exhibit 10.3 to this Form 8-K and is incorporated herein by reference. The following brief summary is qualified by, and is subject to, the terms and conditions of the Services Amendment.
The Services Amendment amends the Services Agreement dated as of August 8, 2012, as amended, between the Company and SHMC (the Services Agreement). Among other things, the Services Amendment (a) extends the term of the Services Agreement through February 1, 2020, (b) establishes a process by which Company may request from SHMC additional services, modifications to the services, and terminations of services, (c) amends the requirements relating to the Company-requested migrations from specified SHMC-provided transition services, (d) adds, with respect to third-party claims relating to the migration of services, limitations on SHMCs liability and indemnification from the Company to SHMC, (e) establishes a process for the Company to request that SHMC provide services to SHO-operated non-Sears-branded businesses, (f) adds SHMCs right to terminate its obligations under the Services Agreement for a defined geographic market if SHMC otherwise exits such geographic market, (g) adds SHMCs right to increase fees for services if a change in legislation, regulation, business conditions, or SHMCs operations result in an increase in SHMCs costs associated with one or more of the services, (h) adds the Companys obligation to pay SHMC, under specified circumstances, increased fees and expenses from third-party providers, (i) provides that the Company may recover from SHMC the Companys increased costs of merchandise if Sears Holdings rejects the Merchandising Agreement, and
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does not reject the Services Agreement, in a bankruptcy proceeding, (j) adds the Stale Claims Agreement and the Revised Payment Terms Agreement, (k) adds limitations on SHMCs liability relating to SHMCs provision of the services, (l) restates the Services Agreements Services Appendix with new appendices that describe SHMCs transition services, product services, supply-chain services, and eCommerce services, (m) deletes all transition services that SHMC will no longer perform for the Company, (n) provides firm pricing for information technology transition services and other transition services, subject to exceptions, (o) appoints SHMC as the exclusive provider of supply-chain services, which subject to specified constraints the Company may terminate for convenience on 90-days notice, (p) establishes a framework to differentiate how specified merchandise purchased by the Company through SHMC, as a service provider under the Services Agreement, will be treated in contrast to merchandise purchased by the Company from Seller in accordance with the Restated MA, (q) requires SHMC to provide specified supply-chain services support for products purchased by the Company from third parties, (r) extends SHOs hybrid delivery rights to February 1, 2020, (s) adds SHMCs right to increase the costs of specified home delivery services upon 90 days notice to the Company, (t) caps SHMCs liability for loss or damage caused by SHMC to products the Company buys from third parties, (u) appoints SHMC as the exclusive provider of product-repair services (subject to exceptions such as the Company right to repair non-KCD-branded products located at the Companys Outlet Repair Distribution Centers), (v) eliminates the Companys right to generally terminate product-repair services for convenience but the Company may terminate specified product-repair services if SHMC fails to comply with specified service-level agreements, (w) adds SHMC as exclusive provider of protection agreements, increases commissions SHMC must pay the Company for SHMC protection agreements the Company sells, and adds the Companys right to receive commissions on protection-agreement renewals, (x) adds SHMC as the exclusive provider of specified parts to the Company, (y) adds SHMCs rights of first refusal, subject to specified limitations, to provide specified services for the Company, (z) expands the Companys rights to use marks and domain names licensed by SRC, including rights to (1) sell specified merchandise on previously non-transactional websites (such as searshometownstores.com) and (2) adds a license for the Company to operate searsoutlet.com on a platform other than that operated by SHMC (but specified restrictions apply including restrictions on specified new product sales on searsoutlet.com), (aa) adds that SHMC will enable all SHO locations not currently available as pick-up locations to be eligible to participate in web-to-store sales via sears.com, (bb) adds that the Company may sell non-KCD-branded products on websites that do not use a Sears name, (cc) modifies the eCommerce commissions payable by the Company to SHMC (including without limitation adding a 15% commission payable by the Company on specified eCommerce sales outside of specified territories) and the eCommerce commissions payable by SHMC to the Company, (dd) adds geographic restrictions to the Companys eCommerce marketing rights, and (ee) adds the Companys obligation to pay SHMC for specified ecommerce support services.
4. Amendment No. 1 to Supplemental Agreement (the Supplemental Amendment) between SHO and Sears Holdings. A copy of the Supplemental Amendment is filed as Exhibit 10.4 to this Form 8-K and is incorporated herein by reference. The following brief summary is qualified by, and is subject to, the terms and conditions of the Services Amendment.
The Supplemental Amendment amends the Supplemental Agreement dated as of December 9, 2013 between the Company and Sears Holdings (the Supplemental Agreement). Among other things, the Supplemental Amendment (a) adds releases to additional specified claims, (b) removes from the Supplemental Agreement issues SHO and Sears Holdings had reserved for continuing discussion, and (c) clarifies that claims are not released if they do not arise from those released by the Supplemental Agreement or arise from acts or omissions occurring after the date of release by the Supplemental Agreement.
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5. Amendment No. 1 to Employee Transition and Administrative Services Agreement (the ETASA Amendment) between the SHO Group and SHMC. A copy of the ETASA Amendment is filed as Exhibit 10.5 to this Form 8-K and is incorporated herein by reference. The following brief summary is qualified by, and is subject to, the terms and conditions of the ETASA Amendment.
The ETASA Amendment amends the Employee Transition and Administrative Services Agreement dated as of August 31, 2012 between the SHO Group and SHMC (the ETASA Agreement). Among other things, the ETASA Amendment (a) deletes for the remainder of the term (which ends on April 30, 2018) the obligation of the SHO Group and SHMC to negotiate the per employee administrative fee, (b) adds the obligation of the SHO Group to pay SHMC under specified circumstances increased fees and expenses from third-party vendors asserting that they are legally entitled thereto as a result of the SHO Group receiving benefits from SHMCs relationship with the third-party vendors, (c) adds the Stale Claims Agreement and the Revised Payment Terms Agreement, and (d) incorporates by reference and restates a Statement of Work #1 to the ETASA Agreement that, among other things, removes specified human resource services that will cease to be provided by SHMC in accordance with the ETASA Agreement.
6. Amendment No. 2 to Store License Agreement (Outlet) (the Store License Amendment) between SRC and Sears Outlet. A copy of the Store License Amendment is filed as Exhibit 10.6 to this Form 8-K and is incorporated herein by reference. The following brief summary is qualified by, and is subject to, the terms and conditions of the Store License Amendment.
The Store License Amendment amends the Store License Agreement (Outlet) dated August 8, 2012, as amended, between SRC and Sears Outlet (the Store License Agreement). Among other things, the Store License Amendments adds that if one or more specified events occur SRC grants to Sears Outlet a springing license to operate searsoutlet.com on web properties other than those owned or operated by Sears Holdings to promote and sell Outlet products (which does not include specified New Products) in the United States, its incorporated territories, and Bermuda until February 1, 2020.
7. Amendment No. 1 to Shop Your Way Rewards Retail Establishment Agreement (the SYWR Amendment) between the Company and SHMC. A copy of the SYWR Amendment is filed as Exhibit 10.7 to this Form 8-K and is incorporated herein by reference. The following brief summary is qualified by, and is subject to, the terms and conditions of the SYWR Amendment.
The SYWR Amendment amends the Shop Your Way Rewards Retail Establishment Agreement dated as of August 8, 2012 between the Company and SHMC (the SYWR Agreement). Among other things, the SYWR Amendment (a) delays the ability of the Companys and SHMC each to exercise its rights to terminate the SYWR Agreement for convenience to December 31, 2019, (b) adds the Stale Claims Agreement and the Revised Payment Terms Agreement, and (c) adds the Companys obligation to pay SHMC, under specified circumstances, increased fees and expenses from third-party providers.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
The Exhibits listed in the accompanying Exhibit Index have been filed as part of this Current Report on Form 8-K.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
SEARS HOMETOWN AND OUTLET STORES, INC. | ||
By: |
/s/ CHARLES J. HANSEN |
|
Charles J. Hansen | ||
Vice President, General Counsel, and Secretary |
Date: May 17, 2016
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Exhibit Index
Exhibit
Number |
Exhibit Description | |
10.1(1)(2) | Amended and Restated Merchandising Agreement dated May 11, 2016 between (1) Sears, Roebuck and Co., Sears Holdings Corporation, and Kmart Corporation, and (2) Registrant, Sears Authorized Hometown Stores, LLC, and Sears Outlet Stores, L.L.C. | |
10.2(1)(2) | Amendment No. 4 to Merchandising Agreement dated May 11, 2016 between (1) Sears, Roebuck and Co., Sears Holdings Corporation, and Kmart Corporation, and (2) Registrant, Sears Authorized Hometown Stores, LLC, and Sears Outlet Stores, L.L.C. | |
10.3(1)(2) | Amendment No. 4 to Services Agreement dated May 11, 2016 between Registrant and Sears Holdings Management Corporation. | |
10.4(1) | Amendment No. 1 to Supplemental Agreement dated May 11, 2016 between Registrant and Sears Holdings Corporation. | |
10.5(1) | Amendment No. 1 to Employee Transition and Administrative Services Agreement dated May 11, 2016 between (1) Registrant, Sears Authorized Hometown Stores, LLC, and Sears Outlet Stores, L.L.C. (2) and Sears Holdings Management Corporation. | |
10.6(1) | Amendment No. 2 to Store License Agreement (Outlet) dated May 11, 2016 between Sears, Roebuck and Co. and Sears Outlet Stores, L.L.C. | |
10.7(1) | Amendment No. 1 to Shop Your Way Rewards Retail Establishment Agreement dated May 11, 2016 between Registrant and Sears Holdings Management Corporation. |
(1) | Furnished herewith. |
(2) | Specified provisions of this Exhibit have been omitted and separately filed with the Securities and Exchange Commission pursuant to a request for confidential treatment. |
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T HE USE OF [***] IN THIS E XHIBIT INDICATES THAT A CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT . T HE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION .
Exhibit 10.1
AMENDED AND RESTATED MERCHANDISING AGREEMENT
BETWEEN
SEARS, ROEBUCK AND CO.,
KMART CORPORATION, AND
SEARS HOLDINGS CORPORATION
AND
SEARS HOMETOWN AND OUTLET STORES, INC.,
SEARS AUTHORIZED HOMETOWN STORES, LLC,
AND SEARS OUTLET STORES, L.L.C.,
TABLE OF CONTENTS
1. | ADDITIONAL TERMS AND CONDITIONS | 1 | ||||||
2. | TERM AND TERMINATION | 1 | ||||||
(a) | Initial Term | 1 | ||||||
(b) | The Term; Renewal Rights | 1 | ||||||
(c) | Termination of the Agreement | 1 | ||||||
(d) | Sellers Right to Terminate Its Section 3 Obligations | 3 | ||||||
(e) | Sellers Termination Rights on Appendix 5(a) | 3 | ||||||
(f) | Sellers Termination of an Individual Market | 3 | ||||||
(g) | Buyers Transition and Sell-Off Rights | 4 | ||||||
3. | HTS PRODUCTS | 4 | ||||||
(a) | Sellers Obligation to Sell | 4 | ||||||
(b) | Invoice Prices for HTS Products | 5 | ||||||
(c) | Vendor Charges | 5 | ||||||
(d) | Retail Pricing | 5 | ||||||
(e) | HTS Product Quality, Availability, and Packaging | 5 | ||||||
(f) | Location-Specific Products | 6 | ||||||
(g) | Buyer-Unique Products | 6 | ||||||
(h) | Buyer-Direct Merchandise | 7 | ||||||
4. | OUTLET PRODUCTS | 8 | ||||||
(a) | Section 4 Definitions | 8 | ||||||
(b) | DRM | 8 | ||||||
(c) | MOS | 8 | ||||||
(d) | Lands End | 8 | ||||||
(e) | Right of First Offer for Additional Categories | 9 | ||||||
(f) | Sellers Compliance with Rights of First Offer; Termination | 9 | ||||||
(g) | Retail Pricing | 9 | ||||||
(h) | Invoice Prices for Outlet Products | 9 | ||||||
(i) | Non-Saleable DRM Products | 9 | ||||||
(j) | Delivery of Outlet Products | 9 | ||||||
(k) | Outlet Product Restrictions | 10 | ||||||
(l) | Sale of Additional Outlet Products | 10 | ||||||
(m) | Sale of Additional LG DRM Product | 11 | ||||||
5. | ROYALTIES | 11 | ||||||
(a) | Quarterly Royalty Reports; Royalties Payable | 11 | ||||||
(b) | Commercial Sales | 12 | ||||||
(c) | Adjustments | 13 | ||||||
(d) | Featuring Kenmore-Branded Product | 13 | ||||||
(e) | Minimum Commission | 13 | ||||||
(f) | Record Retention; Audit Rights | 13 | ||||||
6. | INVENTORY MANAGEMENT POLICES AND PROCESSES; DELIVERY TERMS | 14 | ||||||
7. | PAYMENT TERMS FOR INVOICE PRICES AND ROYALTIES | 14 | ||||||
(a) | Invoice Prices for Products | 14 | ||||||
(b) | Royalties | 14 |
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8. | SUBSIDIES AND MARKETING/MERCHANDISING SUPPORT | 14 | ||||||
(a) | Vendor Subsidies | 14 | ||||||
(b) | Product Information Support | 16 | ||||||
(c) | Other Support | 16 | ||||||
9. | CUSTOMERS AND TRADE AREAS | 16 | ||||||
(a) | General | 16 | ||||||
(b) | Buyer | 17 | ||||||
(c) | Seller | 18 | ||||||
(d) | Growth | 19 | ||||||
(e) | New HTS Stores and Renewals-Exclusivity | 19 | ||||||
10. | PRODUCT WARRANTIES AND RETURNS | 19 | ||||||
(a) | Product Warranties | 19 | ||||||
(b) | Product Returns | 20 | ||||||
(c) | Product Returns | 20 | ||||||
(d) | Product Recalls and Similar Product Issues | 21 | ||||||
(e) | Disclaimer | 21 | ||||||
11. | PRODUCT SERVICING | 21 | ||||||
12. | INTELLECTUAL PROPERTY | 21 | ||||||
(a) | Seller | 21 | ||||||
(b) | Buyer | 25 | ||||||
13. | CONFIDENTIALITY | 26 | ||||||
(a) | Confidential Information | 26 | ||||||
(b) | Treatment of Confidential Information | 26 | ||||||
(c) | Exceptions to Confidential Treatment | 27 | ||||||
14. | INDEMNIFICATION | 27 | ||||||
(a) | Seller Indemnities | 27 | ||||||
(b) | Buyer Indemnities | 28 | ||||||
(c) | Defense | 28 | ||||||
(d) | Exclusions from Claims; Tender and Cooperation | 28 | ||||||
15. | INSURANCE | 28 | ||||||
(a) | Required Coverage | 28 | ||||||
(b) | Proof of Insurance | 29 | ||||||
16. | LIMITATION ON LIABILITY | 29 | ||||||
17. | MINIMUM QUANTITIES | 29 | ||||||
18. | DISPUTE RESOLUTION | 29 | ||||||
(a) | Committees | 29 | ||||||
(b) | Dispute Resolution | 30 | ||||||
19. | SELLERS CLOSING LOCATIONS | 31 | ||||||
20. | GLOSSARY | 31 |
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21. | SHCS SOLE OBLIGATION | 35 | ||||||
22. | GENERAL | 35 | ||||||
(a) | Good Faith | 35 | ||||||
(b) | Assignment | 36 | ||||||
(c) | Computer Access | 36 | ||||||
(d) | Promotional Calendars | 36 | ||||||
(e) | Negotiating Event | 36 | ||||||
(f) | Consideration | 36 | ||||||
(g) | Construction and Interpretation | 37 | ||||||
(h) | Counterparts; Facsimile | 37 | ||||||
(i) | Entire Agreement; Severability | 37 | ||||||
(j) | Injunctive Relief | 38 | ||||||
(k) | Notices | 38 | ||||||
(l) | No Waiver | 39 | ||||||
(m) | Publicity | 39 | ||||||
(n) | Relationship of the Parties | 39 | ||||||
(o) | Reporting | 39 | ||||||
(p) | Representations and Warranties | 39 | ||||||
(q) | Recalculation of Charges, Fees and Expenses | 39 | ||||||
(r) | Survival | 40 | ||||||
(s) | Condition Precedent to the Effectiveness of this Agreement | 40 | ||||||
(t) | Governing Law; Jurisdiction; Waiver of Jury Trial | 40 |
Appendices
Appendix 1 |
Additional Terms and Conditions |
2 | ||||
Appendix 3(a) |
HTS Product Categories |
1 | ||||
Appendix 3(b) |
HTS Invoice Prices |
1 | ||||
Appendix 4(b) |
Invoice Prices for DRM |
1 | ||||
Appendix 4(c) |
MOS Categories and Initial MOS Invoice Prices |
1 | ||||
Appendix 4(m) |
Additional LG DRM Product Sort Process |
1 | ||||
Appendix 5(a) |
Royalty Rates; Kenmore Royalty Credits |
1 | ||||
Appendix 5(e) |
Average Aggregate Minimum Commission |
7 | ||||
Appendix 6 |
Inventory Management Policies and Processes |
1 | ||||
Appendix 7(a) |
Payment Due Date |
1 | ||||
Appendix 9(a)(ii) |
Kmart Locations |
1 | ||||
Appendix 12(a)(iii) |
Seller Marks |
1 | ||||
Appendix 18(a)(i) |
Merchandising Operating Committee |
1 |
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AMENDED AND RESTATED MERCHANDISING AGREEMENT
This Amended and Restated Merchandising Agreement (this Agreement ) is, except as expressly stated herein, retroactive to May 1, 2016 (the Effective Date ) and is between (1) SEARS, ROEBUCK AND CO., a New York corporation ( SRC ), KMART CORPORATION, a Michigan corporation ( Kmart and together with SRC, Seller ), and SEARS HOLDINGS CORPORATION, a Delaware corporation ( SHC ), and (2) SEARS HOMETOWN AND OUTLET STORES, INC., a Delaware corporation ( SHO ), SEARS AUTHORIZED HOMETOWN STORES, LLC, a Delaware limited liability company ( SAHS ), and SEARS OUTLET STORES, L.L.C., a Delaware limited liability company ( Outlet Co. and together with SHO and SAHS, Buyer ) and is signed on the dates set forth below. Other capitalized terms used but not defined in this Agreement are defined in Section 20 , which begins on page 35.
TERMS AND CONDITIONS
For good and valuable consideration, the receipt of which Seller and Buyer acknowledge, Seller and Buyer agree as follows:
1. ADDITIONAL TERMS AND CONDITIONS . The Additional Terms and Conditions that are attached to this Agreement as Appendix 1 are incorporated into this Agreement by reference and are binding on Seller and Buyer as if expressly included below. To the extent any provision on Appendix 1 is inconsistent with the body of this Agreement, the body of this Agreement controls.
2. TERM AND TERMINATION .
(a) Initial Term . The initial term of this Agreement begins on the Effective Date and will end, unless terminated earlier or extended in accordance with Section 2(c) or Section 2(d) , at 5:00 p.m. (Central Time) on February 1, 2020 (the Initial Term ). A Contract Year begins on the first day of a Sellers fiscal year and ends on the last day of the Sellers fiscal year, except that the first Contract Year begins on the Effective Date and ends on January 28, 2017.
(b) The Term; Renewal Rights . Subject to Section 2(c) , Section 2(d) , and the next sentences of this Section 2(b) , Buyer may elect to extend for one three-year period Sellers obligations in Section 3 to sell KCD-Branded Products to Buyer. Buyer may not exercise its rights in the preceding sentence if Buyer or any of its Affiliates has failed to comply with any of its material obligations in this Agreement and the failure is continuing. The renewal period is referred to as the Renewal Period and references to the Second Renewal Period in the other agreements between the Parties and/or their Affiliates shall be deemed to refer to such Renewal Period. Buyer will deliver written notice to Seller not later than six months prior to the end of the Initial Term if Buyer elects to extend the Term for the Renewal Period. The Initial Term and the Renewal Period (if elected) are together referred to as the Term and the last day of the Term is referred to as the Expiration Date . This Agreement applies to all Products shipped on or after the Effective Date and before the Expiration Date, regardless of when Buyer placed the order for the Products.
(c) Termination of the Agreement . Neither Party may exercise its rights in this Section 2(c) if the Party or any of its Affiliates has failed to comply with any of its material obligations in this Agreement and the failure is continuing.
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(i) Termination for Material Breach . Subject to the next sentence and to Section 18 , (A) Seller or Buyer may terminate this Agreement in the event of a material breach of this Agreement by the other Party, including Sellers right to terminate this Agreement if Buyer purports to assign any of its rights or delegate any of its obligations under this Agreement in contravention of Section 22(b) , if the breach is curable by the breaching Party and the breaching Party fails to cure the breach within 30 days following its receipt of written notice of the breach from the non-breaching Party. If the breach is not curable by the breaching Party, the non-breaching Party may immediately terminate this Agreement following the non-breaching Partys delivery of notice to the breaching Party.
(ii) Sellers Right to Terminate upon a KCD Change in Control .
(A) Subject to the following sentences of this Section 2(c)(ii)(A) , if a KCD Change in Control occurs during the Initial Term Seller may, by written notice delivered to Buyer on or before the 60 th day following the effectiveness of the KCD Change in Control, terminate this Agreement. The termination will take effect on the date that is the first anniversary (the Section 2(c)(ii)(A) End Date ) of the date that Seller delivered the written notice to Buyer in accordance with the preceding sentence. If the Section 2(c)(ii)(A) End Date is a date that is later than December 31, 2020, the Initial Term will be extended for all purposes of this Agreement to include the period ending on the Section 2(c)(ii)(A) End Date unless Buyer notifies Seller in writing on or before the 15 th day following Buyers receipt of the notice referred to in the first sentence of this Section 2(c)(ii)(A) that the extension will not occur.
(B) Subject to the following sentence of this Section 2(c)(ii)(B) , if a KCD Change in Control occurs during the Renewal Period Seller may, by written notice delivered to Buyer on or before the 60 th day following the effectiveness of the KCD Change in Control, terminate this Agreement. The termination will take effect on the date that is the earlier of (1) the end of the Renewal Period and (2) the first anniversary of the date that Seller delivered the written notice to Buyer in accordance with the preceding sentence.
(C) Upon Sellers exercise of its right to terminate this Agreement in accordance with Section 2(c)(ii)(A) or Section 2(c)(ii)(B) Buyers right to extend the Term of this Agreement in accordance with Section 2(b) will immediately terminate.
(iii) Sellers Rights to Immediate Termination . Seller may terminate this Agreement effective immediately upon written notice to Buyer in the event that (A) Buyer purports to assign any of its rights or delegate any of its obligations under this Agreement in contravention of Section 22(b), (B) Buyer is unable to pay its debts as they mature or enters into a voluntary suspension of payments or voluntary or involuntary bankruptcy, makes an assignment for the benefit of creditors, has a receiver or trustee appointed for it or for any of its property, or adopts a resolution for winding-up, (C) a SHO Stockholding Change occurs, or (D) Buyer fails to comply with Section 12(a)(iii)(F) (New Name Request).
(iv) Termination in Response to Termination of Another Agreement. Seller or Buyer may terminate this Agreement (whichever Party is entitled to terminate, the Terminating Party ) effective immediately upon 30-days advance written notice to the other Party if (A) the Terminating Party or any of its Affiliates terminates the Separation Agreement in accordance with its terms as a result of a material breach of, or a material default by, the other Party or its Affiliates of their obligations in the Separation Agreement, (B) the Terminating Party or any of its Affiliates terminates the Services Agreement in accordance with its terms as a result of a material breach of, or a material default by, the other Party or its Affiliates of their obligations in the Services Agreement, (C) the Terminating Party or any of its Affiliates terminates a License Agreement in accordance with its terms as a result of a material breach of, or a material default by, the other Party or its Affiliates of their obligations in the License Agreement, or (D)
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the Terminating Party or any of its Affiliates terminates the SYW Agreement in accordance with its terms as a result of a material breach of, or a material default by, the other Party or its Affiliates of their obligations in the SYW Agreement. License Agreement means each of the following, each dated August 8, 2012: the Store License Agreement between SAHS and SRC; the Store License Agreement between Outlet Co. and SRC; the Store License Agreement between Sears Home Appliance Showrooms, LLC and SRC; and the Trademark License Agreement between SHO and SRC. Services Agreement means the Services Agreement dated August 8, 2012 between SHMC and SHO, as amended. SYW Agreement means the Shop Your Way Rewards Retail Establishment Agreement dated August 8, 2012 between SHMC and SHO.
(v) Cross Default . A Partys breach of the Services Agreement constitutes a breach by the breaching Party of this Agreement (which breach may only be cured, if at all, in accordance with the express provisions of the Services Agreement). The non-breaching Partys remedies under this Section 2(c)(v) are in addition to and not in lieu of any and all other legal and equitable remedies available to the non-breaching Party under this Agreement and under the Services Agreement.
(d) Sellers Right to Terminate Its Section 3 Obligations . Seller may not exercise its rights in this Section 2(d) if Seller or any of its Affiliates has failed to comply with any of its material obligations in this Agreement and the failure is continuing.
(i) Subject to the following sentences of this Section 2(d)(i) , if a KCD Mark Acquisition occurs during the Initial Term Seller may, by written notice delivered to Buyer on or before the 60 th day following the effectiveness of the KCD Mark Acquisition, terminate Sellers obligations in Section 3 to sell all KCD-Branded Products that are branded with a KCD Mark that is the subject of the KCD Mark Acquisition. The termination will take effect on the date that is the first anniversary (the Section 2(d)(i) End Date ) of the date that Seller delivered the written notice to Buyer in accordance with the preceding sentence. If the Section 2(d)(i) End Date is a date that is later than December 31, 2020, the Initial Term will be extended for all purposes of this Agreement to include the period ending on the Section 2(d)(i) End Date unless Buyer notifies Seller in writing on or before the 15 th day following Buyers receipt of the notice referred to in the first sentence of this Section 2(d)(i) that the extension will not occur.
(ii) Subject to the following sentence of this Section 2(d)(ii) , if a KCD Mark Acquisition occurs during the Renewal Period, Seller may, by written notice delivered to Buyer on or before the 60 th day following the effectiveness of the KCD Mark Acquisition, terminate Sellers obligations in Section 3 to sell all KCD-Branded Products that are branded with a KCD Mark that is the subject of the KCD Mark Acquisition. The termination will take effect on the date that is the earlier of (A) the end of the Renewal Period and (B) the first anniversary of the date that Seller delivered the written notice to Buyer in accordance with the preceding sentence.
(iii) When a termination in accordance with this Section 2(d) takes effect Buyers renewal rights in Section 2(b) will immediately terminate with respect to all KCD-Branded Products that are branded with the KCD Mark or KCD Marks that are the subject of the KCD Mark Acquisition.
(e) Sellers Termination Rights on Appendix 5(a) . Seller has termination rights that are specified on Appendix 5(a) .
(f) Sellers Termination of an Individual Market . If Seller or its Affiliates decides to initiate a Market Exit, Seller may, upon 60-days advance written notice delivered to Buyer, terminate Sellers obligations in this Agreement with regard to the Geographic Market specified in the written notice. A Market Exit does not prohibit Buyer from transporting Products to and selling Products, including Products bearing a Seller Mark, within the affected Geographic Market; subject to SHOs
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obligation to comply with all Applicable Laws. For purposes of this Agreement, a Market Exit means that Seller and its Affiliates close all physical stores operated by Seller or its Affiliates in such Geographic Market (but expressly excluding online sales) and close all of Sellers and its Affiliates warehousing, distribution, logistics, and other support activities for its and its Affiliates physical stores in the Geographic Market. A Geographic Market means a state, territory or other similarly sized region (e.g., Rhode Island, Puerto Rico or Guam). In the event of a Market Exit, Buyer may request that Seller continue to perform some or all of its obligations under this Agreement; Seller has no obligation to agree to such request, and may condition its acceptance on new or modified terms and conditions (including changes in pricing); any such agreement must be documented in writing and signed by both Parties (after receipt of necessary internal approvals), to be effective.
(g) Buyers Transition and Sell-Off Rights . Subject to the next sentence, upon termination of this Agreement for any reason or upon expiration of this Agreement Seller will provide Buyer with all reasonable transition services ( Transition Assistance ) for a period beginning on the date of termination or expiration and ending on or before the 180 th day after thereafter (the Transition Period ). This Section 2(g) is not applicable if a termination of this Agreement occurs in accordance with Section 2(c)(i) , Section 2(c)(ii) , Section 2(c)(iii) , or Section 2(d) . The Transition Assistance will include enabling Buyer to transition from the Products to the products of another provider and will include Sellers continued sale of Products, and continued provision of services that are necessary to implement the continued sale of Products (including all services to be provided by Seller that are described on Appendix 6 ), to Buyer in accordance with the terms and conditions of this Agreement to the extent necessary for an orderly transition. During the Transition Period (i) the HTS Invoice Prices, the Outlet Invoice Prices, and Royalties will be the HTS Invoice Prices, the Outlet Invoice Prices, and the Royalties, respectively, in effect immediately prior to the termination or expiration of this Agreement and (ii) the prices for services provided by Seller to Buyer in accordance with this Agreement will be the prices for the services in effect immediately prior to the termination or expiration of this Agreement. For all other Transition Assistance, Seller will not charge Buyer fees that exceed Sellers then-standard rates (taking into account the average discount Seller provides to comparable wholesale or licensee customers). During the Transition Period Seller and Buyer will perform all of the terms and conditions of this Agreement to be performed and observed by each of them as if this Agreement were in full force and effect during the Transition Period. During the Transition Period and thereafter Buyer will use commercially reasonable efforts to sell off all of the Products in Buyers inventory in accordance with the terms of this Agreement.
3. HTS PRODUCTS .
(a) Sellers Obligation to Sell . Subject to the other sentences of this Section 3(a) , subject to Sections 2(c) , 2(d) , and 2(e) , and in accordance with Section 6 , Buyer may purchase from Seller, and Seller will sell to Buyer, all of the products that Seller from time to time purchases from Vendors that are included in the product categories listed on Appendix 3(a) (the product categories together the HTS Product Categories and the products together the HTS Products ) other than Customer-Specific Products and Non-Retail Products. Buyer acknowledges that Sellers obligations to sell the HTS Products to Buyer in accordance with this Agreement is subject to Sellers Vendors agreeing to sell the HTS Products to Seller for resale to Buyer on commercially reasonable terms and conditions, over which Seller may have little or no control. Subject to Section 3(b) , Seller will take commercially reasonable actions necessary to acquire HTS Products for sale to Buyer at the best prices to Seller or its Affiliates available from Vendors. Seller will (i) not refuse or otherwise cease to sell to Buyer any HTS Product that is available for purchase on commercially reasonable terms from a Vendor except on 12-months prior written notice to Buyer, and (ii) promptly notify Buyer if a Vendor discontinues an HTS Product.
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(i) Customer-Specific Product is a product that Seller sells to a customer that is a reseller (other than Buyer and Sellers Retail Businesses) and the product includes branding, trade dress, or significant features that are unique to the customer.
(ii) Non-Retail Product is a product that Seller does not sell to end-user consumers.
(iii) Sellers Retail Businesses means all retail businesses operated by Seller and its Affiliates including Sears stores and Kmart stores and including Sears.com, Kmart.com, and all other retail businesses operated by Digital Methods.
(b) Invoice Prices for HTS Products . The invoice prices for the HTS Products that Seller will sell to Buyer are described on Appendix 3(b) (the HTS Invoice Prices ). The HTS Invoice Price of each HTS Product will include (and will not be charged additionally to Buyer) all costs of manufacturing and delivering the Products to the FOB Point, including (i) all duties and taxes (including excise and withholding taxes) payable in any country where production or delivery takes place, (ii) all commissions to selling agents, and (iii) other incidental charges. Sellers invoices will itemize for Buyer each 3(b) Amount described on Appendix 3(b) to the extent Sellers systems permits itemization. If a value-added tax is imposed in the Territory that is applicable to Sellers sale of HTS Products to Buyer then Seller and Buyer will negotiate in Good Faith an amendment to this Agreement, the terms of which would adjust the HTS Invoice Prices or make other changes to this Agreement (to make Seller whole on the Sale of HTS Products to Buyer and its Affiliates) given the imposition of the tax. For clarity, the parties note that, Seller is, where required by applicable law, entitled to charge Buyer under this Agreement for all value-added and sales taxes. For clarity, the parties note the term HTS Invoice Price in the Agreement includes amounts that were previously included in Sellers invoice costs for HTS Products but which amounts Seller agrees with the vendor of the HTS Products to pay separately to the vendor ( Added Costs ). Buyer shall pay its share of all Added Costs; regardless of when they are incurred. Seller has provided, and shall provide, Buyer prompt notice of all Added Costs and changes to Added Costs after they are agreed to by Seller and its vendors, after which notice Buyer may as soon as reasonably practicable revise its forecasts for HTS Products for which Seller has not yet entered a purchase order into its purchase order system and that are affected by the noticed Added Costs or changes thereto.
(c) Vendor Charges . With respect to HTS Products sold to Buyer in accordance with this Agreement, Seller may charge back to Buyer all price adjustments, charges, and penalties that Seller is obligated to pay to its Vendors that occur to the extent due to the direct result of Buyers act or omission, including failure to comply with Vendor policies.
(d) Retail Pricing . Buyer will determine advertised prices, promotional prices, and retail prices for all HTS Products in Buyers sole discretion. Any agreement or understanding to the contrary is unauthorized, in conflict with Buyers and Sellers policies, and a violation of the terms and conditions of this Agreement. Buyer is aware that Sellers Vendors from time to time adopt minimum advertised price policies ( MAP ) and unilateral pricing policies ( UPP ) that may apply to Seller and its sale of HTS Products to Buyer in accordance with the terms and conditions of this Agreement. Buyer is also aware that the failure to comply with a Vendors MAP or UPP could result in the Vendors imposition of financial penalties on Seller and the Vendors refusal to sell one or more HTS Products to Seller, which ultimately could result in Sellers inability to sell one or more HTS Products to Buyer in accordance with the terms and conditions of this Agreement. Buyer is also aware that Seller could seek to implement its own MAP and UPP with respect to HTS Products.
(e) HTS Product Quality, Availability, and Packaging . Subject to Section 3(a) , all HTS Products that are sold by Seller or its Affiliates to other customers (including Sellers Retail Businesses) will be identical in all respects, to the HTS Products sold by Seller or its Affiliates to Buyer except for
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required changes to packaging and labeling that are required by Applicable Law or for which Buyer bears the entire cost. Seller will use commercially reasonable efforts to include in HTS Products available to Buyer all new products and product innovations that Seller purchases from Vendors so that Buyer will have the opportunity to offer HTS Products that are as compelling to Buyers end-user consumers as Sellers comparable product offerings in its full line stores. Seller will obtain Buyers prior written approval for all initial KCD-Unique Product packaging specifications and graphic designs and for all changes to them.
(f) Location-Specific Products . Buyer may sell each Location-Specific Product only in accordance with Sellers requirements as to where the Location-Specific Product may be sold. A Location-Specific Product is an HTS Product, other than a Customer-Specific Product and a Non-Retail Product, that Seller sells to resellers (including Sellers Retail Businesses) and as to which Seller requires all of the resellers to resell only at bricks and mortar physical locations or by Digital Methods.
(g) Buyer-Unique Products .
Subject to Sections 2(c) , 2(d) , and 2(e) , and in accordance with Section 6 , Buyer may purchase from Seller, and Seller will sell to Buyer, Buyer-Unique Products (subject to the terms, conditions and exceptions set forth below). Buyer acknowledges that Sellers obligations to sell Buyer-Unique Products to Buyer in accordance with this Agreement is subject to vendors agreeing to sell the Buyer-Unique Products to Seller for resale by Buyer on commercially reasonable terms and conditions, over which Seller may have little or no control. Subject to the provisions of this Section 3(g) and Sections 3(b) and 3(h) , Seller will take commercially reasonable actions necessary to acquire Buyer-Unique Products for sale to Buyer at the best prices to Seller or its Affiliates available from vendors; provided that Seller is not obligated to acquire any products which: (x) would harm Sellers relationship with another Seller vendor,(y) would impose unique risks or obligations on Seller (e.g., products not covered by Seller which have unique storage, shipping, or compliance requirements). Subject to the foregoing sentence, Seller will (x) not refuse to sell to Buyer any Buyer-Unique Product that is available for purchase on commercially reasonable terms from a Vendor, and (y) promptly notify Buyer if a Vendor discontinues a Buyer-Unique Product . During Sellers 2016 fiscal year, Seller has agreed to hold up to $13 million of Buyer-Unique Products inventory based upon a forecast of needs that Buyer has provided. On or before September 30 th of each year during the Term, Buyer may request in writing that Seller sell Buyer-Unique Products up to a specified dollar amount during Sellers next fiscal year. Seller will consider such request in Good Faith, and Seller will establish a limit on the amount of Buyer-Unique Products it is willing to buy for Buyer based upon its own inventory needs, finances and other relevant factors. The amounts established under the immediately preceding two sentences will be used in establishing the BUP Cap for each Contract Year pursuant to Appendix 6 (Inventory Management Policies and Processes).
(i) Buyer-Unique Products are new in-box products in the HTS Product Categories that Buyer seeks to purchase from Seller and that Seller sells to Buyer but are not offered for sale contemporaneously by Seller at Sellers FLS Stores. Buyer-Unique Products include vendor branded products (the Vendor-Unique Products ) and KCD-Unique Products (as defined below). Buyer-Unique Products includes all Vendor-Unique Products which Seller is selling to Buyer on the Effective Date. Seller may, at any time, elect to begin selling any or all Buyer-Unique Product(s) at Sellers FLS Stores or on Sears.com and Buyer shall not object to, or take any action to prevent, Seller from selling Buyer-Unique Products at Sellers FLS Stores. If Seller intends to begin selling Buyer-Unique Products at Sellers FLS Stores (vs Sears.com), Seller shall forecast its needs to its Vendors and Seller will not floor Buyer-Unique Products until Seller has sufficient supply so as to not interfere with Buyers reasonably anticipated needs (based on Buyers forecasts and sales). Once Seller begins selling Buyer-Unique Products either in store or online, then such Products shall become HTS Products. If Seller stops selling an HTS Product at its FLS Stores, such Product shall become a Buyer-Unique Product if: (A) Buyer
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indicates it wishes to continue to sell such Product, (B) Seller is able to continue to purchase such Product on commercially reasonable terms, and (C) in the case of a Products branded with a KCD Mark, SBMC (as defined below) authorizes the sale of such product to Buyer as set described in Section 3(g)(ii) . Buyer may request that Seller add additional Buyer-Unique Products from time to time and Seller will not unreasonably withhold or delay its approval of such items. Grounds for Seller denying such a request include issues such as: (x) Seller would not be fully reimbursed for its costs associated with such Product under this Agreement, (y) the new Buyer-Unique Product is outside of the specifications of Products handled at that time by Sellers supply chain organization (e.g., too big, too fragile), and (z) environmental or other regulatory concerns.
(ii) Seller shall use commercially reasonable efforts to purchase Vendor-Unique Products for resale to Buyer until such time as Buyer has established its own PO System (as defined in the Services Agreement). Upon completion of Buyers PO System, Buyer shall purchase all Vendor-Unique Products as Buyer-Direct Merchandise.
(iii) KCD-Unique Products are new in-box products in the HTS Product Categories branded with a KCD Mark that Seller is not presently buying and that Sellers Affiliate, Sears Brands Management Corporation ( SBMC ), agrees in advance and in writing, that Seller may sell to Buyer. SBMC has no obligation to agree to sell any KCD-Unique Products to Seller and may decline to do so in its sole and absolute discretion. KCD-Unique Products are Buyer-Unique Products under this Agreement for all purposes.
(iv) Buyer-Unique Products are HTS Products under this Agreement for all purposes and will be priced as if they were HTS Products under Section 3(b) . The sale by Seller of a Buyer-Unique Product through Sellers Digital Methods does not result in that Product converting into an HTS Product and does not relieve Buyer of its obligations to purchase any Buyer-Unique Products consistent with its forecasting obligations detailed in Appendices 1 and 6 .
(v) Beginning on the first day of the third Contract Year, the HTS Invoice Price for purchases by Buyer of Vendor-Unique Products will be subject to an additional charge of 5.0% of Core Cost.
(h) Buyer-Direct Merchandise . As more fully described in the Services Agreement, Seller will facilitate Buyers purchase of Buyer-Direct Merchandise (defined in the Services Agreement), including EMP purchase orders (as more fully described in the Services Agreement) and products covered by Buyer purchase orders issued through Sellers systems to Vendors for the direct shipment of those products to Buyers facilities or customers (as more fully described in the Services Agreement). For the avoidance of doubt, Sellers or its Affiliates obligations with respect to Buyer-Direct Merchandise are described fully in the Services Agreement and are referenced in this Agreement for context only. No rights or obligations with respect to Buyer-Direct Merchandise are created by this Agreement. Buyer-Direct Merchandise is not a Product for purposes of this Agreement. Seller will be entitled to invoice Buyer for all Buyer-Direct Merchandise under the Merchandise Agreement in the week after delivery to Buyer, its Affiliates and/or a SHO Authorized Seller (as that term is defined in the Services Agreement), as applicable.
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4. OUTLET PRODUCTS .
(a) Section 4 Definitions
(i) DRM means all distressed and refurbished merchandise that from time to time comes into the possession of Seller or one or more of its Affiliates (including Home Appliance merchandise at Sellers Sears Delivery Operations ( SDO ) and that is included in a DRM Merchandise Category.
(ii) DRM Merchandise Category means each of the consumer electronics, furniture, home appliances, lawn and garden, mattresses, sporting goods, and tools Product categories.
(iii) MOS means marked-out-of stock merchandise described on Appendix 4(c) regardless of brand that from time to time comes into the possession of Seller or one or more of its Affiliates.
(iv) Right of First Offer means the obligation of Seller to negotiate in Good Faith with Buyer for 20 business days from Buyers written request regarding the price and other material terms and conditions on which Seller would be willing to sell DRM or MOS to Buyer.
(v) Additional LG DRM Product means lawn and garden products which has been returned to Seller and which are located at its customer return centers. Additional LG DRM Product has historically not been sold to Buyer and do not constitute DRM for purposes of this Agreement.
(vi) Additional Outlet Products means Major Home Appliances located in the 48 contiguous States of the United States that Seller has placed in Clearance Status and that Seller elects to sell to Buyer and Buyer elects to purchase (as provided for in Section 4(i)(A) (Sale of Additional Outlet Product) below). Additional Outlet Products do not include Major Home Appliances that are not owned by Seller or its Affiliates, or that Seller or its Affiliates have leased or rented to consumers.
(vii) Major Home Appliances means clothes washers, clothes dryers, dishwashers, ranges, ovens, cooktops, micro-hood combinations, refrigerators and freezers and other home appliances considered to be a Major Home Appliance by American Home Appliance Manufacturers Association.
(viii) Clearance Status means those products for which Sellers personnel have either: (I) placed the unit in either D (discontinued), F (final), X (clearance) status or (II) placed such unit on the 991 table.
(b) DRM . Subject to Section 6 , during the Initial Term Seller will sell, and Buyer will purchase, all DRM at the prices listed on Appendix 4(b) . Merchandise that is deemed to be DRM for purposes of this Agreement will be determined consistent with the mutual understandings of Seller and Buyer in effect immediately prior to the Effective Date. For DRM at Sellers SDOs, Seller will, at Buyers sole cost and expense, deliver such Products to Buyers nearest facility on a weekly basis.
(c) MOS . Subject to Section 6 , during the Initial Term Seller will sell, and Buyer will purchase, all MOS at the prices listed on Appendix 4(c) . Merchandise that is deemed to be MOS for purposes of this Agreement will be determined consistent with the mutual understandings of Seller and Buyer in effect immediately prior to the Effective Date.
(d) Lands End . Subject to the next sentence, Sellers obligations to sell, and Buyers obligations to purchase, MOS in the Lands End category terminates on April 11, 2018. If at any time thereafter Seller acquires from Lands End MOS in the Lands End category, and Buyer chooses to liquidate such goods (rather than selling them in its stores), Seller will give Buyer 30 days to match any bona fide third party offer it receives for the purchase of such goods.
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(e) Right of First Offer for Additional Categories . Buyer will have a continuing Right of First Offer to purchase all of Sellers (i) discontinued and obsolete products, (ii) overstock products and home goods and furniture that were new and still in original packaging, (iii) distressed, refurbished, discontinued, and obsolete home goods and furniture, and (iv) marked-out-of-stock footwear, except that Buyers rights in this Section 4(e) do not apply to Non-Retail Products.
(f) Sellers Compliance with Rights of First Offer; Termination . Seller may comply with its obligations with respect to each Right of First Offer provided in this Section 3(g) by notifying Buyer once during each calendar quarter as to the DRM or MOS, as the case may be, that is subject to the Right of First Offer. If with respect to a Right of First Offer Buyer fails during any 12-month period to engage in Good Faith negotiations for 50% or more of Sellers notifications in the preceding sentence for the Right of First Offer, Sellers obligations, and Buyers rights, with respect to the Right of First Offer will terminate.
(g) Retail Pricing . Buyer will determine advertised prices, promotional prices, and retail prices for DRM, MOS, and all other Products acquired from Seller in accordance with this Section 3(g) (together, Outlet Products ) in Buyers sole discretion. Any agreement or understanding to the contrary is unauthorized, in conflict with Buyers and Sellers policies, and a violation of the terms and conditions of this Agreement.
(h) Invoice Prices for Outlet Products . The invoice prices for the Outlet Products that Seller will sell to Buyer in accordance with this Section 3(g) (the Outlet Invoice Prices ) will include (and will not be charged additionally to Buyer) all costs of manufacturing and delivering the Outlet Products to the FOB Point, including (i) all duties and taxes (including excise and withholding taxes) payable in any country where production or delivery takes place, (ii) all commissions to selling agents, and (iii) other incidental charges. If a value-added tax is imposed in the Territory that is applicable to Sellers sale of Outlet Products to Buyer then Seller and Buyer will negotiate in Good Faith an amendment to this Agreement, the terms of which would adjust the Outlet Invoice Prices or make other changes to this Agreement (to make Seller whole on the Sale of Outlet Products to Buyer and its Affiliates) given the imposition of the tax. For clarity, the parties note that, Seller is, where required by applicable law, entitled to charge Buyer under this Agreement for all value-added and sales taxes.
(i) Non-Saleable DRM Products . The Parties acknowledge that a certain amount of the DRM sent to Buyer by Seller from time to time may be Non-Saleable DRM Products. Non-Saleable DRM Products are DRM that in accordance with the Non-Saleable DRM Products Criteria provided in Appendix 4(g)(1) are non-saleable. The Non-Saleable Outlet Products Process means the processes, procedures, and related accounting practices reflected on Appendix 4(g)(2) . In addition to the credits for Non-Saleable DRM Products which Buyer is entitled to under Appendix 4(g)(2) ; Buyer will be separately entitled to a credit (the Non-Repairable Credit ) for KCD-Branded Products which Sellers Affiliate declines to repair because they are either not repairable or too costly to repair under Appendix 1.01-C (Product Services) to the Services Agreement; unless (i) Buyer claimed such DRM product was Non-Saleable under this Section 4(i) ; (ii) the repair of such DRM KCD-Branded Product would not have been covered under the Seller Warranty (had a consumer being seeking repair of such product) (e.g., the products damage was due to mistreatment; not due to defective part), or (iii) Buyer fails to submit such DRM product for repair (through the use of Sellers Affiliates online tool) within 30 days of Sellers delivery of such DRM Product to Buyer. The Non-Repairable Credit shall equal: (A) from the Effective Date through April 29, 2017twenty-five percent (25%), and (B) from April 30, 2017 through the Termfifty percent (50%); in each case of the Outlet Invoice Price actually paid by Buyer to Seller.
(j) Delivery of Outlet Products . Buyer agrees to timely take delivery of/pick-up all MOS. Buyer will pay a $10 charge, per month for any pallet of MOS, which Buyer does not take delivery of/pick-up within 60 days of Seller notifying Buyer that it is available.
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(k) Outlet Product Restrictions . Buyer acknowledges that Sellers obligations to sell the Outlet Products to Buyer in accordance with this Agreement may be subject to Sellers Vendors agreeing to permit Seller to sell the Outlet Products to Buyer for resale in accordance with this Section 3(g) , over which Seller may have little or no control. Seller will take commercially reasonable actions necessary to be able to sell the Outlet Products to Buyer in accordance with this Section 3(g) . If Seller has entered into an agreement with a Vendor in effect immediately prior to the Effective Date and the agreement requires Seller to return Outlet Products to the Vendor (a Return-Requirement Agreement ), or a Return-Requirement Agreement is extended or renewed on or after the Effective Date on substantially the same terms and conditions as its predecessor agreement, the provisions of the extended or renewed agreement will prevail over the provisions of this Section 4(k) . Subject to the next sentence, if on or after the Effective Date Seller in Good Faith enters into an agreement with a Vendor that would require Seller to return an Outlet Product to the Vendor and the price that the Vendor of the Outlet Product would be obligated to pay to Seller would be greater than the Outlet Invoice Price that Buyer would be obligated to pay to Seller for the Outlet Product (the Vendors RTV Payment ), Seller may return the Outlet Product to the Vendor (in exchange for the Vendors RTV Payment) rather than selling the Outlet Product to Seller in accordance with Section 3(g)(b) . Seller will not give the Vendor a financial or other benefit (including agreeing to pay the Vendor a higher purchase price for Sellers purchase of the Outlet Product from the Vendor), or give the Vendor Sellers commitment or obligation, directly or indirectly in exchange for, or as an inducement to the Vendor to pay, the Vendors RTV Payment.
(l) Sale of Additional Outlet Products .
(i) AOP Notice . Seller may elect, in its sole discretion, to notify Buyer in writing (via an email to Marty.Burks@shos.com), of Additional Outlet Product (and their location) that Seller would like to sell to Buyer. Buyer will then have 2 business days to notify Seller in writing (via an email to Steven.Stafford@searshc.com) of whether or not Buyer accepts, in Buyers sole discretion, Sellers offer to sell any or all of the offered Additional Outlet Products (each Buyer notification an AOP Notice ).
(ii) Outlet Invoice Prices . For all Additional Outlet Products that are new in-box, the Outlet Invoice Price will equal 23% off Sellers Core Cost for such Additional Outlet Product,. For all other Additional Outlet Products, the Outlet Invoice Price will equal 42% off Sellers Core Cost for such Additional Outlet Product. Buyer will pay the Outlet Seller Warranty Charge on each Additional Outlet Product subject to a Seller Warranty.
(iii) Delivery, F.O.B. Point and Risk of Loss .
(A) Products Not at a DC . For Additional Outlet Products not located at a Seller distribution facility: (1) within two days of receiving an AOP Notice accepting Sellers offer, Seller will segregate each such Product listed in such notice, and (2) after receiving such notice, Buyer must promptly schedule with Sellers representative pick-up of such Product during the normal operating hours of Sellers facility. Seller will attach corner posts and shrink each such Additional Outlet Product that is out of box. Buyer will be solely responsible for promptly picking-up each such product from Sellers facility; at Buyers sole cost and expense. Risk of loss for such products will transfer to Buyer upon the earlier of: (x) Buyers pick-up, and (y) ten days after the AOP notice accepting Sellers offer.
(B) Products at a DC . Additional Outlet Products located at a Seller distribution facility will be shipped by Seller to Buyer in the same manner as other Outlet Products. Buyer will be solely responsible for all shipping costs. Risk of loss for such Product will transfer upon shipment.
(iv) Co-Ordination with Services Agreement . If a unit of Additional Outlet Product is sold on SearsOutlet.com prior to receipt of an AOP Notice pursuant to Appendix 1.01-D (eCommerce Services) to the Services Agreement (the eCommerce Appendix ), then the eCommerce Appendix will control over this Agreement for such unit.
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(m) Sale of Additional LG DRM Product .
(i) Notice of Additional LG DRM Product . Seller may elect, in its sole discretion, to notify Buyer, of Additional LG DRM Product (and their location) that Seller would like to sell to Buyer. Buyer will then have 2 business days to notify Seller in writing whether or not Buyer accepts, in Buyers sole discretion, Sellers offer to sell any or all of the offered Additional LG DRM Product (each Buyer notification an ALG Notice ).
(ii) Additional LG DRM Product Invoice Prices. For all Additional LG DRM Product, the Invoice Price will be specified by Seller as a percentage off Sellers DOS Cost in Sellers ALG Notice for such Additional LG DRM Product. In addition, Buyer will pay the Sort Charge set forth in Appendix 4(m) based upon the level of service performed by Sellers affiliates prior to sale to Buyer. Buyer will also pay the Outlet Seller Warranty Charge on each Additional LG DRM Product subject to a Seller Warranty.
(iii) Outlet Invoice Prices . For all Additional Outlet Products that are new in-box, the Outlet Invoice Price will equal 23% off Sellers Core Cost for such Additional Outlet Product,. For all other Additional Outlet Products, the Outlet Invoice Price will equal 42% off Sellers Core Cost for such Additional Outlet Product. Buyer will pay the Outlet Seller Warranty Charge on each Additional Outlet Product subject to a Seller Warranty.
(iv) Delivery, F.O.B. Point and Risk of Loss . For Additional LG DRM Products: (1) within two days of receiving an ALG Notice accepting Sellers offer, Seller will segregate each such Product listed in such notice, and (2) after receiving such notice, arrange to deliver the Product to Buyer at Buyers sole cost and expense. Risk of loss for such products will transfer to Buyer upon shipment (and Seller will assist Buyer will filing any claims against the carrier). ALL ADDITIONAL LG DRM PRODUCTS WILL BE SOLD TO BUYER AS-IS, WHERE-IS, WITH NO RETURN RIGHTS. Notwithstanding the foregoing, Buyer may include Sellers standard warranty for KCD-Branded Products provided that Buyer pays the Outlet Seller Warranty Charge for such Product.
5. ROYALTIES .
(a) Quarterly Royalty Reports; Royalties Payable . Within 15 days following the end of each of Buyers fiscal quarters during the Term and during any sell-off period in accordance with Section 2(g) , Buyer will submit to Seller a true and correct report for the fiscal quarter of Gross Sales, Net Sales, and Royalties for each KCD-Branded Product sold by Buyer to a customer during the fiscal quarter (each a Royalty Report ). Gross Sales means the total amount of specified merchandise sold, other than among a Party and its Affiliates, without deduction of any kind (including deductions for separately invoiced freight and insurance, bad debts, and uncollectible accounts). Net Sales means Gross Sales less all returns of the specified merchandise and all adjustments to resolve customer complaints and without any other deduction (including deductions for cash discounts, freight discounts, advertising discounts, and uncollectable amounts). Royalties for a Buyer fiscal quarter means the royalties payable by Buyer with respect to its Net Sales of each category of KCD-Branded Products at the Royalty Rates specified on Appendix 5(a) , less the Kenmore Royalty Credit for the fiscal quarter determined as specified on Appendix 5(a) but subject to Section 5(d) and Section 5(e) . Buyer will pay Royalties at the times specified in Section 7(b) . Buyer will include with each Royalty Report a certificate from a Senior
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Vice President of Buyer certifying, to the Senior Vice Presidents best knowledge after due inquiry, (i) that the contents of the Royalty Report are true and correct in all material respects and (ii) whether during the fiscal quarter Buyer complied with Section 5(d) and Section 5(e) .
(b) Commercial Sales . In addition to the limited license granted to SHOs Affiliates under the License Agreements to sell Seller-Branded Products in SHOs Affiliates retail stores, Seller grants SHOs Affiliates in connection with their operation (in accordance with the various agreements between the Parties /or their Affiliates), of a stores using the Store Names (as defined in the Licensee Agreements) a personal, limited, non-transferable, and terminable right and license to use the licensed Store Names to sell HTS Products and Outlet Products to Commercial Customers subject to following conditions:
(i) Non-Sub-licensable . The license granted under this subsection (f) will be non-sub-licensable, except that SHOs Affiliates may grant sub-licenses to dealers and franchises of stores using the Store Names in connection with the operation of such stores the same extent they are authorized to grant sub-licenses to the Store Names under the License Agreement;
(ii) Commission . In addition to all other amounts due Seller and its Affiliates, Buyer shall pay Seller a commission equal to one percent (1%) of all products Net Sales made by SHO, its Affiliates and SHO Authorized Sellers (the CS Royalty ) to Commercial Customers. Within 15 days following the end of each of Buyers fiscal quarters during the Term and during any sell-off period in accordance with Section 2(g) , Buyer will submit to Seller a true and correct report (the CS Royalty Report ) for the fiscal quarter of Gross Sales, Net Sales, and CS Royalties for each sale to a Commercial Customer. Buyer will include with each CS Royalty Report a certificate from a Senior Vice President of Buyer certifying, to the Senior Vice Presidents best knowledge after due inquiry that the contents of the CS Royalty Report are true and correct in all material respects.
Commercial Customers means purchasers who are not end users (e.g., contractors, home builders, multi-unit property owners); but does not include purchasers of multiple copies of the same SKU (even by contractors, home builders, etc.) that are sold in store operated by Buyer, its Affiliates and/or the SHO Authorized Sellers and picked up by the purchaser at such store (or picked up at such store by a third party arranged by the purchaser without assistance from Buyer, Affiliates or the SHO Authorized Sellers).
(iii) Existing Sears Commercial Customers . Buyer agrees that it, its Affiliates and the SHO Authorized Sellers and will not solicit or sell to Existing Commercial Customers of Seller and its Affiliates. Existing Commercial Customers is defined as a Commercial Customer who, at the applicable time, has made a purchase of products for a commercial project through Seller and its Affiliates in the immediately preceding twelve (12) months. In the event Buyer, its Affiliates, or a SHO Authorized Seller makes a sale to an Existing Commercial Customer, SHO will remit all net margin from the sale to Seller and discontinue further sales to and discussions with the Existing Commercial Customer for a period of 24 months.
(iv) Deliveries to Commercial Customers . All deliveries to Commercial Customers made by Buyer, its Affiliates and SHO Authorized Sellers must be made by Sellers Affiliates pursuant to the Section entitled Commercial Customer Deliveries in Appendix 1.01-C (Supply Chain Services) to the Services Agreement; except for Products which are delivered to such stores and which are then delivered by a SHO Authorized Seller using its own self-delivery capabilities.
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(c) Adjustments . If Buyer or Seller discovers any inconsistencies or mistakes in a Royalty Report or CS Royalty Report, Buyer will deliver an updated Royalty Report or CS Royalty Report, as applicable, within 30 days of such discovery rectifying the inconsistencies or mistakes and, if Royalties or CS Royalties have been under-reported, Buyer will, with delivery of the updated report, simultaneously tender the under-paid Royalties or CS Royalties, as applicable to Seller. If Buyer has over paid Royalties or CS Royalties, Buyer will identify the amount of the overpayment in its updated report and Seller will credit the amount of the overpayment against amounts due in subsequent payment periods after Seller has confirmed that a credit is due.
(d) Featuring Kenmore-Branded Product . Subject to the next sentence, to be eligible for the Kenmore Royalty Credit for a Buyer fiscal quarter Buyer will during the fiscal quarter (i) use commercially reasonable efforts to feature Products sold under the Kenmore Mark ( Kenmore-Branded Products ) in all pre-prints and free-standing inserts created by Buyer for the Sears Hometown Store, Sears Home Appliance Showroom, and Sears Hardware Store formats, and (ii) use commercially reasonable efforts to feature Kenmore-Branded Products on the cover of all preprints created by Buyer in the Sears Hometown Store and Sears Home Appliance Showroom formats. In no event during the Buyer fiscal quarter will Buyer feature Kenmore-Branded Products (x) in less than 95% of all pre-prints and free-standing inserts created by Buyer for the Sears Hometown Store, Sears Home Appliance Showroom, and Sears Hardware Store formats, (y) on the cover of less than 95% of all preprints created by Buyer for the Sears Hometown Store and Sears Home Appliance Showroom formats, and (z) on the cover of less than 50% of the preprints created by Buyer for the Sears Hardware Store formats.
(e) Minimum Commission . To be eligible for the Kenmore Royalty Credit for a Buyer fiscal quarter Buyer will during the fiscal quarter pay the Franchisees and the owners of the Sears Hometown Stores the Average Aggregate Minimum Commission Rate specified on Appendix 5(e) on sales of Kenmore-Branded Products.
(f) Record Retention; Audit Rights . Buyer will keep and preserve accurate records of each transaction relating to Buyers calculations of CS Royalties, Royalties, Kenmore Royalty Credit, Average Aggregate Minimum Commission and Buyers sales for the longer of (i) the minimum period required by Applicable Law, and (ii) two years following the applicable transaction. Upon Sellers reasonable request Buyer will provide Seller with information that will enable Seller to confirm Buyers calculations of CS Royalties, Royalties, Kenmore Royalty Credit, Average Aggregate Minimum Commission and Buyers sales. Seller, with reasonable notice to Buyer, may during normal business hours conduct audits of the books and records of Buyer to confirm Buyers calculations of CS Royalties, Royalties, Kenmore Royalty Credit, Average Aggregate Minimum Commission and Buyers sales (each an Audit ). Subject to the next sentence, Audits may occur no more than twice per calendar year and may be conducted by Sellers employees, by Sellers authorized agents, or by a combination of the two, in each case only if each person participating in an Audit agrees to treat all information with respect to the Audit as confidential in accordance with Section 13(b) . If an Audit or other information demonstrates that Buyer under-reported a Royalty or over-reported a CS Royalties, Royalties, Kenmore Royalty Credit, Average Aggregate Minimum Commission or Buyers sales by more than 5% with respect to two or more Buyer fiscal months, or Buyer fiscal quarters, as the case may be, Seller has the right to conduct Audits on a quarterly basis until such time as Buyer has properly reported Buyers sales, CS Royalties, Royalties, and Average Aggregate Minimum Commission and Kenmore Royalty Credits for three consecutive Audits, after which time Sellers rights in accordance with this Section 5(f) will revert to conducting Audits no more than twice per calendar year. Seller will pay for all Audits but if an Audit shows a 5% or greater discrepancy in the amount of the Buyers Sales, CS Royalties, Royalty, and Average Aggregate Minimum Commission or Kenmore Royalty Credit calculated by Buyer for a Buyer fiscal month or Buyer fiscal quarter, as the case may be, then Buyer will pay for that Audit and all subsequent Audits for a period of one year.
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6. INVENTORY MANAGEMENT POLICES AND PROCESSES; DELIVERY TERMS . With respect to Sellers obligations in Section 3(a) and Section 3(g) , Buyer and Seller will comply with the Inventory Management Policies and Processes specified on Appendix 6 (the Inventory Policies and Processes ). Seller will deliver all Products to the applicable FOB Point in accordance with the Inventory Policies and Processes. With respect to each Product, Seller will have title to, and risk of loss for, the Product until Seller delivers the Product to the FOB Point in accordance with this Section 6 , at which time Sellers title and risk of loss will terminate.
7. PAYMENT TERMS FOR INVOICE PRICES AND ROYALTIES .
(a) Invoice Prices for Products . Seller will invoice Buyer for Products sold to Buyer no earlier than the date the invoiced Products are delivered to the FOB Point. FOB Point means a Sears Hometown Store, a Sears Hardware Store, a Sears Outlet Store, including such a store operated by a Franchisee, the residence of a customer of any of these stores, or a distribution facility to which a Product is delivered in accordance with Buyers instructions. Not later than the Payment Due Date specified on Appendix 7(a) , Buyer will pay for the undisputed portion of each invoice and notify Seller of any disputed amount and the reason for the dispute.
(b) Royalties . During the period that Buyers Stores use Sellers point-of-sale system (the POS ) to record all sales of Products, Buyer will pay to Seller the Royalty and CS Royalty due, as determined by the POS, for each of Buyers fiscal weeks not later than the Payment Due Date specified on Appendix 7(a) . If Buyers Stores cease to use the POS, Buyer will pay to Seller the Royalty and CS Royalty due, as determined from the Royalty Reports and CS Royalty in accordance with Section 5 , for each Buyer fiscal quarter not later than the Payment Due Date specified on Appendix 7(a) .
8. SUBSIDIES AND MARKETING/MERCHANDISING SUPPORT .
(a) Vendor Subsidies .
(i) Subject to the provisions of this Section 8(a), Seller will pay to Buyer the Subsidy Pro Rata Share of each Vendor Subsidy that Seller collects (by actual payment or as a credit against a Seller obligation) with respect to the Product categories sold by Seller to Buyer except to the extent that Seller is prohibited by the terms of a Vendor contract from paying a Subsidy Pro Rata Share to Buyer and except to the extent that a Vendor refuses to pay to Seller a Vendor Subsidy with respect to Sellers sales of Products to Buyer. Vendor Subsidies received for the following will not be allocated between Seller and Buyer on a Subsidy Pro Rata Share basis:
(A) HotBuys/Door Buster items will be allocated on an actual specific units sold basis;
(B) training events (such as Home Appliance Roadshow, SHO Celebration, Powerama) will be allocated to Buyer to the extent it is incurring the related expense;
(C) new store locations will be allocated to Buyer with respect to Buyers store locations for which the Vendor Subsidy is applicable and to Seller with respect to Sellers store locations for which the Vendor Subsidy is applicable;
(D) Buyer-specific transition and Vendor-Unique Product merchandise subsidies will be allocated to Buyer only;
(E) Seller-specific transition merchandise subsidies will be allocated to Seller only;
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(F) Buyer-specific fixture subsidies will be allocated to Buyer only;
(G) Seller-specific fixture subsidies will be allocated to Seller only,
(H) Defective and return subsidies based upon actual units returned will be allocated to Buyer and Seller on an actual cost-incurred basis; however, all defective/return credits which are paid on a percentage of cost basis will be allocated based upon the Subsidy Pro Rata Share; provided further , that for Products which Buyer stops returning to Seller SHO shall no longer be entitled to share in the liquidation proceeds for such products; nor in the defective and returned subsidy for such Products (unless the Vendor has expressly agreed to provide such subsidies on defective Products which Seller (or Buyer) are repairing and reselling);
(I) Subsidies collected by Sears de Puerto Rico directly (and not by SRC) will be allocated to Buyer and Seller based on balance of Product sales in Puerto Rico (excluding Buyers Outlet sales in Puerto Rico);
(J) Vendor-specified subsidies for the promotion of on-line sales on Sellers and its Affiliates websites and mobile applications (e.g., Sears.com and Kmart.com) and subsidies for the placement of banner advertisements on such websites and applications, will be allocated to Seller only; and
(K) Vendor-specified subsidies for the promotion of on-line sales on the SHO Web Platforms, and subsidies for the placement of banner advertisements on such websites, will be allocated to Buyer only.
(ii) Seller will in Good Faith use commercially reasonable efforts to maximize the Vendor Subsidies and to obtain Vendors permission to share all Vendor Subsidies with Buyer in accordance with this Section 8(a).
(iii) Seller will calculate Subsidy Pro Rata Share on a fiscal monthly basis and pay the Subsidy Pro Rata Share to Buyer by the 15th day of the next fiscal month.
(iv) Subsidy Pro Rata Share of a Vendor Subsidy paid by the Vendor with respect to, or in connection with, a Product category means a fraction the numerator of which is Buyers total fiscal year-to-date sales in the Product category (excluding Buyer-Unique Products, Buyer-Direct Merchandise, and Outlet Products) and the denominator of which is the sum of (A) Buyers total fiscal year-to-date sales in the Product category (excluding Buyer-Unique Products, Buyer-Direct Merchandise, Outlet Products), and (B) SRCs total fiscal year-to-date sales in the Product category. Sellers sales figures for calculation of Subsidy Pro Rata Share will not include sales by Sellers Kmart stores. If Seller begins selling a Buyer-Unique Product (the date that selling begins, the Selling Date ), all of Buyer and Sellers sales of such Product shall thereafter no long be considered sales of Buyer-Unique Products and any Vendor Subsidy collected by Seller or Buyer shall be considered Vendor Subsidy and shall be shared under this Section. Buyer shall provide to Seller Buyers sales figures to the extent necessary for Seller to calculate the applicable Subsidy Pro Rata Shares; Buyer shall mark such information as Highly Confidential Limited Distribution Internally and Seller will use reasonable efforts to ensure that such information is only used for the purposes described herein.
(v) Vendor Subsidy means support or assistance payments from Vendors relating to merchandise sold or the Vendor-customer relationship and include (regardless as to how they are entitled) advertising and marketing allowances, brand-building subsidies, display subsidies, electronic efforts subsidies, fixed-percentage subsidies, fixture subsidies, markdown support, new-outlet subsidies,
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product-return assistance, quality-assurance subsidies, reset subsidies, signage subsidies, transition-support subsidies, volume incentive discounts, and similar Vendor support and assistance provided on products sold by SRC. Vendor Subsidy will not include Vendor support or any other amounts paid by Vendors on Products sold in Sellers Kmart stores or on Kmart.com.
(vi) Upon written request of the other Party, a Party will promptly provide to the requesting Party, reasonable detail to support the Vendor Subsidies shared and not shared under this Agreement, including, online only subsidies, and the information used to calculate the Subsidy Pro-Rata Share paid, and to the extent permitted under the applicable agreement with the Vendor, copies of the underlying promotional agreements.
(b) Product Information Support . Seller agrees to provide to Buyer the following Product promotional and information support:
(i) Marketing and Promotional Materials . Seller will provide to Buyer a reasonable supply of customer literature and other marketing and promotional items for the Products, consistent with past practices and conditioned on the provision of marketing materials to Seller by its Vendors.
(ii) Electronic Efforts . Seller will support Buyers electronic marketing, distribution, logistic, accounting and sales efforts by providing to Buyer in electronic format (or other format reasonably requested by Buyer) such Product descriptions, text, high-resolution Product images (including supplemental feature shots), audio, video and other web content that Seller has prepared for its own use as Buyer reasonably requests from time to time for any website that is owned or controlled by Buyer (including any product specific site or Micro site) or any other Internet-based application relating to the Products. Seller and Buyer will negotiate in Good Faith the appropriate pro rata charges that Buyer would pay for these services.
(c) Other Support . Periodically during the Term, Buyer and Seller will negotiate to determine the level of Sellers support required to successfully implement Product launches and other promotional initiatives as mutually agreed upon by the Parties to support the sale of the Products. Such support will be determined on a case by case basis in view of competitive conditions in the marketplace and will be documented through a promotional agreement, consistent with past practices and conditioned on the further support of Sellers Vendors.
9. CUSTOMERS AND TRADE AREAS .
(a) General . Nothing in this Section 9 or elsewhere in this Agreement limits or restricts in any way whatsoever the unrestricted rights of each of Seller and its Affiliates to market or sell Products, other merchandise, or services by Digital Methods or the unrestricted rights of Buyer and its Affiliates to market or sell Products other than Seller-Branded Products, other merchandise, or services by Digital Methods. The rights of Buyer and its Affiliates to sell Seller-Branded Products by Digital Methods are subject to Section 12(a)(iii)(B) .
(i) In this Section 9 all references to stores , Stores , and Showrooms refer only to brick and mortar physical locations and all references to new and New stores, Stores, or Showrooms refer to stores, Stores or Showrooms that first open for business on or after the October 11, 2012;
(ii) FLS Stores mean the Seller-owned or operated stores branded with the name Sears or other name used by Seller for any or all of its stores but excluding stores branded with the name Kmart and successor names for Sellers Kmart stores. Sears Stores means the FLS Stores and the Kmart locations set forth on Appendix 9(a)(ii) (Kmart Locations).
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(b) Buyer .
(i) HTS Stores . Buyer and its Affiliates may continue to, and may authorize others to continue to, own, license, franchise, and otherwise operate at all times after the Effective Date the Sears Hometown Stores, Sears Home Appliance Showrooms, and Sears Hardware Stores owned, licensed, franchised, or otherwise operated on or before the Effective Date. Buyer and its Affiliates may open, own, license, franchise, and otherwise operate, and may authorize others (except Seller Competitors), to own, license, franchise, and otherwise operate, at all times after the Effective Date new Sears Hometown Stores, new Sears Home Appliance Showrooms, and new Sears Hardware Stores ( New HTS Stores ) without restriction, except that none of Buyer and its Affiliates will, directly or indirectly, open, own, license, franchise, or otherwise operate, or authorize others to operate, a New HTS Store or any other new store in any Metropolitan Statistical Area (as defined by the United States Office of Management and Budget) unless one of the following applies to the New HTS Store or the other new store:
(A) Intentionally Omitted.
(B) The New HTS Store or other new store (other than a No-EBITDA Store) is at least eight miles (using the most logical driving route) from all existing FLS Stores and the New HTS Store or other new store is at least two miles (using the most logical driving route) from the Kmart locations set forth on Appendix 9(a)(ii) (Kmart Locations);
(C) The New HTS Store or other new store (other than a No-EBITDA Stores) is between five miles and eight miles (using the most logical driving route) from all existing Sears Stores (each an EBITDA Store ) and Buyer has requested (in advance of committing to such location), and received Sellers prior written approval (which approval will not be unreasonably withheld or delayed). For each EBITDA Store, Buyer will pay Seller annually 30% of the new EBITDA Stores annual EBITDA, if any, for the first five of Buyers fiscal years that the new EBITDA Store is open for business, or
(D) The New HTS Store or other new store distributes products primarily on a rent-to-own basis.
(ii) Sears Outlet Stores . Buyer and its Affiliates may continue to own and operate all Sears Outlet Stores owned and operated on the Effective Date without restriction. Buyer may open, own, and operate after the Effective Date new Sears Outlet Stores without restriction, except that on and after the Effective Date Buyer and its Affiliates will not sell and Buyer and its Affiliates will not authorize third parties (e.g., dealers, franchisees) to sell New Products at any Sears Outlet Store that is/was: (a) acquired by Buyer or its Affiliates, or their authorized third party sellers (e.g., dealers, franchisees) after October 31, 2013 or subject to a lease executed after October 31, 2013 (other than the renewal or extension of a lease if the lease was executed on or before October 31, 2013 and other than a lease or sublease by Buyer to a Buyer dealer or franchisee); and (b) within two miles (using the most logical driving route) of an operating Sears Store. New Products means home appliance products, patio products and Craftsman lawn and garden products that are, in each case, new and in box and are a current model (not obsolete); however a model designated in writing as discontinued by the manufacturer (or in the case of Kenmore, by SHMC or its Affiliates), shall not be a New Product.
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(iii) New SHO Location Notice . Buyer will, within five (5) Business Days of the beginning of each month, notify Seller in writing of any new locations Buyer intends to open during the month. In addition, Buyer will notify Seller in writing (at least 5 days prior to signing a lease for such location) of any: (i) New HTS Store locations that are within 9 miles (using the most logical driving distance) of a Sears Store, and (ii) new Sears Outlet Store locations that are that are within 3 miles of a Sears Store (using the most logical driving distance). Seller has no objections to the operation of the following four Buyer Stores (collectively the No-EBITDA Stores ): Austin, TX, Plano, TX, Los Angeles (Hawthorn)), CA, and Murray, UT stores (and Buyer will not be obligated to pay any of its EBITDA on these locations under this Section 9(b)(iii) ). Seller also has no objections to the following 5 Stores: Westlake, OH, Overland Park, KS, Southfield, MI, Grand Prairie, TX and Louisville, KY locations, and for each of the five Stores mentioned in this sentence, Buyer shall pay Seller annually 30% of the stores annual EBITDA, if any, for the first five of Buyers fiscal years that the Store is open for business.
(iv) Relocation of Existing Store . Buyer may relocate HTS and Sears Outlet Stores, but Buyer will not relocate (a) an HTS Store that is within eight miles of a Sears Store to a new physical location that is closer to a Sears Store than the original physical location, (b) an HTS Store that is eight miles or more from a Sears Store to a new physical location that is within eight miles of a Sears Store, (c) an Outlet Store that is selling New Products and that is within two miles of a Sears Store to a new physical location that is closer to a Sears Store than the original physical location, or (d) an Outlet Store that is selling New Products and that is two miles or more from a Sears Store to a new physical location that is closer to a Sears Store than the original physical location. For purposes of this Section 9 , distance between Stores is measured by using the most logical driving route.
(c) Seller .
(i) Existing Stores and New Stores . Seller and its Affiliates may continue to, and may authorize others to continue to, own and operate after the Effective Date all stores owned and operated by them on the Effective Date. Subject to the next sentence, after the Effective Date Seller and its Affiliates may open new stores, and authorize Authorized Stores, using store names used by Seller and its Affiliates on the Effective Date without restriction. After the Effective Date none of Seller and its Affiliates will, directly or indirectly, do any of the following:
(A) in any MicroSA open, own, or operate any new store, or authorize in any MicroSA any new Authorized Store, that is (1) branded with any Mark that includes Kenmore or Craftsman or (2) a Sears Store;
(B) open, own, or operate any new store, or sell Prohibited Products to any new Authorized Store, that is substantially similar to one or more of the Sears Hometown Stores, Sears Home Appliance Showrooms, or Sears Outlet Stores formats existing on the Effective Date; or
(C) open, own, or operate any new store, or authorize any new Authorized Store, that markets or sells, or authorizes (via a license agreement, operating agreement, or otherwise) any natural person, business entity, or non-entity business enterprise to market or sell, any item of Exclusive Merchandise at a store physically located in any Zip Code area with respect to which, and to the extent, Buyer or any Affiliate of Seller has agreed with the owner of an HTS Store to refrain from selling Exclusive Merchandise in the Zip Code area.
(ii) Defined Terms . Authorized Store means a store (A) that is authorized by Seller or its Affiliates pursuant to a license agreement, an operating agreement, or otherwise to market or sell one or more Prohibited Products, or (B) to which Seller or its Affiliates sell products. Exclusive Merchandise means the following merchandise identified by the Kenmore name: clothes washers; clothes dryers; dishwashers; ranges; and full-size refrigerators. MicroSA means a Micropolitan Statistical Area (as defined by the United States Office of Management and Budget). Prohibited Products means Exclusive Merchandise, freezers, built-in cooking, lawn mowers and tractors, and the Products in the following KCD-Branded Product Categories: Hand tools & Mechanics Tools; Power Tools; and Garage & Storage.
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(d) Growth . Buyer and Seller will negotiate in Good Faith with respect to each request by Buyer to sell Seller-Branded Products to Buyers Affiliates, Franchisees, or licensees at brick and mortar physical locations outside the Territory.
(e) New HTS Stores and Renewals-Exclusivity . After the Effective Date Buyer will not enter into an Authorizing Agreement for a New HTS Store that includes, or amend an Authorizing Agreement to add, product-exclusivity rights. If after the Effective Date Buyer in its discretion elects to renew, or permits the assignment of, an Authorizing Agreement for a Sears Hometown Store that includes product-exclusivity rights, Buyer will use commercially reasonable efforts to seek to renew, or permit the assignment of, the Authorizing Agreement on terms and conditions that eliminate the product-exclusivity rights effective upon the renewal or the assignment. Authorizing Agreement means an agreement authorizing an unrelated third-party owner or Franchisee to operate an HTS Store and includes Buyers franchise agreements and dealer agreements.
10. PRODUCT WARRANTIES AND RETURNS .
(a) Product Warranties .
(i) No-Vendor-Warranty Products . With each KCD-Branded Product that Seller purchases from a Vendor without the Vendors customer warranty and resells to Buyer in accordance with the terms and conditions of this Agreement (a No-Vendor-Warranty Product ) Seller will include Sellers customer warranty (the Seller Warranty ). If Seller also sells the No-Vendor-Warranty Product through Sellers Retail Businesses, the duration and coverage of the Seller Warranty will be no less favorable to Buyers customers than the duration and coverage of the most-favorable-to-customer warranty provided by Seller for the No-Vendor-Warranty Product when sold by Sellers Retail Businesses. If Seller does not sell the No-Vendor-Warranty Product through Sellers Retail Businesses, the duration and coverage of the Seller Warranty will be no less favorable to Buyers customers than the duration and coverage of the most-favorable-to-customer warranty provided by Seller for a product that is comparable to the No-Vendor-Warranty Product when sold by Sellers Retail Businesses. All Products that Seller purchases from a Vendor without the Vendors Warranty, other than No-Vendor-Warranty Products, and resells to Buyer in accordance with the terms and conditions of this Agreement are referred to as Excluded No-Warranty Products . Promptly after the Effective Date, Buyer shall reverse (and pay Seller for), all credits Buyer took against the Seller Warranty charges (for KCD Charges), since the start of Sellers 2016 fiscal year.
(ii) Vendor-Warranty Products . With each Product that Seller purchases from a Vendor with the Vendors customer warranty and resells to Buyer in accordance with the terms and conditions of this Agreement (a Vendor-Warranty Product ) Seller will pass-through the Vendors customer warranty(the Vendor Warranty ). Seller will perform its obligations in this Section 10(a)(ii) without any additional compensation payable by Buyer to Seller. The Seller Warranty and the Vendor Warranty are together referred to as the Warranty .
(iii) Sellers Compensation for Seller Warranty . As Sellers sole compensation for the Seller Warranty for a No-Vendor-Warranty Product (including a stock product) that is an HTS Product, the HTS Invoice Price described on Appendix 3(b) includes a charge for the Seller Warranty, and as Sellers sole compensation for the Seller Warranty for a No-Vendor-Warranty Product that is an Outlet Product, Sellers charge for the Seller Warranty is set forth on Appendix 4(b) (collectively,
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Sellers Compensation ). Sellers Warranty does not cover Outlet Product while in Buyers possession prior to sale by Buyer to a consumer and charges for repair of such products ( Outlet Store Stock ) are set forth in Appendix 1.01-B (Product Services) to the Services Agreement (the Product Services Appendix ).
(b) Product Returns .
(i) Repairable Products Covered by a Warranty . For each Product that a customer returns to Buyer for the reason that the Product is defective and the returned Product is covered by a Warranty, Buyer will accept the return of the Product and deliver it to Seller in accordance with and subject to the Product Services Appendix. Seller will determine whether the Product is repairable and, subject to the Product Services Appendix, Seller at its sole expense will repair, and return to the customer, each repairable returned Product in accordance with Section 11 . Notwithstanding the foregoing, for Craftsman ratchets that are covered by the Craftsman Hand Tool Lifetime warranty ( LW Ratchets ), Buyer will be responsible for repairing such LW Ratchets (at its cost) using ratchet repair kits provided by Seller. Seller will reimburse Buyer for the cost of the ratchet repair kits purchased from Seller and used by Buyer or its dealers or franchisees in the repair of the LW Ratchets.
(ii) Non-Repairable Products Covered by a Warranty . For each Product that (A) a customer returns to Buyer for the reason that the Product is defective, (B) the returned Product is covered by a Warranty, and (C) Buyer, in Good Faith, determines is not repairable, Buyer, at its sole expense and using commercially reasonable arrangements determined by Seller, will replace the Product (each a Non-Repairable Product ) for the customer and dispose of the Non-Repairable Product at Buyers sold cost and expense in accordance with all applicable laws.
(c) Product Returns .
(i) For each Non-Repairable Product that is an HTS Product that Seller replaces in Good Faith pursuant to and in accordance with Sellers Craftsman Hand Tool Lifetime warranty exchange (or any successor lifetime program Seller offers on Craftsman products, each a CLW Replacement Product ) Buyer will be entitled to a credit equal to the HTS Invoice Price paid by Buyer to Seller for the CLW Replacement Product Buyer provided to its customer. Except for as noted above, the CLW Replacement Product credit does not apply to any Products that is not a CLW Replacement Product; regardless of whether such Product is warranted by Seller or not. In addition to all other amounts due under the Agreement, for each Non-Repairable Product that is an HTS Product subject to Sellers Craftsman lifetime warranty exchange (or any successor lifetime program Seller offers on Craftsman products) Buyer will separately pay Seller, via a separate payment at the time of its purchase, an additional three percent (3%) on top of the invoice price charged to Buyer for such products (the Lifetime Warranty Charge ). For example, if a particular socket set (which was subject to the Sellers Craftsman lifetime warranty exchange,) was bought by Buyer at an invoice price of $10, then Buyer will pay Seller an additional $0.30 for such product. Seller will, once per month, rebate to Buyer the Lifetime Warranty Charge paid by Buyer to Seller on the CLW Replacement Product provided by Buyer to its customers during the previous month. Buyer shall dispose of all CLW Replacement Product in accordance the Sellers defective tool barrel program.
(ii) Non-Defective Products . Seller will have no obligation to Buyer or any of its customers with respect to Products the customers return to Buyer that are not defective, which Products Buyer may dispose at Buyers discretion (subject to applicable laws) and solely for its account, including selling the Products at Buyers Stores and, subject to Section 12(a)(iii)(B)(6) , selling the Products to liquidators.
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(iii) Returned Products Not Covered by a Warranty . Subject to Section 10(d) , Seller will have no obligation to Buyer or any of its customers with respect to Products the customers return to Buyer that are not covered by a Warranty except to the extent that Buyer requests that Seller repair the Product, in which event Seller will repair the Product in accordance with the Services Agreement. With respect to Products described in the preceding sentence that are not repairable, Buyer may dispose of the Products at Buyers discretion (subject to applicable laws) and solely for its account, including selling the Products at Buyers Stores and, subject to Section 12(a)(iii)(B)(6) , selling the Products to liquidators. Seller may dispose of any non-repairable Products returned to it by Buyer at Sellers discretion and solely for Sellers account.
(iv) Warranty Claims for KCD-Branded Merchandise . If Buyer receives a warranty claim for merchandise that is branded with a KCD Mark but was not purchased from Buyer, Buyer will handle the merchandise in accordance with this Section 10(b) as if the merchandise were a KCD-Branded Product.
(d) Product Recalls and Similar Product Issues . If Seller learns that a Product has been recalled by the U.S. Consumer Product Safety Commission, Seller or a Vendor voluntarily conducts a Product recall, or Seller or a Vendor takes other action with respect to Products that may be defective, Seller will (i) notify Buyer, (ii) provide Buyer with available Seller transaction detail with respect to Buyers purchases of the recalled Product, and (iii) provide Buyer, at Sellers sole expense, sufficient replacement Product, correction kits, or other items to enable Buyer to meet the requirements of the recall or other action. All other costs incurred by Buyer in connection with the recall or other action, including all labor, parts, travel, customer notification, reporting, and legal costs, will be the sole responsibility of Buyer. Seller will have no obligation to Buyer or any other person for claims, costs, obligations, damages, or expenses arising in connection with the recall or other action, including any extraordinary expenses, lost profits, or opportunity costs incurred by Buyer or any customer of Buyer with respect to the recall or other action. Seller and Buyer each will cooperate with the other to assert against, and collect from, the Vendor of the affected Product all claims, costs, obligations, damages, and expenses incurred by each of Seller and Buyer arising in connection with the recall or other action.
(e) Disclaimer . Except as otherwise provided in this Agreement each Party disclaims all other express or implied representations, warranties, and covenants (including warranties of non-infringement and title). Seller and Buyer each acknowledges that reliance on any representation, warranty, or covenant not contained in this Agreement is not what Seller and Buyer intend and would not be reasonable.
11. PRODUCT SERVICING .
Services for the Product sold under this Agreement are set forth in the Product Services Appendix of the Services Agreement. The Parties agree that this Agreement and such Product Services Appendix are integrally related and that neither party would have entered into this Agreement or such Product Services Appendix individually.
12. INTELLECTUAL PROPERTY .
(a) Seller
(i) Work Product . All marketing materials, advertising materials, promotional materials, point of sale displays, packaging, customer information and material, warranty card information, software, data, service training materials, parts lists, owners manuals, service manuals, web content, performance claims and evaluations, testing protocols and data used to evaluate performance claims,
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database formats, methods used to assemble and maintain electronic Seller-Branded Product catalogs, and programming related to Seller or its Affiliates web sites and user applications (e.g., mobile applications) and all files, data, notes, copies, abstracts, copyrights, summaries, and other materials relating to Seller-Branded Products and all copyrights therein, that are prepared, developed or created by or on behalf of Seller or its Affiliates or Buyer or its Affiliates or any of their respective Personnel (together, Seller Work Product ), will be owned worldwide by Seller or its Affiliates. All Seller Work Product will be deemed work made for hire as that term may be defined from time to time in Section 101 of the Copyright Act, 17 U.S.C. Section 101 (or any successor). Seller or its Affiliates will be deemed the author of the Seller Work Product, and Seller or its Affiliates will be the owner of all right, title and interest, including all copyrights, in and to the Seller Work Product. If for any reason the Seller Work Product is found not to have been created as work made for hire, Buyer hereby assigns to Seller or its Affiliates without limitation and without additional compensation to Buyer, all right, title and interest, including the copyrights and any other intellectual property rights embodied in the Seller Work Product. Buyer will (and will cause its Affiliates to) execute and deliver to Seller all further documents deemed by Seller to be useful in documenting, effectuating or recording the foregoing assignment. Buyer will not, and will not permit its Affiliates or any third party to, disclose or provide any of the Seller Work Product to any person or entity other than Seller or its Affiliates.
(ii) Ownership of Innovations . Buyer acknowledges (on behalf of itself and its Affiliates) that Seller or its Affiliates will exclusively own all right, title and interest in and to all cosmetic designs, ornamental appearance and trade dress embodied in Seller-Branded Products (including design patents and pending applications) regardless of whether the cosmetic design, ornamental appearance or trade dress originated solely with Seller or its Affiliates, solely with Buyer or its Affiliates or jointly with Seller, Buyer, their respective Affiliates and others. All such cosmetic design, ornamental appearance and trade dress rights and design patents and pending applications will be deemed the intellectual property of Seller or its Affiliates.
(iii) Licenses to Use Seller Marks .
(A) Subject to the next sentence and to Section (B) , Seller hereby grants to Buyer during the Term and during any sell-off period contemplated under Section 2(g) the following: (1) a nonexclusive, nontransferable, and revocable right and license to use, in connection with the marketing and selling of the Seller-Branded Products but in no event to alter, the KCD Marks (the Royalties for which are provided in Section 5(a) ); and (2) a nonexclusive, nontransferable, royalty-free, and revocable right and license to use in connection with the marketing and selling of the Seller-Branded Products, but in no event to alter, all Seller Marks other than the KCD Marks, in each case described in clauses (1) and (2) with respect to the Marks that are affixed to Seller-Branded Products. Buyer may grant sublicenses to Franchisees and the owners of the Sears Hometown Stores to use, in connection with the marketing and selling by them of the Seller-Branded Products, but in no event to alter, the Seller Marks.
(B) Subject to the other sentences of this Section (B) , the licenses granted in Section 12(a)(iii)(A) are limited to the following:
(1) Buyer may market all Seller-Branded Products by all current and future means, methods, and channels (including by Seller Digital Methods) in the Territory. The term Seller Digital Methods includes, upon its implementation in accordance with the eCommerce Appendix, the New SearsOutlet.com (as that term is defined therein); subject to the restrictions on the sales of New Products as set forth therein. Further, Seller agrees that if Seller and Buyer, each in their sole discretion, agree to extend past the Initial Term the purchase by Buyer of DRM or MOS Products; then Seller will cause its Affiliates to agree to extend for that same period SHOs rights to use the New Sears Outlet.com to sell such DRM or MOS product subject to the terms of the eCommerce Appendix and such other terms as may be agreed to by the parties to such Appendix;
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(2) Buyer may market all Seller-Branded Products on the SHO Web Platforms as permitted under and subject to the terms and conditions set forth in in the eCommerce Appendix (including the restrictions on the sale of New Products to the Services Agreement (as those terms are defined therein);
(3) Buyer may market all Seller-Branded Products by all current and future means, methods, and channels (including by Seller Digital Methods) outside of the Territory if such marketing would not violate any Existing Contractual Obligation;
(4) Buyer may sell all Seller-Branded Products at brick and mortar physical locations in the Territory subject to Section 9(b) ;
(5) Buyer may sell all Seller-Branded Products in the Territory and outside the Territory in each case by Seller Digital Methods including delivering Seller-Branded Products outside the Territory to end-user consumers who used one or more Seller Digital Methods to purchase the Seller-Branded Products; and
(6) Buyer may sell Outlet Products to liquidators but only after using commercially reasonable efforts to obtain the agreement of the liquidators to remove or obliterate (where removal is not possible) all Seller Marks from the Seller-Branded Products and all related labels, tags, and packaging.
Existing Contractual Obligation means a contractual obligation that (y) has been entered into in Good Faith by, and is binding on, Seller or one or more of its Affiliates, and (z) if it first becomes binding on Seller or one or more of its Affiliates on or after the October 11, 2012, all terms and conditions in the contractual obligation that limit Sellers right to grant a license to, or otherwise authorize, Buyer to market or sell one or more Seller-Branded Products also to the same extent limit the right of Seller and its Affiliates to grant a license to, or otherwise authorize, each of Sellers Retail Businesses to market and sell the same Seller-Branded Products. Seller Digital Methods means Digital Methods owned or operated by Seller or its Affiliates and includes the Outlet Stores website operated by Sellers Affiliates immediately prior to the Effective Date and its successors owned or operated by Sellers Affiliates.
(C) Subject to the next sentence, Seller may terminate Buyers rights in Section 12(a)(iii)(B)(5) to sell by Seller Digital Methods upon 24-months prior written notice. Upon termination in accordance with the preceding sentence of Buyers rights to sell by Seller Digital Methods, Seller will grant Buyer a license to allow Buyer to (1) market all Seller-Branded Products by all then-current and future means, methods, and channels outside of the Territory if such marketing would not violate any Existing Contractual Obligation in effect immediately prior to the date of such license, and (2) sell all Products by all Digital Methods in the Territory and all Product outside of the Territory if the sale would not violate any Existing Contractual Obligation in effect immediately prior to the date of such license. The license described in the preceding sentence will include terms that are usual and customary for licenses of this type for comparable circumstances and a duration that is the same as the remaining duration of the last of the License Agreements to terminate in accordance with its terms.
(D) Buyer will use Seller Marks in full compliance with the terms and conditions of this Agreement and with all commercially reasonable standards, specifications, and operating procedures prescribed by Seller from time to time, including all logo and trademark-usage guidelines.
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(E) Subject to the following sentences of this subsection, Buyer will submit to Seller for its review and approval, prior to publication, all Non-Guideline Advertising created by Buyer for Seller-Branded Products that incorporate one or more Seller Marks, including newspaper, magazine and website advertising, television and radio tapes, store signage, display billboards and any and all other materials on which a Seller Mark appears. Buyer will submit all Non-Guideline Advertising to Sellers designated marketing associate by email or overnight courier so that the designated marketing associate receives the materials at least seven business days before Buyer intends to use them. If Seller does not notify Buyer of Sellers disapproval of these materials within five business days after Sellers designated marketing associate actually received them, the materials will be deemed approved. Sellers approval of Non-Guideline Advertising is limited to the use of Seller Marks in connection with the advertising and will not be deemed to constitute approval of the appropriateness or compliance with Applicable Laws. Non-Guideline Advertising means all advertising that deviates in any material respect from Sellers logo and trademark-usage guidelines in effect from time to time and delivered to Buyer, but no change that is applicable to Buyer will take effect upon less than 60-days advance written notice to Buyer.
(F) Buyer may from time to time make a written request to Seller (each a New Name Request , for authorization to sell Products under this Agreement and/or Services provided under the Services Agreement in formats owned, licensed, authorized or operated by Buyer or its Affiliates which do not use one of the Sears names licensed by SHO and its Affiliates under the License Agreement (each a Non-Sears Business , e.g., Hometown Stores, instead of Sears Hometown Stores). In each New Name Request, Buyer will identify the specific Product(s) and/or Service(s) that Buyer and its Affiliates desire to continue to purchase from Seller in accordance with this Agreement and the specific formats and locations of the stores for which SHO desires to use the non Sears name, and the Services they desire to continue having sold at the Non-Sears Business. Seller shall not unreasonably withhold or delay its approval/rejection of any such request; however Seller may condition its approval upon Buyer and its Affiliates accepting changes, negotiated in Good Faith, to this Agreement and the other Ancillary Agreements (including the financial terms thereof). Absent written approval by Seller, signed by a Vice President or above of Seller, Buyer and its Affiliates are not authorized (1) to sell at a Non-Sears Business: (i) Products purchased under this Agreement, or (ii) Services provided for resale under the Services Agreement (e.g., protection agreements, and (2) to use Services provided for Buyer and its Affiliates benefit under the Services Agreement in connection with a Non-Sears Business. For clarity, the parties note that Seller may approve certain Products/Services while rejecting others. All Services are subject to the terms and conditions of the Services Agreement (including Section 1.11 (SHO New Name)).
(iv) Ownership; Display and Notices; Goodwill . Buyer acknowledges that (A) Seller or its Affiliates own all the proprietary rights to Seller Marks and (B) Buyer gains no ownership rights to Seller Marks licensed under this Agreement and gains only the limited right to use Seller Marks subject to the terms of this Agreement. Seller and its Affiliates reserve the unrestricted right to use, and to grant others the right to use, Seller Marks. Buyer will display the trademark and service mark notices for Seller Marks that Seller requests. Buyers use of Seller Marks and any goodwill generated from their use inures only to the benefit of Seller or its Affiliates. Buyer will not directly or indirectly contest or challenge the validity of Seller Marks or the rights of Seller and its Affiliates in Seller Marks. Buyer will not register or attempt to register any Mark that is confusingly similar to the Seller Marks or which dilutes any of the Seller Marks, including any domain name or URL containing or otherwise identifying any Seller Mark. Any content displayed on any website containing any Seller Mark must be pre-approved by Seller.
(v) Other Obligations . Buyer will not use, advertise, promote or register any trademark, service mark, design mark or logo that is similar to any Seller Mark. Buyer will not engage in any act which would disparage or dilute the distinctiveness of any Seller Mark, and Buyer will use its best efforts
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to support the premium nature of the brands represented by Seller Marks. Buyer acknowledges that Buyer will not have any right, title or interest in or to any intellectual-property right in any Seller-Branded Product. Buyer will not have any right to alter any Seller-Branded Product or Seller-Branded Product packaging or repair, duplicate, translate, decompile, reverse engineer or adapt any Seller-Branded Product without Sellers prior written consent. Buyer will not use any trademark, trade name, brand name or identifying mark of its own or any third party, alone or in combination with Seller Marks in connection with the sale of the Seller-Branded Products, if such use would create a combination mark.
(vi) Notice of Infringement or Claim . Buyer will promptly notify Seller if Buyer learns of any challenge to its use, or any apparent infringement, of any Seller Mark or any claim by any person to rights in any Seller Mark that are inconsistent with Sellers rights to Seller Marks as described in this Section 12(a) . Seller and its Affiliates retain the right to control exclusively all settlements, litigation, and Patent and Trademark Office proceedings and other proceedings arising out of each such infringement or claim. Buyer will execute all documents and provide, at Sellers expense, all assistance that Seller reasonably requests to protect Sellers interests in Seller Marks and to protect Sellers interests in all litigation and proceedings concerning Seller Marks.
(vii) Retention of Rights . Nothing in this Agreement limits in any way the rights of Seller and its Affiliates in and to Seller Marks, including without limitation (A) all rights of ownership in and to Seller Marks, including the right to license or transfer the same, and, (B) the unimpaired right to use and to license others to use Seller Marks in connection with manufacturing, marketing, distribution, sale, service, maintenance, repair, or provision of any products or services whether within or without the Territory.
(b) Buyer
(i) License to Use Buyer Marks .
(A) Buyer hereby grants to Seller, during the Term and during any sell-off period contemplated under Section 2(g) , a nonexclusive, nontransferable, revocable, royalty-free right to use, but in no event to alter, Buyer Marks that are necessary for Seller to use to perform its obligations in accordance with the terms and conditions of this Agreement.
(B) Seller will use Buyer Marks in full compliance with the terms and conditions of this Agreement and with all standards, specifications, and operating procedures prescribed by Buyer from time to time, including any logo and trademark usage guidelines.
(ii) Ownership; Display and Notices; Goodwill . Seller acknowledges that (A) Buyer or its Affiliates own all the proprietary rights to Buyer Marks and (B) Seller gains no ownership rights to Buyer Marks licensed under this Agreement and gains only the limited right to use Buyer Marks subject to the terms of this Agreement. Buyer and its Affiliates reserve the unrestricted right to use, and to grant others the right to use, Buyer Marks. Seller will display the trademark and service mark notices for Buyer Marks that Buyer requests. Sellers use of Buyer Marks and any goodwill generated from their use inures only to the benefit of Buyer or its Affiliates. Seller will not directly or indirectly contest or challenge the validity of Buyer Marks or the rights of Buyer and its Affiliates in Buyer Marks. Seller will not register or attempt to register any Mark that is confusingly similar to the Buyer Marks or which dilutes any of the Buyer Marks, including any domain name or URL containing or otherwise identifying any Buyer Mark. Any content displayed on any website containing any Buyer Mark must be pre-approved by Buyer.
(iii) Other Obligations . Seller will not use, advertise, promote or register any trademark, service mark, design mark or logo that is similar to any Buyer Mark. Seller will not engage any act which would disparage or dilute the distinctiveness of any Buyer Mark, and Seller will use its best efforts to support the premium nature of the brands represented by Buyer Marks.
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(iv) Notice of Infringement or Claim . Seller will promptly notify Buyer if Seller learns of any challenge to its use, or any apparent infringement, of any Buyer Mark or any claim by any person to rights in any Buyer Mark that are inconsistent with Buyers rights to Buyer Marks as described in this Section 12(b) . Buyer and its Affiliates retain the right to control exclusively all settlements, litigation, and Patent and Trademark Office proceedings and other proceedings arising out of each such infringement or claim. Seller will execute all documents and provide, at Buyers expense, all assistance that Buyer reasonably requests to protect Buyers interests in Buyer Marks and to protect Buyers interests in all litigation and proceedings concerning Buyer Marks.
(v) Retention of Rights . Nothing in this Agreement limits in any way the rights of Buyer and its Affiliates in and to Buyer Marks, including without limitation (A) all rights of ownership in and to Buyer Marks, including the right to license or transfer the same, and, (B) the unimpaired right to use and to license others to use Buyer Marks in connection with manufacturing, marketing, distribution, sale, service, maintenance, repair, or provision of any products or services whether within or without the Territory.
13. CONFIDENTIALITY .
(a) Confidential Information . Confidential Information means all information, whether disclosed in oral, written, visual, electronic or other form, that (i) one Party (the Disclosing Party ) discloses to the other Party (the Receiving Party ), (ii) relates to or is disclosed in connection with this Agreement or a Partys business, and (iii) if not designated as confidential (in which event the information is deemed to be Confidential Information), is or reasonably should be understood by the Receiving Party to be confidential or proprietary to the Disclosing Party. The Disclosing Partys sales, pricing, costs, inventory, operations, employees, current and potential customers, financial performance and forecasts, and business plans, strategies, forecasts and analyses, as well as information as to which the Securities and Exchange Commission has granted confidential treatment pursuant to its Rule 406 of Regulation C (the CTR Information ), are Confidential Information.
(b) Treatment of Confidential Information . The Receiving Party will use Confidential Information only in accordance with this Agreement and, except as expressly permitted by this Agreement and subject to the next sentence, will not disclose any Confidential Information for three years from the date of receipt of the Confidential Information. Neither Party will disclose the CTR Information during the period ending December 31, 2022.
(i) Limitations . The Receiving Party will (A) restrict disclosure of the Confidential Information to its and its Affiliates Personnel ( Representatives ) with a need to know the Confidential Information for purposes of performing the Receiving Partys responsibilities or exercising the Receiving Partys rights under this Agreement, (B) advise those Representatives of the obligation not to disclose the Confidential Information, (C) copy the Confidential Information only as necessary for those Representatives who need it for performing the Receiving Partys responsibilities under this Agreement, and ensure that confidentiality is maintained in the copying process; and (D) protect the Confidential Information, and require those Representatives to protect it, using the same degree of care as the Receiving Party uses with its own Confidential Information, but no less than reasonable care.
(ii) Permitted Disclosure . Either Party may disclose the Confidential Information to any of its Affiliates but only if the Affiliates use of such Confidential Information will be subject to the terms and conditions of this Agreement and the Disclosing Party will remain responsible for disclosures by its
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Affiliates and their Personnel in violation of this Agreement. Buyer may disclose (A) the existence and contents of this Agreement in connection with Buyers filings with the Securities and Exchange Commission and with federal and state franchise regulatory authorities (including filing this Agreement as an exhibit to Buyers filings), and (B) Sellers Confidential Information related to Products to Franchisees and their Personnel in connection with the sale of Products but the use of the Confidential Information in accordance with this clause (B) will be subject to the terms and conditions of this Agreement and Buyer will remain responsible for disclosures made by Franchisees and their Personnel in violation of this Agreement.
(iii) Liability for Unauthorized Use . The Receiving Party will be liable to the Disclosing Party for any unauthorized disclosure or use of Confidential Information by any of its and its Affiliates or current or former Personnel.
(iv) Destruction . Within ten days after receiving the Disclosing Partys written request, the Receiving Party will destroy or return (as instructed by the Disclosing Party) any materials containing Confidential Information, and certify to the Disclosing Party that it has satisfied its obligations under this Section 13(b) .
(c) Exceptions to Confidential Treatment .
(i) Exceptions . The obligations under this Section 13 do not apply to any Confidential Information that the Receiving Party can demonstrate (A) was previously known to the Receiving Party without any obligation to hold it in confidence, (B) is disclosed to third parties by the Disclosing Party without an obligation of confidentiality to the Disclosing Party, (C) is or becomes available to any member of the public other than by unauthorized disclosure, (D) was or is independently developed by the Receiving Party without use of the Confidential Information, (E) legal counsels advice is that the Confidential Information is required to be disclosed by Applicable Law or the rules and regulations of any applicable regulatory authority, or (F) legal counsels advice is that the Confidential Information is required to be disclosed in response to a valid subpoena or order of a court or other governmental body of competent jurisdiction or other valid legal process.
(ii) Notification . In the case of any disclosure under Section 13(c)(i)(E) or Section 13(c)(i)(F) the Receiving Party must notify the Disclosing Party prior to disclosure and use reasonable efforts to cooperate with the Disclosing Party so that the Disclosing Party may take legally available steps to resist or narrow the requested disclosure and obtain an appropriate protective order or other assurance that confidential treatment will be accorded the Confidential Information.
14. INDEMNIFICATION .
(a) Seller Indemnities . To the fullest extent permitted by Applicable Law and subject to Section 14(d) and Section 16 , Seller will defend, indemnify, and hold harmless Buyer, its Affiliates, and their respective present, former, and future directors, officers, other employees, agents, each of their successors, and assigns, and the heirs, executors, administrators of each of the foregoing that are natural persons (together, the Buyer Indemnified Persons ), against all damages, losses, costs, expenses (including attorneys fees, costs and expenses), and other liabilities arising out of or in connection with all Seller Claims. Seller Claims means all claims, demands, suits, and causes of action by third parties (other than Buyer and its Affiliates) arising out of or in connection with this Agreement (including claims of negligence by Personnel of Seller or its Affiliates) that result, or are claimed to result, in whole or in part, from (i) the violation by Seller, its Affiliates, or any of their Personnel of any intellectual property right of another, (ii) the failure by Seller or its Affiliates to perform their obligations in this Agreement in accordance with their terms, or (iii) any other act or omission of Seller or its Affiliates.
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(b) Buyer Indemnities . To the fullest extent permitted by Applicable Law and subject to Section 14(d) and Section 16 , Buyer will defend, indemnify and hold harmless Seller, its Affiliates, and their respective present, former, and future directors, officers, other employees, agents, each of their successors, and assigns, and the heirs, executors, administrators of each of the foregoing that are natural persons (together, the Seller Indemnified Persons ), against all damages, losses, costs, expenses (including attorneys fees, costs and expenses) and other liabilities arising out of or in connection with all Buyer Claims. Buyer Claims means all claims, demands, suits, and causes of action by third parties (other than Seller and its Affiliates) arising out of or in connection with this Agreement (including claims of negligence by the Personnel of Buyer or its Affiliates) that result, or are claimed to result, from (i) the use of any Seller Mark by Buyer, its Affiliates, or its Franchisees that is not accordance with the terms of this Agreement or the violation by Buyer, its Affiliates, or any of their Personnel of any intellectual property right of another, (ii) Buyers display, sale, assembly, installation, service, or repair, or installation of any Product (excluding claims, demands, suits, and causes of action arising out of or in connection with services to be performed by Seller for Buyer in accordance with the terms and conditions of the Services Agreement and all other services that are performed for Buyer by Seller or its Affiliates), (iii) the failure by Buyer or its Affiliates to perform their obligations in this Agreement in accordance with their terms, (iv) Sellers purchase, sale, distribution and other acts or omissions in connection with any Buyer-Unique Product (but excluding the gross negligence or intentional misconduct of Seller and its Affiliates, or (iv) any other act or omission of Buyer or its Affiliates. Claims means the Seller Claims and the Buyer Claims together.
(c) Defense . The Party that is obligated to provide defense and indemnity to the other Party with respect to a Claim in accordance with this Section 14 (the Indemnifying Party ) has the right to control the defense of the Claim, but the other Party (the Indemnified Party ) has the right to participate in the defense. Upon the Indemnifying Partys request, the Indemnified Party will reasonably cooperate in the defense, and the Indemnifying Party must reimburse the Indemnified Party for its reasonable out-of-pocket expenses in providing the requested cooperation. The Indemnified Party will provide prompt notification to the Indemnifying Party of each Claim to which it is entitled to be indemnified, but any delay by the Indemnified Party in giving notice will not relieve the Indemnifying Party of its obligations pursuant to this Section 14 except to the extent that the Indemnifying Party demonstrates actual damage caused by such delay. The obligations of Seller and Buyer to defend, indemnify and hold harmless, respectively, the Buyer Indemnified Parties and the Seller Indemnified Parties under this Section 14 are independent of each other and any other obligation of the Parties under this Agreement.
(d) Exclusions from Claims; Tender and Cooperation . Excluded from Claims are claims, actions, liabilities, proceedings, losses, and expenses (including attorneys fees) arising out of or with respect to the death of or injury to any person or damage to any property, by whomsoever suffered, to the extent resulting or claimed to result from a latent or patent defect in a Product (each a Product Liability Claim ). Buyer and Seller each will take all commercially reasonable actions, and cooperate with the other Party, as may be necessary to (i) tender each Product Liability Claim to the Vendor or manufacturer of the applicable Product and (ii) cause the Vendor or manufacturer to assume and bear financial responsibility for, and hold Buyer and Seller harmless from, the Product Liability Claim to the fullest extent permitted by Applicable Law, including the legal defense of the Product Liability Claim.
15. INSURANCE .
(a) Required Coverage . Buyer will obtain and maintain at its own cost occurrence-based Commercial General Liability Insurance, including but not limited to products, completed operations and contractual liability, in amounts not less than $5,000,000.00 per occurrence, naming the Seller and Buyer (together the Insured Parties ) as additional insureds. This insurance must be primary to any of Sellers
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coverage. Buyer will furnish certificate(s) of insurance upon execution of this Agreement, and within 15 days of any insurance renewals. All of the insurance policies specified in this Section 15(a) must contain a provision that such policies may not be cancelled or materially altered without 30 days prior written notice to Seller. All insurance carriers for the insurance coverage referred to in this Section 15(a) must be listed in the current Bests Insurance Guide as possessing a minimum policyholders rating of A and a financial category of VI ($25,000,000 to $50,000,000).
(b) Proof of Insurance . Buyer will once each year, and, upon request by Seller, promptly furnish or cause to be furnished to Seller, a copy of the insurance certificate and premium receipt for the most recent payment.
16. LIMITATION ON LIABILITY . Neither Party will be liable to the other Party or its Affiliates, directors, officers, customers or employees for any indirect, special, consequential, incidental, or punitive damages, losses, or expenses (including, without limitation, lost or anticipated revenues, profits, or savings relating to the same) arising in connection with any Claim or the failure to perform, or the termination of, this Agreement regardless of the nature of the Claim or the failure to perform, or the termination of this Agreement even if a Party has been advised of the likelihood or possibility of such damages, losses, or expenses.
17. MINIMUM QUANTITIES . Buyer will purchase at least $100 of Products during the Term. If at the expiration of the Term Buyer has ordered less than $100 of Products, Buyer will pay Seller (upon request) the difference between the amount ordered and $100. Seller acknowledges that except as set forth in this Section 17 , Buyer is not obligated or committed to purchase any quantities of Products except as expressly ordered by Buyer according to the Inventory Policies and Processes.
18. DISPUTE RESOLUTION .
(a) Committees .
(i) Merchandising Operating Committee . Buyer and Seller will form a committee (the Merchandising Operating Committee ) that will address all day-to-day operational, financial, and other issues that may arise with respect to this Agreement, including its interpretation, the Parties intent reflected in this Agreement, and the policies and practices between Seller and its Affiliates and the businesses comprising Buyers businesses in effect immediately prior to the Effective Date. The Merchandising Operating Committee will discuss all of these issues and will attempt to resolve informally all Disputes in accordance with Section 18(b)(i) . The Merchandising Operating Committee will consist of three employees of each Party or of an Affiliate of the Party, in all cases as designated by the Party. The initial employee designees are listed on Appendix 18(a)(i) . Each Party may replace one or more of its designees at any time upon notice to the other Party. Each Party will promptly fill all of its Merchandising Operating Committee vacancies as they arise by notice to the other Party. Unless the members of the Merchandising Operating Committee unanimously agree otherwise, the Merchandising Operating Committee will meet at least once every calendar month during the Term on the dates determined by the members of the Merchandising Operating Committee. If the members of the Merchandising Operating Committee cannot agree on a date or a time for a particular monthly meeting the meeting will occur at 1:00 p.m. Central Time on the second Thursday of the month at the offices of SHC, 3333 Beverly Road, Hoffman Estates, IL 60179 B6-D. At all times one of the members of the Merchandising Operating Committee will serve as the Merchandising Operating Committees Chairperson. The initial Chairperson is listed on Appendix 18(a)(i) and the other Merchandising Operating Committee members each will serve thereafter as Chairperson, on a monthly basis, rotating between Sellers designees and Buyers designees. The Chairperson (A) will request that Merchandising Operating Committee members provide meeting agenda items and (B) will distribute to members, at least two business days in advance of each Merchandising Operating Committee meeting, an agenda for the meeting.
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(ii) Executive Committee . Buyer and Seller will form a committee (the Executive Committee ) that will attempt to resolve all Disputes that the Merchandising Operating Committee has been unable to resolve in accordance with Section 18(b) and that the Merchandising Operating Committee has referred to the Executive Committee. The Executive Committee will consist of the Chief Financial Officer, the General Counsel (or other chief legal officer), and the chief merchandising officer of each Party.
(b) Dispute Resolution .
(i) Merchandising Operating Committees Attempt to Resolve Dispute . If a Dispute arises, neither Party may cease to perform any of its obligations in this Agreement in accordance with their terms or take any formal legal action (such as seeking to terminate this Agreement, seeking mediation in accordance with Section 18(b)(iv) , or instituting or seeking any judicial or other legal action, relief, or remedy with respect to or arising out of this Agreement) unless the Party has first (1) delivered a notice of dispute (the Dispute Notice ) to all of the members of the Merchandising Operating Committee and (2) complied with the other terms and conditions of this Section 18 . At the first monthly meeting of the Merchandising Operating Committee following the delivery of the Dispute Notice the Merchandising Operating Committee will attempt to resolve all of the Disputes that are the subject of the Dispute Notice. Each Party will cause its designees on the Merchandising Operating Committee to negotiate in Good Faith to resolve all Disputes in a timely manner.
(ii) Executive Committees Attempt to Resolve Dispute . If the Merchandising Operating Committee is unable to resolve all of the Disputes included in the Dispute Notice by the end of the first Merchandising Operating Committee meeting following the delivery of the Dispute Notice, the Chairperson for the next Merchandising Operating Committee meeting will notify each member of the Executive Committee in writing of each unresolved Dispute. The Executive Committee will meet not later than the 10 th day following delivery of the notification by the Merchandising Operating Committees Chairperson (the Dispute Meeting ) and attempt to resolve each Dispute that is listed on the notification. Each Party will cause its designees on the Executive Committee to negotiate in Good Faith to resolve all Disputes in a timely manner. If by the 10 th day following the Dispute Meeting the Executive Committee has not resolved all of the Disputes (the Resolution Failure Date ) the Parties will proceed to mediate the unresolved Disputes ( Unresolved Disputes ) in accordance with Section 18(b)(iv) .
(iii) Dispute Defined . Subject to the next sentence, Dispute means each claim, controversy, dispute, and disagreement between (A) on the one hand, Buyer or any of its Affiliates, or any of their respective shareholders, officers, directors, agents, employees, legal representatives (including attorneys in their representative capacity), successors and assigns, and (B) on the other hand, Seller or any of its Affiliates, employees, legal representatives (including attorneys in their representative capacity), successors and assigns, in each case arising out of or relating to a Partys performance, or failure to perform, one or more of its obligations in this Agreement. Disputes do not include claims, controversies, disputes, or disagreements with respect to compliance with Section 13 or payment obligations with respect to amounts due in accordance with the terms and conditions of this Agreement that are not reasonably in dispute. Furthermore, no party may provide a Dispute Notice for any Dispute, or otherwise assert and/or claim a Dispute to the extent the Dispute relates to any act or omission of a Party, its Affiliates or its/their Representatives (other than clerical or accounting errors which the asserting Party was not aware of) in connection with, or related to, its rights, or the other Party, its Affiliates or its/their Representatives performance or non-performance under this Agreement that occurred more than 120 days prior to the time such claims, controversy, dispute, and/or disagreement is first asserted (together, Stale
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Claims ) and each Party waives on its behalf (and on behalf of its Affiliates and its/their Representatives) any rights to a Stale Claim. Notwithstanding the foregoing, the term Stale Claims does not include claims, controversies, disputes, and disagreements brought by either Party in regards to: (X) the other Partys rights and obligations under Section 14 (Indemnification); (Y) claims by a Party for reimbursement from the other Party for fees, expenses (including attorneys fees), charges, costs, damages penalties and other amounts paid by a Party or its Affiliates to a third party, including such amounts arising from non-indemnified third party claims, controversies and disagreements; provided that the Party brings such claim within 120 days after the Party makes such a payment; and (Z) an act or omission of the other Party, its Affiliates and/or its/their Representatives which the other Party demonstrates was intentionally done (or not done) with actual knowledge that it was in violation of this Agreement (including such Partys duty of Good Faith). With respect to Stale Claims, for example: (I) a clerical or accounting error shall not include a claim by a Party that it should not be charged for activities for which it regularly received charges which instead will be deemed to be a Stale Claim to the extent that such claim is for acts/omissions that are more than 120 days old; (II) a claim relating to charges which were incorrectly calculated due to a clerical or accounting error of which the claiming party was unaware would not be a Stale Claim to the extent based solely on such clerical or accounting error, (III) an intentional overcharge by a Party which it knew it was making in violation of this Agreement, will not be deemed to be a Stale Claim even if raised more than 120 days after such overcharge; provided that the claiming Party can prove such violation was intentional and made with actual knowledge that such overcharge was a violation of this Agreement.
(iv) Mediation of Unresolved Disputes . Seller and Buyer will in Good Faith attempt to resolve all Unresolved Disputes by non-binding mediation. Buyer and Seller will negotiate in Good Faith to determine the mediator, the mediators compensation and related costs, and the applicable rules for the mediation. If by the 15 th day following the Resolution Failure Date Seller and Buyer have been unable to settle an Unresolved Dispute the obligations of Seller and Buyer in this Section will terminate with respect to the Unresolved Dispute.
19. SELLERS CLOSING LOCATIONS . Seller will notify Buyer of each Sears Store location that Seller or its Affiliates intend to close. Seller will notify Buyer of the store-closing decision not later than the 10 th day following the decision or the day before public disclosure of the decision, whichever occurs first. If Seller notifies Buyer of the decision before Seller publicly discloses the decision it will constitute Confidential Information until the decision is publicly disclosed. Seller will notify Buyer, not later than the 30 th day following the decision, as to whether Seller intends to continue its retail presence in the trade area that included the closing store. If Seller does not (a) notify Buyer in accordance with the preceding sentence that Seller intends to continue its retail presence in the trade area, or (b) does not open a new Sears Store in the trade area within 18 months of the notification, Buyer may open one or more New HTS Stores or other new stores in the trade area when the store location closes free of the restrictions, if any, in Section 9(b)(i) with respect to the closed store.
20. GLOSSARY .
The following terms have the meanings given below and include the singular and the plural forms of the terms:
3(b) Amount is defined on Appendix 3(b) .
Affiliates means (solely for purposes of this Agreement and for no other purpose) (i) with respect to Buyer, its subsidiaries including Outlet Co and SAHS, (ii) with respect to Seller, SHC and its subsidiaries including Sears Holdings Management Corporation ( SHMC ), and (iii) with respect to SHC, its subsidiaries.
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Applicable Laws means all applicable laws, ordinances, regulations, rules, and court and administrative orders and decrees of all national, regional, state, local and other governmental units that have jurisdiction in the given circumstances.
Average Aggregate Minimum Commission is defined on Appendix 5(e) .
Buyer is defined in the introductory paragraph of this Agreement.
Buyer Marks means Marks owned by Buyer or its Affiliates.
Buyer Stores means, together, the Sears Hardware Stores, the Sears Hometown Stores, and the Sears Outlet Stores.
Confidential Information is defined in Section 13(a) .
Core Cost is defined on Appendix 3(b) .
Digital Methods means promoting and selling by all current and future electronic means, channels, processes, and methods, including via the Internet.
Disclosing Party is defined in Section 13(a) .
Dispute is defined in Section 18(b)(ii) .
Dispute Resolution Meeting is defined in Section 18(b)(i) .
DRM is defined in Section 4(a)(i) .
Effective Date is defined in Section 2(a) .
Excluded No-Warranty Product is defined in Section (a)(i) .
FOB Point is defined in Section 7(a) .
Franchisee means a natural person or entity that has purchased (i) a franchise as described in the Franchise Disclosure Document of Sears Home Appliance Showrooms, LLC dated May 11, 2012 (with respect to Sears Home Appliance Showrooms), (ii) a franchise as described in the Franchise Disclosure Document of Sears Home Appliance Showrooms, LLC dated May 11, 2012 (with respect to Sears Hardware Stores), and (ii) a franchise pursuant to which Buyer or its Affiliates grant a third party the right to use a Sears tradename in compliance with the License Agreements.
Inventory Policies and Processes is defined in Section 6 .
Good Faith means honesty in fact and the observance of reasonable commercial standards of fair dealing in accordance with Applicable Law.
Group means a group as that term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended.
Home Appliance Category is defined on Appendix 5(a) .
HTS Invoice Prices is defined in Section 3(b) .
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HTS Produc ts is defined in Section 3(a) .
Initial Term is defined in Section 2(a) .
KCD-Branded Product Category is defined on Appendix 5(a) .
KCD-Branded Products means all Seller-Branded Products sold under a KCD Mark.
KCD Change in Control means the occurrence of any transaction or event or series of transactions or events, whether voluntary or involuntary, that results in an Unaffiliated Person or a Group acquiring directly, or as a consequence of which an Unaffiliated Person or a Group acquires directly, at any time after the date of this Agreement and by whatever means (including by license), all rights, title and interest in and to all of the KCD Marks. Unaffiliated Person means a natural person, entity, or other enterprise other than Seller or Sellers Affiliate. Sellers Affiliate means each natural person, entity, and other enterprise that directly or indirectly, and by whatever means, controls, is under common control with, or is controlled by, Seller.
KCD Marks means Kenmore ® , Craftsman ® , DieHard ® , and t h e sub-brand Marks associated with, and the trade dress related to, the Kenmore, the Craftsman, and the DieHard Marks.
KCD Mark Acquisition means the occurrence of any transaction or event or series of transactions or events (other than a KCD Change in Control), whether voluntary or involuntary, that results in an Unaffiliated Person or a Group acquiring directly, or as a consequence of which an Unaffiliated Person or a Group acquires directly, at any time after the date of this Agreement and by whatever means (including by license), all rights, title and interest in and to one or more but less than all of the KCD Marks.
Kenmore-Branded Product is defined in Section 5(d) .
Kenmore Royalty Credit is defined on Appendix 5(a) .
License Agreements is defined in Section 2(c)(iv) .
Mark means any name, brand, mark, trademark, service mark, sound mark, trade dress, trade name, business name, slogan, or other indicia of origin and includes all common law or statutory property rights related to such Mark.
MOS is defined in Section 4(a)(iii) .
Net Sales is defined in Section 5(a) .
No-Vendor-Warranty Product is defined in Section 10(a)(i)
Non-Retail Products is defined in Section 3(a) .
Outlet Invoice Prices is defined in Section 4(h) .
Outlet Products is defined in Section 4(g) .
Party means (1) SRC and Kmart together, on the one hand, and (2) SHO, SAHS, and Outlet Co. together, on the other hand. Although SHC is a party to this Agreement SHC is not a Party.
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Personnel means the officers, directors, employees, agents, suppliers, licensors, licensees, contractors, subcontractors, advisors, including attorneys, accountants, technical consultants or investment bankers and other representatives, from time to time, of (i) the applicable entity, (ii) as to Seller, its Affiliates, and (iii) as to Buyer, its Affiliates.
Products means, together, HTS Products and Outlet Products.
Receiving Party is defined in Section 13(a) .
Renewal Period is defined in Section 2(b) .
Representatives is defined in Section 13(b)(i) .
Right of First Offer is defined in Section 4(a)(iv) .
Royalties is defined in Section 5(a) .
Sears Hardware Stores means all stores that are operated, or authorized to operate, by Buyer or Franchisees and that are branded with the name Sears Hardware Stores or Sears Appliance & Hardware Stores.
Sears Hometown Stores means all stores that are operated, or authorized to operate, by Buyer and that are branded with the name Sears Hometown Store or Sears Authorized Hometown Store.
Sears Outlet Stores means all stores that are operated, or authorized to operate, by Buyer and that are branded with the name Sears Outlet Store.
Seller is defined in the introductory paragraph of this Agreement.
Seller-Branded Product means Products sold under a Seller Mark and includes KCD-Branded Products.
Seller Competitor means, solely for purposes of this Agreement and for no other purpose, Amazon.com, Inc., Best Buy Co., Inc., hhgregg, Inc., The Home Depot, Inc., Lowes Companies, Inc., Target Corporation, Tractor Supply Co., Wal-Mart Stores, Inc., each other retailer that competes in any material respect with Sellers major home appliance business or Sellers power lawn and garden business, and the Seller Competitor Affiliates of each of them. Seller Competitor Affiliates means each individual or entity that directly or indirectly, and by whatever means, controls, is under common control with, or is controlled by, a Seller Competitor.
Seller Marks means Marks owned by Seller or its Affiliates and includes the KCD Marks.
Seller Warranty is defined in Section 10(a)(i) .
Sellers Retail Businesses is defined in Section 3(a) .
Separation Agreement means that certain Separation Agreement dated August 8, 2012 between SHC and SHO.
Services Agreement is defined in Section 2(c)(iv) .
SHC is defined in the introductory paragraph of this Agreement.
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SHO is defined in the introductory paragraph of this Agreement.
SHO Authorized Seller(s) is defined in the Services Agreement.
SHO Stockholding Change means the occurrence of any transaction or event, whether voluntary or involuntary, that results in a Seller Competitor becoming, or as a consequence of which a Seller Competitor becomes, directly or indirectly, at any time after the date of this Agreement and by whatever means, the beneficial owner of more than 50% of the total voting power of outstanding securities entitled to vote in, or carrying the right to direct the voting with respect to, directly or indirectly and by whatever means the election of the board of directors of SHO or any of its subsidiaries.
Specification means the detailed description of Products agreed upon by Seller and Buyer as contained in any Vendor Agreement.
SYW Agreement is defined in Section 2(c)(iv) .
Term is defined in Section 2(a) .
Territory means the United States of America (including its unincorporated territories Guam, Puerto Rico, and the United States Virgin Islands) and Bermuda.
Vendor means any source (other than Sellers Affiliates) from whom Seller purchases Products; and for purposes of the Section 8(a) (Vendor Subsidies) only, any source (other than Sellers and its Affiliates) from whom Buyer purchases products.
Vendor-Warranty Product is defined in Section 10(a)(ii).
Vendor Agreement means any Purchase Order or other agreement in writing and executed by Buyer and Seller relating to Products, including this Agreement, advertising, point of sale, promotional service, promotional funding or other selling assistance agreements, buying or supply agreements, exclusivity agreements, letters of agreement, and any written amendments, waivers and consents relating to any of the foregoing.
Vendor Warranty is defined in Section 10(a)(ii) .
Warranty is defined in Section 10(a)(ii) .
21. SHCS SOLE OBLIGATION . As its sole obligation in this Agreement and unless Buyer has failed to comply with one or more of its material obligations in this Agreement and the failure is continuing, SHC will cause SRC, Kmart, and the Affiliates of each of them to take all actions that will enable Seller to perform, and not take any action that would disable to any extent Seller from performing, its obligations in this Agreement in accordance with their terms. For clarity, the parties note that this clause does not affect SBMCs right to approve or reject a proposed KCD-Unique Product, in SBMCs sole discretion.
22. GENERAL .
(a) Good Faith . SHC and the Parties each will exercise Good Faith in the performance of its obligations in this Agreement.
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(b) Assignment . Seller may at any time assign, delegate or subcontract its rights, or obligations or both, in whole or in part, under this Agreement except to a Seller Competitor, without the consent of Buyer. Subject to the next sentence, Buyer may not assign or otherwise transfer any of its rights or obligations under this Agreement (except to a wholly owned subsidiary of Buyer), by operation of law or otherwise, without the express prior written consent of Seller, and any attempt to assign or assignment without the express prior written consent of Seller is void. Buyer may exercise all of its rights, and perform all of its obligations, under this Agreement through its wholly owned subsidiaries.
(c) Computer Access . If either Party is given access, whether on-site or through remote facilities, to any communications, computer, or electronic data storage systems of the other Party or its Affiliates (each an Electronic Resource ), in connection with this Agreement, then the Party given access will use such access solely to perform, and will not attempt to access any Electronic Resource other than those specifically required to perform, its obligations under this Agreement. The Party given access will limit such access to those of its Personnel who need to have such access in connection with this Agreement, will advise the other Party in writing of the name of each of its Personnel who will be granted such access, and will strictly follow all security rules and procedures for use of such Electronic Resources. All user identification numbers and passwords disclosed to a Party given access and any information obtained by the Party given access as a result of its access to, and use of such Electronic Resources will be deemed to be, and will be treated as, Confidential Information of the other Party. Each Party will cooperate with the other Party in the investigation of any apparent unauthorized access by the other Party, its Affiliates, or its Personnel to any Electronic Resources or unauthorized release of Confidential Information. Each Party will promptly notify the other Party of any actual or suspected unauthorized access or disclosure of any Electronic Resource.
(d) Promotional Calendars . To the extent permitted by Applicable Law and consistent with practices in effect prior to the Effective Date, Seller will deliver to Buyer Sellers promotional calendars with respect to Products (including for Home Appliances, Tools, Lawn and Garden, Sporting Goods, Mattresses, and Consumer Electronics) as soon as they have been approved, including all amendments. Also consistent with practices prior to the Effect Date, the promotional calendars will include Sellers master price files (and substitute information) describing Sellers retail and promotional pricing, as to which the Parties acknowledge that Section 3(d) and Section 4(g) are and will be applicable.
(e) Negotiating Event . If a Negotiating Event occurs and thereafter a Party (the Delivering Party ) delivers to the other Party (the Receiving Party ) an Opinion of Counsel that states that, as a consequence of the Negotiating Event the Delivering Party is unable, due to Applicable Law, to continue to perform any of the obligations to be performed by it in accordance with the terms and conditions of this Agreement (an Impediment ), Seller and Buyer will negotiate in Good Faith an amendment to this Agreement that would eliminate the Impediment. Opinion of Counsel means a written opinion (which may be reasoned) of a reputable law firm of national stature. The form and substance of the written opinion, and the law firm, will be subject to the approval of the Receiving Party. Negotiating Event means the occurrence of any transaction or event, whether voluntary or involuntary, as a result of which a single stockholder or a Group ceases to be the beneficial owner (as defined in Securities and Exchange Commission Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, as amended) of a majority of the total voting power of the then-outstanding voting capital stock of SHC or SHO.
(f) Consideration . Buyer has given, and Seller has received and accepted, adequate, good, sufficient, and valuable consideration for this Agreement, and for all purposes of this Agreement this Agreement is fully supported by adequate, good, sufficient, and valuable consideration provided by Buyer and received and accepted by Seller. Buyers adequate, good, sufficient, and valuable consideration includes, without limitation, the mutual covenants, obligations, and promises herein and the following (which separately and together have enabled Seller to execute and deliver this Agreement and have
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assisted and will assist Sellers performance of its obligations under this Agreement): (i) Buyer has at great length discussed and upon reasonable request during the Term will discuss its business needs with Seller for the purpose of enabling Seller to make compelling business proposals to Buyer; (ii) Buyer has entered into negotiations with Seller that culminated in the execution and delivery of this Agreement, which Agreement gives Seller many advantages over other vendors; (iii) Buyer has provided and upon reasonable request during the Term will provide information to Seller about Buyers operations; (iv) Seller has bargained for and, pursuant to this Agreement will receive, material benefits, interests, rights, and value from Buyer through such consideration and that Seller is not entitled to, and would not have received, such benefits, interests, rights, and value absent this Agreement; and (v) Buyer is obligated to purchase Products in accordance with, and subject to the terms and conditions of Sections 4(b) and 4(a)(iii). This Agreement is legally binding; and Seller will not, directly or indirectly, plead or otherwise assert in any manner in any litigation, arbitration, mediation, or other dispute-resolution proceeding that this Agreement is invalid, void, voidable, revocable, terminable, or otherwise unenforceable for lack, inadequacy, or insufficiency of consideration; and by this Agreement Seller irrevocably waives and will be estopped from pleading or asserting, directly or indirectly, any cause of action, claim, defense, right, or prayer for relief to such effect. Each of Sellers waivers in this Section 22(f) is reasonable and made with Sellers full knowledge of its significance and consequences.
(g) Construction and Interpretation . In this Agreement (1) include , includes , and including are inclusive and mean, respectively, include without limitation, includes without limitation, and including without limitation, (2) or is disjunctive but not necessarily exclusive, (3) will and shall each expresses an imperative, an obligation, and a requirement, (4) numbered Section references refer to sections of this Agreement unless otherwise specified, (5) section headings are for convenience only and will have no interpretive value, (6) unless otherwise indicated all references to a number of days will mean calendar (and not business) days and all references to months or years will mean calendar months or years, (7) references to $ or Dollars will mean U.S. Dollars, and (8) references to a Partys approval or consent right include the Partys obligation not to unreasonably delay or withhold its approval or consent. Seller and Buyer intend that this Agreement be construed without any rule requiring construction or interpretation against Seller, whose representatives drafted this Agreement. To the extent the Parties intend that a term or condition of this Agreement reflect policies and practices in effect immediately prior to the Effective Date, the Parties will negotiate in Good Faith to determine the policies and practices.
(h) Counterparts; Facsimile . This Agreement may be executed in any number of separate counterparts, all of which, when taken together, will constitute one and the same instrument, notwithstanding the fact that all Parties did not sign the same counterpart. A signature transmitted to the other Party or its counsel by email or facsimile transmission will be effective to bind the Party whose signature was transmitted, as a duly executed and delivered original. Each Party will promptly deliver its original signature pages to this Agreement to counsel for the other Party promptly following execution, but any failure to do so will not affect the binding effect of such signature.
(i) Entire Agreement; Severability . This Agreement together with the Services Agreement, which includes each of the Exhibits, Appendices and other documents attached to this Agreement and the Services Agreement, are a single integrated agreement which sets forth the entire agreement and understanding between the Parties with respect to the Products described herein and the Services described in the Services Agreement; except for those matters set forth in the Separation Agreement and the other Ancillary Agreements (as that term is defined in the Separation Agreement) and supersedes all prior agreements and understandings, oral and written, between the Parties hereto with respect to the subject matter hereof. This Agreement will not be supplemented, modified, or amended except by a written instrument signed by a duly authorized representative of each of Buyer and Seller. In the event of any conflict or inconsistency between this Agreement and the terms and condition of any forecast,
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purchase order, or other order document, including any inconsistency as to any Product invoice price, the terms and conditions of this Agreement will control unless such other document constitutes an Amendment and expressly references and supersedes this Agreement. This Agreement will be binding upon and inure to the benefit of the successors, representatives and permitted assigns of the Parties. The terms and conditions of this Agreement supersede and replace those of any prior negotiations and any documents that the Parties have exchanged in connection therewith (together, Negotiation Documents ). Buyer and Seller represent and warrant that they are entering into this Agreement based solely on the provisions set forth herein and not in reliance, in whole or in part, on any claim or representation contained in any Negotiation Document. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other provision and such invalid provision shall be deemed to be severed from the Agreement.
(j) Injunctive Relief . Each Party acknowledges that any breach by a Party of Section 12 or Section 13 of this Agreement may cause the non-breaching Party and its Affiliates irreparable harm for which the non-breaching Party and its Affiliates have no adequate remedies at law. Accordingly, each Party and its Affiliates are entitled to seek injunctive relief, without complying with Section 18(b) and regardless of Buyers cure rights, if any, for any such breach in any state or federal court in Chicago, Illinois, USA, and each Party consents to the exclusive jurisdiction and venue in the state and federal courts in Chicago, Illinois, USA for injunctive relief purposes. Each Party waives all claims for damages by reason of the wrongful issuance of an injunction and acknowledges that its only remedy in that case is the dissolution of that injunction.
(k) Notices . Notices under this Agreement are sufficient if given by nationally recognized overnight courier service, certified mail (return receipt requested), or email or facsimile with electronic confirmation or personal delivery to the other Party at the address below:
If to either Seller: | Sears, Roebuck and Co. | |
3333 Beverly Road | ||
Hoffman Estates, IL 60179 | ||
Attn: EVP, Chief Merchandising Officer, & President-Sears Full Line Store & Kmart Formats |
||
Facsimile: (847) 286-0204 | ||
With a copy to: | Sears Holdings Management Corporation | |
3333 Beverly Road | ||
Hoffman Estates, IL 60179 | ||
Attn: General Counsel | ||
Facsimile: (847) 286-2471 | ||
If to any Buyer : | Sears Hometown and Outlet Stores, Inc. | |
3333 Beverly Road | ||
Hoffman Estates, IL 60179 | ||
Attn.: Senior Vice President and Chief Operating Officer | ||
Facsimile: (847) 286-7838 | ||
With a copy to: | Sears Hometown and Outlet Stores, Inc. | |
3333 Beverly Road | ||
Hoffman Estates, IL 60179 | ||
Attn: General Counsel |
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If to SHC : | Sears, Roebuck and Co. | |
3333 Beverly Road | ||
Hoffman Estates, IL 60179 | ||
Attn: EVP, Chief Merchandising Officer, & President-Sears Full Line Store & Kmart Formats |
||
Facsimile: (847) 286-0204 | ||
With a copy to: | Sears Holdings Management Corporation | |
3333 Beverly Road | ||
Hoffman Estates, IL 60179 | ||
Attn: General Counsel | ||
Facsimile: (847) 286-2471 |
Notice is effective: (i) when delivered personally, (ii) three business days after sent by certified mail, (iii) on the business day after sent by a nationally recognized courier service, or (iv) on the business day after sent by email or facsimile with electronic confirmation to the sender. A Party may change its notice address by giving notice in accordance with this Section 21(k) .
(l) No Waiver . The terms, covenants and conditions of this Agreement may be waived only by a written instrument signed by the Party waiving compliance. Any Partys failure at any time to require performance of any provision will not affect that Partys right to enforce that or any other provision at a later date. No waiver of any condition or breach of any provision, term or covenant contained in this Agreement, whether by conduct or otherwise, in any one or more instances will be deemed to be or construed as a further or continuing waiver of that or any other condition or of the breach of that or another provision, term or covenant of this Agreement.
(m) Publicity. Each Party will refrain from making any reference to this Agreement or to the other Party in the solicitation of business, unless the other Party gives its prior written consent to such action and approves any press release or other publicity materials prior to their dissemination.
(n) Relationship of the Parties . The relationship of Seller and Buyer to each other is that of independent contractors, and neither Party will not represent that the other Party is its partner in any manner. Buyer has no authority to enter into any contract or incur any expense or obligation of any kind in Sellers name.
(o) Reporting . For purpose of this Agreement, unless otherwise indicated herein, all calculations and measurements with respect to Buyers purchases and sales of Products and similar information will be measured in units or dollars, as the context requires, and determined by reference to Sellers information reporting systems.
(p) Representations and Warranties . Each Party represents that it has the right, power and authority to grant to the other Party the rights provided under this Agreement and to perform its obligations under this Agreement, and that such Partys execution, delivery, and performance of this Agreement have been duly authorized and will not violate any other agreement, restriction, or Applicable Law to which such Party is a party or by which such Party is bound.
(q) Recalculation of Charges, Fees and Expenses . If there is after the Effective Date, a change in legislation, regulation, business conditions, or Sellers operations that result in an increase in Sellers costs, fees, and expenses associated with one or more Product(s), upon Sellers demonstration of such facts, there will be an equitable adjustment to the amounts charged to Buyer hereunder to make Seller whole. Seller will use commercially reasonable efforts to mitigate the impact of any such change.
39
(r) Survival . Each term of this Agreement that would, by its nature, survive the termination or expiration of this Agreement will so survive, including the obligation of either Party to pay all amounts accrued hereunder and including Section 7 (PAYMENT TERMS), Section 12 (INTELLECTUAL PROPERTY.), Section 13 (CONFIDENTIALITY.), Section 14 (INDEMNIFICATION.), Section 21 (SHCS SOLE OBLIGATION.), and this Section 22 (GENERAL.).
(s) Condition Precedent to the Effectiveness of this Agreement . This Agreement will not become effective until it has been approved by the Audit Committee of the Board of Directors of SHC and by the Audit Committee of the Board of Directors of Buyer. Further, this Agreement will not become effective until the parties (or their Affiliates, as applicable) also execute (collectively the Related Amendments): (a) Amendment #4 to Services Agreement, (b) Amendment #1 to Employee Transition and Administrative Services Agreement, (c) Amendment #1 to Shop Your Way Rewards Retail Establishment Agreement, (d) Amendment #1 to Trademark License Agreement, and (e) Amendment #1 to Supplemental Agreement, (f) Amendment No. 4 to the prior Merchandising Agreement between the Parties, and (g) Amendment #2 to Store License Agreement (Outlet).
(t) Governing Law; Jurisdiction; Waiver of Jury Trial .
(i) Governing Law . This Agreement will be construed in accordance with, and governed by, the federal laws of the United States, including the Lanham Act, and the internal laws of the State of Illinois, other than its conflict of laws principles and the Illinois Franchise Disclosure Act. This Agreement will not be subject to any of the provisions of the United Nations Convention on Contracts for the International Sale of Goods.
(ii) Jurisdiction . Each of the Parties submits, for itself and its property, to the exclusive jurisdiction of all Illinois state courts and federal courts of the United States of America sitting in Cook County, Illinois, and all appellate courts to each thereof, in all actions and proceedings arising out of or relating to this Agreement or the transactions contemplated hereby or for recognition or enforcement of all judgments relating thereto, and each of the Parties (A) will commence all such actions and proceedings only in such courts, (B) will cause all claims in respect of all such actions and proceedings to be heard and determined in such Illinois state court or, to the extent permitted by law, in such federal court, (C) waives, to the fullest extent it may legally and effectively do so, all objections that it may now or hereafter have to the laying of venue of all such actions and proceedings in any such Illinois state or federal court, and (D) waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such actions and proceedings in all such Illinois state and federal courts. A final judgment in any such action or proceeding will be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Each Party irrevocably consents to service of process in the manner provided for notices in Section 22(k) . Nothing in this Agreement will affect the right of any Party to serve process in any other manner permitted by Applicable Law.
(iii) Waiver of Jury Trial . Each Party acknowledges that each controversy that may arise under this Agreement is likely to involve complicated and difficult issues and, therefore, it irrevocably and unconditionally waives all rights it may have to a trial by jury in respect of any litigation directly or indirectly arising out of or relating to this Agreement or the transactions contemplated hereby. Each Party certifies and acknowledges that (A) it understands and has considered the implications of such waivers, (B) it makes such waivers voluntarily, and (C) it has been induced to enter into this Agreement by, among other things, the mutual waivers and certifications in this Section 22(t) .
(SIGNATURE PAGE FOLLOWS)
40
SEARS, ROEBUCK AND CO. KMART CORPORATION | SEARS HOMETOWN AND OUTLET STORES, INC. | |||||||
By: Sears Holdings Management Corporation, their agent | ||||||||
By: |
/s/ ROBERT A. RIECKER |
By: |
/s/ WILL POWELL |
|||||
Robert A. Riecker VP, Controller & Chief Accounting Officer |
William Powell Chief Executive Officer and President |
|||||||
SEARS HOLDINGS CORPORATION | SEARS AUTHORIZED HOMETOWN STORES, LLC | |||||||
By: |
/s/ ROBERT A. RIECKER |
By: |
/s/ WILL POWELL |
|||||
Robert A. Riecker VP, Controller & Chief Accounting Officer |
William Powell President [Signed May 11, 2016] |
|||||||
SEARS OUTLET STORES, L.L.C. | ||||||||
By: |
/s/ WILL POWELL |
|||||||
William Powell President [Signed May 11, 2016] |
1
Appendix 1
Additional Terms and Conditions
1. PURCHASING MECHANICS . The execution of the Merchandising Agreement to which this Appendix 1 is attached (the Merchandising Agreement ) does not give rise to any commitment on the part of Buyer to purchase any HTS Product. A commitment to purchase HTS Product arises only at such time as: (a) for HTS Products that are not Buyer-Unique Products, Buyer requests (via Sellers systems or any other method approved of by Seller) such Products to be shipped to Buyers stores or Buyers customers, and (b) for Buyer-Unique Products, Buyer has sent Seller Buyers forecast for such Products. Except as provided above, all estimates or forecasts of Buyers future needs for Products which may be provided to Seller by Buyer are for planning purposes only and do not in any way represent a commitment by Buyer nor give rise to any obligation or liability of Buyer. Except as stated in this paragraph and as outlined in Section 2(iii)(B)(iii) and Section 2(viii) of Appendix 6 , Buyer has no responsibility for any actions taken by Seller based on such estimates or forecasts.
2. CODES OF CONDUCT. Buyer acknowledges that it has been furnished a copy of the Sears Holdings Corporation Code of Conduct (the Code of Conduct ) and that Seller employees are required to follow the Code of Conduct. Buyer will support the Code of Conduct and will not directly or indirectly take any action that may cause a Seller employee to violate any law or the Code of Conduct. Without limiting the foregoing, Buyer will not directly or indirectly offer or give any personal benefit (other than infrequent, non-cash gifts of nominal value consistent with the Code of Conduct), including commissions, kickbacks, payments, loans, gratuities (including travel and entertainment), bribes, gifts, samples, services, promises of future employment or personal considerations (each a Benefit ) to any Personnel of Seller and Sellers Affiliates or to any person that Buyer knows is a member of such Personnels family, or to any entity in which Buyer knows such Personnel or a member of such Personnels family owns a direct or indirect interest. Buyer will notify the Sears Holdings Corporation Office of Compliance within five business days after it has knowledge of any violation or attempted violation of the Code of Conduct or this Section 2 . Any such notice is deemed to have been given when delivered by certified mail, return receipt requested, by email at compliance@searshc.com or to such other email address as may be provided in the Code of Conduct. Buyer will cooperate with any request by Seller to provide information and documentation regarding any communication or transaction with Seller or its Personnel. If Buyer adopts a code of conduct with respect to its Personnel and delivers that code of conduct to Seller, Seller will support that code of conduct and will not directly or indirectly take any action that may cause any of Buyers Personnel to violate the code of conduct or any Applicable Law.
3. PACKAGING, LABELING, SHIPPING AND BILLING. Seller will be responsible for providing adequate packaging, tagging, labeling, packing, shipping and billing. Seller will comply with all packaging, tagging, labeling, packing, shipping and billing requirements reasonably requested by Buyer as well as any and all requirements established by applicable laws, regulations, carrier tariffs and product classifications. For Products to be shipped to Buyer from a point of origin within the United States, Seller will deliver Products to the designated carrier on or before the ship date specified in the applicable Vendor Agreement. For Products to be shipped to Buyer or a Buyer-branded outlet from a point of origin outside the United States. Seller will deliver Products in accordance with the delivery terms specified in the applicable Vendor Agreement and such delivery will be made on or before the ready date specified in such Vendor Agreement. Delivery dates specified will be of the essence of the Vendor Agreement. Seller will ship all Products in full packs and full shipments in accordance with Buyers requirements as set forth in the Vendor Guide or any Vendor Agreement.
2
4. REPRESENTATIONS AND WARRANTIES.
(a) KCD-Branded Products . Without in any way disclaiming implied remedies or limiting remedies for breach thereof, Seller represents and warrants that all KCD-Branded Products will: (a) conform to the Specification for such Products; (b) be fit and sufficient for the ordinary purpose for which Products is used; (c) be free from defects in workmanship, materials and packaging; (d) be free from defects in construction and design; (e) be fit and sufficient for the purpose stated on any packaging, labeling or advertising; and (f) be equivalent in materials, quality, fit, finish, workmanship, performance and design to any samples submitted to and approved by Buyer.
(b) Advertising. Seller represents and warrants that all claims made by Seller in any packaging, labeling, advertising, or other consumer material in connection with any KCD-Branded Products or Seller brand relating to Products will be true and will have been substantiated and at the time such claims are made.
(c) Intellectual Property . Seller represents and warrants that: (a) all patents, trademarks, trade names, trade dress, copyrights, trade secrets, rights of publicity and other intellectual property rights (other than those intellectual property rights owned by or licensed to Buyer) used by Seller in connection with KCD-Branded Products or in the development or manufacture of KCD-Branded Products are either owned by Seller or Seller has been and is properly authorized by the owner of such rights to use such intellectual property rights in connection with such KCD-Branded Products and to sell such KCD-Branded Products incorporating such intellectual property rights to Buyer for use or further resale and (b) KCD-Branded Products will not, at the time that it is delivered, offered for sale or sold by Buyer, infringe any patent, trademark, service mark, trade name, trade dress, copyright, trade secret, domain name, right of publicity or other intellectual property right of any person, corporation or other entity. Seller will notify Buyers chief legal officer in writing by certified mail, return receipt requested, within five business days after it has knowledge of any claim or allegation of infringement, misuse, dilution, misappropriation or other violation of any patent, trademark, service mark, trade name, trade dress, copyright, trade secret, domain name, right of publicity or other intellectual property right in any way related to or affecting KCD-Branded Products.
(d) Compliance with Law . Seller represents and warrants that: (a) all KCD-Branded Products have been or will be produced, assembled packaged, tagged, labeled, packed, shipped and invoiced ( Products Production ) in compliance with the applicable requirements of federal, state and local laws, regulations, ordinances and administrative orders and rules of the United States and its territories and those of all other countries in which such Products Production or delivery of KCD-Branded Products takes place; (b) Seller, its affiliates, and the Personnel of each of them who are involved in the Products Production or delivery of KCD-Branded Products each will during the term of each Vendor Agreement strictly comply with all applicable federal, state and local laws, regulations, and prohibitions of the United States and its territories, and the laws, regulations, and prohibitions of all countries in which any Products Production or delivery of KCD-Branded Products occurs including all laws, regulations and prohibitions governing the working conditions, wages, hours and minimum age of the work force; and (c) Products Production has not and will not involve at any time, in whole or in part, any use of child, convict or forced labor. Seller will provide Buyer with any guaranty of compliance with the foregoing in such form as Buyer may designate with respect to any Products.
3
(e) Antidumping . Seller represents and warrants that all sales of KCD-Branded Products to Buyer will be made at no less than fair value under the United States antidumping law and that no government has provided a countervailable subsidy for KCD-Branded Products actionable under U.S. law. Seller will indemnify Buyer for (i) all antidumping and countervailing duties imposed on all KCD-Branded Products that is sold prior to the date of publication of the International Trade Administrations preliminary determination of sales at less than fair value or prior to the date of publication of the existence of countervailable subsidies and exported before the date of publication of the International Trade Administrations final determination of sales at less than fair value or the existence of countervailable subsidies and (ii) any expenses (including reasonable attorneys fees) and administrative costs incurred by Buyer, its Authorized Resellers, and Buyer-Branded Outlets in their participation in any United States antidumping or countervailable duty proceeding involving any warranted KCD-Branded Products.
(f) Non-KCD-Branded Products . Seller hereby assigns to Buyer all assignable warranties, representations, covenants and indemnities granted to Buyer by third parties in Vendor-Unique Products and all remedies for breach of such warranties, representations, covenants and indemnities. For all Products that are not KCD-Branded Products, including Vendor-Unique Products, to the extent that Seller is not permitted to assign any of such protections to Buyer, Seller will enforce such protections on behalf of Buyer to the extent Seller is permitted to do so under the terms of the applicable third party agreements.
5. FUNDS PROCESSING. All electronic fund transfers and wire transactions will be in accordance with National Automated Clearing House Association (NACHA) rules and in accordance with any instructions and procedures which Buyer may from time to time supply. Neither Party will be liable to the other Party for any indirect, special, incidental, exemplary or consequential damages arising from or as a result of any delay, omission or error in the electronic transmission or receipt of any documents, even if the other Party has been advised of the possibility of such damages.
End of Appendix
4
Appendix 3(a)
HTS Product Categories
Division Description and Number | ||
1. FURNITURE-IN STORE1 | ||
2. HOME OFFICE3 | ||
3. SPORTING GOODS6 | ||
4. HOUSEWARES8 | ||
5. TOOLS9 | ||
6. NURSERY12 | ||
7. HEALTH AND BEAUTY13 | ||
8. LUGGAGE14 | ||
9. FLOORCARE/SEWING20 | ||
10. COOKING & CLEANUP22 | ||
11. WINDOW SHOP24 | ||
12. HOME BIG TICKET025 | ||
13. LAUNDRY26 | ||
14. SCAN BASED TRADING27 | ||
15. AUTOMOTIVE28 | ||
16. PAINT30 | ||
17. HOME ENVIRONMENT32 | ||
18. ELECTRICAL34 | ||
19. FLOOR COVERING37 | ||
20. MENS SPORTSWEAR41 | ||
21. AIR & WATER APPLIANCES42 | ||
22. FOOD STORAGE46 | ||
23. CHILDRENS HARDLINES49) | ||
24. GENERAL MERCHANDISE50 | ||
25. TOYS52 | ||
26. HOME ELECTRONICS57 | ||
27. ENTERTAINMENT SOFTWARE58 | ||
28. MENS SHOES67 | ||
29. LAWN, GARDEN, PATIO71 | ||
30. OUTLET BUDGET SHOP80 | ||
31. BEDDING82 | ||
32. BATHROOM FIXTURES/PLUMBING83 | ||
33. PANTRY AND HOUSEHOLD87 | ||
34. BED AND BATH96 | ||
35. PARTS OTHER-COUNTER98
End of Appendix |
1
The use of [***] in this Exhibit indicates that a confidential portion has been omitted pursuant to a request for confidential treatment. The omitted material has been filed separately with the Securities and Exchange Commission.
Appendix 3(b)
HTS Invoice Prices
The HTS Invoice Prices will be the sum of (1) Sellers invoice costs from Vendors for HTS Products, plus (2) the net amount of the following charges and credits without duplication (each a 3(b) Amount ):
1. | Audit recoveries |
2. | Carriage costs from the Vendors delivery point to the FOB Point; |
3. | Cash discounts; |
4. | Distribution-center markdowns; |
5. | Distribution-center shrink; |
6. | Other logistics expense; |
7. | Charge for Seller Warranty for No-Vendor-Warranty Products that are HTS Products: [***] of Core Cost ( Core Cost means costs reflected in the Sears Corporate Repository of Referential Information or successor system); |
8. | Source penalties; |
9. | Packaging costs requested by Buyer; |
10. | Vendor-compliance income; and |
11. | All other charges and expenses consistent with practices in effect for Buyer and Seller immediately prior to the Effective Date. |
End of Appendix
1
Appendix 4(b)
Invoice Prices for DRM
The Outlet Invoice Prices for DRM are described on the following table; provided that for all DRM that are No-Vendor Warranty Products, in addition to the amount set forth below, Buyer shall pay Seller (as part of the Invoice Price) an additional [***] of such DRMs DOS Cost (the Outlet Seller Warranty Charge ). For example, if a particular lawn mower that was a No-Vendor Warranty Product was purchased by Buyer on November 1 st , 2016 and that product had a $100 DOS Cost, then Buyer would pay Seller $[***] for such product, plus $[***] (for a total Invoice Price of $[***]). Buyer is responsible for carriage only from Sellers MDOs to the Sears Outlet Stores. As used herein, DOS Cost means the cost shown in Sellers Distribution Operations System, or such replacement system as Seller may utilize from time to time.
Table AFor All Outlet Products
Description and Seller Division |
Percentage
Off Sellers DOS Cost |
|||
Furniture-In Store (Div 001, 008 and 025) |
[***]% | |||
Sporting Goods (Div 006) |
[***]% | |||
Housewares (Div 008) |
[***]% | |||
Tools (Div 009) |
[***]% | |||
Floor care, Sewing (Div 020) |
[***]% | |||
Cooking And Cleanup (Div 022) |
[***]% | |||
Laundry (Div 026) |
[***]% | |||
Plumbing & Heating (Div 042) |
[***]% | |||
Food Storage (Div 046) |
[***]% | |||
Baby Furniture Childrens Hardlines |
[***]% | |||
Audio/Visual (Div 057) |
[***]% | |||
Lawn, Garden, Patio (Div 071) |
[***]% | |||
Mattresses* (Div 082) |
[***]% |
* |
Note: Buyer currently receives DRM premium mattresses under this Agreement and the Vendors of such mattresses have not, to date, enforced any marketing limitations that would make it impracticable for Buyer to sell such Products at its Sears Outlet stores or on SearsOutlet.com (including any authorized successor thereto). If the Vendors of such DRM premium mattresses do in the future enforce any such restrictions (other than those that Buyer has previously been complying with), and Buyer notifies Seller within writing within 60 days of such restriction being implemented that such restrictions are in fact significantly impacting Buyers sales of such DRM premium mattresses at Sears Outlet stores (each a PM Impairment Notice ); Seller will work in good faith to encourage such Vendors to agree to reasonable terms to permit such DRM premium mattresses continued sale at Sears Outlet stores. Buyer must in each PM Impairment Notice specify: (i) the specific restriction which is impacting Buyers sales of DRM premium mattresses, (ii) certify that Buyer was not previously complying with such restriction, and (iii) Buyer must |
1
estimate the amount of the impact (based upon actual sales data) on Buyers future sales (which information Buyer will mark Highly Confidential Limited Distribution Internally). If the Vendors do not agree to reasonable terms to permit continue sales of DRM premium mattresses by Sears Outlets stores within 60 days of Buyers notice, Buyer may cease purchasing all DRM premium mattresses under this Agreement; in which case Seller shall be free to dispose of its premium mattresses in any manner, including by sale to a third party, with no ongoing obligation to Buyer. |
End of Appendix
2
The use of [***] in this Exhibit indicates that a confidential portion has been omitted pursuant to a request for confidential treatment. The omitted material has been filed separately with the Securities and Exchange Commission.
Appendix 4(c)
MOS Categories and Initial MOS Invoice Prices
The categories of MOS that Seller will sell, and Buyer will purchase, in accordance with, and subject to, Section 4(b) of the Merchandising Agreement to which this Appendix 4(c)(ii) is attached and forms a part are described in the table below in the column labeled Source and Merchandise Description. The invoice prices for MOS during the Initial Term will be the sum of (1) the applicable amounts listed in the following table in the column labeled Base Price plus (2) at the end of each fiscal year during the Term, an additional amount equal to 10% of Buyers annual EBITDA, if any, with respect to MOS sold by Buyer, which amount (if any) Buyer will pay on or before the 45th day after the end of Buyers fiscal year. Buyer is responsible for carriage only from Sellers CRCs to the Sears Outlet Stores.
Source and Merchandise Description |
Base Price | |||
Kmart all items in all categories of MOS, including all product sold by Kmart.com that is returned to Kmart stores. |
[***] | |||
Lands End all items in all categories of MOS (Apparel) and all items in all categories of MOS shoes, including all product sold by LandsEnd.com that is returned to Sears stores but only through April 11, 2018 subject to Section 4(d) . |
|
[***]
[***] |
|
|
Sears, Roebuck and Co. (including Sears.com) all items in all categories of MOS (Apparel), including all product sold by Sears.com that is returned to Sears stores. * |
[***] |
1
The use of [***] in this Exhibit indicates that a confidential portion has been omitted pursuant to a request for confidential treatment. The omitted material has been filed separately with the Securities and Exchange Commission.
* | In the event in a particular months deliveries of MOS (Apparel) from Sears, Roebuck and Co. (including Sears.com) (collectively, Sears MOS ), the amount of damaged/defective (Blue Label) product exceeds 15% of the items delivered in such month (the Sears MOS Cap ), then Buyer will not be charged anything for each damaged/defective (Blue Label) item in excess of the Sears MOS Cap. Buyer shall be liable for payment for the $[***] per item charge for each item of damaged/defective (Blue Label) product at or below the monthly Sears MOS Cap threshold. If Buyer identifies that an item is damaged/defective Buyer will use commercially reasonable efforts to ensure that such items are only scraped or recycled; Buyer will use commercially reasonable efforts to ensure that all damaged/defective it identifies are not sold by Buyer (directly or indirectly) to consumers; provided that Buyer may sell such MOS Products to liquidators as long as Buyer complies with Section 12(a)(iii)(B)(5). Seller will include on each invoice for Sears MOS the total number of items in each shipment and the total number of damaged/defective (Blue Label) items. If Buyer disputes the amount of damaged/defective (Blue Label) product, Buyer must promptly notify Seller in writing, and hold the damaged/defective products that Buyer has identified at its location for a minimum of fourteen (14) days after Buyer presents its claims for rejected units to Seller (so that Seller may review such products/claims); after which time the damaged/defective Products shall be scrapped or recycled by Buyer (including selling to liquidators), and Buyer will use commercially reasonable efforts to ensure that none of such damaged/defective (Blue Label) product is sold by Buyer (directly or indirectly) to consumers; provided that Buyer may sell such MOS Products to liquidators as long as Buyer complies with Section 12(a)(iii)(B)(5) . Seller will promptly notify Buyer of any change to which items Seller classifies as damaged/defective (Blue Label) product that Seller is selling to Buyer and Buyer is free to contest any such change which Buyer in Good Faith believes will significantly decrease Buyers return on Sears MOS. |
End of Appendix
2
Appendix 4(g)(2)
Non-Saleable DRM Products Process
This process is applicable to all DRM Products received by Buyers Outlet Repair and Distribution Centers (ORDCs) from Sellers MDO/DOS units that are determined to be Non-Saleable DRM Products in accordance with Appendix 4(g)(1) of the Amended and Restated Merchandising Agreement to which this Appendix is attached.
ORDC Responsibility |
Buyer will inspect all DRM Products within three (3) business days starting the first business day after physical receipt of the product by Buyer at Buyers ORDC facility (but no later than 5 business days after delivery by Seller, e.g., the product is made available at co-located facilities and for other facilities, arrival of the trailer) (the Inspection Period) and make an initial determination as to Non-Saleable status during that initial inspection. The Inspection Period will be extended on a day for day basis for SHO holidays and for Products received within three (3) business days of the start of a SHO inventory audit freeze period.
The Non-Saleable DRM Product will be logged by Buyer on the Non-Saleable Products Log Form on the date of inspection and tagged with a Non-Saleable Products Form
All DRM Products initially determined to be Non-Saleable DRM Product will be moved by Buyer to a staging area immediately following initial non-saleable designation.
ORDC General Manager (GM) must approve all Non-Saleable DRM Products daily
Non-saleable claim cannot be made until GM or ASM Ops (Ops Lead) approves
If the ORDC GM approves Non-Saleable designation, the DRM Product Quality Inventory Control associate (PQIC) Inventory Control Lead (ICL) fills out the on-line Non-Saleable DRM Product Form via Sellers Non-Saleable Products Request Tool (or Sellers replacement therefor), and checks off the log that it was entered
All entries must be entered as a positive number (meaning no minus sign in front of the sell/cost values)
The non-saleable notification will automatically be routed to the MDO DOS Unit manager via email. The requestor (PQIC or ICL) will also receive a copy of the email which must be printed and filed in the BIRP 1-31 folder
ORDC must claim a DRM item as non-saleable no later than 1 business day after the end of the Inspection Period. If a Product is missing Sellers paperwork (e.g., bill of lading or MDO DOS tag), Buyer will immediately notify Seller and segregate such Products the timelines set forth herein will be delayed until Seller provides such paperwork. |
1
Upon Sellers written request in email made to Buyers assigned Director of the applicable ORDCs, MDOs are to be provided weekly access to the ORDCs to verify load quality of items shipped to the ORDC by the MDO(s).
MDOs will send a request to verify load quality 48 hours in advance of the desired verification date. MDO load quality verification will occur on an agreed upon date between the ORDC and MDO.
All tags such as MDO DOS tags, 991 clearance tags (SDO, Full-Line) must remain on the DRM until expiration of Sellers review period (and any resulting dispute resolution period; failure to do will invalidate Buyers right to seek reimbursement on that DRM item. |
||
MDO/DOS Unit / ORDC Responsibility |
The MDO/DOS unit manager has 3 business days from the time the NonSaleable DRM Product Request Tool email was sent to request visual inspection, beginning the first business day after the ORDC completes the online non-saleable submission
To request visual inspection, the MDO/DOS Unit manager must email the ORDC GM at the generic email ID SGXXXX@shos.com (where XXXX is the ORDC unit number)
If the MDO/DOS unit does not make a request within the allotted time, the merchandise can be transferred to the salvage area.
ORDC will not return non-saleable products to the MDO/DOS unit
If a request is made by the MDO/DOS unit manager for visual inspection, within the required time, the ORDC must hold the product for 6 business days, beginning the first business day after the MDO requests a visual inspection
Product will be held in the HOLD for MDO inspection staging area within the ORDC while waiting for visual inspection
If no inspection is made within the allotted time, the ORDC may transfer the non-saleable DRM Product to the salvage area
Co-located MDOs are those that are physically attached to an ORDC. For those instances where a co-located MDO exists, the GM of that MDO will act as inspector for all remote MDOs that ship into that particular ORDC. This means that the remote MDOs will not request pictures from the receiving ORDC and that the co-located MDO GM will inspect product on their behalf if requested to do so by the remote MDO GM. All inspections, discussions, and dispute resolutions will take place between the co-located ORDC GM and co-located MDO GM. |
2
For non-co-located facilities, then the ORDC GM will, upon email request from the MDO/DOS unit manager, arrange for the delivery of photographic evidence of the non-salable condition to the MDO/DOS unit manager for remote inspection. If such a request is made, the timeline for the MDO/DOS manager will not start until such photographic evidence is sent. The MDO/DOS manager may, at his/her option, also inspect the non-saleable DRM at Buyers facility. If the non-co-located MDO GM does not reply back within the defined non-saleable process period (as described in the ORDC Responsibility and MDO/DOS Unit / ORDC Responsibility sections) then the item will be deemed non-salable and will be disposed of in accordance with the previously defined process.
Should an inspection occur, the ORDC GM or ASM-Ops must complete the inspection with the MDO/DOS unit Manager or designee
If both parties agree that the item is non-saleable, the process continues consistent with this process.
If both parties agree that the item does not meet the non-saleable criteria, the ORDC PQIC or ICL will reverse the claim using the On-line Non-Saleable DRM Products Chargeback Form via Non-Saleable Outlet Products Request Tool
All credits to the MDO/DOS Unit # must be entered as a negative number (meaning a minus sign is entered in front of the sell/cost values)
The credit must be entered by the ORDC no later than 2 business days after inspection deeming the product saleable
Merchandise will be moved to appropriate stage for processing
If both parties do not agree on the condition of the item, the parties will follow the Dispute Resolution portion of this process.
After any in person or remote inspection of the non-salable product confirms its status, the ORDC will transfer the merchandise to the salvage area
ORDC will remove all merchandise nomenclature and follow merchandise salvage process
ORDC will not return the non-saleable products to the MDO/DOS unit |
||
Disputes |
If there is a disagreement between parties, the MDO/DOS unit District Manager and Director of Outlet Distribution Centers should be engaged to resolve dispute. For all DRM items for which the parties do not agree upon its designation as non-saleable, Buyer shall retain the product until resolution of the dispute.
Escalate to MDO/DOS unit region level or ORDC Vice President if the issue is not able to be resolved |
3
4
5
Appendix 4(m)
Additional LG DRM Product Sort Process
Prior to offering Additional LG DRM Product to Buyer, Seller will perform one of the following 3 sort processes on the product and will notify Buyer of the Sort Charge that will apply to each Additional LG DRM Product offered to Buyer.
Sort #1 (Full Service)
| Scan item |
| Visually inspect |
| Add gas if visual test is good |
| Startup trimmer |
| Test |
| No issues or small repair |
| Remove gas |
| Clean/ power wash unit |
| Pack |
Sort Charge = $6.45
Sort #2 (Salvage units that dont appear to need repair or clean up):
| Scan item |
| Visually inspect |
| Add gas if visual test is good (no parts added) |
| Startup trimmer |
| Test |
| Remove gas |
| Pack |
Sort Charge= $4.45
Sort #3 (Visual only inspection) :
| Visual inspection (looks good 90+% all parts) |
| Separate |
| Scan products |
| Pack into Gaylords |
| Ship |
Sort Charge = $2.45 a Unit
End of Appendix
1
The use of [***] in this Exhibit indicates that a confidential portion has been omitted pursuant to a request for confidential treatment. The omitted material has been filed separately with the Securities and Exchange Commission.
Appendix 5(a)
Royalty Rates; Kenmore Royalty Credits
I. ROYALTY RATES
Royalty Rates during the Initial Term:
KCD-Branded Product |
Royalty Rate before
Deduction of the Kenmore Royalty Credit |
|
Kenmore-branded |
[***]% | |
Craftsman-brandedLawn & Garden |
[***]% | |
Craftsman-brandedall other |
[***]% | |
DieHard-branded |
[***]% |
Royalty Rates during the Renewal Period:
The Royalty Rates for KCD-Branded Product that are major home appliances (divisions 022, 026, and 046 as described on Appendix 3(a) ), lawn mowers, and tractors will be the rates specified above in the column labeled Royalty Rate before Deduction of the Kenmore Royalty Credit (the Initial-Term Rate ).
The Royalty Rates for all other KCD-Branded Products will be determined in accordance with the following:
1. Renewal Period .
(a) Delivery of Comparable Market Royalty Rate . On or before the 270 th day immediately preceding the last day of the Initial Term Seller will deliver to Buyer a written schedule that indicates (i) the Comparable Market Royalty Rate for the Renewal Period for each KCD-Branded Product Category and (ii) a description of the calculations from which Seller determined the Comparable Market Royalty Rates. At the same time Seller will deliver to Buyer a certificate from a Senior Vice President of SHC certifying, to the Senior Vice Presidents best knowledge after due inquiry, that the Comparable Market Royalty Rates were calculated in accordance with the terms and conditions of the Merchandising Agreement to which this Appendix 5(a) is attached and forms a part (the Agreement ) and that the Comparable Market Royalty Rates described on the certificate are true and correct. The date on which Seller makes the deliveries required by the preceding sentences of this paragraph 1.a) is the FRP Delivery Date .
(b) Royalty Rate . If for a KCD-Branded Product Category the Initial-Term Rate is greater than the Comparable Market Royalty Rate for the Renewal Period, then the Initial-Term Rate will be the Royalty Rate for the KCD-Branded Product Category for the Renewal Period. Subject to paragraph 1.c) of this Appendix 5(a) , if for the KCD-Branded Product Category the Initial-Term Rate is less than the Comparable Market Royalty Rate for the Renewal Period, then the Comparable Market Royalty Rate for the Renewal Period will become the Royalty Rate for the KCD-Branded Product Category during the Renewal Period (the FRP Adjusted Royalty Rate ).
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(c) Buyers Rejection of the FRP Adjusted Royalty Rate; Sellers Termination Right . Buyer may reject the FRP Adjusted Royalty Rate for each KCD-Branded Product Category or any of them (each an FRP Rejected Category ) by written notice delivered to Seller on or before the 30 th day following the FRP Delivery Date (a FRP Rejection Notice ). Subject to the last sentence of this paragraph 1.c) , if Seller receives an FRP Rejection Notice then, on or before the 15 th day following Sellers receipt of the FRP Rejection Notice, Seller may either (i) terminate Sellers obligations in Section 3 of the Agreement to sell to Buyer all KCD-Branded Products in the FRP Rejected Category, or (ii) terminate this Agreement, which termination referred to in clause (i) or clause (ii) will take effect on the last day of the Initial Term. If Seller receives an FRP Rejection Notice and does not exercise either of its termination rights described in, and in accordance with, the terms of the preceding sentence, then the Initial-Term Rate and not the Comparable Market Royalty Rate will become the Royalty Rate for the FRP Rejected Category during the Renewal Period. Seller may not exercise its termination rights in this paragraph 1.c) if Seller or any of its Affiliates has failed to comply with any of its material obligations in the Agreement and the failure is continuing.
(d) KCD Change in Control . If (i) a KCD Change in Control occurs during the Renewal Period, (ii) Seller does not exercise its rights in Section 2(c)(ii) of the Agreement, and (iii) after the effective date of the KCD Change in Control the bona fide royalty rate paid by the Sears Full-Line stores to the acquiror of all of the KCD Marks in the KCD Change in Control (including all entities resulting from the KCD Change in Control and all successors, the KCD Acquiror ) for an Equivalent Product Category is greater the Royalty Rate then in effect for the equivalent KCD-Branded Product Category (a FRP Greater Rate ), then on the first anniversary of the effective date of the KCD Change in Control the FRP Greater Rate will become the Royalty Rate during that portion of the remaining Term that the Sears Full-Line stores are obligated to pay to the KCD Acquiror the FRP Greater Rate for the Equivalent Product Category, subject to adjustment in accordance with paragraph 2 of this Appendix 5(a) with respect to the Renewal Period. If and when the FRP Greater Rate ceases to be payable by the Sears Full-Line stores the Royalty Rate will revert, for the remainder of the Renewal Period, to the Royalty Rate in effect immediately prior to the KCD Change in Control.
(e) KCD Mark Acquisition . If (i) a KCD Mark Acquisition occurs, (ii) after the effective date of KCD Mark Acquisition Seller does not exercise its rights in Section 2(d) of the Agreement, and (iii) at any time after the effective date of the KCD Mark Acquisition the royalty rate paid by the Sears Full-Line stores to the acquiror of the KCD Marks that comprised the KCD Mark Acquisition (including all entities resulting from the KCD-Mark Acquisition and all successors, the KCD-Mark Acquiror ) for an Equivalent Product Category is greater the Royalty Rate then in effect for the equivalent KCD-Branded Product Category (a FRP MA Rate ), then on the first anniversary of the KCD-Mark Acquisition the FRP MA Rate will become the Royalty Rate for the KCD-Branded Product Category during the period that the Sears Full-Line stores are obligated to pay to the KCD-Mark Acquiror the FRP MA Rates for the Equivalent Product Category. When the Sears Full-Line stores cease to be obligated to pay the FRP MA Rate the Royalty Rate will revert to the Royalty Rate in effect immediately prior to the KCD Mark Acquisition.
2. Terms Defined for the Purposes of this Appendix 5(a) .
Comparable Customer means either (a) a wholesaler that purchases KCD-Branded Products from Seller for resale to end-user consumers in the Territory, or (b) Sellers licensee that Seller has licensed to arrange for the manufacture of KCD-Branded Products and their resale to end-user consumers in the Territory.
2
Comparable Market Royalty Rate for a KCD-Branded Product Category means the Initial-Term Rate for the KCD-Branded Product Category plus the mathematical product of (a) and (b), where (a) is the difference between (1) the Equivalent Economic Rate for the KCD-Branded Product Category earned by Seller from Comparable Customers during the twelve-month Seller fiscal period immediately preceding the FRP Delivery Date or the SRP Delivery Date, as the case may be, and (2) the Initial-Term Rate for the KCD-Branded Product Category, and (b) is the Volume Factor.
Equivalent Economic Rate for a KCD-Branded Product Category means the effective net product contribution profit earned by Seller with respect to the KCD-Branded Product Category as a percent of Sellers Retail-Equivalent Sales to all Comparable Customers for the KCD-Branded Product Category. For purposes of calculation, if with respect to any Comparable Customer the net product contribution profit is a royalty or a wholesale margin, then the royalty or wholesale margin will be adjusted to reflect the differences, if any, between (a) the allowances, credits, deductions, offsets, rebates, reimbursements, and other monetary benefits (such as payment terms) offered to the Comparable Customer and (b) the allowances, credits, deductions, offsets, rebates, reimbursements, and other monetary benefits (such as payment terms) offered to Buyer. If the net product contribution profit is a wholesale margin, then the net product contribution profit will be additionally adjusted to reflect costs of freight, duty, logistics, and distribution to achieve relative equivalency in comparing rates. Sellers Retail Equivalent Sales for the KCD-Branded Product Category will be calculated by grossing up non-retail sales based on Buyers weighted average first-cost margin for the KCD-Branded Product Category or using such other basis on which Seller and Buyer mutually agree. For the purposes of calculating the Equivalent Economic Rate for a KCD-Branded Product Category, Seller will include only those products sold by Comparable Customers that are reasonably similar to KCD-Branded Products sold by Buyer that comprise the KCD-Branded Product Category.
Equivalent Product Category means a product category that includes products that are (i) sold by Seller to the Sears Full-Line stores and (ii) substantially similar with respect to features, benefits, quality, fit, finish, and ergonomics to the KCD-Branded Products in a KCD-Branded Product Category.
KCD-Branded Product Category means each of the following categories:
Kenmore :
Home Environment (includes Floor care, Air & Water, among others)
Small Kitchen Appliances & Housewares
Other Kenmore
Craftsman
Hand tools & Mechanics Tools
Power Tools
Garage & Storage
Tool Accessories
Spec & Other Powered Equipment
Non-Powered & Watering Equipment
L&G Accessories & Attachments
Other Craftsman (includes Apparel, Toys, Grilling Accessories, among others)
DieHard
Batteries (includes Automotive, Sport & Marine, Alkaline)
Power Accessories
Apparel
Other DieHard
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The use of [***] in this Exhibit indicates that a confidential portion has been omitted pursuant to a request for confidential treatment. The omitted material has been filed separately with the Securities and Exchange Commission.
Volume Factor with respect to a KCD-Branded Product Category means the lesser of (i) one, and (ii) a fraction the numerator of which is Buyers total sales of KCD-Branded Products comprising the KCD-Branded Product Category and the denominator of which is the Comparable Customers total sales of KCD Branded Products comprising the KCD-Branded Product Category. For the purposes of the preceding sentence all sales to other than end-user consumers ( i.e ., wholesale sales) will be converted to retail-equivalent sales by grossing up the wholesale sales based on Buyers weighted average first cost margin for the KCD Category or using such other basis on which Seller and Buyer mutually agree.
II. KENMORE ROYALTY CREDIT
1. Select Definitions
Buyers Balance of Sales in the Home Appliance Category means a fraction, expressed as a decimal, (i) the numerator of which is Buyers Net Sales during a Buyer fiscal quarter of HTS Products at Sears Hometown Stores and Sears Home Appliance Showrooms formats in the Home Appliance Category that are Kenmore-Branded Products, and (ii) the denominator of which is Buyers Net Sales during the fiscal quarter of HTS Products sold at Sears Hometown Stores and Sears Home Appliance Showrooms formats in the Home Appliance Category (regardless of brand). Buyers Net Sales at Sears Hardware Stores and Sears Outlet stores do not factor into the calculation of Buyers Balance of Sales in the Home Appliance Category and such sales are not subject to the Kenmore Royalty Credit.
The Home Appliance Category means the following product categories:
Cooking & CleanupDivision 22
LaundryDivision 26
Air & Water AppliancesDivision 42
Food StorageDivision 46
Floor care/SewingDivision 20
Home EnvironmentDivision 32
2. Calculation of Kenmore Royalty Credit
The Kenmore Royalty Credit will be determined by Seller by reducing the Royalties on the incremental sales that result in a change to Buyers Balance of Sales in the Home Appliance Category in accordance with the following:
Buyers Balance of Sales in
Royalty Rates |
63.2% and below |
63.2% to
64.99% |
65.0% to
69.99% |
70.0& to
74.99% |
75.0% and
over |
|||||
Royalty on Step Incremental Sales |
[***] % | [***] % | [***] % | [***] % | [***] % |
(No Reduction)
For clarity, the parties note that each tier of HTS Product sales is subject to its own reduced royalty rate.
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The use of [***] in this Exhibit indicates that a confidential portion has been omitted pursuant to a request for confidential treatment. The omitted material has been filed separately with the Securities and Exchange Commission.
Example 1 . Buyers Net Sales during the quarter of HTS Products at Sears Hometown Stores and Sears Appliance Showroom formats in the Home Appliance Category is equal to $250,000,000. Buyers Net Sales during the quarter of HTS Products that were branded Kenmore Branded Products at Sears Hometown Stores and Sears Home Appliance Showroom formats in the Home Appliance Category is equal to $200,000,000, for a total Buyers Balance of Sales in the Home Appliance Category of 80.0%.
$ millions Total applicable Sales Kenmore BOS Kenmore Sales |
$250.00
63.2% and below $158.00 |
63.2% to
65.00% $4.50 |
65.0% to
70.00% $12.50 |
70.0& to
75.00% $12.50 |
Over
75.0% $12.50 |
Total
$200.00 |
||||||
Kenmore Base Royalty (% Kenmore Sales) |
[***] | [***] | [***] | [***] | [***] | |||||||
Kenmore Base Royalty $ |
[***] | [***] | [***] | [***] | [***] | [***] | ||||||
Kenmore Royalty Credit % |
[***] | [***] | [***] | [***] | [***] | [***] | ||||||
Kenmore Royalty Credit $ |
[***] | [***] | [***] | [***] | [***] | [***] | ||||||
Kenmore Net Royalty % |
[***] | [***] | [***] | [***] | [***] | [***] | ||||||
Kenmore Net Royalty $ |
[***] | [***] | [***] | [***] | [***] | [***] |
Example 2 . Buyers Net Sales during the quarter of HTS Products at Sears Hometown Stores and Sears Appliance Showroom formats in the Home Appliance Category is equal to $300,000,000. Buyers Net Sales during the quarter of HTS Products that are Kenmore Branded Products at Sears Hometown Stores and Sears Appliance Showroom formats in the Home Appliance Category is equal to $200,000,000, for a total Buyers Balance of Sales in the Home Appliance Category of 66.7%.
$ millions Total HST Sales Kenmore BOS Kenmore Sales |
$300.00
63.2% and below $189.60 |
63.2% to
64.99% $5.40 |
65.0% to
69.99% $5.10 |
70.0& to
74.99% $0.00 |
75.0%
and over $0.00 |
Total
$200.00 |
||||||
Kenmore Base Royalty (% Kenmore Sales) |
[***] | [***] | [***] | [***] | [***] | [***] | ||||||
Kenmore Base Royalty $ |
[***] | [***] | [***] | [***] | [***] | [***] | ||||||
Kenmore Royalty Credit % |
[***] | [***] | [***] | [***] | [***] | |||||||
Kenmore Royalty Credit $ |
[***] | [***] | [***] | [***] | [***] | [***] | ||||||
Kenmore Net Royalty % |
[***] | [***] | [***] | [***] | [***] | [***] | ||||||
Kenmore Net Royalty $ |
[***] | [***] | [***] | [***] | [***] | [***] |
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3. Balance of Floor Requirement . In addition to the other requirements set forth in the Agreement, in order for Buyer to be eligible for the Kenmore Royalty Credit, in a particular fiscal quarter no less than 45% of all floor space dedicated to products in the Home Appliance Category must be dedicated to Kenmore Branded Products.
End of Appendix
6
Appendix 5(e)
Average Aggregate Minimum Commission
The Aggregate Average Minimum Commission Rate on Kenmore-Branded Products in the Home Appliance Category means a commission rate that is not less than 200 basis points higher than the average aggregate merchandise commission rate paid by Buyer to owners of Sears Hometown Stores and Franchisees with respect to sales of non-Kenmore-Branded Products in the Home Appliance Category calculated based on Buyers customary methods of calculating commission rates payable to owners of Sears Hometown Stores and to Franchisees.
End of Appendix
7
Appendix 6
Inventory Management Policies and Processes
This Appendix 6 only applies to HTS Products bought under this Agreement. It does not apply to Outlet Products or to merchandise bought directly by SHO, including merchandise bought by SHO under the Services Agreement.
Definitions used in this Appendix 6
Buyer IM Team means Sellers IM employees who are identified by Seller (subject to the approval of Buyer) to provide the IM services described in this Appendix 6 .
DC means one of Sellers distribution facilities.
DOS means Sellers Distribution Operation System.
Format means a Party.
IDRP means Sellers demand planning system.
IM means Inventory Management.
Inventory means Product, including Buyer-Unique Products.
Pack Away means Seller storing Products in its DC until the next selling season.
RIM means Sellers store replenishment system.
Seller IM means Sellers inventory management function.
Charges and Fees
Charges and fees for Sellers services described in this Appendix 6 are reflected on Appendix 1.01-C (Supply Chain Services) to the Services Agreement.
1. | Separation of Inventory . The following applies to Product and, unless otherwise indicated below, Buyer Unique Products: |
(a) | Regarding the Logical Separation of DC inventory for Seller and Buyer |
(i) | Logical Separation is an operational separation, not a physical separation of inventory. |
(A) | Either Seller or Buyer may at any time request a logical separation of DC inventory, which if approved by Seller IM team, will be implemented. Absent such a request by either Party, the Inventory pool for all Products will not be logically separated. Once the Inventory for a particular SKU has been logically separated, it will not be logically combined again absent approval of the Party who requested such separation. |
(B) | Regardless of whether the Inventory pool is logically separated or not, Seller is not obligated to physically separate the SHO Inventory. |
(ii) | Calculating logical separation of DC inventory for each Party to draw from is a function of relative demand forecasts entered into IDRP based upon |
| Using relative demand forecasts to determine IDRP stocking targets in accordance with Sellers order feasibility logic for each Party |
| Entering relative demand forecasts by item, by week and by DC by each Party |
| Establishing how much time is required to fulfill demand is a function of order feasibility logic parameters within IDRP: |
| Varies by Vendor production point of origin |
| Determined by Vendor production planning cycle and total lead-times |
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| Calculating demand forecasts is a function within IDRP generated by: |
| Establishing each store reorder points by users |
| Downloading store on hand and store on order counts from RIM |
| Entering sales forecasts by users |
| Entering floor set quantities by users |
| Allocating DC on hand inventory and inbound POs is performed between IDRP and DOS for the following functions: |
| Store replenishment |
| Customer orders |
| Flooring of newly assorted items |
(iii) | Supplying and/or reviewing all demand forecast data is the responsibility of Buyer |
(A) | IDRP will continue to provide baseline sales forecast for Buyer. Buyer IM team will review and modify forecasts where appropriate in collaboration with Buyer. |
(B) | Entering forecasts into IDRP will be performed by the IDRP certified Buyer IM Team under order feasibility parameters based upon IDRP forecasting logic |
(C) | Collaborating on forecasts will be performed between Buyer IM Teams and Buyer |
(D) | Altering forecasts to change prevailing logic of similar item history as the default for IDRP demand forecasts in DC logical separation of inventory calculations will be completed by Buyer IM Team. |
(1) | Submitting store demand and sales forecasts via IDRP is the responsibility of Buyer |
(2) | Communicating demand/sales changes where the Buyer default demand forecast is deemed too high/low is the responsibility of Buyer |
(E) | Forecasting store reorder point increases and decreases must occur within IDRP along with all other demand factors such as resets, seasonal buys, and promotions by Buyer IM Team |
(F) | Planning demand where IDRP is not used within Seller, must be communicated to Seller IM teams based on order feasibility by Buyer |
(G) | Execution of inbound DC POs is a function of the Seller IM teams |
(H) | Supplying plans for Buyer demand that exceeds prior Buyer forecasts where typical order feasibility logic does not supply Vendors ample time to produce larger than normal volumes of product is also required |
(I) | Forecasting the demand impacts of new store openings and store closings must be completed within order feasibility parameters by Buyer or prior demand forecast will dictate logical separation of inventory for Buyer |
(iv) | Party ordering logic applicable to either Party at the item level: |
(A) | Customer Order Parameters |
(1) | Filling orders from the DC for customer orders will default to orders being filled from either Partys specific separation of inventory. |
(2) | Filling orders from the DC for customer orders will have an exception process to allow orders from each Party to only draw from a Party-specific logically separated DC inventory |
(i) | Exception process to be agreed-upon between both Buyer IM Team and Seller IM team |
(B) | Store Replenishment Parameters |
(1) | Filling orders from the DC for store replenishment orders will default to orders being filled from either Partys specific separation of inventory |
(2) | Filling orders from the DC for store replenishment will have an exception process to allow orders from each Party to only draw from a Party-specific logically separated DC inventory. |
(i) | Exception process to be agreed-upon between both Buyer IM Team and Seller IM team |
2
(C) | Alteration of default Party ordering logic will be performed by Seller IM teams |
(1) | Exception process to be agreed-upon between both Buyer IM Team and Seller IM team |
(D) | Communication of adjustments by either Party to default format ordering logic will be performed by Seller IM team where: |
(1) | Occurrences where Vendor supply interruptions are uncovered |
(2) | Availability of items at any Vendor becomes constrained |
(3) | Requirements by law for minimum availability per marketing of promotions where the demand was planned according to order feasibility logic |
(4) | Overselling forecasts by either Party where the other Partys ability to fulfill demand forecasts are at risk |
(E) | Branch Transfer |
(1) | Shared Inventory. The Seller IM team may, from time to time, propose the branch transfer of shared Inventory to Buyer. If Buyer doesnt wish to participate in such transfer (and pay the related costs), Buyer must elect to have a logical separation of the Inventory for the affected SKUs; which election will be irrevocable until the current inventory is sold through. If Buyer does not elect to separate the Inventory, then Buyer shall be deemed to approve the branch transfer and will be liable for its share of the related costs. |
(2) | Logically Separated and Buyer-Unique Products. Buyer may request, from time to time, branch transfers for Inventory for its portion of logically separated Inventory and for Buyer-Unique Products. Seller shall provide a quote for such moves, and if Buyer approves such quote, Seller shall perform such move and charge Buyer the agreed upon rates. |
2. Transition and Assortment Inventory Planning
(i) | Supplying annual calendars with estimated due dates to Buyer is the responsibility of Seller IM teams |
(ii) | Establishing forecasts for ROIC, Seasonal and/or Annual demand according to Vendor Production Planning Lead-times including Vendor/manufacturer preseason part procurement planning according to planning calendars will be performed by Buyer, including for Buyer-Unique Products. Seller will provide Buyer with at least 10 days notice of the due date for Buyers forecast. |
(A) | Determination of specific timelines and due dates for calendars will be performed by each BU Seller IM Team and communicated to the Buyer IM Team as additional information of Vendor requirements for production planning becomes available, impacting future order feasibility. |
(1) | Each Seller IM team will ensure that the calendar incorporates lead times for above mentioned forecasts allow Buyer to review assortments, complete modeling and submit a forecast. |
(B) | Common seasonal areas to note but not exclusive to: |
(1) | Annual power lawn and garden estimates due in early fall prior to next spring season |
(2) | Initial birding set up quantity due late spring prior to next spring season |
(3) | Air conditioners due early fall prior to next spring season |
(4) | Outdoor Living annual estimates and floor set quantities due mid-summer prior to next spring season |
(5) | Seasonal Christmas estimates early spring (trees, lights, etc.). |
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(6) | Planning for all products is due at the same time as Seller plans for Buyer inclusion in buy plans with Vendors and according to predetermined planning calendars with store flooring needs, replenishment points and sales forecasts established. |
(iii) | Documentation of items and programs requiring CAPCON or ROIC approval where Buyer provides requests will be included in total Seller buy review are to be supplied by Buyer |
(A) | Requesting product where Buyer forecasts are not within +/- 10% tolerance of 3 year average historical Buyer sales |
(1) | Negotiation of separate exit strategies is required of Buyer prior to confirmation of approvals to minimize negative impact to DC inventory levels including but not limited to: |
(i) | Absorbing excess quantities into Buyer store locations determined by item by DC Logical Separation of Inventory |
(B) | Exercising one of the following options is required of Buyer where requested product based on Buyer forecasts are within +/- 10% tolerance and where excess inventory remains in DCs logically separated for Buyer |
(1) | Receiving all excess quantities at store level |
(2) | Complying with Seller merchandise control policies and submit appropriate Pack Away forms for approval. Seller shall have the right to approve or reject Pack Away requests in its reasonable discretion, which will not be unreasonably withheld or delayed. |
(i) | Upon approval, Pack Away items will be held in DCs until the next season (handling, storage, etc. will be billed to Buyer). |
(ii) | Upon denial, excess quantities will be receipted at Buyer store level and executed by the Buyer IM Team |
(3) | Absent the Parties agreeing to a Pack-Away for specific seasonal product forecasted by Buyer, Buyer will be obligated to purchase 100% of its forecasted amount. Seller will age Inventory using generally accepted inventory-aging practices in a manner consistent with Sellers practices. Buyer must promptly take shipment of all aged inventory of such Buyer forecasted seasonal product. |
(iv) | New Product Assortment/Floor Sets |
(A) | Adherence to the same lead-times as Seller IM teams is required of Buyer regarding initial flooring inventory demand, as this demand has order feasibility requirements |
(v) | Following the Seller new Vendor and new item processes is required of Buyer for Buyer-Unique Products by Buyer Merchant and Buyer IM teams |
(A) | All aforementioned demand forecast parameters apply to Buyer-Unique Products |
(vi) | Performance of record creation activities for Buyer -unique items will be completed by Buyers IM Team that has been certified in RIM. Seller will continue to use existing record Creation processes for shared items. |
(vii) | Seller, in its sole discretion, will determine the flow path for all Products that are not Buyer-Unique Products . Flow paths for Buyer-Unique Products will be subject to mutual agreement of the Parties. |
(viii) | Buyer will be obligated to Seller with respect to these forecasts. Buyer must promptly offer Seller the right to retain any Buyer-Unique Product for resale by Seller to any party (whether at wholesale or retail) other than Buyer; however, Sellers refusal of that offer does not relieve Buyer of its obligation to purchase any forecasted Buyer-Unique Product. |
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3. | Emergency/Disaster Orders: |
(i) | Unpredictable catastrophic event impacting localized emergency demand |
| Forecasting is the responsibility of both Seller and Buyer and includes: |
| establishing Emergency/Disaster quantities based on a 4 year average; said forecast is the basis for allocation to each Party. |
| Committing to Vendor held stock is the responsibility of the Seller IM team inclusive of aforementioned forecasting for demand for each Party. |
| Where availability is constrained, allocation will be based upon collaboration between selected delegates from Seller IM team and Buyer. |
| Forecasting when and where an Emergency/Disaster will occur is not feasible; therefore, demand will vary based upon where emergency/disasters occur |
| Planning and executing Emergency/Disaster Response is the responsibility of Seller according to the Disaster Program; this includes: |
| Disaster Program Procedures: |
| Notification of district managers responsible for each district to the disaster program coordinator is the responsibility of the field leadership team for each Party |
| Notifications of changes to district managers responsible is the responsibility of the field leadership team for each Party |
| Notification of local demand for emergency/disasters is the responsibility of the Party field district managers via the disaster hotline |
| Handling inbound disaster hotline calls is the responsibility of Seller IM team |
| Allocation of disaster merchandise both in DCs and Vendor held stock is the responsibility of the Seller IM team based on requests from a Partys district managers |
| Where availability is constrained, allocation will be based upon collaboration between selected delegates from Seller IM team and Buyer |
| Event examples: |
| Hurricane |
| Tornado |
| Flooding |
| Excessive snowfall |
| Infrastructure disruption |
| Items Included: |
| Wet/dry vacuums |
| Sump pumps |
| Snow throwers |
| Ice melt |
| Gas cans |
| Generators |
| Chainsaws |
| AA, AAA, C and D cell batteries |
| Flashlights |
4. | Puerto Rico: Sellers Affiliates will provide IM services for Buyer Stores in Puerto Rico that are substantially the same in all material respects as the IM services provided by Sellers Affiliates for Buyer Stores in Puerto Rico and Guam as of the Effective Date. |
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5. | Buyer-Unique Products . The following provisions apply to Buyer-Unique Products. To the extent that the following provisions conflict with the above or other provisions of the Agreement, the following provisions shall control. |
(a) | Dedicated Inventory for Buyer-Unique Products. |
(i) | Buyer has prior to the Effective Date provided a list of Buyer-Unique Product with an Inventory cost of approximately $17 million. Buyer represent that the foregoing list is accurate and correct. The Parties have agreed that for 2016, Buyer may have up to $13 million in Buyer-Unique Products in Sellers Inventory at any one time (each BUP Cap ). For each Contract Year thereafter, the BUP Cap and a SKU count plan (each a SKU Count Plan ) will be established based upon the amount of overall Buyer-Unique Product SHMC has agreed to purchase for a particular Contract Year and SHOs historical inventory terms for such Products (or similar products for new Products). |
(ii) | Buyer will provide weekly reports to Seller IM team listing all Buyer-Unique Products, by SKU, which Buyer desires Seller to buy for Buyer over the next 90 days, as well as all other SHO Provided Products (as that term is defined in Attachment 1.01-C (Supply Chain Services) for the HTS Product Categories to the Services Agreement that SHO intends to buy on its own, for each SKU Buyer will list the proposed vendor and whether such SKU has been purchased by Seller from such vendor previously or not. SHO will mark such information Highly Confidential Limited Distribution Internally. For new vendors, Seller shall have the option of having such vendor agree to a contract with such vendor or requiring Buyer to enter into its own agreement with such vendor. |
(iii) | Seller IM and Buyer IM Teams, including respective merchant teams and company designees, will meet 2 times each month to review the Buyer provided weekly reports and discuss Buyer-Unique Product purchases that Buyer desires Seller to purchase under this Agreement. Buyer will identify the Inventory to be purchased, vendor of that product, and Buyers desired flow path for such Inventory. |
(iv) | Seller is not obligated to purchase any Buyer-Unique Product which: (I) in Seller IM teams view would cause the amount of Buyer-Unique Product to in the future exceed the BUP Cap, or (II) would violate any other restriction in this Agreement, including causing Seller to violate any applicable law in the purchase, storage, distribution or sale of such Buyer-Unique Product. |
(v) | If Seller does not have the warehouse space to accommodate Buyers forecasted purchasing needs for Buyer-Unique Product, Seller will notify Buyer and if requested by Buyer pursuant to Section 1.01E. (SHOs Requests for Services/System Changes) of the Services Agreement, Sellers Affiliates will provide a proposal for additional warehousing space for such Products. |
(vi) | New Buyer-Unique Product onboarding process |
(A) | Buyer will submit new unique items that require DC stocking to Seller IM team following established flow path process: |
(1) | Items must be approved under this process before the items are entered in IMA. |
(2) | Buyer must provide 90 day advance notice regarding SKU additions of more than 5% over SKU Count Plan. |
(3) | Buyer must provide volume forecast of new SKUs at time of submittal (inbound, outbound, storage as described under forecasting requirements |
(4) | If Buyers change in SKU or flow paths resulting from additions or subtractions of Buyer-Unique Products and corresponding changes to needs for shared Products has a significant impact on Sellers productivity costs and/or storage capacity, the parties will need to agree to an adjustment to the costs hereunder and the costs under the Services Agreement (each via an written amendment, subject to the necessary approvals) before Seller will be required to purchase, distribute, store and/or sell such Buyer-Unique Product. |
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(5) | Buyer is responsible for tracking all Buyer-Unique Product SKUs and Buyer shall designate all Buyer-Unique Products in Sellers Inventory systems using a flag (or flags) designated by Seller from time to time. |
(B) | Buyer will appoint a contact manager of supply chain operations (single point of contact) to work with Seller IM teams for planning assistance with new product launches seasonal sets, new or closing stores, flow path decisions and operational issues. |
(C) | Buyer will provide feedback via digital load quality surveys |
(D) | Buyer will provide complete and proper build of online items with all necessary artifacts, including using designated flags for Buyer-Unique Product. |
(E) | Buyer will provide competent inventory management to drive inventory productivity and space utilization |
(vii) | Tracking of Buyer-Unique Products |
(A) | Seller will track all Buyer-Unique Products (using the flags set by Buyer) throughout its DC |
(B) | Logical separation will not apply to Buyer-Unique Products. Buyer-Unique Products will be treated as solely owned by Buyer for purposes of any charges under this Appendix 6.6 |
(C) | Buyer will adhere to the non-productive inventory targets agreed to with respect to the Inventory of Buyer-Unique Products. If a Buyer-Unique Product becomes non-productive in accordance with GAAP , Buyer shall work through that Inventory within 30 days. |
(D) | Any Buyer-Unique Product inventory that has not been worked through after 30 days from becoming GT80 it shall be disposed of at Buyers cost. Outlet products will not be managed at Sellers DC facilities and Buyer will take all DC discontinued Product each month as requested |
(E) | Buyer may request Pack-Away of Buyer-Unique Product per Section 2(iii)(B) above, in which event Seller will include an additional charge for the inventory carrying cost in its proposal to SHO. If Buyer does not agree to such cost, then Pack-Away will not performed for such Buyer-Unique Product. |
(viii) | For KCD-Branded Products, Seller is not obligated to purchase such products until they have been approved by the Sellers Affiliates that manage KCD- Branded Products (the KCD Team ). Before approaching the Seller IM Teams regarding KCD-Branded Product, Buyer will first work with the KCD Team; which KCD Team will determine whether to source such products and from which vendors. |
(b) | Accommodation of Buyer-Unique Product |
(i) | Seller is under no obligation to accommodate any purchase of Buyer-Unique Products if that purchase would negatively impact the business relationship Seller has with the Vendor of that Buyer-Unique Product. Buyer is responsible for any costs associated with modification of IM process to accommodate acceptance of Buyer-Unique Products, including reimbursement for any cash in advance payments or alternative payment plans required for acquisition of Buyer-Unique Product desired by Buyer. |
(ii) | Buyer is not authorized to commit Seller to purchase any products, and Buyer will not claim that it is so authorized. Seller shall have no obligation to purchase any Buyer-Unique Product until Seller issues a purchase order for such Products. Seller will use commercially reasonable efforts to timely issue purchase orders for Buyer Unique Product which Seller has agreed to purchase hereunder; provided Buyer is fully in compliance with Buyers obligations under this Agreement. |
(iii) | Buyer is not authorized to negotiate the purchase of KCD-Unique Products and Buyer will not claim that it is. The purchase of such products will be solely handled by Seller and its Affiliates without the involvement of Buyer. |
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(iv) | For VendorUnique Products, Buyer and Seller shall jointly discuss with the Vendor any proposed purchases and Buyer must fully disclosed to Seller all terms and conditions regarding such purchases. |
(v) | Buyers estimates for Buyer-Unique Products will be deemed forecasted for purposes of this Appendix 6 . Absent the Parties agreeing to a Pack-Away for specific Buyer-Unique Products, Buyer will be obligated to purchase 100% of its forecasted amount. Buyer and Seller will age Inventory using generally accepted inventory-aging practices in a manner consistent with Sellers practices. Buyer must promptly take shipment of all aged inventory of Buyer-Unique Products. Buyer must promptly offer Seller the right to retain any such aged Buyer-Unique Product for resale by Seller to any party (whether at wholesale or retail) other than Buyer; however, Sellers refusal of that offer does not relieve Buyer of its obligation to purchase any forecasted Buyer-Unique Product. |
(c) | Transition of Product from shared Product to Buyer-Unique Product |
(i) | If Buyer requests Seller to continue to purchase a Product which Seller has stated it will no longer purchase under Section 3(a) (Sellers Obligation to Sell) of the Agreement, such Product shall become a Buyer-Unique Product and it shall be subject to all the same terms and restrictions as other Buyer-Unique Products. |
End of Appendix
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Appendix 7(a)
Payment Due Date
1. | Invoices . Except as is otherwise agreed to, in advance, and in writing by the parties: |
a. Seller will generally deliver invoices to Buyer for all payments due hereunder from Buyer to Seller on the Tuesday of each week.
b. From the Effective Date through July 31, 2016, the Payment Due Date is three days after Buyers receipt of the invoice (e.g., Friday if the invoice is delivered on Tuesday). If Buyer pays such invoice in full by such date, Buyer may deduct from each such invoice an early payment discount equal to 37 basis points (i.e., to 0.37%) of the total amount of the invoice (the Early Payment Discount ). If Buyer does not pay such invoice in full by such date, no Early Payment Discount is earned on such invoice.
c. For all invoices delivered after July 31, 2016 (each a Post-July 2016 Invoice ), the Payment Due Date is the 10 th day following Buyers receipt of the invoice. No Early Payment Discount is earned on such invoices. If with respect to a Post- July 2016 Invoice Seller requests in writing that the Early Payment Discount apply to the invoice, Buyer in its sole discretion may, but will have no obligation to, agree to pay the invoice on the payment terms set forth in the immediately preceding Section 1b .
2. | Royalties . If after January 28, 2017 Buyer ceases using the POS, then the Payment Due Date for Royalties and CS Royalties will be the 10 th day following the end of Buyers fiscal quarter in accordance with Section 7(b) of this Agreement. |
3. | Holidays . If the applicable payment date (i.e., the 3 rd or 10 th day) is a Saturday, Sunday, or bank holiday, Buyer will pay on the next banking day, which will become the Payment Due Date. Electronic fund transfers initiated on the Payment Due Date will be timely made for purposes of this Agreement. |
4. | For the remainder of the Term . Seller and Buyer will negotiate in Good Faith to determine the Payment Due Dates, which negotiations will take into account, among other things, then-current market conditions. |
End of Appendix
1
Appendix 9(a)(ii)
Kmart Locations
Store
|
Location |
Address |
City |
State |
Country |
|||||
1992 | TAMUNING - D | 404 N MARINE CORPS DR | TAMUNING | GU | Guam | |||||
2151 | ST CROIX D | 93A ESTATE DIAMOND | ST CROIX | VI | US Virgin Islands | |||||
2270 | HOMEWOOD D | 17550 HALSTEAD | HOMEWOOD | IL | USA | |||||
9016 | ST THOMAS D | CHARLOTTE AMALIE | ST THOMAS | VI | US Virgin Islands | |||||
2725 | LIHUE D | 4303 NAWILIWILI RD | LIHUE | HI | USA | |||||
1420 | BIG BEAR LAKE D | 42126 BIG BEAR LAKE | BIG BEAR LAKE | CA | USA | |||||
5205 | BRIDGEHAMPTON D | 2044 MONTAUK HWY | BRIDGEHAMPTON | NY | USA | |||||
5078 | KEARNY D | 200 PASSAIC AVE | KEARNY | NJ | USA | |||||
5170 | LAS VEGAS - D | 5051 E BONANZA RD | LAS VEGAS | NV | USA | |||||
2573 | PASSAIC - D | 24 34 BARBOUR AVENUE | PASSAIC | NJ | USA |
End of Appendix
1
Appendix 12(a)(iii)
Seller Marks
1. | The KCD Marks |
2. | The feature Marks and sub-brand Marks associated with the Seller-Branded Products |
3. | The trade dress related to the above Marks |
End of Appendix
1
Appendix 18(a)(i)
Merchandising Operating Committee
Designated by Buyer : Michael Gray; Susan Hilsenbeck; Mike McCarthy
Designated by Seller : James Coyle; Dean Schwartz; Carson Anderson
Initial Chairperson : James Coyle
End of Appendix
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T HE USE OF [***] IN THIS E XHIBIT INDICATES THAT A CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT . T HE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION .
Exhibit 10.2
Amendment No. 4 to Merchandising Agreement
This Amendment No. 4 to Merchandising Agreement (this Amendment ) is between (1) Sears, Roebuck and Co. , a New York corporation ( SRC ), Kmart Corporation, a Michigan corporation (together with SRC, Seller ), and Sears Holdings Corporation , a Delaware corporation ( SHC ), and (2) Sears Hometown and Outlet Stores, Inc. , a Delaware corporation ( SHO ), Sears Authorized Hometown Stores, LLC , a Delaware limited liability company ( SAHS ), and Sears Outlet Stores, L.L.C. , a Delaware limited liability company (together with SHO and SAHS, Buyer ). This Amendment amends the Merchandising Agreement between Seller and Buyer dated August 8, 2012, as amended (as amended, the Merchandising Agreement ), is signed as of the dates listed below and is retro-active to January 31, 2016 (the Amendment Effective Date ).
Preliminary Statements
1. Effective, May 4, 2015 Buyer delivered a notice seeking to terminate Section 10 (Product Warranties And Returns) and Section 11 (Product Servicing) of the Merchandising Agreement (the SHO Termination Notice ); however Seller believes that since that date Buyer has continued to receive the benefits under such provision and Seller believes that Buyer has, since that date, unilaterally reduced the amount Buyer has been paying Seller for the Seller Warranty on No-Vendor-Warranty Products that are Outlet Products to the rate of [***]% multiplied by DOS Cost (as that term is defined in the Merchandising Agreement). Buyer believes that it has been, and is, entitled to pay at the [***]% rate. Seller believes that it has been, and is, entitled to be paid at a rate of [***]% as set forth in the Merchandising Agreement. The difference between the amount that Buyer has paid to Seller at the rate of [***]% and the amount that Seller believes it has been entitled to be paid at the rate of [***]% is the Warranty-Charge Difference .
2. Buyer has prior to the Amendment Effective Date, claimed that Buyer and/or its Affiliates were improperly charged for repairs of Products under the Merchandising Agreement and/or the Services Agreement by SHMC and its Affiliates, including, without limitation, claims that Buyer and/or its Affiliates were improperly charged for Store Stock repairs, claims that SHMC and/or its Affiliates provided insufficient information for such repairs, claims that Outlet Products were subject to a SHMC or its Affiliates warranty prior to their sale to consumer, claims that Buyer and its Affiliates should not have been charged for repairs and attempted repairs of products under warranty, claims that certain repairs where charged to Buyer and/or its Affiliates in error, claims that SHMC and/or its Affiliates applied the incorrect rate, claims that Buyer and/or its Affiliates should not have been charged for no trouble found charges, and claims that SHMC and/or its Affiliates should have provided replacement products for junked products (collectively, the SHO Repair Claims ).
3. In 2014 Seller invoiced Buyer for $858,000 for IT Services that Seller believes were owed. Buyer believes these amounts were in excess of agreed-upon amounts. In September 2014 Buyer withheld this amount from the weekly invoice paid to Seller in Sellers fiscal week 32.
4. In 2014 Seller invoiced Buyer $343,000 for service order transfer items that Seller believes were owed. Buyer believes these amounts were in excess of agreed-upon amounts. In September 2014 Buyer withheld this amount from weekly invoices paid to Seller in Sellers fiscal week 32.
5. The Warranty-Charge Difference and the amounts described above in paragraphs 2, 3 and 4 together are referred to as the Disputed Amounts .
The use of [***] in this Exhibit indicates that a confidential portion has been omitted pursuant to a request for confidential treatment. The omitted material has been filed separately with the Securities and Exchange Commission.
Terms and Conditions
NOW, THEREFORE, in consideration of the above premises and the mutual covenants and other good and valuable consideration contained herein, the parties agree as follows:
A) Revocation of Termination and Amendments . Effective as of Amendment Effective Date, the parties agree as follows:
1) Revocation . Retroactive to the date of the SHO Termination Notice, Buyer revokes the SHO Termination Notice. The Parties agree that the SHO Termination Notice is therefore null and void ab initio and the Seller Warranty is not subject to renegotiation until the 4 th anniversary of the Merchandising Agreement.
2) Warranty-Charge Difference . Beginning on the Amendment Effective Date, Buyer shall re-commence paying Seller for the Seller Warranty on No-Vendor Warranty Products that are Outlet Products (delivered to Buyer on and after January 31, 2016) in accordance with the provisions of the Merchandising Agreement (e.g., at the rate of [***]% multiplied by the DOS Cost as specified in Appendix 4(b)(i) of the Merchandising Agreement).
3) SHO Payment and Seller Waiver . Buyer agrees to immediately pay Seller $600,000 (the Buyer Payment ). Conditioned upon the Buyer Payment Seller forever waives all of its rights to, and releases Buyer from all obligations to pay (to the extent that Buyer has not paid such amounts), the Disputed Amounts.
4) Buyer Waiver . Buyer forever waives all of its rights to, and releases Seller from all of the SHO Repair Claims.
B) SHCS Sole Obligation . Sears Holding Corporation ( SHC ) is signing this Amendment pursuant to Section 21 (SHCS Sole Obligation) of the Merchandising Agreement. SHCs signature does not expand its obligations under the Merchandising Agreement.
C) Merchandising Agreement Continues . Except as expressly amended herein, the Merchandising Agreement shall continue in full force and effect in accordance with its terms, without any waiver, amendment or other modification of any provision thereof, including the parties choice of Illinois law (pursuant to Section 22.(s) of the Merchandising Agreement), which also applies to this Amendment.
Signature Page Follows
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SEARS, ROEBUCK AND CO. KMART CORPORATION |
SEARS HOMETOWN AND OUTLET STORES, INC. |
|||||||
By: Sears Holdings Management Corporation, their agent | By: |
/s/ RYAN D. ROBINSON |
||||||
By: |
/s/ ROBERT A. RIECKER |
Senior Vice President, Chief Administrative Officer and Chief Financial Officer | ||||||
VP Controller Date: May 10, 2016 |
Date: May 11, 2016 | |||||||
SEARS HOLDINGS CORPORATION | SEARS AUTHORIZED HOMETOWN STORES, LLC | |||||||
By: |
/s/ ROBERT A. RIECKER |
By: |
/s/ CHARLES J. HANSEN |
|||||
VP Controller Date: May 10, 2016 |
Vice President Date: May 11, 2016 |
|||||||
SEARS OUTLET STORES, L.L.C. | ||||||||
By: |
/s/ CHARLES J. HANSEN |
|||||||
Vice President Date: May 11, 2016 |
Exhibit 10.3
T HE USE OF [***] IN THIS E XHIBIT INDICATES THAT A CONFIDENTIAL PORTION HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT . T HE OMITTED MATERIAL
HAS BEEN FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION .
Amendment No. 4 to Services Agreement
This Amendment No. 4 ( Amendment ) , to that certain Services Agreement (the Agreement ) between Sears Holdings Management Corporation, a Delaware corporation ( SHMC ) , and Sears Hometown and Outlet Stores, Inc., a Delaware corporation ( SHO ) , is made by the parties thereto as of the signature dates set forth below and is retroactive to May 1st, 2016 (the Amendment Date ). Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Agreement.
WHEREAS, the parties have determined that it is in both parties interest to amend the Agreement as set forth below.
NOW, THEREFORE, in consideration of the above premises and the mutual covenants and other good and valuable consideration contained herein, the parties agree as follows:
1 . | Amendments . The Agreement shall be modified as of the Amendment Date as set forth below: |
a. Term and Service Periods. Section 1.01 (Services to be Provided) of the Agreement is amended and restated in its entirety as follows:
1.01 Term and Services Periods.
A. Term. This Agreement commenced on October 12, 2012 (the Effective Date ) and will continue in effect until the end of the last of the Services Periods described below (the Term ) .
B. Services To Be Provided. To the extent not prohibited by Applicable Law, during the applicable Service Period, SHMC will provide to SHO the following services (collectively, the Services ) : (a) the Transition Services described on Appendix 1.01-A (as defined therein) and the additional Transition Services set forth in Section 1.03 (SHOs Migration Off of Transition Services) below, (b) the Product Services described on Appendix 1.01-B, (as defined therein), (c) the Supply Chain Services described on Appendix 1.01-C , (as defined therein), (d) the eCommerce Services described on Ap pendix 1.01- D , (as defined therein), and (e) the other Services described herein. Appendix 1.01-A , Appendix 1.01-B , Appendix 1.01-C , and Appendix 1.01-D are collectively referred to herein as Appendix 1.01 .
C. Service Period. Each Service Period commenced on the Effective Date and will run through the end of the following days:
(i) Transition Services . February 1 st , 2020 (the Transition Services Period );
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(ii) Product Services . February 1 st , 2020 (the Product Services Period ) .
(iii) Supply Chain Services . February 1 st , 2020 (the Supply Chain Services Period ) .
(iv) Ecommerce Services . February 1 st , 2020 (the Ecommerce Services Period , together with the Transition Services Period, the Product Service Period and the Supply Chain Services, collectively, the Services Period ).
D. Prior Services. Except for Services which SHO has stopped using (either before or after the Effective Date), all services that were provided prior to the Effective Date to the businesses operated by SHO after the Effective Date and that after the Effective Date constitute Services will be governed by this Agreement even if such services are not described on Appendix 1.01 . If a Party identifies such a Service, it will notify the other Partys Contact Person (as provided for in Section 6.05 (Notices) below), and the Parties will work together to address such services and respective pricing in an Amendment to this Agreement.
E. SHOs Requests for Services/System Changes. If SHO desires any additional services or any modification (including reductions and complete termination of an individual Service pursuant to Article III (Terminations)) in Services currently being performed, under this Agreement, including any of the Appendices (including changes to SHMC Systems (as such term is defined below) (each a Service Change ), SHO shall make such request in writing to SHMCs designated services manager ( SHMCs Services Manager ) in accordance with the following process; provided that changes required by SHO in connection with SHOs migration off of SHMCs Systems shall be handled pursuant to Section 1.03 (SHOs Migration Off of Transition Services) below. For example, if SHO desires to terminate delivery services for some, but not all of its, its Affiliates, and the SHO Authorized Sellers stores, SHO shall first submit a SHO Request (as set forth below):
(i) SHO Request . SHO shall prepare a written request (each a SHO Request ) for the Service Change including, as applicable, a description of the new services or change in Services, deliverables, timeline and any associated changes to SHMC Systems, in such detail as would be needed by an unaffiliated third party contractor to develop a competent price proposal for similar services. If requested by SHO in writing, SHMC personnel will answer questions by SHO based upon information readily available to them to assist SHO in preparing a SHO Request.
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(ii) SHMC Review . SHMC will review each SHO Request, in Good Faith determine if SHMC is willing to proceed with the Service Change, in its sole discretion (taking into account, among other things, its internal resources, the needs of SHMC and its Affiliates business, the impact of the potential changes on SHMC and its Affiliates, security considerations and the potential effects on SHMCs and its Affiliates information systems). SHMC shall promptly respond to each SHO Request; including any changes to SHOs Request, including new or modified Services, deliverables, schedule, and associated changes to SHMC Systems and fees under this Agreement. If SHMC determines in Good Faith that it is unable or unwilling to proceed with any SHO Request, SHMC will promptly so notify SHO in writing. For clarity, the Parties note that any SHO Request that constitutes solely a termination of an individual either Transition Services or Supply Chain Services are subject to subsection (iv) below, and any SHO Request that constitutes solely a partial termination of one or more Transition Services or one or more Supply Chain Services are subject to subsection (v) below and, in each such case, this subsection (ii) will not apply.
(iii) IT Only Change . To the extent that a SHO Request is solely for an enhancement to the SHMC System which SHO relies on SHMC to provide (each an IT Only Change ), SHMC will timely consider such request in Good Faith, and determine if SHMC is willing to proceed with the Service Change, in its reasonable discretion, (taking into account, among other things, its internal resources, the needs of SHMC and its Affiliates business, the impact of the potential changes on SHMC and its Affiliates, and the potential effects on SHMCs and its Affiliates information systems) and if SHMC approves such IT Only Change, in its reasonable discretion, SHMC will, at SHOs sole cost, risk and expense, have its information technology team prepare an estimate of the cost and time to make such change. If SHO approves such estimate and no other changes are needed to this Agreement in connection with such IT Only Change, then SHMC will proceed to make the IT Only Change, at SHOs sole cost, risk and expense. If SHMC determines in Good Faith that it is unable or unwilling to proceed with any IT Only Change, SHMC will promptly so notify SHO in writing;
(iv) Termination of an Individual Transition Services/Supply Chain Service . To the extent a SHO Request is solely for a termination of an individual Transition Service or an individual Supply Chain Service, SHMC will timely consider such request in Good Faith, and determine, in SHMCs reasonable judgment, if such termination would adversely affect SHMCs ability to perform another Service. SHMC will promptly notify SHO of SHMCs determination, and SHMC will identify any impacted
3
services. Determination of whether a termination constitutes either: (A) termination of an individual Transition Service and/or Supply Chain Service (which is subject to this subsection (iv)), or (B) a termination of such Services which does not constitute an individual Transition Service or individual Supply Chain Service (e.g., a partial termination) will be determined by SHMC, in Good Faith, in its reasonable discretion, including, in part, based upon the impact upon: (x) the other Services SHMC provides, and (y) whether the pricing for the remaining services, is appropriate given the reduced scope.
a. No Adverse Effect. If SHMC determination is that there is no adverse effect, then SHOs termination of such individual service will be effective on the date contained in SHOs original notice; provided that such date meets the applicable notice period (i.e., 60 or 90 days) and otherwise complies with this Agreement; if SHOs notice is defective, than such termination will not be effective until proper notice is received by SHMC and the applicable notice period has expired.
b. Adverse Effect. If SHMC determination is that there is an adverse effect, then SHOs original notice will be void, and SHO will have the option of either: (I) sending a written notice terminating the original service and the additional affected services identified by SHMC (subject to the applicable notice period); or (II) forgoing its originally requested termination. SHO may also submit a SHO Request for a partial termination, as set forth in the following subsection (v) below.
For clarity, the Parties note that any SHO Request that includes a change to the Services are subject to subsection (ii) above and any SHO Request that constitutes solely a partial termination of one or more Transition Services or one or more Supply Chain Services are subject to subsection (v) below and, in each such case, this subsection (iv) will not apply.
(v) Partial Terminations . To the extent a SHO Request is solely for a partial termination of one or more individual Transition Services or one or more individual Supply Chain Services, SHMC will timely consider such request in Good Faith, and determine, in SHMCs reasonable judgment, whether SHMC is willing to proceed with such partial termination (taking into account, among other things, its internal resources, the impact of the potential changes on SHMC and its Affiliates, security considerations and the potential effects on SHMCs and its Affiliates information systems). SHMC shall promptly respond to each SHO Request; including any proposed changes to SHOs Request, including modified Services, deliverables, schedule, and associated changes to SHMC Systems and fees under this Agreement. If SHMC
4
determines in Good Faith that it is unable or unwilling to proceed with any SHO Request, SHMC will promptly so notify SHO in writing. For clarity, the Parties note that any SHO Request that include a change to the Services are subject to subsection (ii) above and any termination of an individual Transition Services or Supply Chain Service are subject to subsection (iv) above and, in each such case, this subsection (v) will not apply.
(vi) Amendment Requirement . For all SHO Requests (other than an IT Only Change and a termination of one or more individual Services in accordance with this Agreement), if the Parties, each in their sole discretion, agree on the terms and conditions under which they would move forward with a Service Change the parties will negotiate, a proposed amendment to this Agreement documenting the Service Change, after which the parties will seek all necessary internal approvals prior to signing the proposed amendment. In the absence of a signed Amendment, the Parties must fulfill their obligations under this Agreement without regard to such proposed Service Change amendment.
b. Transition Plan. Section 1.03 (Transition Plan) is amended and restated in its entirety as follows:
1.03 SHOs Migration Off of Transition Services .
(a) SHO Migration.
i. SHOs Migration Plans . SHO has retained a business process outsourcer ( SHOs BPO Provider ) to assist SHO in standing up new systems and infrastructure to be owned or licensed by SHO (the New SHO Systems ) necessary for SHO to migrate off the Transition Services. SHO is solely responsible for creating a detailed migration plan (each a SHO Migration Plan ) for migrating off of each of the Transition Services and the related SHMC systems and infrastructure which support SHO and for managing each such migration. SHO is solely responsible for (except as provided for below) designing, and implementing any integration needed between SHOs New Systems and the SHMC Systems (including any new interfaces between SHMC Systems related to SHOs Migration Plans). SHO is migrating off many but not all of Transition Services and related systems and infrastructure which SHMC and its Affiliates have previously provided to SHO and its Affiliates (the SHMC Systems ). Representatives of SHO, SHMC, and SHOs BPO Provider will meet from time to time to the extent necessary for SHO, SHMC, and SHOs BPO Provider to discuss and evaluate, SHOs proposed SHO Migration Plans; provided that SHMCs participation is subject to the terms, conditions and fees set forth herein.
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ii. Modifications/Access to SHMC and its Affiliates Systems . To the extent that under any SHO Migration Plan SHO is seeking to integrate with, access, or continue to receive data from, or use, any SHMC or its Affiliates systems and infrastructure (collectively, SHO Access ) ; SHMC shall have the right to approve, in SHMCs sole discretion exercised in Good Faith, each SHO Migration Plan and SHOs request for such SHO Access, as well as the architecture, security requirements, conditions, additional charges and/or modifications to existing charges and other terms of any SHO Access approved by SHMC; which approval may be conditioned upon the requirement that any changes to SHMC Systems be done by SHMC, its Affiliates or its/their Representatives (at SHOs cost and expense). In order to be binding on SHMC, any such approval must be in writing signed by a SHMC Vice President or higher and to the extent such approval is conditioned upon changes to this Agreement (or other agreements to the parties), the parties will need to first negotiate, seek internal approvals for, and then sign an amendment to document such changes before such SHO Migration Plan shall be deemed approved by SHMC hereunder. As part of the System Migration Services (defined below), SHO shall reimburse SHMC for all time spent by SHMC and its Affiliates and its/their Representatives in connection with reviewing, approving, modifying and implementing such requests (subject to the rates and terms set forth below); regardless of whether such SHO Migration Plan is ultimately approved and/or implemented.
iii. SHOs Liability Regarding SHO Requests, IT Only Requests, and Service Changes, SHO Migration Plans and Their Implementation . Except as expressly provided for herein, SHO shall solely bear all cost, risk and expense associated with SHO Requests, IT Only Requests, Service Changes, and SHO Migration Plans and SHOs attempt to implement them (including any information, advice, Services or other assistance provided by SHMC, its Affiliates and its/their Representatives in connection therewith) notwithstanding any approval, advice, or assistance provided by any of the foregoing. Additionally, all claims, demands, litigation, or suits brought by third parties related to SHO Requests, IT Only Requests, Service Changes, and SHO Migration Plans and SHMC, its Affiliates and its/their Representatives assistance with the foregoing (including any information, advice, Services or other assistance provided by them), shall be deemed to be a SHO Claim under Section 5.01 (without regard to the exceptions set forth therein); except to the extent that such SHO Claims are found by a final judgment or opinion of an arbitrator or a court of appropriate jurisdiction to be caused by: (i) a willful breach of any provision of this Agreement by SHMC; or (ii) willful misconduct of SHMC, its Affiliates, or their respective Representatives in the performance of their obligations under this Agreement. FURTHER SHO ACKNOWLEDGES THAT SHMC, ITS AFFILIATES, AND ITS/THEIR REPRESENTATIVES HAVE MADE NO REPRESENTATION OR WARRANTY AND HAVE NO LIABILITY REGARDING ANY INFORMATION, ADVICE, SERVICES OR OTHER ASSISTANCE PROVIDED TO SHO INCONNECTION WITH THE SHO
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REQUESTS, IT ONLY REQUESTS, SERVICE CHANGES, AND SHO MIGRATION PLANS AND THEIR IMPLEMENTATION; EXCEPT AS EXPRESSLY PROVIDED FOR IN SECTION 1.04 (Standard of Care). Further, approval of any SHO Requests, IT Only Requests, Service Changes or SHO Migration Plans by SHMC does not relieve SHO of its obligation to properly send SHMC notice to terminate any Service under Section 3.01 and SHO acknowledges that it is obligated to pay SHMCs charges for Services: (A) for 60 days after such notice is given and, (B) if longer, for so long as SHO continues to receive such Services.
iv. Information Disclosure and Regular Meetings . SHO and the SHO BPO Provider will on a regular basis, no less than once per week, meet with SHMCs designated project manager ( SHMCs Migration Project Manager ) to provide a status report on the development of each SHO Migration Plan and the implementation of any approved SHO Migration Plan. Additionally, SHO and the SHO BPO Provider will regularly but at least monthly meet with SHMCs Project Manager and executives from SHMC (as designated by SHMC from time to time) to review a detailed status report (prepared by SHO (in a format acceptable to both Parties) and delivered to SHMC at least 48 hours in advance of the meeting) on the development of each SHO Migration Plan and the implementation of any approved SHO Migration Plan. During such weekly and monthly meetings, and, in writing, upon SHMCs request, SHO shall provide SHMC with full and completed details of each of SHOs proposed SHO Migration Plan and details on SHOs implementation of any approved SHO Migration Plans.
V. SHMC Cooperation .
A. System Migration Services. Subject to the conditions set forth herein, SHMC shall use Good Faith efforts to provide appropriate IT and related services (including people, access to systems (subject to Section 1.03(a)(ii)) and data/information migration, testing, verification, integration, and similar services) on a time and materials basis to assist SHO in its desire to successfully migrate within the time frames set forth in each SHO Migration Plan from SHMC systems, infrastructure, and managed services ( System Migration Services ) to SHOs New Systems.
B. Good Faith Cooperation. Subject to SHMCs approval rights herein, upon a written request by SHO for System Migration Services, SHMC in Good Faith will assess with respect to each request for System Migration Services whether: (i) it has the internal resources that are qualified to perform the requested services and whether they are available to assist SHO (based upon SHMCs estimates of its internal needs for its associates); or (ii) external resources are necessary. If
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external resources are necessary, and if those resources will be modifying SHMCs or its Affiliates systems, SHMC will retain such resources at SHOs request and at SHOs sole expense. If external resources do not need to modify or access SHMCs of its Affiliates systems, SHO will hire such resources directly. SHMC or its Affiliates will be the sole owner of any modifications to and derivative works of SHMC Systems and SHO and its Affiliates and its/their Representatives will sign any documents necessary to effect such ownership.
C. Rates. All assistance provided by SHMC and its Affiliates under this Section 1.03 shall be deemed to be part of the Transition Services and shall paid for by SHO on a monthly basis at the following rates:
Labor Type |
Skill Set |
Rate |
||
SHMC or its Affiliates Associate | Associate | $100.00 per hour | ||
3 rd Party Contractor | Variable | 3rd party charges to SHMC or its Affiliates without markup. |
| Except for the above rates, SHMC will not impose any data/information-transfer or other charges against SHO for the System Migration Services described in this Section 1.03 . |
| SHO will reimburse SHMC upon demand for its reasonable, out-of-pocket costs necessarily incurred to provide the System Migration Services (including all costs assessed by third parties). All costs and expenses approved by SHO in writing shall be conclusively deemed to be necessary and reasonable. |
(b) Buyer-Direct Merchandise and SHO POS System .
i. Buyer-Direct Merchandise . On and after the Effective Date, merchandise which SHMC agrees to issue purchase orders for (consistent with the parties past practices) and have shipped directly to SHO owned, leased or operated locations (collectively, SHO Locations ), including: (A) expedited merchandise process ( EMP ) orders and (B) orders cross-docked through SHMC and its Affiliates distribution facilities, and as they are being shipped to SHO Locations (collectively, Buyer-Direct Merchandise ); shall not be considered Products sold under the Amended and Restated Merchandising Agreement of even date herewith between (1) SHO, and certain of its Affiliates,
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and (2) Sears, Roebuck and Co. ( SRC ) and certain of its Affiliates (as amended and restated, the Merchandising Agreement ), but instead SHMC will be deemed as issuing such purchase orders as agent for SHO as part of SHMCs Services under this Agreement. Notwithstanding the immediately foregoing sentence: (X) the provisions of the Merchandising Agreement governing the invoicing (by SHMCs Affiliates) and payment of the Invoice Prices (by SHO and its Affiliates) will continue to apply to Buyer-Direct Merchandise and the charges for such Products shall be included in the invoices issued under the Merchandising Agreement, and (Y) the Products which are deemed Buyer-Unique Products (as defined in the Merchandising Agreement) shall remain Products under the Merchandising Agreement. SHMC will be entitled to invoice SHO for all Buyer-Direct Merchandise under the Merchandise Agreement in the week after delivery to SHO, its Affiliates and/or a SHO Authorized Seller (as that term is defined in Appendix 1.01-B (Product Services) , as applicable. Buyer-Direct Merchandise does not include merchandise branded with a Mark owned or exclusively licensed by SHMC or its Affiliates, including the Seller Marks (as such terms are defined in the Merchandising Agreement); nor merchandise for which SHO was issuing its own purchase orders; for which orders SHMC and its Affiliates shall have no responsibility (including for merchandise delivered to SHOs ORDCs (as such term is defined in Appendix 1.01 B) . Further, SHMC may require SHO to pay vendors directly for any or all Buyer-Direct Products. All claims, demands, litigation, or suits brought by third parties related to the Buyer-Direct Merchandise shall be deemed to be a SHO Claim under Section 5.01 . If requested by SHMC, SHO will promptly enter into its own contracts with any or all of the vendors of the Buyer-Direct Merchandise (for which SHMC or its Affiliates are issuing purchase orders). Neither this Agreement, nor the Merchandising Agreement grants SHO or its Affiliates the right to buy from any party other than SHMCs Affiliates merchandise branded with a Mark owned or exclusively licensed by SHMC or its Affiliates; except as expressly authorized by a SHMC Vice President or higher in writing from time to time. SHO may also continue to issue manual purchase orders for merchandise being shipped to its ORDCs; provided: (a) SHO does not issue its own purchase order for merchandise branded with a Mark owned or exclusively licensed by SHMC or its Affiliates; and (b) SHO does not enter such orders into any SHMC Systems; provided SHO may enter the products themselves into the inventory and POS systems SHMC provides.
ii. SHO PO System . As part of the New SHO Systems, SHO plans to launch a new SHO purchase order writing system (the SHO PO System ). SHO will need to integrate the SHO PO System with SHMC Systems in order to have merchandise SHO purchases stored within SHMC and its Affiliates supply chain network; for which effort SHO will create a separate SHO Migration Plan (which plan is subject to SHMCs approval as set forth above). Once SHOs PO System is operational and integrated with SHMCs supply chain, SHO will cease using SHMC Systems to issue purchase orders for merchandise and SHO will use the SHO PO System to order Buyer-Direct Merchandise and Vendor Unique Merchandise (as that term is defined in the Merchandising Agreement).
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c. SHO New Name. A new Section 1.11 is added as follows:
1.11 New Name Request. SHMC is not obligated to provide to SHO any Service in accordance with this Agreement for any Non-Sears Business (as defined in the Merchandising Agreement). In connection with each New Name Request (as defined in the Merchandising Agreement) SHO makes under the Merchandising Agreement, SHO will identify the specific Services under this Agreement which SHO desires to continue to use in connection with the store(s) identified in the New Name Request. SHMC and its Affiliates shall then review its Service offerings and advise SHO whether in SHMCs judgment, SHMC or its Affiliates can continue to provide each of the requested Services to the Non-Sears Business given such name change; provided that SHMC and its Affiliates shall have no liability in connection with any such review and SHO will be exclusively liable for any fees, expenses, increased charges, or penalties SHMC or its Affiliates incur to support SHO and its Affiliates resulting from such name change pursuant to Section 2.01(a) (Fees). Any determination by SHMC or its Affiliates that a Service will not be available to a SHO Store using a SHO New Name shall not relieve SHO of the exclusivities SHO has granted under this Agreement (e.g., SHO may use the SHO New Name for a location but to the extent that SHO has granted SHMC or its Affiliates any exclusive rights in connection with a Service that SHMC can no longer offer due to the name change, then SHO must forgo using such Services at the impacted location and SHO may not directly or through a third party provide a replacement service (e.g., Protection Agreements); provided , however, that for a Non-Sears Business which: (x) SHO acquires after the Effective Date, and (y) is not a conversion of a SHO Store owned or Seller Authorized Reseller which at such time is using a Sears name; the foregoing prohibition on SHO procuring services from a third party shall not apply.
d. Compensation. Section 2.01(a) (Fees) is amended and restated in its entirety as follows:
(a) Fees. As consideration for the provision of Services, SHO will pay SHMC during the Service Period the annual, quarterly, monthly, and hourly fees for the Services specified on Appendix 1.01 (the Fees ), payable in equal installments in advance as provided on Appendix 1.01 . Upon termination of an individual Service, SHO will pay a pro rata portion of the applicable Fee specified on Appendix 1.01, calculated based on the portion of the individual Service actually performed, or expense actually incurred, through the date SHMC performs the Service. Transition Fees, if any are specified on Appendix 1.01 , will be paid with the last monthly installment payment of the Fees under the Agreement. If the Fees include charges for services performed by a third party contractor and the third party contractor fees increase during the Term, then SHMC may pass through the increased charges as an increase in the Fees. If a third party vendor of SHMC, its Affiliates or its/their Representatives asserts that it is legally entitled to fees, expenses, increased charges, or penalties now or in the future, as a result of SHO, its Affiliates, SHO Authorized Sellers and/or its/their Representatives receiving benefits
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in connection with SHMC or its Affiliates relationship with such third party vendor (including software licenses, subscription agreements, etc.), then, in addition to all other amounts due hereunder, SHO shall pay to SHMC all of such additional fees, expenses, increased charges and/or penalties incurred by SHMC or its Affiliates to remedy such situation. SHMC will notify SHO promptly after it learns of any amounts due under the immediately foregoing sentence, and will work with the SHMC third party vendor to try to mitigate such amounts. To the extent SHO and its Affiliates receive benefits (including software licenses, subscription agreements, etc.) in connection with any agreement between SHMC or its Affiliates and any third party vendor; and such agreement includes early termination fees (or similar charges, Termination Fees ), SHO will be solely responsible for any such Termination Fees SHMC or its Affiliates incur as a result of the SHO and/or its Affiliates and the SHO Authorized Sellers) ceasing to use the Services under this Agreement.
e. | Recalculation of Charges, Fees and Expenses. A new Section 2.01(c) (Recalculation of Charges, Fees and Expenses) and Section 2.01(d) (SHO Cover Event) are added to the Agreement as follows: |
(c) Recalculation of Charges, Fees and Expenses . If there is after the Effective Date a change in legislation, regulation, business conditions, or SHMCs operations that result in an increase in SHMCs costs, fees, and expenses associated with one or more of the Services(s), upon SHMCs demonstration of such facts, there will be an equitable adjustment to the amounts charged to SHO hereunder to make SHMC whole. SHMC will use commercially reasonable efforts to mitigate the impact of any such change.
(d) | SHO Cover Event. |
(i) Cover Event . As used in this Section 2.01(d) : (A) SHO Cover Event means the date on which a court having jurisdiction over a bankruptcy case of SHMC enters an order resulting in the rejection of the Merchandising Agreement pursuant to Section 365(a) of Title 11 of the U.S Code (the Bankruptcy Code ) and does not for any reason substantially contemporaneously enter an order rejecting this Agreement pursuant to Section 365(a) of the Bankruptcy Code, notwithstanding the parties clear intent set forth herein, that such agreements constitute a single integrated agreement, and as a consequence of the rejection SHO is able to purchase, and actually purchases, an item of merchandise comparable to a Product other than a KCD Product (the comparable merchandise, the Cover Merchandise ) only at prices that are higher than the HTS Invoice Price for an HTS Product or the Outlet Invoice Price for an Outlet Product.
(ii) Cover Costs . SHOs Cover Costs for an item of Cover Merchandise are (y) the costs incurred by SHO to cover as contemplated by Section 2-711(1) of the Illinois Uniform Commercial Code (810 ILCS 5/2-711) and 2-712 after a SHO Cover Event to purchase the Cover Merchandise less (z) the HTS Invoice Price for the comparable HTS Product or the Outlet Invoice Price for the comparable Outlet Product, as the case may be, in accordance with the Merchandising Agreement. To the extent that there are differences between the Cover Merchandise and the HTS Product and/or their terms of sale (e.g., different features, different F.O.B points, or different warranty terms,
11
SHOs Cover Costs will be equitably adjusted to reflect such differences. The terms HTS Invoice Price , HTS Product , KCD Product , Outlet Product , Outlet Invoice Price , and Seller ) are defined in the Merchandising Agreement.
(iii) Notice of Cover Costs . If a SHO Cover Event occurs, notwithstanding the parties clear intent, expressed in this Agreement, that the Merchandising Agreement and this Agreement be considered a single integrated agreement, from and after the date on which such SHO Cover Event occurs, SHO will notify SHMC in writing, in accordance with Section 6.05 (Notices), no later than Friday of each week of SHOs Cover Costs incurred in the prior week to purchase Cover Merchandise and, together with such notice, SHO shall provide documentation in reasonable detail supporting SHOs Cover Cost.
(iv) Reduction of Service Fees . Upon SHMCs receipt of each such notification issued in compliance with this Agreement, SHMC will reduce the amount of its next invoice to SHO for Fees by the amount of SHOs Cover Costs and, to the extent such invoice amount is not so reduced, SHO will be entitled to credit the amount payable under such invoice, and any subsequent invoice if such credit exceeds the amount of the invoice, by the actual amount of SHOs Cover Costs.
f. Payments. Section 2.02 of the Agreement is amended and restated in its entirety as follows:
2.02 Payments .
(a) SHO will pay Fees, Expenses, and Transaction Taxes in accordance with this Article II.
(b) SHMC will generally deliver invoices to SHO for all amounts that SHO owes to SHMC hereunder on Tuesday of the applicable week. Fees are invoiced at the end of the applicable month.
(c) From the Amendment Date through July 31, 2016, the payment due date is three days after SHOs receipt of the invoice (e.g., Friday if the invoice is delivered on Tuesday). If SHO pays such invoice in full by such date, SHO may deduct from each such invoice an early payment discount equal to 37 basis points (i.e., to 0.37%) of the total amount of the invoice (the Early Payment Discount ). If SHO does not pay such invoice in full by such date, no Early Payment Discount is earned on such invoice.
(d) For all Invoices delivered after July 31, 2016 (each a Post-July 2016 Invoice ), the payment due date is the 10th day following SHOs receipt of the invoice. No Early Payment Discount is earned on such invoices. If with respect to a Post-July 2016 Invoice SHMC requests in writing that the Early Payment Discount apply to the invoice, SHO in its sole discretion may, but will have no obligation to, agree to pay the invoice on the payment terms set forth in the immediately preceding subsection (c).
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(e) If the applicable payment date (i.e., the 3rd or 10th day) is a Saturday, Sunday, or bank holiday, SHO will pay on the next banking day, which will become the payment due date. Electronic fund transfers initiated on the payment due date will be timely made for purposes of this Agreement.
(f) Unless otherwise mutually agreed in writing, all amounts payable under this Agreement will be payable by electronic transfer of immediately available funds to a bank account designated by SHMC from time to time. All amounts remaining unpaid for more than 15 days after their respective due date(s) will accrue interest at a rate of the lesser of one and one-half percent (1.5%) per month or the highest rate allowed by law, until paid.
g. SHO Termination of a Service. Section 3.01 of the Agreement is amended and restated in its entirety as follows:
3.01 Termination of an Individual Service for Convenience by SHO. Subject to the next sentence, SHO may terminate for SHOs convenience at the end of a SHMC fiscal month: (a) any individual Transition Service, upon 60-days prior written notice to SHMC, and (b) any individual Supply Chain Service, upon 90 days prior written notice to SHMC. SHO may not terminate an individual Transition Service or Supply Chain Service if the termination would adversely affect SHMCs ability to perform another Service.
h. Additional Termination Provisions. Two new Sections are added to Article III as follows:
3.05 SHMCs Termination of an Individual Market . If SHMC or its Affiliates decides to initiate a Market Exit, SHMC may, upon 60 days advance written notice delivered to SHO, terminate SHMCs obligations under this Agreement with regard to that Geographic Market upon 60 days notice. If a Market Exit occurs, SHO will have the right to provide in the discontinued Geographic Market(s), either directly itself or through one of more third-party service providers, replacement services for all of the terminated Services (e.g., the sale of third party protection-agreements, shipment of products delivered outside the Geographic Market into the Geographic Market) in each instance notwithstanding any exclusivity provisions in this Agreement. A Market Exit means that SHMC and its Affiliates close all warehousing, distribution, logistics, and other support activities for its and its Affiliates physical stores in a Geographic Market (as that term is defined in the Merchandising Agreement. In the event of a Market Exit, SHO may request that SHMC continue to perform some or all of its obligations under this Agreement; SHMC has no obligation to agree to such request, and may condition its acceptance on new or modified terms and conditions (including changes in pricing); any such agreement must be documented in writing and signed by both Parties (after receipt of necessary internal approvals), to be effective.
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3.06 Cross Default . A Partys breach of the Merchandising Agreement constitutes a breach by the breaching Party of this Agreement (which breach may only be cured, if at all, in accordance with the express provisions of the Merchandising Agreement). The non-breaching Partys remedies under this Section 3.06 are in addition to and not in lieu of any and all other legal and equitable remedies available to the non-breaching Party under this Agreement and under the Services Agreement; provided that the non-breaching Party is not entitled to double recovery of monetary damages.
i. SHO Migration Plans. A new subsection (iii) is added to Section 5.04 (Limitation of Liability) as follows and the existing subsection (iii) is renumbered (iv);
(iii) any harm to SHMC, its Affiliates, their Representatives and customers which, absent SHMCs gross negligence or intentional misconduct, arises in connection with any SHO Request, an IT Only Change, Service Change or SHO Migration Plan including SHO Access and/or a New SHO System,
j. Dispute. The following is added at the end of Section 6.15(b)(ii) :
Furthermore, no Party may provide a Dispute Notice for any Dispute, or otherwise assert and/or claim a Dispute to the extent the Dispute relates to any act or omission of a Party, its Affiliates or its/their Representatives (other than clerical or accounting errors which the asserting Party was not aware of) in connection with, or related to, its rights, or the other Party, its Affiliates or its/their Representatives performance or non-performance under this Agreement that occurred more than 120 days prior to the time such claims, controversy, dispute, and/or disagreement is first asserted (together, Stale Claims ) and each Party waives on its behalf (and on behalf of its Affiliates and its/their Representatives) any rights to a Stale Claim. Notwithstanding the foregoing, the term Stale Claims does not include claims, controversies, disputes, and disagreements brought by either Party in regards to: (X) the other Partys rights and obligations under Section 14 (Indemnification); (Y) claims by a Party for reimbursement from the other Party for fees, expenses (including attorneys fees), charges, costs, damages penalties and other amounts paid by a Party or its Affiliates to a third party, including such amounts arising from non-indemnified third party claims, controversies and disagreements; provided that the Party brings such claim within 120 days after the Party makes such a payment; and (Z) an act or omission of the other Party, its Affiliates and/or its/their Representatives which the other Party demonstrates was intentionally done (or not done) with actual knowledge that it was in violation of this Agreement (including such Partys duty of Good Faith). For example: (I) a clerical or accounting error shall not include a claim by a Party that it should not be charged for activities for which it regularly received charges which instead shall be deemed to be a Stale Claim to the extent that such claim is for acts/omissions that are more than 120 days old; (II) a claim relating to charges which were incorrectly calculated due to a clerical or accounting error of which the claiming party was unaware would not be a Stale Claim to the extent based solely on such clerical or accounting error, (III) an intentional overcharge by a Party which it knew it was making in violation of this
14
Agreement, will not be deemed to be a Stale Claim even if raised more than 120 days after such overcharge; provided that the claiming Party can prove such violation was intentional and made with actual knowledge that such overcharge was a violation of this Agreement.
k. Entire Agreement. Section 6.11 (Entire Agreement) is amended and restated in its entirety as follows:
6.11 Entire Agreement. This Agreement together with the Merchandising Agreement, which includes each of the Exhibits, Appendices and other documents attached to this Agreement and the Merchandising Agreement, are a single integrated agreement which sets forth the entire agreement and understanding between the Parties with respect to the Services described herein and the Products described in the Merchandising Agreement; except for those matters set forth in the Separation Agreement and the other Ancillary Agreements (as that term is defined in the Separation Agreement) and supersedes all prior agreements and understandings, oral and written, between the Parties hereto with respect to the subject matter hereof.
1. Definitions. Section 6.16 (Definitions) is modified as follows:
i. The following new definitions are added:
Separation Agreement means that certain Separation Agreement dated August 8, 2012 between SHLD and SHO.
SHO Authorized Seller means each individual or entity authorized by SHO or its Affiliates to sell products or services in accordance with the various agreements between SHO, its Affiliates and SHMC and its Affiliates.
ii. In the table of Additional Terms is amended and restated as follows:
Term |
Section
Where Defined |
|
Assets |
1.08 | |
Stockholding Change |
Error!
Reference
|
|
Claim |
5.02 | |
Confidential Information |
4.01(a) | |
Contact Person |
1.10 | |
Disclosing Party |
4.01(a) | |
Disputes |
6.15(b)(ii) | |
Dispute Notice |
6.15(b)(i) |
15
Term |
Section
Where Defined |
|
Effective Date |
1.01 | |
Expenses |
2.01(b) | |
Fees |
2.01(a) | |
Good Faith |
6.19 | |
Initial Chairperson |
6.15(a) | |
Merchandising Agreement |
1.03(b)(i) | |
Party |
Introductory
paragraph |
|
Receiving Party |
4.01(a) | |
Service Period |
1.01 | |
Services |
1.01 | |
Services Operating Committee |
1.01 | |
SHMC |
Introductory
paragraph |
|
SHO Claims |
5.01 | |
SHO |
Introductory
paragraph |
|
SRC |
1.03(b)(i) | |
Term |
1.01(a) | |
TP Agreement |
4.02 | |
Transaction Taxes |
2.03 | |
Transition Fees |
Appendix 1.01 | |
Unresolved Disputes |
6.15(a) |
iii. The last paragraph is modified by adding: and shall after the word will in subsection (iii).
m. Appendixes .
i. Appendix 1.01-A . Appendix 1.01-A (Transition Services) is amended and restated in its entirety as set forth on Attachment #1 hereto.
ii. Appendix 1.01-B . Appendix 1.01-B (Product Services) is amended and restated in its entirety as set forth on Attachment #2 hereto.
iii. A ppendix 1.01-C . A new Appendix 1.01-C (Logistic Services) is added to the Agreement as set forth on Attachment #3 hereto.
iv. Appendix 1.01-D . A new Appendix 1.01-D (eCommerce Services) is added to the Agreement as set forth on Attachment #4 hereto.
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n. Exhibits. The Exhibits to the original Appendix 1.01A have been modified as follows:
i. | Exhibit 1 has been deleted and replaced by the new Attachment C (searsoutlet.com Statement of Work) to Appendix 1.01-D (eCommerce Services); |
ii. | Exhibit 2 (2012 Logistics Rates) has been replaced by Exhibit 2 (Logistics Rates) to A ppendix-1.01-C (Supply Chain Services); |
iii. | Exhibit 3 (I&TG Service Catalog) has been renumbered Exhibit 1 to Appendix 1.01-A (Transition Services); |
iv. | Exhibit 4 (Market Delivery Rate Tables) has been replaced by Exhibit 1 to Appendix 1.01-C (Supply Chain Services). |
2. | Condition Precedent . It is a condition precedent to the effectiveness of this Amendment that the parties (or their Affiliates, as applicable) also execute (collectively the Related Amendments ): (a) that certain Amended and Restated Merchandising Agreement, (b) Amendment #1 to Employee Transition and Administrative Services Agreement, (c) Amendment #1 to Shop Your Way Rewards Retail Establishment Agreement, (d) Amendment #1 to Trademark License Agreement, (e) Amendment #1 to Supplemental Agreement, (f) Amendment No. 4 to the prior Merchandising Agreement between the Parties and/or their Affiliates, and (g) Amendment #2 to Store License Agreement (Outlet). |
3. | No Other Amendments . Except as expressly amended herein, the Agreement shall continue in full force and effect, in accordance with its terms, without any waiver, amendment or other modification of any provision thereof, including the parties choice of Illinois law (pursuant to Section 6.19 of the Agreement) which also applies to this Amendment. |
Signature Page Follows
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IN WITNESS WHEREOF , the parties hereto have caused this Agreement to be executed as of the date set forth below by their respective officers thereunto duly authorized.
SEARS, HOLDINGS MANAGEMENT CORPORATION | SEARS HOMETOWN AND OUTLET STORES, INC. | |||||||
By: |
/s/ ROBERT A. RIECKER |
By: |
/s/ WILL POWELL |
|||||
VP Controller | CEO and President | |||||||
Date: May 10, 2016 | Date: May 11, 2016 |
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Amended and Restated
Appendix 1.01-A
Execution Copy
TRANSITION SERVICES
Service or Business Area |
Services |
Fees |
||
FINANCE & ACCOUNTING | ||||
Finance and Accounting | ||||
General Ledger | Provide SHO access to the SHMC finance general ledger system to process all accounting related activities for SHO business. This includes, but is not limited to, the Peoplesoft system for recording all financial transactions along with all necessary systems that feed data into the general ledger such as NAI, Accounts Payable, Mechanized R&D, Point-of-Sale, Inventory Systems, Markdown Management Systems, SOLAR payroll processing, Waste Recon, and other external feeds. | Maintain PeopleSoft accounting system and Stock Ledger (SL) merchandise and margin systems: $12,000 per year | ||
Accounting Services |
Perform daily, weekly and monthly transaction processing of all entries and feeds into the general ledger system. Compile and load general ledger information for SHO into Essbase financial reporting databases, EIS and Financial Transaction Databases to be used for internal reporting and analysis by SHO. SHMC will inform SHO of any processing errors or data feed issues which would impact the financial results of SHO.
Accounts Payableaccess to SHMC finance Accounts Payable system to process all invoices and purchase orders for SHO.
Fixed Asset Managementmaintain all SHO fixed assets in the SHMC finance fixed asset system. Also provide necessary support to add new locations or assets into the system as new stores are opened or assets are procured by current locations. |
|||
Physical Inventory/Shrink Process Reporting
Contract with RGIS or similarly qualified vendor for physical inventory process
Perform inventory shrink reconciliations and reporting |
||||
AP Processing and Accounting
Reporting
Prepare/distribute statements which summarize results and financial position
Data extraction (FTD) financial transaction data base and financial, management and external reporting
Maintain PeopleSoft accounting system and SL (stock ledger) merchandise and margin systems |
Appendix 1.01-A Page A - 1
Amended and Restated
Appendix 1.01-A
Execution Copy
Service or Business Area |
Services |
Fees |
||
Maintain Essbase reporting databases which warehouse financial information
Data extraction for general ledger (PS), Fixed Assets and Capital tracking.
Maintain general ledger and supporting record as necessary
Disbursements
Process accounts payable
Match merchandise receipt to invoice
Approve invoices
Cutting checks to and receiving checks from vendors
Correspond with vendors
Retain records
AP write-offs by vendor by department
Receivable collection related to AP accounts
Import reconciliation
Process other disbursements
Pay approved disbursements
Process travel and entertainment
Data Extraction for Invoice Processing System (IPS), payment processing (NAP), mechanized R&D (NDJ), Purchase Order Writing System (POWS) and LPS
General Ledger
Process journal entries
Maintain integrity of balances
Monthly reconciliation of balance sheet accounts
Annual recording of book-to-physical inventory adjustments
Variance analysis of unit income statement balances and identify potential errors
Maintain fixed asset records |
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Vendor Allowance Reporting
SHMC will process all SHO vendor allowance agreements and provide a monthly report of the vendor allowances that are paid to SHO and reporting to show non-shared vendor allowances as determined by the Service Level Agreements between SHO and SHMC. At the request of SHO, SHMC will conduct periodic audits of SHMC allowances collected to confirm that the Service Level Agreements are in compliance. |
$25,000 per year. |
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Peoplesoft Projects Module
Provide SHO with access to SHMC finance Peoplesoft Projects Module to set up new capital and/or expense projects including all necessary feeds to create purchase orders, feeds to the SHMC finance A/P and feeds to the SHMC finance Fixed Asset System. |
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Tax |
Tax Returns and Certain Other Filings:
Required Tax Services
1. Federal income tax
a. Prepare return and remit tax due
b. Prepare estimated tax and extension filings and remit tax due
c. Prepare LIFO tax calculations (if business adopts LIFO)
d. Prepare supporting workpapers
e. Prepare tax elections
f. Foreign tax credit calculations
g. If SHMC stops providing applicable HR services to SHO, SHO will be responsible for providing SHMC with data necessary to report any available employment-related tax credits (e.g., WOTC) either directly or through a third party
2. State income tax
a. Prepare returns and remit tax due
b. Prepare estimated tax and extension filings and remit tax due
c. Prepare supporting workpapers
d. Prepare tax allocations for periods when part of SHLD unitary returns
3. Financial Accounting
a. Quarterly tax provision, effective tax rate calculations, tax accounting journal entry support
b. Analysis of uncertain tax positions and quarterly tax reserve calculations and journal entry support (if necessary)
c. Tax footnote disclosures for Form 10-K and Form 10-Qs
d. Return-to-accrual calculations and necessary journal entry support |
Required Tax Services
$239,800 per year
As-Needed Tax Services
$55/hour
Service Level Increases
If service levels increase due to change in business or change in legal requirements, cost to be adjusted to reflect increase in SHMC costs to provide Services (if any)
Out-of-Pocket Costs
Travel and other expenses and third party fees charged-through at cost |
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2. Purchase Order handling and processing of requests entered by SHO or SHMC within the Peoplesoft system, Purchase Order Writing System, Enterprise Contract Management and/or when available Ariba system. Included is the Schwarz Supplies order entry and IMA tool for consumables supplies ordering for the term of its deployment and use of the DocuSign system to electronically execute agreements. (In the event that rights must be secured, they will be scoped, determined and shared with SHO for approval to acquire and pass all costs involved). DocuSign use by SHO is limited to the number of envelopes remaining after the Effective Date from the 1500 envelopes purchased by the Sears Hometown Stores business prior to the Effective Date. SHMC will also perform resolution assistance with suppliers related to purchases or payables matters, when requested.
3. Use of SHMC agreements (if permitted in the respective agreements) for (non-merchandise) goods and services. If rights from third party contractors need to be secured, they will be scoped, evaluated, costed and passed to SHO for approval. Any costs associated with acquiring rights will be passed to SHO at cost. Travel Services provide access to the Concur travel system and American Express travel services along with all preferred pricing for airfare, hotels and car rentals that may be made available to SHO employees. Use of FBU Procurement credit cards and Travel credit cards to be made available to all current SHO employees (if provider banks agree and such use is not in conflict with governance and policy). New employees to SHO can be added to the travel card program with the prior written approval of SHO. SHMC will provide quarterly reporting of travel expenses from Concur.
4. Associate Lease Vehicle program Vehicle leasing through SHMCs lease company provider, lease vehicle maintenance programs and fuel buy programs (if not in conflict with governance and policy) for all SHO employees in the program as of the Effective Date. SHO may allow additional SHO employees to participate in the program, upon SHMCs written approval and receipt of SHO approval of the respective employees. Requests for additional services will be subject to Section 1.01E. (SHOs Requests for Services/System Changes).
5. Temporary labor Services handling and processing.
6. Other Assistance Such other procurement Services as is requested and defined by SHO, which will be scoped, costed and agreed upon by the Parties prior to proceeding. |
Hourly rate for special projects and additional procurement Services not set forth in this Agreement: $62.00 per hour
Travel Services:
Third party contractor cost for each transaction (i.e. time and expense report processed), which as of the Effective Date is $2.35 per transaction.
Travel Services (American Express), which as of the Effective Date is $62,500 per year; |
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Risk Management & Insurance |
Risk Management and Insurance:
1. Data Extraction and Tracking and Administration of:
Workmens Comp
Auto Insurance
General Liability
Property Insurance
D&O Insurance
2. Claims review
3. Consultation in connection with the purchase of insurance
4. Maintain insurance claims records and provide access to tools for viewing this information, for the following types of insurance:
General Liability
Workers Compensation
Auto Liability
Property Insurance
D&O Insurance |
1. $100/hr. if SHO cannot get information direct from third-party contractor (e.g., Sedgwick, Liberty)
2. $75/hr.
3. $150/hr.
4. $100/hr. if SHO cannot get information direct from third-party contractor (e.g., Sedgwick, Liberty) |
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Treasury | 1. Cash Management Services: | Monthly Fees | ||
Cash Management services, including but not limited to, establish banking structure, opening and maintaining new and existing bank accounts, daily consolidation of funds, calculation of daily cash position, movement of funds as necessary, reconciliation of accounts and maintenance of balances, development of funding forecasts and future cash needs, support for banking and armored car services for the Outlet Stores and company operated Hometown stores, administration of users access to Treasury website and banking software, ordering deposit slips and stamps from service providers, approving armored car purchase orders |
1238 stores
$7,169 |
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Note: In the event the store count doubles (2476 stores), the projected monthly fees are $10,744 |
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c. SHMC will continue to provide support for the following promotional e-mails:
SearsOutlet.com Deal of the Day E-Mail |
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2. Trigger emails
a. SHMC will continue to provide support for the following trigger e-mails:
Shopping Cart abandonment e-mails on SearsOutlet.com
Post Order e-mails on SearsOutlet.com
Shopper Recap E-Mails generated via DBC
Digital receipt e-mail
Post order emails for in store purchases (e.g. thank you for your purchase) |
Trigger e-mails will continue to be provided to SHO customers at the rate of $3.50 CPM
All rates for other e-mail related services will be set forth in the SYWR Service Agreement |
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Fraud Solutions | All prices/rates are performed by a 3 rd party contractor. Current price is noted below: | |||
1. RSA Retail Services Agreement*
Store Pick-Up Order is picked up by another person. Customer has the online capability of having a 3 rd party pick up their order at a store.
* unable to determine if expenses were incurred for these services |
RSA: $1.00 per order | |||
2. RED (Retail Decisions) is a service provider that reviews every order via systemic rules
Review potential fraud orders for outlet
Hometown $612 in RED costs; 24,480 orders in 2011
Outlet $1,575 in RED costs; 63,000 orders in 2011
Hardware $578 in RED costs; 23,139 orders in 2011 |
RED: $0,025 per transaction | |||
3. Fraud outsorts triggered by RED rules and the orders are reviewed by OBUs fraud team in Tempe, AZ.
Fraud outsort cost applies only to outsorted orders (about 3.6% of orders on average)
Hometown $6,372 in fraud/outsort costs; 24,480 orders in 2011
Outlet $16,398 in fraud/outsort costs; 63,000 orders in 2011
Hardware $6,023 in fraud/outsort costs; 23,139 orders in 2011 |
Fraud / outsorts: $7.23 per order | |||
TEC Recommendations | Continue to provide personalization and product recommendations across multiple |
2% of sales attributed to |
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Channels including Shopper Recap e-mails, Abandoned Cart e-mails, Digital receipt and future integration to SearsOutlet.com.
Currently TEC is only providing recommendations through email to SHO customers. TEC is not providing recommendations on SHO websites. This could change in the future, which SHO would incur the costs. |
the TEC Campaign Management System Email sends will be billed at email rates.
Any future integration work to add TEC to SearsOutlet.com to be paid for by SHO |
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MARKETING SERVICES | ||||
Marketing |
Print placement and analytics.
Currently provided through NSA/Alliance media and Valassis, SHMC will continue to provide ongoing support for the following functions: Vendor management including contract negotiations, coordinating placement and quantities, development, implementation and communication of run sheets with newspapers and printers, cost estimations, distribution analytics and recommendations, invoice reconciliation, development of new store profiles, and conflict resolution for non-performance between media vendors and SHO.
Fees and expenses will be billed by SHMC directly to SHO. Fees are for 2016 and are estimated based on planned volume. |
HTS=$592,764 per year AHS=$56,448 per year HAS=$0 OUT =$0
*If SHMC changes to another vendor for these Services, then fees may be either directly billed to SHO or billed by SHMC to SHO. |
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Point of Purchase (POP) and Offset Signing Procurement:
Planned Offset Signing & POP Elements: SHMC will provide visibility to storewide offset signing and POP elements, to the extent applicable to SHO. SHMC will provide advance notice of pricing inclusive of shipping to FastPak, creative proofs, and specifications. SHO may purchase these items at cost.
SHO exclusive signing projects: SHMC will assist SHO in the competitive bidding process for signing projects exclusive to SHO. |
Total = 50K Annually Ad-Hoc support and/or unique support requested by SHO will be provided by SHMC at a cost of $45/hr.
Plus Procurement Support |
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Print vendor management : SHMC will continue to coordinate execution of printed materials for the SHO preprint program, including execution from the receipt of completed files to the delivery to each newspaper vendor including freight/freight execution, and quality control to established SHMC standards, including a review of final Epson proofs prior to printing. |
$82,500 per year
Plus Procurement Support |
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Financial Reconciliation for preprint program. Provide estimated and actual costs to execute each marketing event on a job by job basis. | Included above |
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3 r d party and internally available marketing analytics. Provide SHO with regular reporting, access to systems or fulfillment of ad hoc requests for marketing related data including, but not limited to, internal and external CSAT data on a weekly basis, market share data on a quarterly basis and ad tracking reports. Reporting will include SHO specific reporting as agreed upon in writing by the Parties. The foregoing Services related to CSAT data have been terminated effective January 30, 2016. |
CSAT (CLASS) $135,000 per year for SHO
Other market share reports have no incremental cost for SHO |
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POS offer execution. This is limited to access to the system which allows SHO to create and execute barcode offers at POS (on receipt), and any updates to maintain functionality (e.g. offers based on market basket). | No incremental cost for SHO | |||
Access and Maintenance of Systems:
SHMC will continue to maintain functionality and provide SHO access to dependent marketing systems. If SHMC modifies or replaces existing SHO dependent systems, then SHMC must provide notice in writing 180 days prior.
These systems include: |
System Support-(price support/training/coaching/holiday support/problem resolution)$88K annually. If SHO desires its own dedicated line for support, it will cost more |
System |
Function |
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PMI | Legacy Pricing System | |||||
RES | Item level signage | |||||
Deal Management | Supports creating and maintenance of Sears coupons and barcodes | |||||
Aprimo | Soft-proofing system for reviewing, annotating and approving pages. | |||||
Digital Asset Management (DAM) | Photography, logos and finished pages library | |||||
MARS | Accounting | |||||
Offer Manager | Offer tool which allow merchants to detail their offers (with financial and creative). | |||||
Ad Plan | Pricing information |
Access to Digital Asset Management (DAM), FTP sites or any system which may host images. SHO will have access and rights to use all product level images and branding images/treatments. The same access will be made available for franchisees of SHO. | $12,000 annually for self-serve access. | |||
Access to Aprimo soft proofing functions. SHO will continue to use Aprimo as a soft proofing system. | On-going access to all specified Marketing related systems $1.33 million (5% of total assessed IT costs for base and support based on 2016 costs) |
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LOSS PREVENTION
General Inventory Safety |
Provide inventory Services for SHO including but not limited to:
Initial physical inventory scheduling
Consecutive rescheduling requests will be handled at a rate of $62/hour
Inventory service provider management
Physical inventory process management (data feeds to/from vendor/store/corp/)
Point of contact for inventory-related questions, rescheduling requests, concerns
Disaster-related inventory assistance |
$ 35,000 /year | ||
Critical Safety Management ($62/hour per SHMC employee as needed for Services, third party contractor resources at actual contractor fees plus expenses). SHMC will determine, in its discretion, when a SHMC or third party contractor resource is used.
Critical accident management (amputations, fatalities, etc.)
Communication
Investigations
Management and guidance
Critical Health Management
Bed bugs
TB, other infectious diseases
Regulatory Agency Activity Management
Citation review
Investigations
Informal conference, negotiation and settlement |
$ T&M - | |||
Ongoing Safety Expenses by SHO businesses: ($62/hour per SHMC employee as needed for Services, third party contractor resources at actual contractor fees plus expenses). SHMC will determine, in its discretion, when a SHMC or third party contractor resource is used.
Personal protective equipment procurement (gloves, apron, eyeglasses, shoes, etc.)
Associate Employee training
Equipment repair (compactor, motorized material handling equipment |
$ T&M - |
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(MMHE), ladders, etc.)
Safety Equipment Purchase (ladders, MMHE.etc.)
OSHA settlement payments
Fire department citation payments
DOT settlement payments
Hazmat permits and license fees
Miscellaneous safety purchases, fees, equipment, etc.
Annual fire and extinguisher inspections |
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Provide Loss Mitigation and Resolution Services to SHO including but not limited to:
Awareness program and training material to mitigate exposure to losses (limited to SHMC program material, may require third party contractor resources at actual contractor fees plus expenses)
Cycle shrink reporting limited to SHMCs existing reporting protocols, formats and types. (additional analysis and research will be at $62 hour rate) Provide chain loss prevention support for investigative purposes (Detail Control Center (DCC) support for research, analytics, case resolution) Investigative system usage:
Aspect usage
Lexis, phone trace, etc.
Hierarchy updates for Aspect.
Background / social network investigations ($62/hour rate)
Business / owner investigations ($62/hour rate)
Theft investigation management to resolve and apprehend dishonest customers and employees ($62/hour rate)
ShopYourWay abuse reporting (limited to SHMCs existing reporting protocols, formats and types (additional analysis and research will be at $62/hour rate).
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$ 50,000/year | |||
Total LP Services
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$85,000/year | |||
STORE LEVEL LABOR PLANNING AND STAFFING SUPPORT |
Basic Support Services
1. SHMC will provide Store Level Annual Labor hours/dollars plans developed by staffing unit within 10 business days per each format when the following deliverables are provided by SHO:
a. SHO will specify one contact for each business/format (i.e., Outlet and |
Service Level Increases
If SHO requires a change in basic support services and/or |
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Outlet and Hardware stores formats (non-franchised) |
Hardware) for all deliverables who will:
i. Provide a timeline of payroll planning milestone/due dates 30 days prior to the first milestone/due date
ii. Confirm finalized planning assumptions (e.g., valid unit population, store types, store team structure, commission structure, etc.) for each business prior to the commencement of plan calculations by SHMC.
iii. Ensure that any new locations are added to the SHMC financial systems (e.g., unit cube) prior to the commencement of the planning process.
iv. Provide a targeted national labor cost % to sales to SHMC prior to the commencement of plan calculations.
v. For the Hardware business, provide valid sales by unit for a rolling 12 month period for the following categories: commission sales, non-commission sales and total unit sales. SHO will also provide the number of sales transactions by unit (including new and closing units) for a rolling 12 month period. Both sales and transactions must be provided to SHMC in accordance with these criteria before payroll planning calculations can commence
vi. For the Outlet business, provide valid sales by unit (including new and closing units) for a rolling 12 month period for the following categories: commission sales, non-commission sales, apparel sales, non-apparel sales and total sales before SHMC can commence payroll planning calculation
b. Additional plan iterations based on changes in sales alone will be delivered to SHO within 3 business days
c. Additional plan iterations based on changes in other assumptions (not sales) will be delivered within 10 business days of receipt of updated information
2. If, subsequent to the annual plan process, SHO requests SHMC to develop a payroll plan for a location that is converting from franchised to non-franchised, said plan will be delivered within 3 business days once the designated SHO contact provides the information stated in subsections 1(a)(ii) through (vi) above (as applicable). |
frequency of services beyond what is outlined in the Agreement, costs may be adjusted to reflect increase in costs to provide services (if any). Requests for additional services will be subject to Section 1.01 E (SHOs Requests for Services/System Changes). |
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3. SHMC will provide monthly plan hours/dollars reporting
a. Excel filecurrent state plan provided to SHO business leaders
b. Accuracy dependent upon notification by SHO of changes to Region/District/Location hierarchy 5 days prior to report generation
4. SHMC will provide weekly labor utilization/expense reporting
a. Excel file provided to SHO business leaders
b. Information provided by store and staffing unit within store
c. Accuracy dependent upon notification by SHO of changes to Region/District/Location hierarchy 5 days prior to report generation
5. SHMC will provide weekly Employee Overtime reporting
a. Excel file provided to business leaders
Accuracy dependent upon notification by SHO of changes to Region/District/Location hierarchy 5 days prior to report generation
6. At the point when SHMC no longer actively maintains the HR management system for SHO, which contains all up-to-date employee information needed by SHMC to perform the store level labor planning and staffing support Services, SHO will be responsible for finding an alternative service provider for the above services; in which case, SHMC will provide reasonable transition support/assistance during SHOs transition for up to 60 days (for which SHO will continue to pay the fees in the right hand column); provided that SHMC will not have line of sight to SHOs systems post-transition and therefore will only be able to answer questions on a consultative basis.
Franchised and Dealer locations are excluded from the Services above.
As Requested Services
1. Requests for additional services will be subject to Section 1.01E (SHOs Requests for Services/System Changes).
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EMPLOYEE COMMISSION | Basic Support services all SHO Store location types as of the Effective Date | If SHO requires a change in |
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ADMINISTRATION SUPPORT SERVICES
Franchised and non-franchised locations |
1. Maintain record of current store population by store type for proper commission compensation
a. Dealer owned, franchised, and SHO operated, Hometown, Outlet, Hardware, Home Appliance Showroom locations
b. Changes to store type (as outlined in above subsection I.a., e.g., Dealer to Franchise) Store location moves to/from franchised status require 4 business days lead time*
2. SHMC will provide SHO with a list of newly created items each week so it can determine and set commission rates on new items for Hardware, Hometown and Home Appliance Showroom locations only.
3. SHMC will continue to provide a weekly default commission recap by store
Basic Support services SHO operated locations |
basic support services and/or frequency of services beyond what is outlined in the Agreement, costs may be adjusted to reflect increase in costs to provide services (if any). All requests for additional services or change in frequency must be provided in writing and cost for such services must be mutually agreed upon by both parties before a change in services will be instituted. | ||
1. Maintain record of employee compensation plans in place by format, location and scheduling unit
a. Moves between compensation plans require 4 business day lead time
2. Provide commission rate reporting in excel file format (or other format agreed upon by the Parties) - for SHO use in communicating to selling employees (updated when rates changed)
3. Based on business decisions communicated by SHO, set up commission rates / fixed dollar amounts by product category and/or line, by store location
a. As of the Effective Date, non-franchise Hometown format store commission rates currently follow the Sears Full Line Stores structure for Home Appliances.
b. SHO may elect to deviate from Sears Full Line Store rates from time to time and SHMC will adjust commission structure as determined by SHO.
c. Commission Administration support team is not responsible for developing new commission rate/fixed dollar amount values
4. Provide bi-monthly commission expense tracking (excel file format (or other format agreed upon by the Parties))
5. Research / respond to commission help ticket issues/questions
6. HFM Rate Reduction load daily file of HFM transactions that require a reduced commission rate and calculate commission at the reduced commission rate (process implemented March 2014 per request from SHO). |
Out-of- Pocket Costs
Travel expenses and third party fees charged-through at cost |
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7. Requests for new rate structure/pay plans that require system development will be considered As Requested Services (see below)
Basic Support Services franchise and dealer-operated locations |
$10,010 per year (billed monthly | |||
1. Based on business decisions communicated by SHO, set up commission rates / fixed dollar amounts by CORE product hierarchy category and/or line, by store location
a. Commission rate set up and maintenance (for SADI system)
b. New/changed rates require 5 business day lead time.
2. SHMC will provide SHO a recap of all commission adjustments (consistent with current practices) and effective dates for commission adjustments for purposes of validating that all entries into the commission system are consistent with direction provided by SHO
Prior to the point when a SHO store format and/or location no longer utilizes SHMC Point of Sale and/or HR management systems, SHO will be responsible for finding an alternative service provider for the above services; in which case, SHMC will provide reasonable transition support/assistance during SHOs transition for up to 60 days (for which SHO will continue to pay the fees in the right hand column); provided that SHMC will not have line of sight to SHOs systems post-transition and therefore will only be able to answer questions on a consultative basis.
SHMC will continue to permit separate commission payments for hold for merchandise commissions; consistent with past practices. |
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Retail Services | ||||
Utility Management |
Third Party provider (currently ECOVA) services include:
Bill consolidation and payment services for each facility
Utility rate monitoring and optimization
Financial reporting including accruals
13 Month Rolling Budget Development including a detailed site level budget for Electric, Gas, Water, and Sewer services
Energy procurement services |
$158,000 |
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SHMC will assist SHO with opening and closing of accounts, troubleshooting and problem resolving of accounts, and deposit requests (all deposits to be paid by SHO). SHO is responsible for all charges from ECOVA for the services it receives. These additional services will be billed hourly. |
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In-Store Music | As allowed under applicable agreements, SHMC will continue to provide in-store music services for all locations requested by SHO. |
SHO will be charged the lower of the following rates:
Current annual charge per unit prior to separation
Any renegotiated rate with in-store music providers |
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FACILITIES |
SHMC agrees to provide the following services to SHO:
On an as needed basis, SHMC will provide SHO with general facilities maintenance and support for the first line of repairs including but not limited to the following:
HVAC Maintenance (Heating/Cooling Start-Up)
Exhaust Fan Inspections/HVAC Air Distribution & Transfer Unit Maintenance
Roof Repairs
Fire Protection/Alarm System Repairs/Maintenance
Compactors & Bailer Repairs/Maintenance
Energy Management Service & Repairs
Based upon QMT Facility Service availability and degree of technical repair the DFM will provide vendor contact information to SHO requestor so that SHO can hire its own resource, if DFM determines, in SHMCs discretion, that SHMC will not be providing the service, subject to SHMCs continuing obligations in paragraph (g) of Amendment No. 1 to the Separation Agreement.
On an as needed basis SHMC will provide major maintenance and construction services to SHO. The rate(s) for required services will be negotiated on an as needed basis and will require prior approval from both |
All maintenance & repairs will be billed to SHO at the agreed upon rate of $40/hr. This rate applies to both travel and repair time. This rate shall not increase by more than 5% annually and cannot be adjusted without the prior written approval of the parties. This rate |
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parties. These services include but are not limited to the following:
Project manager and/or Project Coordinator support for (SHO) build out or Landlord (LL) build out of Outlet location.
Project manager and/or Project Coordinator support for (SHO) build out or LL build out of Home Appliance Store location.
Provide space and equipment for generation of Architectural and Design elements necessary for (SHO) construction projects.
Provide Architectural and Design assistance to consultants employed by (SHO). (Does not include production of or stamping of A&E documents.) |
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COMPLIANCE | ||||
Environmental |
SHMC will continue to provide SHO services and support for Environmental Affairs at a rate of $25,000 Annually plus the direct cost for any necessary 3 rd party services required to address and resolve Environmental Issues attributed to SHO.
1. Asbestos Management, Lead Paint, Indoor Air Quality and Mold Assistance
2. Environmental permitting/registration preparation and management (e.g. hazardous materials, wastewater and hazardous waste),
3. Regulatory report preparation and submittal,
4. Review and Processing environmental permitting and reporting fees,
5. Spill response and cleanup, |
$25,000 Annually plus the direct cost for any 3 rd party services required. Additional support for Environmental Services may be available at the request of SHO. Each service will be priced individually based on mutually agreed-upon scope of work and requested delivery time
1. Third party contractor costs.
2. Third party contractor costs.
3. Applicable regulatory fees. If no regulatory fees apply, $200 per event plus all third party contractor costs and out of pocket expenses.
4. Applicable regulatory fees. If |
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6. Addressing regulatory issues (such as, Notices of Violation of Environmental Requirements), |
no regulatory fees apply, $200 per event plus all third party contractor costs and out of pocket expenses | |||
7. Coordination of hazardous and special waste removal and disposal/recycling, |
5. Third party contractor costs. | |||
8. Addressing property owner inquiries regarding environmental issues (such as, environmental due diligence requests related to refinancing or real estate transactions), |
6. Fixed fee of $500 per event plus all third party contractor fees and out of pocket expenses. | |||
9. Work to assess and address environmental risks during store leasing activities (such as, Phase I environmental assessments or other environmental investigations) |
7. Third party contractor costs. | |||
10. Support for other environmental issues that may arise (e.g. wastewater, storm water, hazardous waste), |
8. Fixed fee of $1,000 per event plus all third party contractor fees and out of pocket expenses. | |||
11. Hazardous and Special Waste Removal and Disposal/Recycling, |
9. Fixed fee of $1,200 per event plus all third party contractor fees and out of pocket expenses. | |||
12. Environmental Hotline and Material Safety Data Sheet Support, |
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13. Environmental Management System Maintenance and Usage |
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14. Engineering Consultant Support (when necessary to assist with complex issues), |
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15. Asbestos Abatement Contractors (as needed to support renovation and maintenance activities). |
10. Fixed fee of $500 per event plus all third party contractor fees and out of pocket expenses.
11. Third party contractor costs. |
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Services |
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12. $2.50 per month/store
13. $1.50 per month/store
14. Third party contractor costs.
15. Third party contractor costs. |
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Space Management |
1. Planogram Support
SHMC will provide Planogram support to the Hardware store format at the same level as performed before Separation (not more than 525 planogram changes per year and support of not more than 500 active planograms). Prior to Separation, this planogram work has been driven by assortment changes in the Sears FLS format, which then affect the Hardware store format. These planogram changes are first developed for Sears FLS, then will be passed over to SHO Hardware stores for review/modification, and approval before assignment to stores.
A new requirement for Hardware stores is to support planogram changes specific to Hardware stores only in the same capacity. This planogram work is independent of Sears FLS.
In either of the above cases, the SHO planogram team will modify planograms as necessary and provide to the SHMC team for quality review and import to the SHMC Space Management systems.
SHMC will assign an incremental dedicated Space Planning person to support the Hardware format. This resource will manage the incremental demand of the SHO driven planogram changes, guarantee responsiveness to demand, and ensure quality deliverables/service levels according to this SOW. |
$38.50 per hour | ||
SHMC Planogram services:
Facilitation of weekly Merchandise Transition Calendar project meetings.
Monitoring and reporting of merchandise transition critical milestones.
Receive/cascade Sears FLS assortment changes to the Hardware store merchant teams for review/adjustment/additions/changes.
Create, update, quality review planograms as necessary to support assortment decisions from by the merchants.
Provide assortment grids for approval to ensure item/planogram/store assignments are in alignment. |
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Services |
Fees |
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Address any rework or changes as requested by SHO.
Review planogram quality controls and import planograms to the corporate SHC database.
Maintain the Merchandise Transition Calendar and any other necessary systems to support the current SHMC level of service.
Maintain/update planogram groups and store models to ensure accurate store/planogram assignment.
Post planograms to the SHMC Store Plot Planogram system.
Generate planogram PDF and incorporate to the Days to Check applications.
Note: Planogram support is provided for the SHO Hardware store format only. Other SHO formats are currently out of scope of this unit of services. |
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2. Floor Plan Support
Floor planning services were not provided for any SHO format prior to Separation. Should future Floor Planning services be desired, a new statement of work will be developed at that time. |
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3. Transition Management
The SHMC Merchandise Transition Calendar is utilized to schedule and manage every planogram group transition in Hardware stores. Critical milestones will be monitored and reported to the SHO Hardware Transition project team each week. |
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SHMC Transition Management services include:
Coordination of project planning with stakeholders during reset planning and execution including (but not limited to) business unit merchants, inventory planning, procurement, and signing.
Establishing and leading weekly project meetings as appropriate for scope of the reset ensuring all stakeholders are involved and accountable.
Providing weekly project critical milestone tracking/reporting to all stakeholders
Monitoring all approval points within the project timelines escalating as appropriate
Providing access to the Merchandise Transition Calendar and any reporting available within this system. |
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4. System Support Services
SHMC will provide SHO system support services through SHMCs IT support function (and under its support services requirements), not through SHMCs Space Management staff. |
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SHO may participate in regularly scheduled SHMC Space Management training services. Scheduling of training sessions specifically for SHO will be billed as appropriate.
SHO will continue to have access to the SHMC Days to Check suite of applications.
No direct user access to the SHMC Space Management JDA Intactix Knowledge Base (1KB) will be granted.
SHO has access to no more than 8 JDA Space Planning desktop user licenses. SHO will need to separately procure any additional licenses directly from JDA Software, Inc. SHMC will cooperate reasonably with SHOs efforts to do so.
SHO will continue to have access to the SHMC product library to support SHOs internal planogram development efforts. This product library is supported by SHMC I&TG. |
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5. Special Services-Store AutoCAD projects
The SHMC Space Management team offers store plan (AutoCAD) drafting services for store sales floor/fixture plans. This service is specifically for those requests that involve the design in AutoCAD of new stores or changes/updates to fixtures, sales floor space, and simple architectural elements within an existing building plan. Requests for this service will follow the below process. Charges will be based on time/materials and billed via the current time entry methods. SHMC will use commercially reasonable efforts to process SHOs AutoCAD project requests as in the ordinary course of business, without giving more or less priority to SHOs requests than any others. The relative importance of specific projects might dictate a reordering of those priorities in favor of or against SHOs requests from time to time. Project scope, resource availability, timelines, and deliverables (as outlined below) will be communicated at the time the service is requested. |
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6. Service Level Commitment
The SHMC Space Management team will strive to assign all planograms to stores within 4-6 weeks of receiving complete and accurate assortment information from SHO and also within the required lead time by Inventory Management to support ordering product.
SHC Store Planning (AutoCAD) services are project based. Resource allocation, timelines, and deliverables will be established at the time of each specific project request. |
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SHMC has the right to approve the foregoing for any systems that interface with SHMC Systems. All third party claims arising in connection with systems, locations and infrastructure provided by SHO and/or its third parties shall be SHO Claims and shall be subject to Section 5.01 of the Agreement (without regard to the exceptions set forth therein); except to the extent that such SHO Claims are found by a final judgment or opinion of an arbitrator or a court of appropriate jurisdiction to be caused by: (i) a willful breach of any provision of this Agreement by SHMC; or (ii) willful misconduct of SHMC, its Affiliates, or their respective Representatives in the performance of their obligations under this Agreement.
Each tender type accepted for payment at SHO has an interchange rate associated with it, which rates SHO will pay on a pass-through basis. |
(e.g. tied-to-Sears-credit offer). Sears Financial Services will provide monthly reporting for SHO so they can better understand the drivers of the payment costs they incurred in each month. | |||
Consumer Credit Cards |
SFS manages lending relationships (currently with Citibank and Capital One) for the provision of Sears-branded credit to SHO through either a private label or a general purpose credit card. Provision of credit to SHO (1) reduces payment costs, (2) builds the business partner data warehouse of marketable households and transactional activity, (3) gives business partners access to financing to purchase goods from SHO, (4) offers merchants a vehicle for targeting promotional offers (including 0% financing), and (5) generates an incremental revenue stream from lending relationships.
The acquisition of ongoing business partner use of Sears-branded consumer credit cards creates a number of benefits for SHO. Lending partnerships include a variety of revenue, expense and subsidy streams that can be tapped to help SHO grow sales, manage down its third party payments costs, and offset the expense of select promotional offers (when tied to credit).
The successful optimization of Sears consumer credit programs requires the alignment of incentives across Financial Services and SHO. To this end, SHMC will distribute the credit revenues associated with the Sears credit programs according to the following table: |
Financial
Services |
SHO | |||||||
Net New Account Revenue |
25 | % | 75 | % | ||||
Non-0% Credit Revenue |
25 | % | 75 | % | ||||
Associate Incentive |
100 | % | ||||||
Tied-to-Credit Subsidy |
100 | % |
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Net New Account Revenue represents the fees paid by Citi and Capital One for a new approved, activated credit card account. For Citi and Capital One underwritten accounts, the fee paid to SHO is the per account amount paid by Citi and Capital One to SFS.
Non-0% Credit Revenue is earned only on Sears Cards issued by Citi. It is subject to a sliding rate schedule (outlined in the Citi-Sears Program Agreement) which is based on the Dollar Volume of SHO Merchandise sales and the Dollar Volume of 0% Sears Card sales.
SHMC pays for the $2 Associate Incentive earned by SHO associates for every credit card application generated. From time to time, SHMC will fund additional incentive contests where it will pay up to $4 for every credit card application generated
In addition, SHMC will work with SHO to design, develop, and execute merchant offers tied to credit that generate Non-0% credit revenue for SHO. These offers may be eligible for incremental Tied-to-Credit Subsidy from Citi which will be negotiated on a one-off basis based on the business case developed between SHMC, Citi and SHO.
0% Promotional Financing is another promotional tool that can be leveraged by SHO to incent merchandise sales. SHO will be assessed a Merchant Discount Rate (MDR) equal to the MDR that SHMC is assessed by Citi based on the duration of the promotion. |
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Payment Settlement
SHMC will provide payment settlement services for merchandise sales proceeds from Sears Card transactions (processed by Citibank) until such time as SHO establishes with Citibank a separate service agreement and fund flow. SHMC will pay SHO the Sears Card Merchandise Sales proceeds on the day following Citibanks settlement with SHC of Sears Card Merchandise Sales.
Upon establishment of a separate fund flow for SHO, payments by customers for Discover or Sears credit cards will be remitted by SHO to SHC the day following receipt into SHOs bank account. SHMC will also provide SHO payment settlement services for American Express, Visa, and MasterCard (First Data) transactions until such time as SHO has entered into agreements with these service providers. |
These activities will be performed at no charge to SHO. |
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Accounting Activity/Description |
Account |
Timing |
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At time of reward card issuance, SHO is charged 100% of reward card value |
Gross Margin Adj 50181 | At Activation |
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Services |
Fees |
SHO receives 25% discount on reward card issuance expense | Gross Margin Adj 50181 | At month end close for the month in which promotion was run | ||
SHO receives 75% of breakage benefit for expiring states | Gross Margin Adj 50181 | The month following the promotional expiration date | ||
SHO receives 75% of breakage benefit for non-expiring states | Gross Margin Adj 50181 | The month following the promotional expiration date | ||
SHO Receives 25% charge on any redemptions taking place within their Format | Gross Margin Adj 50181 | The month following the promotional expiration date |
Requesting custom Spend & Get cards for specific promotions will incur direct fees associated with custom card production. These will vary by promotional requirements and volumes and will be executed according to terms that will be mutually agreed to by the parties separately. | ||||
Layaway | SHO will continue to have available at point of sale and be able to offer customers Layaway options in all retail locations. SHMC will continue to provide access and support for the existing layaway functionality. | |||
Reporting & Support |
SHMC will provide SHO with a month by month forecast for annual Financial Services revenue and expense items by product (e.g. Sears Credit, Third Party Payments, Layaway, Gift Card).
SHMC will provide weekly reporting of SHO sales by tender type for the purposes of enabling your organization to forecast monthly revenues, expenses, opportunities and risks.
SHMC will provide a single point of contact for SHO to address questions that it may have as well as assist SHO in the design and execution of promotional programs for optimizing benefits and reducing expenses. |
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Fees |
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Leasing | SFS will provide leasing capability to SHO and its retail locations through its vendor relationship (currently Why Not Lease IT (WNLI)). Leasing offers SHO the capability to offer a differentiated product to a customer base that may not be able to access traditional credit products. SHMC will provide management resources for SHO to address questions that it may have as well as assist SHO in the design and execution of promotional programs for optimizing the leasing product. | |||
IT SERVICES | ||||
IT SERVICES Base Services
THIS SECTION IS SUBJECT TO EXHIBIT 1 WHICH INCLUDES THE I&TG SERVICE CATALOG, AS UPDATED BY SHMC FROM TIME TO TIME. |
Technology Product Domain
Business Strategy & Operations:
Enterprise Learning & Development
Enterprise Process Management
Enterprise Project / Program Management |
Part of the Base Services Per Location Charge set forth below. | ||
Information Analytics & Innovation
BI Administration
BI Application Support
BI Data Monitoring
BI Delivery Administration
BI License Management & Support
Supply Chain Management |
Part of the Base Services Per Location Charge set forth below. | |||
Network & Security Services:
Compliance
Media Services
Non-retail Asset Maintenance
Retail Asset Maintenance
Security (for SHMC Systems)
Telecom Provisioning & Management
Telecommunications Data (including GTT hosting)
Telecommunications Voice |
Part of the Base Services Per Location Charge set forth below. |
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Operational Services: | Part of the Base Services Per Location Charge set forth below. | |||
Associate & Customer Desktop Support
Data Center Operational Services
Distributed Environment Services
Storage Services |
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Retail Services:
Core Retailing Transaction Support
Customer Facing Transaction Support
Hardware Support Services |
Part of the Base Services Per Location Charge set forth below. | |||
Service Management:
Administration
Business Continuity
IT&G Service Quality Management
IT&G Service Support
I&TG Service SupportCorporate Desktop Support
Learning & Development
Performance & Service Management |
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For the Base Services, SHO will be billed upon a per location basis (currently 1,182 field locations plus 1 corporate location, for a current total 1,183, each a SHO IT Location ) at a rate of $4,153 per year (the Base Services Per Location Charge ); with the exception of Mainframe computing, Cloud computing, Teradata data, and Hadoop data, all of which will be invoiced to SHO (and paid for by SHO) at SHMCs cost on a monthly basis. All increases of third party costs will be passed on to SHO. | ||||
SHO will report to SHMC the number of SHO IT Location using Base Services 5 days prior to each month-end closing date. Should the number of SHO IT Locations supported under Base Services (e.g. stores, ORDCS, corporate), vary from 1,183; then the charges for the Base Services in the right hand column in the following month be adjusted for that month (up or down, as applicable), by $346.08 for each net additional or less SHO IT Location; provided that SHO will be charged for a minimum of 900 SHO IT Locations until these Services are terminated in their entirety. Charges for Base Services are paid in monthly increments.
If SHO desires to terminate any of the Base Services SHO shall submit a termination notice in accordance with Section 1.01E . (SHOs Requests for Services/System Changes) and the other provisions of the Agreement. |
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Services |
Fees |
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BASE SERVICES TOTAL |
$409,.416 per month (based upon 1183 locations, but billed monthly) |
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IT Support Services |
Business Strategy & Operations
Development & Support Services:
5 Fixed FTE team members to support and maintain services, multiple enhancements, external variable charged, as needed |
$745,290 | ||
IT Service Costs Projects |
For projects, Labor Rates actual spend is based on the time and materials cost associated with Service Requests determined on a project-by-project basis, as well as by the skill sets required to deliver the Services.
I&TG Standard Rates for Sears Holdings Corporation (SHC) and Sears IT & Management Services India Private Limited (SHI) Associates for Fiscal Year 2016. These rates do not apply to Services performed under Section 1.03 (SHOs Migration Off of Transition Services): |
Labor Type |
Skill Set |
2015 Hourly Rate |
||||||
SHC Associate | Associate | $78.75 | ||||||
SHI Associate |
Off-Shore Engineer |
$35.00 | ||||||
SHI Associate |
On-Shore Engineer |
$78.75 | ||||||
3 rd Party Contractor | Variable |
Passed thru of 3 rd Party Charges |
Work performed pursuant to Section 1.03 (SHOs Migration Off of Transition Services) will be performed at the rates set forth therein. |
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IT Service Costs Retail Support Charges | Retail Support Charges means the charges in the right hand column which are billed by SHMC (and paid for by SHO) for in-store information technology services (currently provided by IBM) which Services SHO was being charged by SHMC as of the Amendment Date under that certain Amended and Restated Exhibit for Retail Support Services (f/k/a Exhibit 15) between SHMC and IBM effective as of May 9, 2011 (or any successor agreement SHMC enters into for such services, collectively, the Retail Support Agreement ). The Services under the Retail Support Agreement include level 2 support for SHMC Systems for LAN management, asset tracking, security services, software distribution and QA, monitoring, incident and problem management, and special retail services (related to store openings, closings, and moves). |
Retail Support Charges:
$2,202 per SHO IT Location (for example: $2,604,966 for 1,183 locations) |
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In addition to the Retail Support Charges in the right hand column, SHO will continue to be charged for Special Retail Support Charges : (i) for all Special Retail Services (e.g., store openings/closings) and per incident charges (e.g., hot box replacement) under the Retail Support Agreement, and (ii) other retail support and non-retail charges for third party IT contractors providing Services (e.g., IBM and NCR), including among other things: onsite hardware maintenance (e.g., cash registers) and hardware depot; all of which charges will be invoiced to SHO (and paid for by SHO) at SHMCs cost on a monthly basis. All increases of third party costs will be passed on to SHO.
SHO will be charged for the Retail Support Charges and Special Retail Support Charges as provided for herein; unless SHO terminates the underlying Retail Support Services as permitted under the Agreement; in which case these charges will be prorated on a daily basis.
SHO will report to SHMC the number of SHO IT Location for purposes of calculating the Retail Support Charges 5 days prior to each month-end closing date. |
Special Retail Support Charges: Passed through at actual costs |
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Service or Business Area |
Services |
Fees |
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Licensed Businesses | ||||
Licensed Business Hometown Stores |
Budget Truck & Car Rental
1 Contractual Obligations: Agreement permits Budget Truck and Budget Cars to establish independent License Agreements with SHO Hometown Stores for the purpose of renting cars and trucks. Budget shall enter agreements directly with the SHO Store owners (Participation Agreements). Transactions are processed through Sears POS. Moving supplies are non-commissionable. SHMC will remit 100% of all cash, check, and Sears Card transactions back to Budget. Either party may terminate a location with 30 days notice.
2 Marketing Support: Budget is responsible for all marketing initiatives. Avis/Budget group will frequently coordinate national marketing campaigns through the Licensed Business Marketing Director. All local marketing initiatives are subject to SHMC approval.
3 Operational Support: SHMC shall work with Budgets performance managers as needed for any auditing processes and issues that arise. SHMC remains final authority on floor presentation in each SHO Store. Changes to layout or signage must be approved by SHMC. SHMC will provide an account for the SHO Store owner to process the moving supplies funds (flow-thru account used for the sale of Budget supplies which are 100% reversed back to the SHO Store during settlement). SHMC will allocate the 4x4 floor space, and must approve all signage. |
Licensed Business Fees:
Budget pays SHMC 17% of gross sales, minus SHMCs portion of BART charges once a month via check. SHMC pays 99% of the Budget payment to SHO, retaining 1% as administrative fee. BART charges are allocated 30% to SHMC, and 70% to SHO. SHMCs portion of BART charges cannot exceed $28.50 per month. |
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Travel Concepts
1 Contractual Obligations: General contract maintenance (contract renewals, insurance monitoring, location additions/deletions, etc.). Support use of Sears POS and standard settlement processes (exception of special travel tax that is accessed in Puerto Rico which is processed on a weekly basis).
2 Marketing Support: Travel Concepts is responsible for marketing initiatives which are subject to SHMC Licensed Business Marketing Directors approval.
3 Operational Support: The SHMC Licensed Business Operation Team supports Licensees space and location requirements, in accordance with the License Agreement. |
Licensed Business Fees:
SHO to receive all licensed business royalty income except for 1% to be retained by SHMC as administrative fee. |
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Service or Business Area |
Services |
Fees |
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Sears Hearing
1 Contractual Obligations: General contract maintenance (contract renewals, insurance monitoring, location additions/deletions, etc.). Support use of Sears POS and standard settlement processes.
2 Marketing Support: Hearing licensee is responsible for marketing initiatives which are subject to SHMC Licensed Business Marketing Directors approval.
3 Operational Support: The Licensed Business Operation Team supports Licensees space and location requirements, in accordance with the License Agreement. |
Licensed Business Fees:
SHO to receive all licensed business royalty income except for 1% to be retained by SHMC as administrative fee. |
|||
Licensed Business Outlets Stores |
Budget Truck & Car Rental
1 Contractual Obligations: Third & Fourth Amendments to Affiliation Agreement between SHMC and Avis Budget Group permit the leasing of both cars and trucks
2 Marketing Support: Budget is responsible for all marketing initiatives. Avis Budget group will frequently coordinate national marketing campaigns through the Licensed Business Marketing Director. All local marketing initiatives are subject to SHMCs approval.
3 Operational Support : The Licensed Business Operation Team supports Licensees space and location requirements, in accordance with the License Agreement. |
Licensed Business Fees:
Fees for Outlet Stores shall be 6% of net sales. SHO to receive 99% of Fees; SHMC to retain 1% of Fees as administrative fee. |
||
Universal Vending
1 Contractual Obligations: General contract maintenance (contract renewals, insurance monitoring, location additions/deletions, etc.). Support use of Sears non-POS settlement processes.
2 Marketing Support: NA
3 Operational Support : Location of Vending Machines are coordinated and supported by Licensed Business Operations Team in accordance with the License Agreement. |
Licensed Business Fees:
SHO to receive all licensed business commission income except for 1% to be retained by SHMC as administrative fee. |
|||
New Licensed Businesses Opportunities |
New Business Opportunities
Where appropriate, all new businesses opportunities will be brought to SHO for collaborative review. |
Licensed Business Fees:
Any cost incurred in the business development activities will be included in the revenue share of the business. |
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Service or Business Area |
Services |
Fees |
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SEARS DE PUERTO RICO (SDPR) |
Marketing / Promotional Planning -
SHO will be included along with PR FLS in activities relevant to the assortment SHO stores carry associated with the marketing, advertising signing and vendor relations associated with the Marketing/Promotional process. This includes, but is not limited to select relevant print, electronic, digital and outdoor advertising and public relations.
The SHO Offshore Representative will be invited to participate in monthly sales planning meetings (MSP meetings). |
1% of SHO sales revenue in Puerto Rico | ||
Finance
SHMC will handle governments tax related issues involving SHO such as:
new SHO stores sales tax registration
annual gross receipt tax returns
annual personal property tax returns
Treasury Dept. information requests. |
As requested Billed at Cost | |||
Miscellaneous
SHO will handle all Department of Consumer Affairs notifications and stores fines. |
No Charge | |||
Merchandising/Assorting /Inventory
SDPR will supervise inventory that is part of product categories that SDPR current supports for SHO locations in Puerto Rico
Maintain pre-determined inventory levels of merchandise appropriate to maximize promotions and drive sales increases
Support inventory requirements for each new store in Puerto Rico for inventory that originates from the PR Cupey DC (8975)
Provide regular updates with inventory status, significant changes, forecasts but only to the same extent that SDPR does to support FLS in PR.
Review SHMC and SDPR promotional inventory to ensure that SHO is included in all events for inventory that originates from the PR Cupey DC (8975). |
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Service or Business Area |
Services |
Fees |
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Maintain all merchandising systems with current status identification but only to the same extent that SDPR does to support FLS in PR.
Include SHO in all seasonal / promotional buys both from SHMC mainland and SDPR specific purchases; but only to if inventory buy for such Product is managed by SDPR.
Maintain all prices for SHO locations in Puerto Rico; however SHO is responsible for determining the price for each item and informing SDPR of its pricing.
Maintain all POGs for SHO locations in Puerto Rico
Partner with and provide SHO the opportunity/ability to add special one time buys for SHO locations; but only to if inventory buy for such Product is managed by SDPR and SDPR is buying such product for its own locations.
SDPR will participate in a meeting once per month with SHO Offshore Representative to review current merchandising performance and upcoming events.
SDPR will include SHO in appropriate meetings. SHO is not permitted to participate in discussions with SDPR vendors.
SDPR will notify SHO of strategic changes with vendors. |
Appendix 1.01-A Page A - 35
Exhibit 1
Execution Copy
IT SERVICES
Service Level Agreement between Sears Holdings Corporation and SHO
OVERVIEW
SHMC (currently through its I&TG Business Unit (at times referred to as I&TG)) will perform services, upon request of SHO.
The following defines the scope of I&TG Services, and deliverables that SHMC will provide to SHO, and will:
1. | Help enable SHO to understand the technology levers it has available to maximize performance for better decision making. |
2. | Provide the framework to conduct business together. |
3. | Create a simple methodology for understanding demand and consumption of technology services delivery. |
4. | Clarify key roles and responsibilities that contribute to the Parties joint governance and resulting success. |
5. | Employ a structure to minimize post-agreement tracking and administrative support. |
6. | Enable service data collection to feed financial reporting for SHO in a mechanized manner. |
7. | Describe I&TG Services and outline SHMCs engagement model to proactively bring SHO new products and services to help improve performance. |
As a supplier of Technology Services, SHMC is responsible for understanding how technology can promote more competitive business models, for delivering planned and budgeted business solutions and serving as service management consultants to SHO by entering into agreements and managing relationships with outside service providers as needed. SHO is responsible for defining its business processes, needs and requirements in support of stated business objectives; quantifying the value impact of its Service Requests, and providing business insight and review/approvals required during scoping, planning, design and delivery of its business solutions.
The Parties must work in dose collaboration so that I&TG can deliver business solutions to meet SHO needs. SHMC will review the currency of infrastructure and applications supporting technology on an ongoing basis and recommend, in SHMCs discretion, that SHO consider adoption of new, more efficient automation methods.
To help confirm alignment on service delivery goals, SHMC will implement a SHO Technology Leader role to better lead efforts in collaboration with the SHO team to effectively:
| Identify business process pain points |
| Conduct needs assessments and requirements definition |
| Scope and plan Request for Services (RFS) |
| Monitor Service Delivery |
Sears Holdings Corporation proprietary and confidential for internal use only.
EXHIBIT 3 TO APPENDIX 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 1
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IT SERVICES
Service Level Agreement between Sears Holdings Corporation and SHO
| Gain key input from all SHO and SHMC stakeholders to help confirm alignment on priorities and delivery of business solutions |
The SHO Technology Leader role (described below) is paramount to coordinating the Parties joint delivery of value. The Request-for-Services (RFS) process, managed through the I&TG Project Management Organization (PMO), takes the I&TG Services and manifests it in specific timelines, skill-sets, pricing, and milestones linked to each Service Request and gives the Parties joint transparency on costs, effort, risk, and solution delivery.
CLIENT SERVICE MINDSET
SHMCS I&TG STRATEGY
The strategy for I&TG focuses on 4 areas that will help drive value creation for SHO by improving SHMCs ability to assist SHO with technology innovation and service delivery.
1. | Business Model |
A. | Product and service offerings defined |
B. | Usage and billing processes documented |
C. | Project lifecycle revamped and refined |
2. | Organization and Talent |
A. | Technology leaders engaged with SHO Personnel |
B. | Development and operation teams re-aligned |
3. | Financials |
A. | Market rates for services |
B. | Usage-driven chargeback for both development and support Services |
C. | Greater transparency and choice for SHO |
4. | Strategic Initiatives |
A. | Improve the customer and associate digital experience |
B. | Increase the flexibility, agility, and capabilities of SHMCs retail systems |
C. | Modernize SHMCs technology infrastructure |
SHMC classifies the I&TG Services into 2 major categories: Technology Services and Operational Services.
|
Service revenues for custom technology services and projects (technical advisory, business process engineering, solution design, build and deliver) | |||
Usage revenues from operational services currently used by our customers (integrated retail, merchant & sourcing intelligence, pricing & marketing, supply chain, remote customer support and infrastructure) |
1
Sears Holdings Corporation proprietary and confidential for internal use only.
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 2
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IT SERVICES
Service Level Agreement between Sears Holdings Corporation and SHO
SHO TECHNOLOGY ENGAGEMENT
In order to align more closely, SHMC created a key role within the SHO Technology Engagement function; that of the SHO Technology Lead. The mission of the SHO Technology Lead is the official, though not single, point of interface between SHO and SHMC to facilitate delivery of business solutions and value creation on a timely basis.
To do this, the SHO Technology Lead will:
1. | Assist SHO in properly documenting business processes & requirements. |
2. | Help business teams create needs assessments and business cases in support of business solutions. |
3. | Facilitate all phases of the systems delivery lifecycle to help ensure that the SHMC I&TG and SHO teams are aligned, aware and working effectively to meet business requirements. (Note that the assigned SHO Technology Leader is not responsible for directly managing technology projects, but will maintain active oversight on every Service Request and project related to SHO and intervene where necessary to keep projects on track). |
4. | Be responsible for securing SHO sign-off (or documented rejection) for each step in which it is required during the Service Delivery process. |
5. | Provide an escalation point for the SHO business teams with respect to technology issues and for the technology teams with respect to business engagement in Base Operations and Service Delivery activities. |
6. | Monitor the resolution of technology related issues (as tracked by SHMC I&TG PMO), following up with issue owners where necessary to ensure timely resolution. |
7. | Communicate updates relating to technology direction and status to the SHO teams. |
8. | Be the steward of technology capability for SHO, maintaining an awareness of external developments relevant to their business domain (e.g. new technologies being used by competitors, etc.) and helping confirm SHO has access to appropriate and value-adding solutions in the short and long term. |
The SHO Technology Leader will be held to account for:
1. | Aged issue status for technology related issues raised by SHO and submitted through the PMO process or through error-ticket systems. |
2. | Adherence by the business team to systems delivery process (e.g. completion of business process models, appropriate scope and timely sign-off of requirements, completion of UAT, business investment in user training and change management, etc.). |
3. | Facilitating effective communication and eliminating disconnects between teams involved in delivering solutions to their business, including technology teams, transformation & development, training & change management, and the SHO team itself. |
4. | Client satisfaction in solutions and engagement model (where measured). |
2
Sears Holdings Corporation proprietary and confidential for internal use only.
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
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Service Level Agreement between Sears Holdings Corporation and SHO
SERVICE DELIVERY & MAINTENANCE
The key responsibilities for the Service Delivery & Maintenance functions within I&TG are:
1. | Managing the underlying technical and application infrastructure. |
2. | Being responsible for the quality and availability of technology services; provided that SHO performs its responsibilities and that SHO senior management remains responsible for SHO-specific management decisions. |
3. | Continuity management as it relates to the support and operations of the business-critical processes and systems. |
4. | Risk and Security management. |
5. | Identity and Access management. |
TECHNOLOGY SERVICES
ENGAGEMENT MODEL & REQUEST-FOR SERVICES (RFS)
SHMCs I&TGs Engagement Models helps maximize the value created from technology investments through processes that ensure alignment and results. The engagement models align priorities, funding and resources, and elevate decision making, decision rights and accountability to the appropriate levels at SHO through both the SHO Technology Leader role and the RFS process.
All Service Requests projects, change requests and new requirements will be managed through a defined process. This process is used to help confirm the following:
| Requests are rejected if not supported by necessary endorsement, business process model, clear business case and requirements documentation, or if considered not implementable. |
| All Service Requests are recorded and assigned a WorkLenz (WL) number to confirm I&TG specialists participate in the estimating process, with tracking of the approved allocation and subsequent progress of the request. This includes rejected requests and requests that are subsequently dropped or rolled into another request or project. |
| For all activated business service requests, SHMC time spent will equal time billed to SHO regardless of whether the request is delivered in full, cancelled or postponed. Commitment of skilled resources comes with a cost that must be recovered during the request fulfillment process. |
| A contingency allowance will be built into the pricing for projects considered to be high risk endeavors, as evaluated according to a set of risk assessment criteria, such as technology employed, business calendar/season, SHO exposure, project budget or duration, regulatory impact or effect on critical business systems (infrastructure, applications, tools). |
| Maintaining a single funnel for acquisition of all requests is essential to the success of this approach |
| Governance/PMO will administer this process |
3
Sears Holdings Corporation proprietary and confidential for internal use only.
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
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Service Level Agreement between Sears Holdings Corporation and SHO
SHOS APPROVAL PROCESS
The chart below represents SHMCs I&TG collective governance model; through a series of authorization gates throughout the project initiation lifecycle , this model helps confirm that opportunities that are most highly aligned with business strategy are pursued, and that timing of initiation is commensurate with the urgency of SHO needs.
This chart also illustrates & the numerous points at which SHO must work with SHMC to ensure alignment between the Parties. The steps above which are circled in red indicate the minimum interface points and are detailed below.
1. | Approving Business VP Approval: At this point, SHO Vice President is required to approve the project for estimation. Up until this point in the projects lifecycle, there has been little or no SHMC involvement in the project. Once this approval is received, SHMC will begin the estimation effort and can begin charging SHO for the time involved in pulling together the high-level cost estimate. |
2. | Executive Sponsor Approval: The high-level cost estimates have been created and included in the projects information. SHO Executive Sponsor (a direct report to the CEO) is now required to approve these estimates in order for the project to continue through the remaining lifecycle steps. |
3. | Obtain SHO Funding Approval: once the Executive sponsor has approved the project request, the SHO CFO/Finance Manager is required to approve. This ensures that SHO has the necessary funds to cover the cost of the planned or unplanned project and is committed to having the work performed. |
4. | Update I&TG Estimates: This is the final cost estimate which gets submitted by SHMC. It is possible, through the process of collecting and documenting the detailed requirements and finalizing the design solution, that SHMC may need to update the costs associated with delivering the project. If the final cost estimate exceeds the original estimate by more than 50%, an additional approval by SHO Executive Sponsor will be required. |
4
Sears Holdings Corporation proprietary and confidential for internal use only.
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
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Service Level Agreement between Sears Holdings Corporation and SHO
5. | Request Functional Readiness Approval: The SHO project sponsor must approve/sign-off on the projects readiness to be moved into production. This is the final approval step needed on SHO side. |
PROJECT CHANGE CONTROL PROCESS
Throughout the lifecycle of a service request within SHMC, various factors may affect the overall cost to deliver. These factors may include (but are not limited to) a change in project scope, a better understanding of specialized skill sets needed, a shift in priorities from SHO or a change in the cost of materials (hardware or software) required to complete the project Any time a change occurs, the SHMC I&TG project manager will initiate a Change Control Request. This is a formal process within I&TG and helps confirm the necessary governance is followed and approvals are obtained before any additional costs are incurred.
A note of change to the approval process for 2012 represents an easing of review and approval requirements if the request is under a pre-set percentage of the initially approved funding. The percentage will be set by the governing SHO project team and allows for work to move ahead once the preliminary project estimate (E1) has been approved if the additional cost to the project is under the stated amount. After proceeding through the Evaluate activities, if the executive approval gate (E2) indicates the change exceeds the allowed percentage, the full scope of requirements, revised project plan and business case must be reviewed again and approved prior to moving forward.
The diagram below depicts the steps which are followed as part of the Change Control process.
I&TG Workflow Details: Change Control Request
A Change Control Request can be created during any of these
Phases of the project lifecycle
This chart also illustrates the additional approval steps necessary from SHO:
5
Sears Holdings Corporation proprietary and confidential for internal use only.
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
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Service Level Agreement between Sears Holdings Corporation and SHO
6. | Executive Sponsor Approval: The revised cost estimates have been created and included in the projects information. SHO Project Sponsor must approve these amended estimates in order for the project to continue through the remaining Change Control steps. |
7. | Obtain SHO Funding Approval: Once the Executive sponsor has approved the Change Control request, SHO CFO/Finance Manager is required to approve. This ensures that SHO has the necessary funds to cover the additional costs related to the Change Control request. |
OPERATIONAL SERVICES
I&TG Service Lines have been designed to meet SHO Base operating/support needs and Request-for-Service demand. A fundamental underpinning of I&TGs service Lines is the use of its Business Process Management (BPM) Center of Excellence (COE). I&TG uses BPM as its overarching framework to help SHO achieve competitive advantage and business growth through process performance, capability and adaptability. Each Service Request SHMC undertakes will have a business process model and clear requirements to help confirm the value is understood. SHMC will assist SHO in understanding the value of business process management and provide enablement services through its BPM COE so that SHO can create and own its process definitions to expedite needs assessment and business solution delivery.
OPERATIONAL SERVICE REQUESTS COMPONENTS
The operational Services I&TG will provide are:
1. | Technology & Business Innovation |
A. | Innovation Lab & Prototyping |
B. | Commercial Grade Solutioning |
2. | Business Process Consulting & Technology Advisory Services |
A. | Value Engineering/ Business Process Optimization |
B. | Business / Technology Needs Assessment |
C. | Scoping, Planning, Estimating and Road-Mapping |
D. | To-Be Process Modeling & Enablement |
E. | Change Leadership |
3. | Business Solution Development / Ad Hoc Service Requests |
A. | Project, program and Budget Management |
B. | Milestone, issue and Risk Management |
C. | Deliverables / Quality Assurance |
D. | Project Coordination |
E. | Communications & Training |
F. | Core Development & Solution Delivery |
There exist a variety of business models to accommodate the different request types received from SHO and offered for delivery by I&TG. One design and delivery model may not be appropriate for all; thus SHMC employs a flexible assignment process to help determine the anticipated optimum way to satisfy a new request, particularly in the project space. SHMC I&TG knowledge and experience spans the potential use of:
6
Sears Holdings Corporation proprietary and confidential for internal use only.
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
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| Traditional service lifecycle with analysis, planning, design, build, test and deploy. |
| An agile style of iterative development building to a phased set of requirements, working toward an end product that helps meet a business objective and enable a new operational capability. |
| Pilot approach where a full set of requirements becomes an initial version of the end product, goes into a trial operational period and then benefits from continuous improvement process based on trial learnings. |
| Walk before we run model a series of modules designed, built and deployed individually under a single architecture such that add-on modules enhance the original capability using consistent and complementary functional elements and technologies. |
Each project approach has a different cost model that may influence the joint SHO / SHMC decision on how to proceed. This review and decision process should occur during the Ideate stage and can be reviewed or reconsidered early in the Evaluate stage with minimal impact on the final project cost.
BASE OPERATIONS COMPONENTS
The Services I&TG provides as part of the Base Operations (Keep-the-Lights-On) are organized into key Operational Services and I&TG Product Domains:
7
Sears Holdings Corporation proprietary and confidential for internal use only.
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
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Service Level Agreement between Sears Holdings Corporation and SHO
SHO DEPENDENT OPERATING/SUPPORT SYSTEMS
Maintenance and access to the following systems required by SHO to operate its business, and other additional or replacement systems as later identified by the Parties:
SHO Dependent Operating/Support Systems | ||||||||||
AdPlan/PMI |
Dynamic Pricing |
IMPACT | NTE | RTV | Store Ordering | |||||
Alex | ECM | In-Store Hardware Maintenance | OMS | SADI | Store Planning (Epic 2/4) | |||||
Applicant Drug Testing | EDI Star Wars | iPlan | OneSource | Sales Tax Exempt Certification Systems (SECS) | Store Visit Scheduler | |||||
Associate Contribution Reports |
EHDS | IPS | OTM | Sales Tax Tables | Super RIM | |||||
Associate Discount |
eHire | Kenshoo | outlet.com | SAS |
Support Services |
|||||
Cash Flow | EIS | LCM | Outlook | SCIM/NSN | SYWR | |||||
CLRP | Property | LDAP | PartsDirect | Sears Sales Tax Support System (S4) and Reporting |
Tax Compliance Calendar |
|||||
Combo Receiving |
ESB |
Lease Payments (LPS) |
PBW | Sears Source Subsidy (SSLS) | TKC | |||||
Concur | Essbase | LicenseHQ | PC RIM | Service Desk | TPC | |||||
OORE |
Financial Transaction Data (FTD) Warehouse |
US | PDS | Servicelive | Tracker | |||||
Core HR Function | FIPS | Loss Prevention | Pebble | Settlement & Reconcifiations |
Trading Partners |
|||||
CorpTax | Fixed Asset Management | LPub | Planogram |
SHARP Authorizations |
Training Tracker |
|||||
CRT Income Tax | Fixed Asset Software (FAS) | MARE | POM | SHARP Refund Management |
Treasury Database |
|||||
CRT Sales Tax | FLEXXperts | Markdown Mgmt (MDM) |
POS (NPOS & CashR) |
SHC POM | TS21 | |||||
CSAT | GameOn | MIM | PRCM |
SHC Procurement Portal |
Unity (Movaris) | |||||
Customer Data Warehouse (CDW/EDW) |
General Ledger Management |
MS Office |
RCS-Rapid Credit Application Processing |
Shopping Recap | USIS | |||||
DCPO |
Affilicate Connect Commerce |
My Personal Information (MPI) | Retail Enterprise Suite (RES) |
Signature and Receipt Application (SARA) |
ViewDirect |
8
Sears Holdings Corporation proprietary and confidential for internal use only.
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
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Service Level Agreement between Sears Holdings Corporation and SHO
Deal Management |
Help Ticket | NAI |
Revised Accounts Payable |
SIMI/BOSS |
Waste Reconciliation and Stock Ledger |
|||||
Dealer Commission | HomeTown Store Connect |
National Accounts Payable (NAP) |
RIM | SKU 991 Table/Database | WFA | |||||
Desktop Support |
HR P | National Disbursements Journal (NDJ) |
Risk Management Information System |
SMC - Fusion on a Workstation | WFM | |||||
Digital Asset Management | 19 and WOTC | NFX | RMDS | SNC/iSNC | WLP | |||||
DOS | IDRP | NPS | RSOS | SPIN | ||||||
DOS SOE | IMA | NROS | RTI | SPRS/MDRS |
I&TG SERVICE CATALOG
A detailed 2012 I&TG Service Catalog is attached to this Exhibit as Addendum 3. Addendum 3 may be unilaterally amended by SHMC. SHMC will notify the SHO contact person of changes to this Addendum 3.
ISSUES MANAGEMENT / RESOLUTION
SHMC employs severity scales for Issue Management to help confirm that proper ownership, collaboration, and resolution of issues occurs as swiftly as possible. SHO agrees to make commercially reasonable efforts to timely provide SHMC with complete and accurate information and material requested by SHMC and required for use in replicating and diagnosing an Issue. SHO also agrees to make reasonably available appropriate employees when options for resolution are being vetted and course-of-action decisions are required.
9
Sears Holdings Corporation proprietary and confidential for internal use only.
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
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Service Level Agreement between Sears Holdings Corporation and SHO
I&TG COSTS AND RATES FOR SERVICES
BASE COMPONENT & SERVICE REQUEST CHARGES
Service costs for Base Components (enterprise support, integrated retailing, merchant & sourcing intelligence, technology infrastructure, etc.) have been bottom-up identified and are charged based an appropriate allocation method or usage/consumption level.
Service costs of Base Components for SHO will not exceed $9.6M for 2012, assuming SHO usage and requirements are consistent with that experienced in 2011. Each subsequent year of the agreement will provide the next fiscal years plan to SHO ninety (90) days in advance of the dose of the fiscal year. Annual increases to the Base Component and Systems Access/Maintenance service costs will be capped at five-percent (5%) with the exception of increases to 3 rd Party services which will be passed through to SHO. Any additional increases will be subject to negotiation and agreement by both parties in advance of any applicable increase.
Labor Rates have been determined for FY12, however actual spend is based on the time and materials cost associated with Service Requests determined on a project-by-project basis, as well as by the skill sets required to deliver the Services.
The rate/hour for Service Requests is as follows:
SUPPORT SERVICES AND ENGAGEMENT TEAM
An SHMC I&TG Engagement Team will be formed to support SHO to provide support and maintenance services and multiple enhancements. External variable labor for project development will be charged as needed and agreed upon with SHO. The SHMC team will be comprised of a Director, Project Manager, Business Analysts and Solution Architects with an annual cost of $811,200 for 2012.
10
Sears Holdings Corporation proprietary and confidential for internal use only.
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
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Service Level Agreement between Sears Holdings Corporation and SHO
EXPECTATIONS
COLLABORATION
SHMC and SHO will work together, utilizing collaborative planning focused on meeting business objectives, efficient and cost effective shared service centers, common service management processes and an organization designed and skilled to help optimize a commercially viable service model.
SHMC will assist SHO in identifying the business processes critical to SHO customers and the computer systems or services which support those processes. Once that list of critical systems and processes has been identified, a mutually agreed-upon level of service will be provided with the commensurate costs detailed.
BUSINESS SPONSOR / CUSTOMER RESPONSIBILITIES
In order for SHMC to effectively provide the Services, SHO will:
1. | Ensure sound business processes exist prior to engaging SHMC for solution architecture |
This can be accomplished by leveraging SHMC Business Process Management Center of Excellence as described above. Ensuring a sound business process before introducing new technology helps to ensure the solution being delivered will properly address SHOs problem or need.
2. | Provide proper allocation and timely availability of SHO Personnel as part of the engagement team SHMC is only part of the solution process. SHO must allocate sufficient resources to the engagement. If SHO does not allocate and make available appropriate resources, the solution being delivered will most likely not fulfill the need appropriately. |
3. | Ensure responsiveness and participation of SHO senior executives & sponsors |
There are key, significant times within the lifecycle of the engagement where Senior SHO Executive and Sponsors must participate and collaborate with the SHMC I&TG engagement teams. From the initial approval to submit requests to SHMC, to funding approvals, to periodic status updates, through to the engagement close-out all of these gates and project events require engagement by Senior SHO members. It is the responsibility of the both Parties, through the joint project management team, to pre plan the meeting calendar and build sufficient executive time into the project plan for all such executive requirements. It will be SHO s responsibility to confirm that all necessary internal SHO approvals are obtained.
4. | Define accurate & reasonable expectations of project benefits (quantifiable wherever possible) |
While SHMC is responsible for identifying the costs associated with performing the requested services for SHO, it is entirely the responsibility of SHO to identify potential benefits for the engagement. These benefits have typically been represented as monetary (EBITDA & BOP) but are not limited to that category. Additional, quantifiable metrics could include:
| Faster time to productivity |
| Improved ease of use leading to faster transaction processing time |
| Increased users or usage |
11
Sears Holdings Corporation proprietary and confidential for internal use only.
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
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Service Level Agreement between Sears Holdings Corporation and SHO
| Increased system uptime/availability |
| Increased response time |
| Increased units of client or customer data captured |
| Increased data accuracy (fewer defects) |
Only by identifying these quantifiable metrics can accurate benefit realization be measured.
5. | Complete Customer Satisfaction Surveys (CSATs) upon the conclusion of the engagement |
The key mechanism by which SHMC can measure the success of the engagement with SHO is through the Customer Satisfaction Survey which is sent at the conclusion of each engagement. The survey itself takes only a few minutes to complete, but allows SHMC to understand what went well or what areas may need improvement as part of SHMCs engagement model.
6. | For projects that affect SHO only, SHO will be responsible for key strategic and material management decisions. For projects that affect both SHO and other SHMC clients, SHO and SHMC will have joint strategic and material management decisions regarding the respective project; provided that SHO will remain responsible for decision making as it affects SHO. |
INFORMATION & TECHNOLOGY GROUP RESPONSIBILITIES
As part of the collaboration between SHMC and SHO, there will be periodic governance meetings between which will be used to discuss the following:
1. | Accomplishments to date - These will include: |
a. | Planned projects delivered to-date |
b. | Unplanned projects delivered to-date |
c. | Base & Support services provided |
d. | Improvements or cost reductions made towards Base & Support services |
2. | Metrics |
a. | Service metrics are in place (internal, customer) |
b. | Project, Base and Support metrics jointly agreed to be tracked in SLA/OLA |
c. | What metrics have been met |
d. | Any operational issues with meeting committed metrics |
3. | Expenses |
a. | Planned expenses versus actual expenses as measured on a period-to-date and year-to-date basis |
b. | New items or expenses from SHMC |
c. | Expected changes to expenses for the remainder of the year (either decreases or increases) |
d. | Charges incurred by SHO for postponed or cancelled projects |
12
Sears Holdings Corporation proprietary and confidential for internal use only.
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
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Service Level Agreement between Sears Holdings Corporation and SHO
LIST OF ADDENDUMS
Below is a list of I&TG-related Addenda to the Agreement:
Addendum 1. SHO 2012 Base & Support Charges
Addendum 2. SHO 2012 Support Services
Addendum 3. 2012 I&TG Service Catalog
14
Sears Holdings Corporation proprietary and confidential for internal use only.
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
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Service Level Agreement between Sears Holdings Corporation and SHO
ADDENDUM 1 SHO BASE AND SUPPORT CHARGES
Base Components (Technology Products) - Usage/Consumption Charge (per year):
15
Sears Holdings Corporation proprietary and confidential for internal use only.
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
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Service Level Agreement between Sears Holdings Corporation and SHO
2012 I&TG Service Catalog is provide as a separate document.
16
Sears Holdings Corporation proprietary and confidential for internal use only.
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
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IT SERVICES
2012 I&TG Service Catalog
Version 1.1Mar 2012
Exhibit 3 to Appendix 1.01-A
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2012 I&TG Service Catalog
2
Exhibit 3 to Appendix 1.01-A
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2012 I&TG Service Catalog
Charge Back Models:
3
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2012 I&TG Service Catalog
Base Offering / Portfolio Descriptions
Business Strategy & Operations
The Business Strategy & Operations offerings encompass several functions aimed at providing governance and structure to the I&TG Business Unit. These functions include: supplier management; project and portfolio management; process quality assurance; and pricing and allocations management.
Corporate Technology Services
The Corporate Technology Services offerings are comprised of services which enable the Support Business Units to provide services to their customers. These services include (but are not limited to): financial; tax; legal; procurement; human resources; payroll; real estate; and tax.
Home Services
The Home Services offerings are aligned specifically to support the Home Services and ServiceLive Business Units. These services include: customer management; knowledge management; order management; sales lifecycle management; supply chain management; and the support and maintenance of these services.
Information Analytics & Innovation
The Information Analytics & Innovation services are a collection of business intelligence services which provide support for: analytics tool licensing; data monitoring; supply chain analytics; and support for specific program such as Shop Your Way Rewards and Targeted interaction.
Marketing, Pricing & Loyalty
The Marketing, Pricing & Loyalty offerings support the business units with services specifically tailored to provide: pricing modeling; marketing and advertising services; and support for the loyalty programs such as Shop Your Way Rewards.
Network & Security Services
The Network & Security Services offerings are provided across all of SHC and include: industry compliance; retail and non-retail asset maintenance; enterprise systems security; and an array of telecommunications services for voice and data.
Operational Services
The operational Services offerings include all the services and support necessary to run the data center operations group which include: desktop support; distributed environment support, mainframe services; storage services; and Teradata services.
Retail Services
The Retail Services offerings are specifically aligned to support the Retail Services Business Unit and their Operating Business Unit customers. These services include: retailing transaction support; customer facing transaction support; and hardware support services.
Service Management
The Service Management offerings are a collection of services which provide the SHC enterprise with: enterprise business continuity management; service quality management; service support for corporate as well as field customers; and performance management services.
Supply Chain
The Supply Chain offerings are a collection of services aligned to support the Supply Chain Business Unit and their customers with the following: business to business support; distribution center support; import, inventory and item management; order management; and transportation systems support.
4
Exhibit 3 to Appendix 1.01-A
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2012 I&TG Service Catalog
Base Offering: Business Strategy & Operations
Service: | Enterprise Learning & Development | |
Service Description: |
The Enterprise Learning & Development services provide the following:
Computer based training catalogs for IT-related topics, Office Productivity, and Business & Soft skills
Facilitation of on-site, instructor lead training classes |
|
Chargeback method: | Seat | |
Service Components: |
ElementK / SkillSoft
Caliber Training
Global Knowledge
SHU Training
SHC Course |
5
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
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2012 I&TG Service Catalog
Base Offering: Business Strategy & Operations
6
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Base Offering: Business Strategy & Operations
Service: | Enterprise Project / Program Support | |
Service Description: | The Project Management Office (PMO) is responsible for managing all project requests, monitoring the health of projects, helping with the portfolio optimization and prioritization process and providing guidance to each of the portfolio sponsors. | |
Chargeback method: | Project Consumption | |
Service Components: |
WorkLenz (PPM Central)
Enterprise Program Management
Enterprise Project Management |
7
Exhibit 3 to Appendix 1.01-A
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2012 I&TG Service Catalog
Base Offering: Corporate Technology Services
8
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2012 I&TG Service Catalog
Base Offering: Corporate Technology Services
Service: | Corporate Services Support | |
Service Description: |
Support provided across Sears Holdings involving enterprise wide applications or services which would include the following:
Application break/fix support
Minor enhancements to applications |
|
Chargeback method: | Actual | |
Service Components: |
Corporate Services applications (Utilities, Front Desk Badge, Scheduler Plus, etc.)
Food applications (Bottle Deposit)
Google Earth and Google Earth Pro
Identicard Badges
Licensed Business Requests for Sales/Product Information
MARE
Server moves, Office/OS/IE upgrade testing, Mainframe Migration research, etc.
Relius Government Forms
Risk Management Information Systems
Sales Data |
|
Sears Store Planning (EPIC2/4)
SOX and Internal Audit Reviews
STAR
Store Operations Requests for Sales/Product Information
Third Party Desktop Applications |
9
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Base Offering: Corporate Technology Services
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2012 I&TG Service Catalog
Base Offering: Corporate Technology Services
Service: | Financial Systems Support | |
Service Description: |
A suite of applications and services tailored to meet the needs of the Financial Services support business. These systems facilitate:
Authorizations and Credit
Processing of Layaways
ID Validation services
Reporting services
Settlements |
|
Chargeback method: | Actual | |
Service Components: |
Centralized Vault
Associate reimbursement
Authorizations
Credit Extranet
Layaway
Rapid Credit / ID Validation Services
SARA
SAS / Essbase reporting
SCPE
Settlement |
11
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Base Offering: Corporate Technology Services
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Base Offering: Corporate Technology Services
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Base Offering: Corporate Technology Services
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Base Offering: Corporate Technology Services
Service: | Real Estate Systems Support | |
Service Description: |
A suite of applications and services tailored to meet the needs of the Sears Real Estate business. These services include:
Application break / fix
Minor enhancements
Application monitoring
Strategic market planning
Sales territory planning
Targeted geomarketing |
|
Chargeback method: | Actual | |
Service Components: |
FIPS
Tactician |
15
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 31
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Corporate Technology Services
Service: | Tax Systems Support | |
Service Description: |
A suite of applications and services supporting tax related activities. These services include:
Interface support for web based training system for field associates
Property tax data mining
Commercial real estate appraisal
Tax calculations for sales, purchases and rentals
Application upgrades
Application break /fix support |
|
Chargeback method: | Actual | |
Service Components: |
Gross Receipts Tax (License HQ)
Income Tax (CorpTax, Intelliforms)
Property Tax (eProperty, Narrative1, Directory of MM, etc.)
Sales Tax (Tax Matrix for Sales Tax, Taxware, Kmart Sales Tax, S4, etc.) |
16
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 32
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Home Services
Service: | Customer Management | |
Service Description: |
Customer management is a collection of services aimed at providing a complete customer relationship capability. These services include:
Software platform for building and deploying ECRM applications
Multi-channel analytics capturing customer interactions across all channels
Customer service and sales |
|
Chargeback method: | Actual | |
Service Components: |
Aspect
Autonomy
Avaya
Ciboodle
Facilities Management / Field Support
HSCCD
HSCCN&SC
HSQUALITY
HSVRU
Nuance
Serviont
TSG |
17
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 33
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Home Services
Service: | Knowledge Management | |
Service Description: | Knowledge management is a suite of applications and services aligned to provide the following: | |
Enterprise Content Management including document management and web content management |
||
Real-time data integration and high-availability solutions |
||
Large scale data warehousing and analytics |
||
Chargeback method: | Actual | |
Service Components: |
Alfresco
Golden Gate
GREENPLUM1HS
HSBUSINTEL
IBM CDC
Intelex
Kaidara
SAS |
18
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 34
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Home Services
Service: | Order Management | |
Service Description: |
The order management service is a collection of applications and services which provide:
Compression software and tools for geographic data, document management, and web distribution
Workforce optimization and 3 rd party network management
Digital maps
Dynamic routing |
|
Chargeback method: | Actual | |
Service Components: |
ESRI
HS - Help Desk
HS - Wireless Communication
HSHAL
HSHDROUTING
HSNEWCO
HSROUTING
HSSOMCS
HSSOMNP
LizardTech
SAS Forecasting
ServicePower
Teleatlas
Teleatlas - Map updates |
19
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 35
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Home Services
Service: | Planning / Consulting | |
Service Description: | The planning and consulting services provide pre-project assistance in the analysis of business requirements and needs, in an effort to better align the business demand with the technology solutions available. | |
Chargeback method: | Actual | |
Service Components: |
I&TG Planning / Consulting
Other BU Planning / Consulting |
20
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 36
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Home Services
21
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 37
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Home Services
Service: | Software Maintenance | |
Service Description: | Software maintenance is a service which manages the software licensing and maintenance for the SAP suite of tools. | |
Chargeback method: | Actual | |
Service Components: |
SAP |
22
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 38
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Home Services
23
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 39
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Home Services
24
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 40
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Information Analytics & Innovation
Service: | BI Administration | |
Service Description: | The Business Intelligence administration service is an aggregation of all the administrative tasks associated with the analytics applications and services provided across SHC. | |
Chargeback method: | Transaction | |
Service Components: |
BI Admin Production Support |
25
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 41
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Information Analytics & Innovation
26
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 42
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Information Analytics & Innovation
Service: | BI Data Monitoring | |
Service Description: | The Business Intelligence data monitoring service provides real-time monitoring of the various data feeds from transactional systems into data marts and data warehouses. | |
Chargeback method: | Transaction | |
Service Components: |
BI Data Monitoring Production Support
BI Data Monitoring Support |
27
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 43
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Information Analytics & Innovation
Service: | BI Delivery Administration | |
Service Description: | The Business Intelligence delivery administration is a service which provides support for the project intake and execution related to analytics applications and services. | |
Chargeback method: | Transaction | |
Service Components: |
BI Delivery Administration - BU Analytics Training
BI Delivery Administration - Delivery Administration
BI Delivery Administration - Intake |
28
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 44
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Information Analytics & Innovation
Service: | BI License Management & Support | |
Service Description: |
The Business Intelligence license management and support service provides a single point of contact between various vendors of analytics tools and services and SHC. These tools and services include:
Individual customer recognition and identification information
Web-hosted solutions
Web-based controls used on SHC portals
Data modeling software |
|
Chargeback method: | Transaction / Seat | |
Service Components: |
BI - Acxiom - Abilitec & Infobase
BI - Applied Predictive Technologies - Subscription
BI - APT - Hosted Analytics solution
BI - EIS - Maintenance & Finance Labor Support
BI - EssBase Finance Labor Support
BI - Financial Coordinator
BI - Hyperion EssBase - Maintenance
BI - Netezza - Maintenance
BI - SAS Institute - Maintenance
BI - TeleniK - Maintenance
BI - Unica Annual Maintenance
BI - WeatherBank - Maintenance
BI Livelink Support
Bus Obj and USPS software licensing (NCOA)
KXEN Sofware Maintenance
Microstrategy CPU license Maintenance
Microstrategy Term License
Replicon - Web Resource Tool
Sybase - PowerDesigner License |
29
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 45
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Information Analytics & Innovation
Service: | Shop Your Way Rewards Support | |
Service Description: | The Information and Analytics Shop Your Way Rewards support services provides all the vendor, licensing, monitoring and hosting support for the Shop Your Way Rewards program. | |
Chargeback method: | Transaction | |
Service Components: |
Epsilon fees to develop SYWR system
Epsilon mgmt fees within SYWR system
SYWR - S/W Maintenance (Oracle)
SYWR Managed services fee (Oracle) |
30
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 46
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Information Analytics & Innovation
Service: | Supply Chain Management | |
Service Description: |
The Information Analytics Supply Chain Management services are a collection of applications and services which assist the Supply Chain function with the following;
A centralized database of product information
Space and floor planning
Assortment planning |
|
Chargeback method: | Actual | |
Service Components: |
BI - Advance Visual Tech - Retail Focus
BI - APT Merchandise Optimization Tool - Hosting Fee
BI - Gerber Technology Inc - Web PDM Maintenance
BI - iPLanMerch., Fin., & Assort. Planning - SAS.Market Max
BI - JDA - Space and Floor Planning - Maintenance
BI - SAS Institute - Merch., Fin., & Assort. Planning - ASAP Weblogic
BI - SAS Institute (iPLanMerch., Fin., & Assort. Planning)
Data Visualization
Web PDM |
31
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 47
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Information Analytics & Innovation
Service: | Targeted Interactions Support | |
Service Description: | The targeted interactions support services are aligned to provide in-depth information about customer behavior and provide real-time analytics and reporting to better align future offers. | |
Chargeback method: | Transaction / seat | |
Service Components: |
Unica and Application Reporting Hosting/Support
Unica Realtime annual maintenance |
32
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 48
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Marketing, Pricing & Loyalty
33
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 49
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Marketing, Pricing & Loyalty
34
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 50
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Marketing, Pricing & Loyalty
Service: | Loyalty Services | |
Service Description: | Loyalty services within the Marketing, Pricing and Loyalty offering are specifically aligned to the Shop Your Way Rewards program. These services provide management over the supplier being leveraged to host the program. | |
Chargeback method: | Actual | |
Service Components: |
SYWR - Epsilon |
35
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 51
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Marketing, Pricing & Loyalty
36
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 52
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Marketing, Pricing & Loyalty
37
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 53
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Marketing, Pricing & Loyalty
Service: | Publishing Services | |
Service Description: | The publishing services is a service which provides an electronic alternative to a printed advertising circular. The electronic version would do a better job of targeting specific audiences with relevant advertising information. | |
Chargeback method: | Actual | |
Service Components: |
e-Publishing |
38
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 54
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Network & Security Services
Service: | Compliance | |
Service Description: |
The Compliance service is a collection of applications and processes which enable enterprise-wide adherence to industry requirements and best-practices which include:
Email protection services
Penetration testing and intrusion detection
Software licensing compliance |
|
Chargeback method: | Headcount / Headcount (Ex-POS) | |
Service Components: |
NPE - SLA Tracking/Reporting
NPE - Vendor Governance
SEC - Compliance - SW Maint - Bradford NAC
SEC - Compliance - SW Maint - Email Encryption
SEC - Compliance - SW Maint - RSA DLP
SEC - Compliance - SW Maint - Tripwire
SEC - Compliance eDiscovery Toot SW Maint
SEC - Compliance HW Maintenance
SEC - On-Line - SW Maint - Fortify |
39
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 55
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Network & Security Services
Service: | Media Services | |
Service Description: |
Media Services is a suite of applications and services which provide SHC - wide capabilities such as:
Peer-to-peer video conferencing
Voice conferencing and equipment support
Video conference room support and services |
|
Chargeback method: | Headcount (Ex-POS) | |
Service Components: |
Maintenance on (2) Polycom video conference systems in Troy and Royal Oak
Maintenance on Vidyo equipment, new in 2011 - PART OF RFP
NPE - AudioWeb Conferencing Support
NPE - Video Engineering
NPE - Video Standards & Architecture
Symon Readerboards in SHTC Annual Maintenance
Video conferencing maintenance - New systems in 2011 |
40
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 56
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Network & Security Services
Service: | Non-retail Asset Maintenance | |
Service Description: |
Non-retail Asset Maintenance is a collection of tools and services aimed at providing asset maintenance to the non-retail functions. These services include:
Private Branch Exchange (PBX) management for voice
Cellular repeaters for the major facilities
Wide Area Network (WAN) service optimization
Voice over IP (VoIP) services
Wireless services |
|
Chargeback method: | Headcount (Ex-POS) | |
Service Components: |
AT&T(Troy)- PBX, Mail etc.
Hoffman Cellular repeater infrastructure T&M maintenance
Meru controller maintenance new in 2010
Meru s/w maintenance new in 2010
Nexum - Checkpoint hardware maintenance used for Troy & Hoffman firewalls
Palo Alto annual maintenance
Riverbed annual maintenance
SBC Hoffman PBX maintenance
Sniffer Infinistream (Netscout) hardware maintenance for Troy network core |
41
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 57
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Network & Security Services
Service: | Retail Asset Maintenance | |
Service Description: |
Retail Asset Maintenance is a collection of tools and services aimed at providing asset maintenance to the retail functions. These services include:
Private Branch Exchange (PBX) management for voice
Wide Area Network (WAN) service optimization
Voice over IP (VoIP) services
Wireless services
Interactive voice response (IVR) systems support |
|
Chargeback method: | Headcount / Headcount (Ex-POS) | |
Service Components: |
AT&T 3174 SNA PU/LU Support
Bluecoat hw maintenance for Kmart store systems proxies
Bluecoat sw maintenance for Kmart store systems proxies
Cisco - Verizon Smartnet maintenance financed through Cisco Capital 7/1/11 - 6/30/14
Intervoice HW maint - IVR used for store locator, procedure help line, Kexpress, product return hotline, flu clinic, AP
Maintenance on Telident 911 System - new in 2010
Nortel BCM (PBX) Maintenance - Crosscom /Siemens
Nortel maintenance - Troy legacy routers
Sentinel T&M maintenance for Cisco VoIP to desktop phones
Siemens Maintenance Contract for all Sear locations with Siemens PBX, including Call Centers, PRS, SLS, Logistics and FLS |
42
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 58
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Network & Security Services
43
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 59
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Network & Security Services
44
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 60
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Network & Security Services
45
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 61
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Networks & Security Services
Services: | Telecommunications Voice | |
Service Description: |
Telecommunications Voice services are a collection of applications, tools and services which provide the following voice services:
BlackBerry device support and connectivity
Wireless cell phone support
Call center support and maintenance services
Voicemail systems support |
|
Chargeback method: | Actual / Headcount / Headcount (Ex-POS) | |
Service Components: |
Amerinet - Secure Sidewinder (Blackberry firewalls)
AT&T Wireless Cell Phone Credit
Intervoice SW maint - IVR used for store locator, procedure help line, Kexpress, product return hotline, flu clinic, AP
IVR Application (Edify replacement)
Lyrix - Peoplefind, automated operator on Troy PBX
NPE - Call Center/Voice Engineering, Standards & Architecture
NPE - DATA/VOICE/WIRELESS MACD Corporate, Off-Mall & Retail
NPE - Voice Support Services Corporate, Off-Mall & Retail
NPE - Wireless Engineering
NPE - Wireless Services Support Corporate, Off-Mall & Retail
NPE - Wireless Standards & Architecture
Research in Motion (RIM) - annual server licenses and fees
Unimax 2nd Nature Software Maint - Hoffman uses to program/support the PBX and Voicemail systems Nortel Call Pilot; Help Desk; Call Manager
Unimax 2nd Nature Software Maint - Troy PBX programming interface & Help Desk
Voice - AT&T CSU maintenance, to Call Centers
WIRELESS - Cell Phones, Pagers, Blackberries, Wireless Air Card Backup (Outlet and SAC stores) |
46
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 62
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Operational Services
47
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 63
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Operational Services
48
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 64
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Operational Services
49
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 65
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Operational Services
Service: | Mainframe Services | |
Service Description: |
Mainframe Services is a collection of tools and services which provide support to our mainframe environment which includes:
Computer maintenance services
Software support
Equipment repairs and rentals |
|
Chargeback method: | Transaction | |
Service Components: |
Mainframe - Computer Maintenance
Mainframe - Data Procs Software Packages
Mainframe - Equipment Repairs
Mainframe - Machine Rentals |
50
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 66
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Operational Services
Service: | Storage Services | |
Service Description: |
Storage Services is a collection of tools and services which provide support to our data storage needs which includes:
Computer maintenance services
Software support
Equipment repairs and rentals |
|
Chargeback method: | Application Consumption | |
Service Components: |
Storage - Computer Maintenance
Storage - Data Procs Software Packages
Storage - Machine Rental |
51
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 67
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Operational Services
Service: | Teradata Services | |
Service Description: |
Teradata Services is a collection of tools and services which provide support specific to our use of the Teradata platform. These services include:
Teradata computer maintenance services
Software support |
|
Chargeback method: | Transaction | |
Service Components: |
Teradata - Computer Maintenance
Teradata - Data Procs Software Packages |
52
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 68
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Retail Services
Service: | Core Retailing Transaction Support | |
Service Description: |
Core Retailing transactions support is a collection of applications and services which provide support to the Point of Sale including:
Back office suite (SNC, MPU, KIN, RMU) support
Integrated retailing mobile support (SHC Connect)
Store opening and closing support
Loss prevention support and services
Labor management support and services
Sign Management support and services |
|
Chargeback method: | Actual | |
Service Components: |
ABD
Back Office Suite (SNC MPU) & (KIN RMU)
EOD Processing NFX
Grocery Host
Hometown - Hometown Connection
Hometown - Sears Auth Deal Incnt SADI
Hometown - Workstation SNC
I&TG Int Retail SHC Connect
I&TG Int Retail Str Open/Close - All Formats
I&TG Int Retail Support Tool SOSI(Builds)
Int Retail - My Gofer
KIN Mainframe
Kiosk Support - All Formats
Labor Mgt(VLM WFM LMF)
Loss Prevention - Wazagua
Loss Prevention ASPECT - Sears(annually)
Loss Prevention ASPECT - Kmart (twice a year)
Sign Management RES
Support Tool RWI(Services) |
53
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 69
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Retail Services
Service: | Customer Facing Transaction Support | |
Service Description: |
Customer Facing transactions support is a collection of applications and services which provide support to the Point of Sale for end-user transaction processing, including:
Kmart Point of Sale (XPOS)
Sears Point of Sale (NPOS)
The Great Indoors point of sales support
Automotive Point of Sale (TPOS)
Outlet Stores point of sales support |
|
Chargeback method: | Actual | |
Service Components: |
Kmart XPOS
Outlet - Searsoutlet.com
Outlet LIS
Outlet Portal
Outlet SOAP
Pharmacy
Sears NPOS
TGI 20/20
TGI BDM
TGI MSL
TGI OMNI
TPOS |
54
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 70
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Retail Service
Service: | Hardware Support Services | |
Service Description: |
Hardware Support Services within the Retail Services area is specifically aimed at providing support for Point of Sale hardware. This includes:
Back office printer support and services |
|
Chargeback method: | Actual | |
Service Components: |
Back Office Printers |
55
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 71
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Service Management
Service: | Administration | |
Service Description: | The Administration services within the Service Management area are the necessary people to ensure the Service Support & Maintenance activities are properly administered. | |
Chargeback method: | Headcount | |
Service Components: |
Support Administration |
56
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 72
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Service Management
Service: | Business Continuity | |
Service Description: | Business Continuity services provide the support and services necessary to ensure the business of Sears Holdings would continue to operate effectively in time of crisis or systems outages. | |
Chargeback method: | Headcount (Ex-POS) | |
Service Components: |
Business Continuity |
57
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 73
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Service Management
58
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 74
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: service Management
Service: | I&TG Service Support | |
Service Description: | The I&TG Service Support services are a collection of services which are aimed specifically at providing support to the named I&TG Portfolios (aligned by the Business Units they represent). | |
Chargeback method: | Actual | |
Service Components: |
I&TG Service Support - BI
I&TG Service Support - Home Services/Service Live
I&TG Service Support - Marketing & Pricing
I&TG Service Support - Store Systems
I&TG Service Support - Supply Chain |
59
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 75
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Service Management
Service: | I&TG Service Support - Corporate Desktop Support | |
Service Description: | I&TG Service Support - Corporate Desktop Support are services specifically designed to support the Corporate Desktop environment (Hoffman Estates) and all the Business Units represented there. | |
Chargeback method: | Headcount (Ex-POS) | |
Service Components: |
I&TG Service Support - Corporate Desktop Support |
60
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 76
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Service Management
Service: | Learning & Development | |
Service Description: | The Learning & Development support services within Service Management are all the applications, tools and services necessary to provide the CTC training rooms with the computer/lab equipment. | |
Chargeback method: | Headcount (Ex-POS) | |
Service Components: |
Training Room |
61
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 77
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Service Management
Service: | Performance & Service Mgmt | |
Service Description: |
Performance & Service Management services are a collection of services and processes which provide I&TG service continuity in the following areas:
Business Service Management services
Incident Management services
Knowledge Management services
Problem Management services |
|
Chargeback method: | Headcount | |
Service Components: |
I&TG Service Mgmt Business Service Management
I&TG Service Mgmt Incident Management
I&TG Service Mgmt Knowledge Management
I&TG Service Mgmt Problem Management |
62
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 78
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Supply Chain Services
Service: | Business to Business Systems Support | |
Service Description: |
Business to Business Systems Support are the services and applications which provide support from one BU to another and include:
Order support systems for Kenmore, Craftsman & Diehard
Cross training of BU associates |
|
Chargeback method: | Actual | |
Service Components: |
Brand Order Support System (BOSS)
Cross Training |
63
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 79
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Supply Chain Services
Service: | Design Systems Support | |
Service Description: | Design Systems Support is a collection of applications and services which provide support and software to the Design business unit. | |
Chargeback method: | Actual | |
Service Components: |
Product Design Software |
64
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 80
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Supply Chain Services
Service: | Distribution Center Systems Support | |
Service Description: |
Distribution Center Systems support is a collection of applications and services which provide support to the various types of distribution centers within Supply Chain. These include:
Direct Delivery Centers support
Customer Direct Fulfillment Centers support
Jewelry Replenishment Centers support
Warehouse Management Systems support |
|
Chargeback method: | Actual | |
Service Components: |
Black Box
Direct Delivery Center (DDC) WMS
DOS DD
DOS DD MF
Jewely Replenishment Center
JFC & CDFC WMS
KEXE
Market Delivery Operation (MDO)
mygofer WMS
OH
PDC/IRC WMS
PkMS
Retail/Jewelry Replenishment Center (RRC/JRC) WMS
RRC, TDC, JRC - DOS TW - MF
Source Availability System (SAS) - Mainframe
Third Party DC (Distribution Center)
WMS |
65
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 81
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Supply Chain Services
Service: | Import Systems Support | |
Service Description: | Import Systems support services is the collection of applications and services necessary to provide support for the Import function within Supply Chain. | |
Chargeback method: | Actual | |
Service Components: |
Import 2000 |
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Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 82
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IT SERVICES
2012 I&TG Service Catalog
Base Offering: Supply Chain Services
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Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 83
Execution Copy
IT SERVICES
2012 I&TG Service Catalog
Base Offering: Supply Chain Services
68
Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 84
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IT SERVICES
2012 I&TG Service Catalog
Base Offering: Supply Chain Services
Service: | Ordering & Receiving Support | |
Service Description: | Ordering & Receiving Support services include applications and services related to Distribution Center ordering and receiving functions. | |
Chargeback method: | Actual | |
Service Components: |
DC Order Mgmt System (OMS) |
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Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 85
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IT SERVICES
2012 I&TG Service Catalog
Base Offering: Supply Chain Services
Service: | Retail Demand Intelligence | |
Service Description: | Retail Demand Intelligence services are a collection of applications and services which include support for break/fix, monitoring, and enhancements). These systems summarize sales data at various levels to be used by Allocation and Replenishment. | |
Chargeback method: | Actual | |
Service Components: |
BEST |
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Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 86
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IT SERVICES
2012 I&TG Service Catalog
Base Offering: Supply Chain Services
Service: | Return Goods Processing Support | |
Service Description: | Return Goods Processing Support services is responsible for processing Return of Goods via Store along with tracking the Goods received and shipped from Third Party Return Distribution Centers. | |
Chargeback method: | Actual | |
Service Components: |
Return Goods |
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Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 87
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IT SERVICES
2012 I&TG Service Catalog
Base Offering: Supply Chain Services
Service: | Store Space Management Systems Support | |
Service Description: | Store Space Management Systems Support services is a collection of services and applications which provide the functionality necessary to appropriately plan and allocation store space to displays and product placement. | |
Chargeback method: | Actual | |
Service Components: |
Space/Floor Planning |
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Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 88
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IT SERVICES
2012 I&TG Service Catalog
Base Offering: Supply Chain Services
Service: | Transportation Systems Support | |
Service Description: | Transportation Systems Support services is a collection of services and applications which help with the optimization and management of transportation functions and systems. | |
Chargeback method: | Actual | |
Service Components: |
Legacy Transportation |
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Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 89
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IT SERVICES
2012 I&TG Service Catalog
Base Offering: Supply Chain Services
Service: | Vendor Management Services | |
Service Description: | Vendor Management Services is a collection of applications and services which help with the management of SHC vendors and include services for Vendor On-Boarding; including the new Vendor On-Boarding system (VOB). These services are used to on-board new vendors who will be providing products to sell in our Kmart, Sears, TGI and online formats. The application collects all legal documents and information required to do business with an external party. | |
Chargeback method: | Actual | |
Service Components: |
Best Vendor Pack (BVP)
Vendor On-Boarding |
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Exhibit 3 to Appendix 1.01-A
Exhibit 3 to Appendix 1.01-A
Ex. 3 Page 90
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Appendix 1.01-B
Product Services
Except as noted below, Services under this A ppendix 1.01-B (this Appendix ) will be provided by SHMCs Affiliate, SRC through its Home Services group (the Service Provider ) . SHMC will cause the Service Provider and the SPCs (as defined below) to perform Service Provider obligations as set forth below. References to: (x) SHO below include SHOs Affiliates and SHO Authorized Sellers, (y) stores includes stores owned or operated by SHO, its Affiliates or SHO Authorized Sellers (collectively, SHO Stores ) , and (z) Customers means customers of SHO, its Affiliates or SHO Authorized Sellers. SHO shall cause each of its Affiliates and SHO Authorized Sellers to perform SHOs obligations set forth below.
All Service Provider obligations regarding issuing of Protection Agreements (as defined below) will be performed by Sears Protection Company, Sears Protection Company (FL), LLC and Sears Protection Company (PR), Inc. as applicable (collectively, the SPCs ). SHMC guarantees the performance of the SPCs with respect to the provisions regarding Protection Agreements as set forth below. Each of the SPCs appoints and authorizes SHO, Sears Authorized Hometown Stores, LLC, Sears Home Appliance Showrooms, LLC and Sears Outlet Stores, L.L.C. to sell Protection Agreements on the SPCs behalf during the Product Service Term. Of the commission payable to SHO with respect to Protection Agreement sales, the commission attributable to 40% of the sale price shall be paid by the applicable SPC that made the sale and the reminder shall be paid by SRC.
For purposes of this Appendix Products means the Products purchased by SHO and its Affiliates under the Merchandise Agreement (as defined therein), and also includes merchandise purchased by SHO from parties other than SRC and its Affiliates. The parties agree that the Merchandise Agreement and this Product Services Appendix are integrally related and that neither party would have entered into such this Appendix or the Merchandise Agreement individually. For Products subject to a Warranty, Service Provider will provide the Product Services in accordance with the terms the Seller Warranty and the Vendor Warranty (as those terms are defined in the Merchandise Agreement), as applicable.
Vendor Products means Products subject to a third party warranty (e.g., the original equipment manufacturers warranty), but expressly excluding Products subject to a Seller Warranty.
Seller Warranty Products means Products subject to a Seller Warranty.
For SHO Provided Products (as that term is defined in Appendix 1.01-C (Supply Chain Services) SHO shall supply Service Provider with all details of the third party warranty on such Vendor Products, including the serial number of any such products purchased without warranty.
1. PRODUCT SERVICING .
(a) Service Providers Appointment .
(i) Appointment. Except as expressly stated herein, SHO appoints Service Provider during the Product Services Term as SHO, its Affiliates and each SHO Authorized Seller, as their sole and exclusive service contractor (with only the exceptions expressly stated herein) for all service locations (e.g., on site, ORDC, product drop-off) to perform repair and maintenance service on the Products (the Product Services ); whether or not the Products are covered by a Warranty, a maintenance or protection agreement. For clarity, the parties note that except as expressly state herein, the immediately foregoing sentence prohibits repair and maintenance service on the Products by SHO, its Affiliates, the SHO
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Authorized Sellers and any third partys retained by any of the foregoing. Product Services may be performed at Customer locations, in SHOs and its Affiliates store locations ( SHO Stores ) , at SHOs and its Affiliates Outlet repair and distribution centers ( ORDCs ) , at Service Providers locations, and other locations agreed to by the parties in writing from time to time. The term Product Services includes (A) on-site Product Services for Customers ( In-Home Services ) , (B) in-store Product Services for SHO Stores (other than SHO Outlet Stores, In-Store Services ) , (C) Product Services in SHO ORDCs and SHO Stores branded Outlet (collectively, Ou tlet Store Stock Services ) , and Product Services for Products carried-in to SHO Stores ( Carry-In Services ) .
(ii) Service Providers Relationships with SHO Authorized Sellers. For clarity, the parties note that Service Provider and/or its Affiliates have prior to the Effective Date entered into agreements with SHO Authorized Sellers to have such SHO Authorized Sellers to provide Product Services on Service Providers behalf and Service Provider and/or its Affiliates may on after the Effective Date enter into agreements with SHO Authorized Sellers and third parties to provide Product Services and/or other services.
(iii) Limitations on Service Providers Services. Notwithstanding any other provision of this Agreement, Service Provider may, in its sole discretion, decline to perform any Product Service that Service Provider, using commercially reasonable efforts, is unable to perform (or is unable to perform at a commercially reasonable cost), including for Products for which Service Provider is not an authorized servicer; provided , however, Service Provider will only decline the repair of a Seller Warranty Product (each an Excused Seller Warranty Product Repair ) : (A) the Product is inaccessible (as provided for in Section (b)(iii) (Inaccessible Products) below), (B) in Service Providers reasonable judgment, the Product is either: (I) not repairable, or is (II) not economical to repair (using the same standards as Service Provider applies when repairing the same or similar products for its Affiliates). If Service Provider rejects a specific repair for a Vendor Product (each a Rejected Repair ) , SHO may hire a third party contractor to perform the Rejected Repair. Other than for Products owned by SHO which: (1) are located at one of SHOs ORDCs, and (2) do not bear a Seller Mark (as that term is defined in the Merchandising Agreement); SHO may not, in any such case, use employees to perform such Rejected Repairs. Further, Service Provider may elect to refer to the issuer of any third party warranty (e.g., the original equipment manufacturers warranty), the repair of any Product subject to such warranty; which repairs shall not be deemed to be Rejected Repairs. For repairs which Service Provider refers to the issue of a third party warranty, Service Provider shall be responsible for providing the customer with the correct contact information for the issuer of such third party warranty.
(iv) Service Provider Marketing. Subject to the next sentence, Service Provider may engage in marketing activities at the Customers site for any goods and services offered by Service Provider or its Affiliates, including mailing to or leaving with Customers who receive Product Services surveys, brochures, coupons or other advertisements; provided that that Service Provider will not leave at a customers home or mail to a customer (whos information Service Provider has solely received under this Agreement) marketing materials that is intended to encourage the Customer to shop at a physical store or website that primarily sells products which compete with the products sold by SHO or SHO Authorized Sellers. It is not a violation of the foregoing for such material to promote Service Provider and its Affiliates home services web sites (and their successors) (e.g., www.searshomeservices.com and www.partsdirect.com ). If SHO submits a SHO Request (pursuant to Section 1.01E of the Agreement), that Service Provider include SHO promotional materials as part of Service Providers customer-site marketing activities, including mailing to, or leaving with, Customers who receive Product Services surveys, brochures, coupons or other advertisements. Service Provider will evaluate such request in accordance with that Section and, in its response will advise SHO on the charges associated with fulfilling such SHO Request. SHO may not engage in any marketing activity pursuant to the preceding sentence that is intended to encourage the Customer to shop at a store or website operated by or for the benefit of
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SHO or its Affiliates for Products sold by Service Provider or its Affiliates or to sell services which are similar to the Product Services and/or services which would be a violation of any agreement between Service Provider and/or one or more of its Affiliates and SHO and/or one or more of its Affiliates. Notwithstanding the foregoing, Service Provider has a 90 day transition period after the Amendment Effective Date to implement the above restrictions. The Parties expect that Service Provider can do so at little or no cost, if that is not true, the above restrictions on Service Providers marketing will not go into effect and instead will be treated as a SHO Request and the parties will follow the change process set forth in Section 1.01E . (SHOs Requests for Services/System Changes)
(v) Audits. SHO will allow Service Provider and its Representatives to conduct audits and examinations of SHO and its Affiliates and SHO Authorized Sellers operations to confirm SHOs compliance with this Agreement. Except for audits in connection with governmental investigations, such access will be performed upon reasonable notice and during normal business hours, except as may be required on an emergency basis. SHO its Affiliates and SHO Authorized Sellers will provide Service Provider and its Representatives, and any applicable governmental authorities, access to the facilities, systems, books, records and information reasonably necessary to perform the audits described herein.
(b) Service Providers Obligations .
(i) Performance Standards. Service Provider will perform the Product Services in a workmanlike manner, in compliance with all Applicable Laws, consistent with performance standards prevailing from time to time in the product-repair industry and which Service Provider uses for Service Providers Affiliates. Service Provider will maintain and appropriately staff a toll-free telephone number to be used by SHOs Customers when scheduling on-site Product Service. Upon receipt of a call requesting on-site Product Service, Service Provider will use commercially reasonable efforts to schedule Product Service (for Products which Service Provider services) at a time during Service Providers normal business hours that is convenient for the Customer in accordance with Service Providers scheduling procedures in effect for Service Providers external customers, from time to time. Service Provider will use commercially reasonable efforts to provide and complete all Product Service in accordance with Service Providers scheduling procedures in effect on the Effective Date. Service Provider will have the sole and absolute discretion to determine the order for performing Product Services. Service Provider may perform the Product Services utilizing third-party contractors who perform the Product Services using the Sears name and Service Providers Affiliates to the same extent as Service Provider uses third-party contractors and Service Providers Affiliates to perform services for Service Providers other customers. Service Provider will be responsible to SHO in accordance with the terms and conditions of this Agreement for Product Services performed by all third-party contractors including in accordance with Section 5.02(a) Service Provider will use commercially reasonable efforts to cause all Vendors to assume and bear financial responsibility for the Vendor Warranties in accordance with their terms and SHO shall be responsible for any warranty costs not covered by such Vendors.
(ii) Warranty. Service Provider may assume that a valid Warranty is in place on each Product that SHOs customers submit for Product Services. For each customer that calls Service Provider directly seeking Product Service under a Warranty, Service Provider will use commercially reasonable efforts to determine that the customers Product is covered by a valid Warranty. If the Product or required repair is not covered by a Warranty Service Provider may perform the repairs with the customers prior approval and collect and retain from the customer Service Providers customary charges for the services and all applicable sales and use taxes.
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(iii) Inaccessible Products. If a Service Provider technician arrives for a Product Service call and a Product is inaccessible, Service Provider may decline to complete the repair and Service Provider is not responsible for making the Product accessible or completing the Product Service. Examples of product inaccessibility include Products which, in Service Providers technicians view are installed in a manner which: (a) prevent Service Provider from servicing the Product in a normal and customary manner, or (b) which create a risk of injury or damage to the Product or the installation site (e.g., built-in cabinets). At a Product Service call authorized or requested by SHO where the product is not accessible, Service Provider shall only charge SHO the Diagnostic Fee (and no other charge). For all other Product Service calls, Service Provider may charge the customer a fee for its visit. If a customer, for whom Service Provider has declined service due to Product inaccessibility, contacts SHO, SHO will inform them that they need to make the Product accessible and refer them back to Service Provider to schedule a new appointment once the Product is accessible. If the customer persists in contacting SHO after such referral, SHO may offer to help the customer find another service provider (and may offer to pay, at SHOs discretion, and at SHOs sole cost for such provider); however SHO shall instruct the customer that another provider may require the customer to make the product accessible (as this is industry practice).
(iv) Products Beyond Repair. If Service Provider reasonably determines that a Product covered by a Warranty is beyond repair or that it would be uneconomical to repair the Product Service Provider will notify SHO, and Service Provider will have no obligation to repair the Product. In such an event, for Products: (a) not subject to a Seller Warranty, Service Provider shall charge SHO (and SHO shall pay) the applicable Diagnostic Fee, even though Service Provider did not complete the Product Service, and (b) for which the repair would have been covered by the Seller warranty, Service Provider will not charge SHO the Diagnostic Fee, or any other amount. For Services attempts on Products subject to a Vendor Warranty if the Product is subject to Warranty, Service Provider shall contact the Warranty issuer and attempt, on SHOs behalf, to seek authorization for a Warranty replacement. If such authorization is received, Service Provider shall inform the customer and SHO of the Warranty issuers process for such replacement. Service Provider shall not have liability for instances where such authorization is not received and Service Provider is not responsible for the replacement process.
(v) Special Situations. Service Provider will assist SHO with respect to services for special situations involving a large volume of similar repairs or upgrades (such Product recalls or reworks), subject to the Parties written agreement regarding the terms, conditions, and pricing, if any, for these services.
(c) Product Service Warranties . Service Provider hereby warrants to SHO that all functional (non-cosmetic) repairs performed by Service Provider and its Representatives hereunder shall be performed in a workmanlike manner and shall be free from defects in materials and workmanship for (I) Products owned by SHO at a SHO Store and for Products owned or leased by a customer, a period of thirty (30) days from the date the Product Service is completed, and (II) for Products in an ORDC the earlier of: (A) thirty (30) days from the date the Product is sold to a Customer, and (B) seventy-five days the Product Service is completed. If Service Provider is notified during the applicable warranty period of a failure of the Produce for the identical reason the Product Service was performed, then Service Provider will arrange for the necessary repairs or service to be made promptly without additional charges to either the customer or SHO. EXCEPT AS PROVIDED IN THIS SECTION, SERVICE PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCT SERVICES IT PROVIDES OR THE PARTS 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 (INCLUDING THOSE SET FORTH IN THE AGREEMENT), AND EXPRESSLY EXCLUDE THE PAYMENT OF SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS, LOST SALES OR ANY OTHER INCIDENTAL OR CONSEQUENTIAL LOSS). Service Provider shall not be liable for any failure or delay in the performance of its obligations due to circumstances beyond Service Providers reasonable control.
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(d) Customer KPIs . Attachment I (Customer KPIs) to this Appendix sets forth the key performance indicators ( KPIs ) which Service Provider will track and the process to address individual Customers repairs and repairs for SHO customers (in the aggregate) which fall outside the cycle times set forth therein.
(e) Service Processes .
(i) In-Home Services. Unless otherwise directed by Service Provider in writing, SHO, will advise its customers with In-Home Service needs to contact Service Provider via Service Providers toll-free telephone number (or transfer them to such number). SHO will not directly schedule service events for In-Home Service customer repairs. When referring a customer not through the Service Providers toll-free number (e.g., a customer concession), SHO will provide Service Provider with the information reasonably specified by Service Provider, including customer name, address and telephone number, email address, Product type and brand, the date the Product was purchased, whether the Product is covered by a Warranty, model and serial number, and the nature of the problem with the Product (together the Service Information ). SHO and Service Provider are joint owners of the Service Information. SHO may use the Service Information to operate its businesses and for all other purposes in accordance with its privacy policy and Applicable Law (including transfer to, and use by, third parties) without restriction. Service Provider may use the Service Information to complete the Product Services and to engage in the marketing activities described in Section 1(a) in accordance with Service Providers privacy policy and Applicable Law. To the extent Service Information includes customer identifiable information, Service Provider will use such customer identifiable information for no other purpose of any kind whatsoever; provided that the foregoing does not restrict any other rights Service Provider and its Affiliates may have to use such information under separate agreements between: (a) SHO and its Affiliates (e.g. Shop Your Way Retail Establishment) and Service Provider and its Affiliates or (b) Service Provider and/or its Affiliates and such customer (e.g., terms of the Shop Your Way program).
(ii) In-Store Services. When a service call is required for any Product located at a SHO Store (other than an Outlet Store), the store will enter the service order information into the existing store stock service order creation tool (or such other tool provided by Service Provider from time to time). The store must enter the store number, address and telephone number, email address, Product type and brand, the date the Product was purchased, whether the Product is covered by a Warranty, model and serial number, and the nature of the problem with the Product. Service Provider will then arrange for a site visit to perform the Product Services.
(iii) Product Carry-in (Drop-off) Services.
(A) Product Intake . SHO will accept Products for repair at each SHO Store location; however the process does not exist in Sears Outlet Stores and Sears Home Appliance Stores today and the decision whether to implement it will be up to entity operating each such Store (e.g., dealer, franchise or SHO). The list of Products eligible for in-store drop off has been established by Service Provider via: (x) the Serviceable Brands List , which lists which brands are eligible for Product Service, and (y) the Product Service Checklist , which lists which service fulfillment, if any, will be utilized based on the product type, division, and geographic region. The Serviceable Brands List and Product Service Checklist can be change by Service Provider, from time to time, upon notice to SHO, in Service Providers sole discretion. SHO will take possession of the Product, determine the model and serial number for such Product and
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whether there is a valid Warranty or Protection Agreement in place on such product (following procedures specified by Service Provider from time to time). For Products not subject to Warranty (e.g., valid, not expired) or Protection Agreement, SHOs store associate shall inform the customer of the amount required for the repair (based upon rates provided by Service Provider from time to time, the Customer Fee ) . The initial Customer Fees are set forth in Attachment III hereto and can be changed by Service Provider upon 30 days written notice to SHO. If the customer wishes to proceed with the repair, after being notified of the applicable Customer Fee, SHO will produce a service ticket for those items that are accepted for Product Service by SHO in a form to be reasonably specified by Service Provider (which will include providing the Service Information). SHO will also create the order in NPS system (or any replacement system provided by Service Provider). SHO will notify customers that a diagnostic fee, in an amount determined by Service Provider, from time to time, in its sole discretion, will apply to any repair which the customer elects not to proceed with after drop-off.
(B) Non-Warrantied Repairs . For repairs (or portions of repairs) of Products not covered by a Warranty or a Protection Agreement, SHO shall: (i) collect from the customer the Customer Fee and promptly remit it Service Provider, in accordance with the parties past practices, (ii) when implemented by Service Provider, include the amount collected, in the system designated by Service Provider (e.g., POS or NPS) and (iii) schedule the service in Service Providers NPS system (or such other tool provided by Service Provider from time to time). The Carry-In Services center will validate that the amounted listed in the POS records matches the required Customer Fee for the Product described in the service order by the SHO store personnel. If the insufficient funds are noted (e.g., because a portion of the repair is not covered by warranty), the Carry-In Service center will contact the customer and collect the additional fees (and SHO will not be liable for such collection). In the event that a call that is created as an In Warranty or a Protection Agreement service call, but some or all of the service is not covered under the warranty or a Protection Agreement, Service Provider will call the customer, inform them of the total amount that they are responsible for, and collect the amount over the phone.
(C) Product Movement and Repair. For Products picked up using Service Providers shuttles, SHO will be responsible for the safe packing of the Product, and Service Provider will bear the risk of loss or damage to the Product in transit to Service Provider. For Products shipped via a parcel delivery service (e.g., UPS), SHO will: (1) pack such Products in accordance with Service Providers instructions (the Access Point Repair processPackaging Procedures); which instructions Service Provider may change from time to time upon written notice to SHO, and (2) ship the Product using Service Providers shipper to Service Providers designated repair location, and (3) SHO will retain risk of loss for the Product while it is in transit. Service Provider will assist SHO in filing claims against its shippers for damage/loss that occurs during shipment; however Service Provider will have no liability for any amount which shipper fails to pay on such claims. For each Product repaired by Service Provider under this provision, Service Provider will be responsible for its safe packing and shipping to the original drop-off SHO Store location, and Service Provider will bear the risk of loss or damage to the Product in transit such location. Service Provider has the right to eliminate any or all SHO locations as drop-off locations on 30 days notice. For clarity, the parties note that such termination shall not affect, and Service Providers Affiliates remain, independently of this Agreement, responsible for honoring the Seller Warranties and the SPC Protection Agreements, in accordance with their terms.
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(D) Fees . For Products dropped off at a SHO Store for which SHO creates a service order in accordance with this Appendix, Service Provider will, in certain circumstances, pay SHO a service order transfer fee ( SOTF ) of $ 10.50. The SOTF will be recognized at the time the order is created but will only be paid on completed service orders and orders for which Service Provider has collected (and not had to return) an amount at least equal to the Carry-In Diagnostic Fee set forth on Attachment III . No SOTF will be paid on cancellations if the Carry-In Diagnostic Fee is refunded by Service Provider. If a SHO Store creates accepts for service a Product not on the Serviceable Brands List, SHO will be charged a misdirect fee equal to $50. In addition, SHO will not be paid the SOTF if SHO fails to: (I) create the service under the correct item, including listing the proper model/serial#, (II) include the correct customer information on the repair tag and in the NPS tool, or (III) include a detailed description of Product issue(s) in the service order.
(E) Termination of any or all SHO Locations . Service Provider reserves the right to cease accepting from any or all SHO locations products for Carry-In Services: (i) on 30 days prior written notice for Carry-ln Services requested on a cash basis, and (ii) on 90 days prior written notice for all other customers (i.e. warranty and Protection Agreement customers).
(iv) Outlet Store Stock Services.
(A) Service Terms . Service Provider will perform the Outlet Store Stock Services on: (I) all Products located at the Outlet Stores, and (II) for Products located at an ORDC only on Products sold under a Seller Mark (as that term is defined in the Merchandising Agreement); in each case, in accordance with the terms of this Appendix and the Warranty, if any; provided that: (a) for SHO Provided Products Service Provider is not responsible for complying with any warranty terms not provided to Service Provider prior to Service Provider quoting the cost of servicing such products, and (b) any provision of such Warranty which requires services to be performed by an authorized servicer shall not apply. For all Outlet Store Stock Services, SHO will initiate and entitle all Outlet Store Stock Services by entering them into Service Providers existing web based tool. SHO will enter the service event into Service Providers provided existing tool (or such other tool provided by Service Provider from time to time), and SHO will include for each such requested service: date, model#, serial#, product description, brand, and description of problem. To the extent that SHO incorrectly enters such information, and as a result the Service Providers charges to the warranty issuer are rejected by the warranty issuer, then SHO shall pay for such Product Service as if the Product was not covered by a warranty. If SHO makes SNICs available. Service Provider will use SHO provided SNIC devices to scan Products being repaired for inventory tracking purposes. For repairs of Outlet Product which would be covered under the Seller Warranty, the repair of such Product prior to their sale by SHO to a consumer will be covered under this Section (including the cost of parts) as if the repair obligations under such Seller Warranty applied to SHO and its Affiliates (even though they do not). SHO and its Affiliates are not entitled to Product replacement under the Seller Warranty and their sole rights in regards to such Products which are not repaired to a saleable condition are set forth in Section 4(h) ( Invoice Prices for Outlet Products) of the Merchandise Agreement and are subject to the time and other limitations set forth in the Merchandise Agreement. SHO will be responsible for providing Service Provider with suitable space during the Term (with access to power, gas etc.) for Service Provider to perform repairs. Further SHO will allow Service Providers Representatives
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access to the ORDCs during all normal working hours (Monday to Friday); which SHO can adjust upon 30 days prior written notice for seasonal hours so long as the total number of hours are not reduced (e.g., 7am start time instead of a 9am start time in the summer). If requested by Service Provider, SHO will endeavor to make its facilities available on Saturdays for repairsif SHO does not make a facility available when requested on a Saturday, the Cycle-Times set forth in Attachment I shall be extended by a day for each such Saturday. SHO and Service Provider will mutually agree upon reasonable policies regarding Service Providers Representatives access to SHOs facilities.
(B) Limited Repairs By SHO and its Affiliates . Notwithstanding the limitations set forth in Section 1(a)(i) (Appointment) above, SHO and its Affiliates may (collectively, Permissible Repairs ):
(1) permit their employees (but not third parties), repair all Products owned by SHO not bearing a Seller Mark (e.g., not Kenmore, nor Craftsman) at SHOs ORDCs; provided , that SHO and its Affiliates may use third party contractors, on a temporary, staff augmentation basis; and
(2) permit their employees (but not third parties), perform the limited repairs set forth on Attachment II hereto (collectively, the Permissible KCD Repairs ) at their ORDCs on Products owned by SHO which bear a Seller Mark.
Permissible Repairs do not include repair of Products owned by third parties (including consumers).
(C) Additional OR DC Repairs by Service Provider . If requested by SHO (via submission using the web tool used for other ORDC repairs), Service Provider, may, but is not required to, repair Products not subject to Seller Mark on the same terms as Service Provider performs repairs of other vendors products.
(D) Prior Repairs By SHO and its Affiliates . Prior to the Effective Date, SHO and its Affiliates performed (or had performed) repairs of products (collectively the SHO Repairs ). SHO has agreed to cease all repairs other than those expressly authorized herein within 60 days of the Amendment Effective Date; however the parties may by mutual written agreement extend such transition by an additional 30 days (the SHO ORDC Repair Termination Date . The term SHO Repairs includes any repairs performed by SHO after the Effective Date, including any repairs made by SHO in breach of this Agreement. SHO shall retain full liability for any SHO Repairs performed by or its behalf (including repairs performed before and after the Effective Date). Service Provider and its Affiliates shall have no liability to SHO in connection with such SHO Repairs (including any liability under any Seller Warranty). Any third party claim arising in connection with a SHO Repair shall be deemed a SHO Claim and SHO shall defend and indemnify Service Provider and is Affiliates from such SHO Claims as provided for in Article V (Indemnification; Limitation of Liability) of this Agreement. Further, SHO shall reimburse Service Provider and its Affiliates for any costs they incur in connection with such SHO Repairs. SHO shall track the model, serial number, and a description of the repair for each Product that SHO, its Affiliates or its/their Representatives repairs (other than repairs that would qualify as a Non-Mechanical Repairs were they performed on a Product bearing a Seller Mark under Attachment II (Permissible KCD Repairs), as that term is defined therein), and provide such information to Service Provider monthly and SHO shall mark each unit that it repairs with a permanent sticker (mutually acceptable to both parties) indicating it was repaired by SHO.
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(E) Return of ORDC Repair Operations . SHO will work with Service Provider to transition all repairs of Products bearing a Seller Mark back to Service Provider by the SHO ORDC Repair Termination Date. SHO will immediately cease hiring Service Providers technicians (except in locations, if any, where such a restriction is not enforceable or otherwise is contrary to local law). In connection with such transition: (i) SHO will inform its existing technicians who have historically performed level 3 work that SHO is exiting the servicing of Products bearing a Seller Mark (per messaging and a communication plan approved in advance and in writing by both parties), (ii) SHO will allow Service Provide to interview its technicians (level 3 only) at their work location during normal working hours and (iii) Service Provider will interview the existing SHO technicians that Service Provider is interested in possibly re-hiring; subject to Service Provider standard hiring requirements. Service Provider acknowledges that SHO technicians will make their own decisions whether or not to accept a request for an interview and also whether or not to accept a potential offer from Service Provider. SHO represents and warrants that as of the Amendment Effective Date, SHO has accurately set forth in Attachment #4 (SHO Technicians): (A) the number of technicians performing repairs at SHOs ORDCs as of the Amendment Effective Date, and (B) to the best of its knowledge, accurately set forth the volume repairs by category (e.g., non-KCD) set forth therein). Subject to the accuracy of the foregoing representations, Service Provider will not hire more SHO technicians than the number set forth in the column entitled Available SHO Technicians in the table in Attachment #4. After Service Provider completes the transfer of the Product Services for such Products back to its technicians, Service Provider will, to the extent permitted by applicable law, not target any SHO technicians who are performing Permissible Repairs hereunder for hiring without SHOs approval. The restrictions on solicitation in this subsection (E) do not apply to general solicitations (e.g., newspaper ads, job boards, etc.).
(f) Excluded No-Warranty Products . For repair of an Excluded No-Warranty Products (as such term is defined in the Merchandise Agreement), initiated by SHO (e.g., initiated by SHO or by a SHO Store, including customer concession visits requested by SHO), SHO will pay Service Provider at the rates set forth in Section 1(g)(i)(C) below.
(g) Service Providers Charges . For covered repairs, except as expressly provided for herein, Service Providers charges include all: (i) all tech, management and support labor and all parts supply, (ii) all CCN for Product Services related to customer engagement and satisfaction, (iii) all parts sourcing and related management, (iv) all truck expense, including lease, maintenance, fuel and insurance, (v) all supply chain / distribution services related to parts, (vi) all product quality management and overhead expenses; (vii) all claims management services, and (viii) all capital investment to support Product Services. Service Provider will provide all Parts for the Services it performs and will charge SHO for all Parts and Services as set forth below:
(i) Billable Product Services (other than Outlet Store Stock Services and Excluded No-Warranty Products). For Product Services on all Products other than: (x) Product Services on Outlet Products purchased by SHO or its Affiliates from the Service Providers Affiliates, and (y) Excluded No-Warranty Products:
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(A) Vendor-Warranty Products . For Vendor Products, Service Provider will only bill SHO for (and SHO will pay Service Provider for) SHO initiated site repairs (e.g., initiated by SHO or by a SHO Store, including customer concession visits requested by SHO) if any of the following apply: (A) for non-warrantied repairs (e.g., repairs outside of the warranty period or issues not covered by the warranty (e.g., abuse, cosmetic damage, previous entitlement), (B) any repair for Vendor Product where Service Providers fees are rejected by the warranty issuer for any reason, including for repairs rejected on the grounds that the warrantors obligations with respect to the Vendor Product do not extend to Vendor Products purchased (directly or indirectly) by SHO, and (C) repair of Products for which Service Provider is not an authorized servicer.
(B) Seller Warranty Products . For Seller Warranty Products, Service Provider will only bill SHO for (and SHO will pay Service Provider for) SHO initiated site repairs (e.g., initiated by SHO or by a SHO Store, including customer concession visits) for non-warrantied repairs (e.g., repairs outside of the warranty period, issues not covered by the warranty (e.g., abuse, cosmetic damage, previous entitlement). For Completed Product Service (as defined in Attachment I (KPIs for Product Services Provided By Service Provider) on Seller Warranty Products for repair of warrantable items, SHO will not be obligated to pay Service Provider any charges.
(C) Repair Rates (Non-Outlet) . Except as expressly stated otherwise herein, the following rates will apply to all service visits provided to SHO under this Appendix.
(1) Major Repairs. For major repairs (Divisions 22, 26, 42, 46, and 57):
a. Labor* = $117.00 (Standard Repair Rate Major Appliances)
b. Labor* = $ 225.00 (Sealed System Repair Rate)
c. Parts = TSP x .70
d. Diagnostic Fee = $85.00. The Diagnostic Fee will apply to any Product Service attempt in which the Product is not repaired for any reason (e.g., no problem found, additional parts needed, product not found); other than Service Providers technician not having the request skill set to attempt a repair.
(2) Others. For Product Services in Sears divisions 6, 9 and 71 (i.e., lawn and garden and tools):
a. Labor* = $156.00 (Standard Repair Rate)
b. Parts = TSP x.70
c. Diagnostic Fee = $85.00.
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*Commencing one year from the Effective Date, the flat labor rates stated above will increase in an amount equal to the greater of: (a) two and one half percent (2.5%), or (b) actual inflation based upon changes in the Consumer Price index for All Urban Consumers-Expenditures Category All Items Unadjusted 12-months Ended December published by the Bureau of Labor Statistics of the U.S. Department of Labor (the CP Index ) during the previous calendar year.
For example if the CPI Index was 100 for December 2015 and then the CPI Index is 103 for December 2016, then on January 1 st , 2017, the above rates will be increased by 3.00%.
(ii) Product Service for Outlet Stock Products and Excluded No-Warranty Products. For Product Services on Outlet Store Stock Product Services and for Excluded No-Warranty Products, Service Provider will only bill SHO for (and SHO will pay Service Provider for) Product Services:
(A) Vendor-Warranty Products . For: (x) Vendor Products and (y) Excluded No-Warranty Products, Service Provider will only bill SHO for (and SHO will pay Service Provider for) SHO initiated site repairs (e.g., initiated by a SHO Store or SHO ORDC) if any of the following apply: (A) for non-warrantied repairs (e.g., repairs outside of the warranty period or issues not covered by the warranty (e.g., abuse, cosmetic damage), (B) any repair for Vendor Product where Service Providers fees are rejected by the warranty issuer for any reason (e.g., previously repaired products (subject to Service Providers warranty in Section 1(b)(i i)), repairs rejected on the grounds that the warrantors obligations with respect to the Vendor Product do not extend to Vendor Products purchased (directly or indirectly) by SHO), and (C) repair of Products for which Service Provider is not an authorized servicer. For clarity, the parties note that the majority of repairs at SHOs ORDCs are expected to not be covered by a Warranty and therefore will be billed to and paid for by SHO.
(B) Seller Warranty Products . For Seller Warranty Products, Service Provider will only bill SHO for (and SHO will pay Service Provider for) SHO initiated site repairs (e.g., initiated by a SHO Store or SHO ORDC) for non-warrantied repairs (e.g., repairs outside of the warranty period, issues not covered by the warranty (e.g., abuse, cosmetic damage)). For Completed Product Service for repair of warrantable items for Products covered by a Seller Warranty, SHO will not be obligated to pay Service Provider any charges. Further for repair attempts on Seller Warranty Products where the underlying repair would have been covered by the Seller Warranty but the repair was not performed due to an Excused Seller Warranty Product Repair, Seller will not charge Buyer the Diagnostic Fee.
(C) Outlet Repair Rates . Except as expressly stated otherwise herein, the following rates will apply to all service visits for Outlet Store Stock Product Services under this Appendix. For clarity, the parties note that the majority of repairs at SHOs ORDCs are expected to not be covered by a Warranty and therefore will be billed to and paid for by SHO.
Division |
Labor Rate* | Parts Rate | ||||||
Division 6 |
$ | 135.25 | TSP** x 0.70 | |||||
Division 9 |
$ | 130.50 | TSP x 0.70 | |||||
Division 20 |
$ | 95.00 | TSP x 0.70 | |||||
Division 22 |
$ | 95.00 | TSP x 0.70 | |||||
Division 26 |
$ | 95.00 | TSP x 0.70 | |||||
Division 42 |
$ | 82.50 | TSP x 0.70 |
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Division 46 (standard) |
$ | 105.00 | TSP x 0.70 | |||||
Division 46 (sealed system) |
$ | 190.00 | TSP x 0.70 | |||||
Division 57 |
$ | 118.00 | TSP x 0.70 | |||||
Division 71 |
$ | 125.00 | TSP x 0.70 | |||||
Diagnostic Fee |
$ | 85.00 | N/A |
* | Commencing one year from the Effective Date, the flat labor rates stated above will increase in an amount equal to the greater of: (a) two and one half percent (2.5%), or (b) actual inflation based upon changes in the Consumer Price index for All Urban Consumers-Expenditures Category All Items Unadjusted 12-months Ended December published by the Bureau of Labor Statistics of the U.S. Department of Labor (the CP Index ) during the previous calendar year. |
For example if the CPI Index was 100 for December 2015 and then the CPI Index is 103 for December 2016, then on January 1 st , 2017, the above rates will be increased by 3.00%
** | TSP means truck stock pricing (i.e., the price charged by Service Providers technician for Parts quoted at a customers home, from time to time). |
(h) Other Terms .
(i) Paid Calls. Non-Warrantied Customer initiated calls (paid calls) will be charged to the customer at Service Providers rates then if effect, as determined by Service Provider from time to time in its sole discretion, and all applicable sales and use taxes.
(ii) Product Service Not Provided under a Warranty and SHO Approves. For Product Services on Products that are not covered by a Warranty but the Product Services for the Products are approved in writing by SHO, SHO will pay Service Provider its charges specified in this Section 1(g)(i)(C).
(iii) Product Service Not Provided under a Warranty and SHO does Not Approve. If a customer requests Service Provider to perform, and the customer has agreed to pay Service Providers charges for, repairs or other services on Products that are not covered by a Service Provider Warranty and the repairs or other services have not been approved by SHO, Service Provider may collect from the customer and retain Service Providers customary charges for such services, then in effect, as determined by Service Provider from time to time in its sole discretion, and all applicable sales and use taxes.
(iv) Rates for Products Not Regularly Serviced By Service Provider. Service Provider has the right to impose new rates for Product Services for Products which Service Provider has not regularly serviced for SHO, including for high end Products and brands, if SHO increases the amount of such Products that SHO Stores sell (e.g., Jenn-Air, Thermador, Wolf, and Viking). If: (a) SHO anticipate an increase in such Products, (b) Service Provider identifies to SHO that such an increase has occurred, or (c) SHO needs Product Services for new brands/types of products, SHO shall submit a SHO Request pursuant to Section 1.01 E . (SHOs Requests for Services/System Changes) of the Agreement. From the date of Service Providers proposal they parties will negotiate exclusively for a period of 60 days. If the parties agree on SHOs Request and execute an amendment for such SHO Request, Service Provider will take commercially reasonable actions to become an authorized service provider for the Products covered by such request. If the parties are unable, in Good Faith, to agree upon terms for such SHO Request, SHO may seek bona-fide, binding, proposals from third parties. SHO will submit any such proposal that SHO would be willing to accept to Service Provider in writing, and Service Provider will have 30 days to match any such bona-fide proposal. If Service Provider does not, SHO may accept such third parties proposal (in the form submitted to Service Provider); provided that such proposal and the third partys performance under it will not impair Service Providers ability to perform under this Agreement (e.g., by decreasing Service Providers works space).
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2. PARTS.
(a) Source for Parts . SHO appoints Service Provider during the Term as SHO, its Affiliates and each SHO Authorized Seller, as their sole and exclusive provider of parts ( Parts ) for Seller-Branded Products (as that term is defined in the Merchandising Agreement) and for Parts used in repairs of all Products performed by Service Provider. SHO, its Affiliates and each SHO Authorized Seller will only use Parts for Permissible Repairs and for sale to end user customers.
(b) Parts Systems . The Service Providers team will maintain and continue providing access to SHO to Service Providers existing Parts direct ordering systems that SHO uses (the existing store charge process, or its successor). These Services include but are not limited to: (i) sourcing, purchasing, shipping and handling of all Parts orders, (ii) providing sales and commissions files for all Parts Orders placed by SHO; (iii) Service Provider retains 100% of all shipping charges on customer Part orders. SHO may order parts for products not subject to Sellers Marks from Service Provider using such system.
(c) Commissions . Service Provider will pay SHO a 33.5% commission on net (e.g., after cancellations) revenue actually collected by Service Provider from customer Part orders (but not related shipping charges and not on bulk sales over $400) placed at SHO Stores through the Parts direct systems (the Net Parts Revenue ). SHO is responsible for paying to the SHO Authorized Seller (e.g., an HTS owner) a 25% commission on the Net Parts Revenue.
(d) Other . The commissions to be paid by Service Provider under this Section 2 are expressly conditioned upon the Service Provider being the sole and exclusive provider of Parts to SHO, its Affiliates and the SHO Authorized Sellers and Service Provider shall have the right to unilaterally reduce, to an amount of its sole choosing, the commissions paid on sales and renewals of Parts if such exclusivity is violated. SHO is solely responsible for paying any commissions due on Parts sales to its Affiliates, SHO Authorized Sellers and its/their associates. Service Provider must approve in writing, in its sole discretion, any adjustments to the commissions paid by SHO and/or its Affiliates to the SHO Authorized Sellers on Parts sales. SHO assumes sole responsibility for resolving all commission payment disputes with SHO, its Affiliates and the SHO Authorized Sellers and its/their associates on Parts sales.
(e) B ulk Sales . SHO, on behalf of its customers, may place bulk orders, through its Sears Commercial Parts account. For each order of $400 or more, SHO will receive a 25% discount on the transaction and free ground shipping. Orders of less than $400 will not receive a discount or free shipping. All bulk transactions will be handled as a Commercial Parts transaction and the commercial return policy applies to all orders placed via the Sears Commercial account, with a $25 minimum to return, 25% restocking fee, 90 days to return and Service Provider pre-authorization required on all returns.
(f) Store Part Orders .
(i) Store Stock Repairs. SHO will use the store charge process (or its successor) to order missing or damaged parts for a SHO Store display or to replace a missing or damaged parts for a customer on a product purchased from SHO Store. SHO will be billed for these Parts at a cost equal to TSP x .70.
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(ii) Parts for ORDC Repairs. In addition, SHO shall use the store charge process (or its successor) for all Parts: (a) to be used in repairs at SHOs ORDCs performed by Service Provider, and (b) all Permissible KCD Repairs performed by SHO. SHO will be billed for these Parts at a cost equal to TSP x .70. SHO may also choose to use the store charge process (or its successor) to buy Parts for repairs of products not subject to a Seller Mark made by SHO. Service Provider, in its sole discretion, may change the cost to SHO for Parts for such products, from time to time, upon 5 days prior notice to SHO.
(iii) Return of Parts. Parts that are ordered via the store charge process (or its successor) are not returnable unless damaged or defective. Damaged or defective parts will be replaced or refunded.
3. PROTECTION AGREEMENTS.
(a) SPC Exclusive Provider of PAs . Except as expressly set forth herein for Permissible SHO PAs (as defined below), SHO agrees that it will only sell, and SHO will only allow its Affiliates and its SHO Authorized Sellers to advertise, sell or endorse maintenance, extended warranty, service and protection agreements, including product replacement plans, of any kind (e.g., product protection agreements, purchase protection agreements, collectively, Protection Agreements ); issued by the SPCs (no exceptions); worldwide in any distribution channel (e.g., in store, online). For clarity, the Parties note that the term Protection Agreement does not include: (i) manufacturer warranties on Vendor Products included at no additional charge with the Product, and (ii) an after-market warranty which SHO procures from a third party and includes, at no additional charge, when it sell a Vendor Product to a consumer (an After-Market Warranty ). For clarity, SHO notes that After-Market Warranties are provided with certain of the Products it sells; they are not sold separately. Other than Permissible SHO PAs and the After-Market Warranty identified herein for Samsung Products, SHO represents that SHO has ceased selling all third party Protection Agreements and After-Market Warranties prior to the Effective Date and covenants that it will not sell any third party Protection Agreements (each a Third Party PA ) and After-Market Warranty during the Term (again, other than a Permissible SHO PA, and the After-Market Warranty on Samsung Products). SHO shall retain full liability for any Third Party PAs (including Permissible SHO PAs) and for any Third Party Warranty sold by SHO, its Affiliates and each individual or entity authorized by SHO or its Affiliates to sell products or services prior to, on or after the Effective Date. Service Provider and its Affiliates shall have no liability to SHO in connection with such Third Party PAs (including any liability under any Seller Warranty) or After-Market Warranty. Any third party claim arising in connection with a Third Party PA or After-Market Warranty shall be deemed a SHO Claim and SHO shall defend and indemnify Service Provider and is Affiliates from such SHO Claims as provided for in Article V (Indemnification; Limitation of Liability) of this Agreement (without regard to the exceptions set forth therein); except to the extent that such SHO Claims are found by a final judgment or opinion of an arbitrator or a court of appropriate jurisdiction to be caused by: (i) a willful breach of any provision of this Agreement by SHMC; or (ii) willful misconduct of SHMC, its Affiliates, or their respective Representatives in the performance of their obligations under this Agreement. Further, SHO shall reimburse Service Provider and its Affiliates, at the rates provided for herein, for any costs they incur in connection with SHO Responsibility Products (e.g., Third Party PAs and/or After-Market Warranty), including: (a) for service calls in which Service Provider is not informed that the Product is a SHO Responsibility Product until Service Provider arrives on site (in which case the Diagnostic Fee will be charged) if Service Provider does not repair the product and (b) for repairs performed on Products which were not properly identified and marked as SHO Responsibility Products (as required under Section 3(c)(i)(E) (Identification and Marking of SHO Responsibility Products) below.
(b) After-Market Warranty . SHO represents that the only After-Market Warranty it sells as of the Effective Date, is on Samsung Products which SHO buys without a warranty. Service Provider intends to offer SHO a proposal for a replacement after-market warranty provided by Service Providers Affiliate within 30 days after the Effective Date. SHO will consider such proposal in Good Faith, and if it
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provides at least equivalent value to SHO and the consumer purchasing the underlying Product SHO will accept Service Providers proposal; which acceptance will be documented via a written amendment to this Appendix (which must be signed by both parties to be effective). If Service Providers proposal does not provide such equivalent value, SHO will within 10 business days, provide a counter proposal detailing the changes necessary to Service Provider proposal in order to make it equivalent in value (from SHOs perspective) to SHOs existing After-Market Warranty program. Service Provider will have the right to accept or reject such proposal in its sole discretion. If Service Provider accepts, such acceptance will be document via a written amendment to this Appendix (which must be signed by both parties to be effective). In connection with SHO making claims against its After-Market Warranty Provider, Service Provider will, on a monthly basis, to the extent that: (x) SHO has in advance and in writing, provided Service Provider with the model/serial number for such Product, and (y) Service Providers technicians collected such information during their site visit; submit to SHO the typical third party billing details (e.g., model/serial number, repair description) that Service Provider submits to other third party warrantors; provided that Service Provider shall not be liable for any such information that is missing or incorrect.
(c) PA Pricing . Prices for the Protection Agreements will be set by Service Provider in its sole discretion.
(i) Commissions.
(A) Existing PAs . For Protection Agreements offered by the SPCs in SHO Stores and per the SHO Web Platforms (as that term is defined in A ppendix 1.01-D (eCommerce Services) to this Agreement) on and after the start of the second full fiscal month after Amendment Effective Date, Service Providers Affiliates will pay (as further set forth above) SHO a 52% commission on the net (e.g., after cancellations) amount actually collected by SHO and paid by SHO to Service Provider on each sale a Protection Agreement sold by SHO and its Affiliates, and the SHO Authorized Sellers. Cancellations after the start of the second full fiscal month after the Amendment Effective Date on protection agreements sold by SHO prior to the Amendment Effective Date (for which SHO receives a 50% commission) will be netted based upon such 50% commission (not 52%).
(B) Renewal of Product Protection Agreements . In addition, if the holder of a SPC protection agreement on a Product purchased by a SHO customer at a SHO Store or on a SHO Web Platform (before, on, or after the start of the second full fiscal month after the Amendment Effective Date renews its Protection Agreement on such Product during the Product Services Period via a telemarketing or direct mail offer, Service Providers will pay SHO a commission equal to 9% of the net (e.g., after cancellations) renewal revenue actually collected by Service Providers Affiliates on the renewal of such Protection Agreement. No commission is due SHO on a renewal of a Protection Agreement which occurs via other channels (e.g., during a tech visit).
(C) Permissible SHO PAs and After-Market-Warranties and New Protection Agreements and After-Market Warranty . If after the Effective Date, SHO desires to sell a protection agreement of after-market warranty (other than SHOs existing After-Market Warranty described above) not offered by Service Provider to SHO on a Vendor Product, SHO shall submit a SHO Request pursuant to Section 1.01E . (SHOs Requests for Services/System Changes) of the Agreement. From the date of Service Providers proposal they parties will negotiate exclusively for a period of 60 days. If the parties agree on SHOs Request and execute an amendment for such SHO Request, Service Provider will begin offering the new type of Protection Agreement in accordance with such amendment. If the parties are unable, in Good Faith, to agree upon terms for such SHO Request, and if SHOs request was for a protection agreement or after-market warranty on a Vendor Product for which Service Provider does not offer a Protection Agreement or after-market warranty, as applicable (e.g., a fabric protection agreement
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on couches), SHO may seek bona-fide, binding, proposals from third parties for a Third Party PA or After-Market Warranty on such product. SHO will submit any such proposal that SHO would be willing to accept to Service Provider in writing, and Service Provider will have 30 days to match any such bona-fide proposal. If Service Provider does not match such proposal, SHO may accept such third parties proposal in the form submitted to Service Provider and begin offering such Third Party PA (at which point, it will become a Permissible SHO PA) or After-Market Warranty hereunder. This subsection does not give SHO the right to seek third party proposals for (or to otherwise sell) Third Party PAs or After-Market Warranties on products for which Service Provider offers Protection Agreements or after-market warranties, as applicable. For clarity, the Parties acknowledge that as of the Effective Date, the only Permissible SHO PAs are the Guardsman Elite Furniture Protection Plans.
(D) Other . The commissions to be paid by Service Providers Affiliates are expressly conditioned upon the SPCs being the sole and exclusive provider of Protection Agreements (other than Permissible SHO PAs) to SHO, its Affiliates and the SHO Authorized Sellers and Service Provider shall have the right to unilaterally reduce, to an amount of its sole choosing, the commissions paid on sales and renewals of Protection Agreements if such exclusivity is violated. SHO is solely responsible for paying any commissions due on Protection Agreements sales to its Affiliates, SHO Authorized Sellers and its/their associates. Service Provider must approve in writing, in its sole discretion, any adjustments to the commissions paid by SHO and/or its Affiliates to the SHO Authorized Sellers on Protection Agreement sales. SHO assumes sole responsibility for resolving all commission payment disputes with SHO, its Affiliates and the SHO Authorized Sellers and its/their associates on Protection Agreement sales.
(E) Identification and Marking of SHO Responsibility Products . On and after the Effective Date, SHO will each week provide Service Provider with an electronic file, in a mutually acceptable format, which lists the model and serial number for each product which SHO has purchased (collectively, the SHO Responsibility Products ): (I) with either a Third Party PA (including a Permissible SHO PA or a third party After-Market Warranty), or (II) without any warranty; in each case in the period preceding the last file submission (with SHO using all commercially reasonable efforts to include in the first such file all such information for all such products prior to the Effective Date. SHO cannot guarantee Service Provider that it can provide model and serial number for all future purchases; however SHO shall use all commercially reasonable methods to collect such information and shall remain liable to Service Provider for any costs Service Provider incurs as a result of SHOs inability to collect such data. In addition, if SHO purchases or repairs any SHO Responsibility Products on or after the 60 th day after the Effective Date, SHO will use all commercially reasonable efforts to permanently affix to such product an indicator of such products status in a manner and in a location reasonably acceptable to Service Provider (e.g., engraving or permanently writing an X on the serial number plate (in a fashion that does not alter the serial number) for no-warranty product).
4. MONTHLY BUSINESS REVIEWS.
(a) Account Management. Service Provider will appoint an account manager to be the single point of contact for SHO to work with regarding the Product Services. SHO will appoint a single point of contact for all issues regarding Product Services.
(b) MBR. Once per month, the Parties single of point of contact will meet for a monthly business review ( MBR ) of the Product Services. The Parties will mutually agree on the topics to be covered during the MBR, however the MBR will include: (i) a review of the KPI reports provided by Service Provider for the prior month, (ii) Protection Agreement metrics, including penetration rates, and (iii) a review of the following call center statistics for Service Providers member service organization call centers for Product Service calls:
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MSO Metrics for Calls for In-Home Service |
||
Metrics |
Target |
|
Percentage of calls answered within 60 seconds or less | 80% +/- 2% | |
Abandon Rate: % of calls NOT answered within 10 seconds of | < 5% | |
IVR prompt | ||
Quality Score for Call Center | > 95.0% |
Call center hours for Service scheduling and customer assistance for SHOs customers will be the same as Service Providers uses for Sears, Roebuck and Co.s customers.
In the event SHO has sent Service Provider either a In-Home KPI Notice or ORDC KPI Notice as defined below, and such KPI breakdown has not be previously addressed, Service Provider will include in the MBR its plan to address the KPI breakdown, along with a progress report of Service Providers progress in meeting such plan.
(c) Service Event Data. Upon SHOs reasonable written request, Service Provider will provide details regarding Service events performed under this Agreement within the past 120 days; provided such information is readily available to Service Provider and Service Provider can readily segregate such data from data on service events provided non-SHO customers.
5. SHO TERMINATION RIGHTS.
The following are SHOs sole right to terminate individual services under this Appendix. SHO has no other rights to terminate the Product Services described herein:
(a) In-Home Services . If Service Provider fails to achieve, in the aggregate, across a District, the In-Home Services KPI for a Division for such District as set for forth on Attachment I (KPIs for Product Services Provided By Service Provider) hereto, for three consecutive months, then SHO may, within 30 days, send Service Provider written notice, in accordance with Section 6.05 (Notices) of the Agreement, a written warning, which must be titled In-Home Services KPI Warning Notice, and which must specify the District, the Division and include copies of the monthly KPI reports for such District/Division prepared by Service Provider for such months (the In-Home KPI Notice ). If Service Provider fails, during the three consecutive month period after receiving an In-Home KPI Notice which meets the requirements set forth herein, to achieve, on average for such three month period (in the aggregate for such District and Division), the same In-Home Services KPI set forth on Attachment I (KPIs for Product Services Provided By Service Provider), then SHO may, within 30 days, as it sole and exclusive remedy, terminate just the In-Home Services (in total, no partial terminations permitted) for the affected Division, in the affected District; together with the exclusivity associated with such In-Home Services for such Division in such District, by providing 60 days prior written notice of such termination in accordance with Section 6.05 (Notices) of the Agreement. For example, if: (a) Service Provider failed each month, for a 3 consecutive month period, to meet a Home Appliance In-Home Service KPI for a District, (b) SHO properly sent an In-Home KPI Notice for such failure, and (c) then Service Provider failed to achieve, on average, for the next consecutive 3 month period the same Home Appliance In-Home Service KPI for such District; then SHO could terminate all of Service Providers services for Home Appliances (the applicable Division) in such District; but SHO could not terminate Service Providers services for the other Divisions (e.g., Lawn and Garden & Recreation and Fitness) in that District.
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(b) Outlet Store Stock Services. If Service Provider fails to achieve, in the aggregate for an ORDC, an Outlet Store Stock Services KPI for a Division for such ORDC as set forth on Attachment I (KPIs for Product Services Provided By Service Provider) hereto, for three consecutive months, then SHO may, within 30 days, send Service Provider written notice, in accordance with Section 6.05 (Notices) of the Agreement, a written warning, which must be titled Outlet Store Stock Services KPI Warning Notice, and which must specify the affected ORDC, the Division and include copies of the monthly KPI reports prepared by Service Provider for such ORDC for such months (the ORDC K PI Notice ). If Service Provider fails, during the three consecutive month period after receiving an ORDC KPI Notice which meets the requirements set forth herein, to achieve, on average for such three month period (in the aggregate for such ORDC and Division) the same Outlet Store Stock KPI set forth on Attachment I (KPIs for Product Services Provided By Service Provider), then SHO may, within 30 days, as it sole and exclusive remedy, terminate just the Outlet Store Stock Services (in total, no partial terminations permitted) for the affected Division in the affected ORDC; together with the exclusivity associated with such Outlet Store Stock Services for the such Division at such ORDC, by providing 60 days prior written notice of such termination in accordance with Section 6.05 (Notices) of the Agreement. For example, if: (a) Service Provider failed each month, for a 3 consecutive month period, to meet an Outlet Store Stock Services KPI for a Division for an ORDC, (b) SHO properly sent an ORDC KPI Notice for such failure, and (c) then Service Provider failed to achieve, on average, for the next consecutive 3 month period the same Outlet Store Stock Services KPI for a Division for such ORDC; then SHO could terminate all of Service Providers services for such Division at such ORDC; but SHO could not terminate Service Providers services for the other Divisions (e.g., Lawn and Garden & Recreation and Fitness) at that ORDC.
(c) Carry-In Services. Any SHO Authorized Seller, may on its own, and not in coordination with SHO, its Affiliates, or any other SHO Authorized Seller, on 90 days prior written notice terminate, for convenience, Carry-In Services at its SHO Stores. This right does not extend to locations operated by SHO or its Affiliates. If a SHO Authorized Seller complains to SHO about the Carry-In Services, SHO and its Affiliates may, pursuant to an appropriate confidentiality agreement, advise such SHO Authorized Seller (individually, not as part of a group) in writing of its right to terminate such Carry-In Services; provided that SHO marks such communication as confidential and expressly advises such SHO Authorized Seller that they are not allowed to share such notice; nor the substance of it with any third party.
End of Main Body of Appendix
18
Attachment I
(KPIs for Product Services
Provided By Service Provider)
In-Home Service KPIs
Division |
Metric | Threshold* | ||
Home Appliances | Cycle-Time | 12.0 days | ||
Lawn and Garden & Recreation | Cycle-Time | 14.0 days | ||
and Fitness All other Products | Cycle-Time | 14.0 days |
* | The above KPI measurements will exclude any order: (1) where SHO did not comply with this Appendix and/or any processes mutually agreed to by the parties (e.g., for order entry, product or part management), and (2) for paid orders (i.e., orders that are out of warranty and not covered by a Protection Agreement issued by Service Provider or its Affiliates). |
| Definition . Cycle Time is defined as the time elapsed from the date a service order is created in the web tool (or to the extent authorized by Service Provider, NPS), to the date the service order is closed by the Service Providers technician, in Good Faith, as completed because the technician deems the product has been returned to functional condition (each a Completed Product Service ). The Parties acknowledge that it is not unusual for a Product for which a service order was closed to need a subsequent repair (and a new service order to be opened); e.g., due to a failed Part, improper diagnosis, due to the need to repair a separate problem. Subsequent repairs of a warrantied repair will be performed without charge to the extent provided for in Section 1(c) (Product Service Warranties). |
| Measurement . Service Provider will track each of the above In-Home Services KPIs and provide an outlier report once per month by District (as defined below) for the Parties to review during the MBR. KPIs will be tracked for all In-Home Service events performed by Service Provider and its Representatives. |
| Individual Customer Response . Customers that experience a Cycle-Time in excess of the KPIs above will be addressed by Service Provider using a customer management process as outlined below. Service Provider, in its sole discretion, may alter this process from time to time, but any changes made by Service Provider will be no less favorable than Service Provider provides in the majority of its other service customers. Service Provider will review with SHO any such changes in advance of their implementation in connection with orders received under this Agreement. |
1. | Contact the customer |
2. | Confirm that service is still required |
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3. | If yes, try to pull forward to a date acceptable to the customer; if no, gather details on how the issue was resolved |
4. | If pull forward is not available offer concession: |
| For Protection Agreements, Service Provider current process is as follows: Service Provider may change this process, in its sole discretion, so long as purchases of Protection Agreements are treated no less favorably (in aggregate) than other purchasers of SPC protection agreements (subject to any difference in the protection offered under the written terms of such agreements): |
| Inform PA customers of process for service promise reimbursement process, including offering: |
| Allowance up to $50 for rental or other services (e.g. laundromat, grass cutting) until repair is completed; |
| Applicable Food Loss provision; |
| $50 gift card; or |
| Replace the Product |
| Concessions for Products subject to a third party warranty where the Service is provided by Service Provider will depend upon Service Provider and/or SHOs arrangement with the issuer of the warranty. |
| In-Home Services KPI Out of Bounds . Aggregate issues (at the District level) will be handled as follows: |
| If, for a particular District, the average Cycle-Time for all orders for a Division exceeds the above KPI for any reason other than those outside Service Providers reasonable control (e.g., parts on backorder or no longer available), during any 30 day measurement period, then Service Provider will use commercially reasonable efforts to seek to, within the next 30 day measurement period, bring the KPI for such Division back within the thresholds set forth above using its existing resources. Service Provider will inform SHO of the steps Service Provider is taking to bring such KPI back in bounds as part of the MBR. SHO may, in writing to Service Provider, identify potential technicians and if SHO does so, Service Provider will consider retaining them (as either associates or third party contractors); if such individual meets Service Providers standards for such technicians. |
| District means a geographical region used by Service Provider to manage its technicians, as established by Service Provider from time to time (for all of its technicians, not just those providing Services to SHO customers). Service Provider will provide SHO with a list of its Districts, as modified by Service Provider from time to time. |
End of In-Home Services KPIs
2
Outlet Store Stock Services at an ORDC KPIs
Division |
Metric | Threshold* | ||||||
Home Appliances |
Cycle-Time | 12.0 days | ||||||
Lawn and Garden/Recreation & |
Cycle-Time | 14.0 days | ||||||
Fitness All other Products |
Cycle-Time | 14.0 days |
* | The above KPI measurements will exclude any order where SHO did not comply with this Appendix and/or any processes mutually agreed to by the parties (e.g., for order entry, product or part management). The KPI measurement will also exclude any spike in volume for an individual ORDC over the previous 90 days volume run rate of 10% or more; unless SHO has provided 60 days written notice to Service Provider of such on-going increase in volume (e.g., such increase is reasonable and is expected to continue for 1 year or more). |
| Measurement . Service Provider will track each of the above Outlet Store Stock Services at an ORDC KPIs and provide report monthly by ORDC during the MBR for the Parties to review. KPIs will be tracked for all Outlet Store Stock Service events at an ORDC performed by Service Provider and its Representatives. |
| ORDC KPIs Out of Bounds . Issues at the individual ORDC level will be handled as follows: |
| If, for a particular ORDC, the average Cycle-Time in aggregate for all orders for a Division at such ORDC exceeds the above KPI for any reason other than those outside Service Providers reasonable control (e.g., parts on backorder or no longer available), during any 30 day measurement period, then Service Provider will use commercially reasonable efforts to seek to, within the next 30 day measurement period, bring such KPI back within the thresholds set forth above using it existing resources. Service Provider will inform SHO of the steps Service Provider is taking to bring such KPI back in bounds during the MBR. |
| SHO may, in writing to Service Provider, identify potential technicians and if SHO does so, Service Provider will consider retaining them (as either associates or third party contractors); if such individual meets Service Providers standards for such technicians |
End of ORDC Store Stock Services KPIs
1
Carry-In Services KPI
Division |
Metric | Threshold* | ||||||
All |
Carry-In Cycle-Time | 14.0 days |
Carry-in Cycle Time is defined as the number of days beginning with the day the service order is created in the system and ending on the day the product is physically received at the original shipping store or shipped, via a commercially reasonable method, directly back to the customer by Service Provider.
* The above KPI measurement will exclude any order: (1) where SHO did not comply with this Appendix and/or any processes mutually agreed to by the parties (e.g., for order entry, product or part management), and (2) for paid orders (i.e., orders that are out of warranty and not covered by a Protection Agreement issued by Service Provider or its Affiliates). In addition, the Carry-In Cycle-Time measurement will exclude all time the repair is delayed associated with: (x) seeking customer approval of estimate for additional work, and (y) collection of additional monies, including collect calls.
| Measurement . Service Provider will track the above Carry-In Services KPI and provide an outlier report monthly for the Parties review during the MBR. KPI will be tracked for all Carry-In Service events performed by Service Provider and its Representatives. |
| Individual Customer Response . Customers that experience a Carry-In Cycle-Time in excess of the KPI above will be addressed by Service Provider using a customer management process as outlined below. Service Provider, in its sole discretion, may alter this process from time to time, but any changes made by Service Provider will be no less favorable than Service Provider provides in the majority of its other carry-in service events. Service Provider will review with SHO any such changes in advance of their implementation in connection with orders received under this Agreement. |
1. | Contact customer to validate product is still in system and being repaired. |
2. | Provide estimate of return date of the repaired product |
3. | Determine if a concession is necessary for the customer (PA extension or offer gift card, etc.) |
4. | If needed, a concession may be up to and including replacement of product. |
5. | For Protection Agreements, Service Provider current process is as follows: Service Provider may change this process, in its sole discretion, so long as purchases of Protection Agreements are treated no less favorably (in aggregate) than other purchasers of SPC protection agreements (subject to any difference in the protection offered under the written terms of such agreements): |
| Inform PA customers of process for service promise reimbursement process, including offering: |
| Allowance up to $50 for rental or other services (e.g. laundromat, grass cutting) until repair is completed; |
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| Applicable Food Loss provision; |
| $50 gift card; or |
| Replace the Product |
| Concessions for Products subject to a third party warranty where the Service is provided by Service Provider will depend upon Service Provider and/or SHOs arrangement with the issuer of the warranty. |
End of Carry-In Service KPIs
End of Attachment
2
Attachment II
(Permissible KCD Repairs)
1. All Products.
(a) Cosmetic clean-up and repair. Cosmetic clean-up and repair, for example disinfecting, scratch repair, paint/touch-up, replacement of: filters, crisper bins, shelves, racks, bins, grill grates, and drip pans, and general adjustments and alignments); provided in each, that they either: (a) do not require the use of any tools; or (b) do not involve the replacement of any part (collectively Cosmetic Fixes );
(b) Limited Part Replacement . Replacement of screws, fasteners, clamps, spacers, clips, non-functional trim, end caps and cabinet panels (front, back, sides); but expressly excluding refrigerator doors, control panels and any structural or functional items (e.g., washer lids, touch screens) (collectively Limited Fixes , together with Cosmetic Fixes, Non-Mechanical Repairs ).
2. Out of Scope Products . Game table and furniture repair are out of scope and SHO make any and all repairs of these products.
3. Product Specific Repairs . In addition, SHO can perform the following specified repairs for the identified product:
Tractors and Mowers
| Replace worn blades |
| Check Tire Pressure add/remove air in tires |
| Level Deck |
| Use Gas Test Strips to verify Good Gas (volatility) low water content |
| Check clean battery / replace battery |
| Check for Blown Fuse and replace |
| Replace air filter if restricting air flow |
| Add / check oil level |
| Verify spark plug connection and replace plugs |
| Change light bulbs (but not LEDs integrated into the Product (or another part)) |
| Visually inspect for missing items |
| Clean debris / louvers |
| Paint/touch up |
| Cushion Seat seams (hair dryer get rid of seams) |
| Voltage check on batteries |
| Seat safety switch connection |
| Adjust and replace gauge wheels |
| Clean Engine screen |
| Replace air cleaner |
| Make sure the steering plate is clean |
| Replace tires and wheels |
| Replace knobs |
| Replace handles |
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| Replace non-functional body parts (e.g. hoods, fenders) |
| Replace caps (e.g. gas) |
| Replace oil dip sticks |
Snow Blowers
| Adjust skid shoes |
| Adjust 4 way joy stick |
| Replace sheer pins |
| Adjust auger cable |
| Adjust drive cable |
| Replace knobs |
| Replace handles |
| Check Tire Pressure add/remove air in tires |
| Use Gas Test Strips to verify Good Gas (volatility) low water content |
| Check clean battery / replace battery |
| Check for Blown Fuse and replace |
| Add / check oil level |
| Verify spark plug connection and replace plugs |
| Change light bulbs (but not LEDs integrated into the Product (or another part)) |
| Clean debris / louvers |
| Paint/touch up |
| Voltage check on batteries |
| Replace air cleaner |
| Replace tires and wheels |
| Replace oil dip stick |
| Replace caps (e.g. gas) |
Refrigeration Tasks
| clean condenser |
| replace back cover |
| Replace feet/legs |
| replace handle |
| replace ice dispenser bucket assembly if broken |
| replace light bulb (but not LEDs integrated into the Product (or another part)) |
| replace shelves, bins, or baskets |
| replace toe panel/kick plate |
| replace water filter |
| replace control knobs |
| Replace power cords |
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Cooking:
| Replace oven light bulb (but not LEDs integrated into the Product (or another part)) |
| Replace oven light bulb cover |
| Replace back panel |
| Replace drip pans |
| Replace legs/feet |
| Replace surface burner cap (if no tools required). |
| Replace surface burner heads exterior to cooktop (if no tools required) but excludes burners that: (i) are built-in to cooktop, (ii) are positioned below the cooktop, or (iii) require tools for replacement. |
| Replace burner grates |
| Replace oven racks |
| Repair or replace non warmer drawers |
| Replace surface open coil elements (plug in only not wired in) |
| Replace surface burner and oven knobs |
| Clean cooktops |
| Clean stainless steel |
| Test oven temperature |
| Replace knobs |
| Replace handles |
| Replace power cords |
Microwaves
| Replace missing shelves (no tools required) |
| Replace missing glass tray and ring assembly (no tools required) |
| Replace knobs |
| Replace handles |
| Replace feet/legs |
| Replace power cords |
Division 22 Dishwashers
| Casters/Wheels/Feet Adjust Replace |
| Toe Panel Repair/Replace |
| Filter Clean/Replace |
| Upper/Middle/Lower spray arm Adjust/Replace |
| Dish racks Repair/Replace |
| Rack Slide/Rollers Repair/Replace |
| Buttons/Knob, Replace |
| Utensil/Silverware Basket Replace |
| Rinse Aid Cap Replace |
| Light Replace (but not LEDs integrated into the Product (or another part)) |
| Drain Hose Repair/Replace |
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| Replace knobs |
| Replace handles |
| Replace detergent dispensers |
| Replace power cords |
Division 26 Dryers
| Bulbs Replacement (but not LEDs integrated into the Product (or another part)) |
| Leveling Legs, Repair/Replace |
| Knob Replace |
| Door/Lid Adjust/Replace |
| Trim Repair/Replace |
| Handle Repair/Replace |
| Caster Repair/Replace |
| End Caps, Console |
| Lint Screen Replace |
| Drying Rack Replace |
| Lens Light Cover Replace |
| Replace feet/legs |
| Replace power cords |
| Replace doors |
| Replace vents |
Division 26 Washers
| Bulbs Replacement (but not LEDs integrated into the Product (or another part)) |
| Leveling Legs, Repair/Replace |
| Knob Replace |
| Door/Lid Adjust/Replace |
| Dispenser Drawer Repair/Replace |
| Trim Repair/Replace |
| Drain Hose Repair/Replace |
| Pump, Clean/Adjust |
| Fill Hoses Hot/Cold |
| Handle Repair/Replace |
| Caster Repair/Replace |
| End Caps, Console |
| Replace shipping pins on front load washers |
| Replace handles |
| Replace power cords |
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Division 6 Exercising Equipment
Treadmills:
| Inspect all nuts and screws |
| Inspect overall operation |
| Lubricate all pivot points and wheels |
| Engineering modes checks (display, Hardware, Switch tests) |
| Adjust Belt tension |
| Running Belt direction |
| Adding wax to the deck |
| Leveling |
| Replace knobs |
| Replace handles |
| Replace feet/legs |
| Replace power cords |
| Replace non-functional body parts |
Elliptical:
| Inspect all nuts and screws |
| Inspect overall operation |
| Check Belt tension |
| Link Arms Replace |
| Replace Roller wheels |
| Replace Levelers |
| Lubrication all pivot points |
| Replace knobs |
| Replace handles |
| Replace fee/legs |
| Replace non-functional body parts |
| Replace power cords |
Bikes / cycles:
| Inspect all nuts and screws |
| Inspect overall operation |
| Drive belt, idler adjustments |
| Replace knobs |
| Replace handles |
| Replace feet/legs |
| Replace seats |
| Replace non-functional body parts |
| Replace power cords |
End of Attachment
5
Attachment III
Carry-In Services
Initial Customer Fees
Category |
Total Charges
(Includes parts and shipping and handling) |
|
Large lawn and garden repair |
$169.99 | |
Mower repair |
$139.99 | |
Small lawn and garden repair |
$129.99 | |
Non-lawn and garden repair |
$130.00 | |
Misc. |
To Be Priced As Needed | |
Carry-In Diagnostic Fee |
$50 |
End of Attachment
1
Attachment IV
(SHO ORDC Technicians and Repair History)
ORDC |
Repairs of
Products Not Subject to a Seller Mark During Previous 12 Months (e.g., GE) |
Repairs of
Products Subject to a Seller Mark (e.g., KCD) During Previous 12 Months |
Total
Technicians (level 3) |
Available
Technicians (level 3) |
||||||||||||
04052 |
3123 | 697 | 10 | 2 | ||||||||||||
04604 |
300 | 360 | 2 | 1 | ||||||||||||
04616 |
495 | 1157 | 3 | 2 | ||||||||||||
07238 |
406 | 248 | 2 | 1 | ||||||||||||
07405 |
541 | 276 | 5 | 2 | ||||||||||||
07417 |
918 | 366 | 4 | 1 | ||||||||||||
07428 |
1610 | 918 | 10 | 3 | ||||||||||||
07508 |
1307 | 688 | 5 | 2 | ||||||||||||
07568 |
670 | 436 | 8 | 4 | ||||||||||||
07820 |
1925 | 677 | 8 | 2 | ||||||||||||
07875 |
750 | 418 | 2 | 1 | ||||||||||||
09200 |
1564 | 498 | 8 | 2 | ||||||||||||
09240 |
3778 | 891 | 5 | 1 | ||||||||||||
09250 |
1231 | 640 | 8 | 3 | ||||||||||||
09251 |
1349 | 797 | 8 | 3 | ||||||||||||
09379 |
328 | 133 | 4 | 1 | ||||||||||||
09401 |
1159 | 548 | 7 | 2 | ||||||||||||
09449 |
1206 | 493 | 7 | 2 | ||||||||||||
09688 |
577 | 271 | 5 | 2 | ||||||||||||
09889 |
471 | 133 | 8 | 3 | ||||||||||||
09947 |
1178 | 351 | 8 | 3 | ||||||||||||
04612 |
819 | 498 | 5 | 2 |
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Appendix 1.01-C
Supply Chain Services
Services under this Appendix 1.01-C (this Appendix ) will be provided by SHMC through itself and its Affiliates (each, a Service Provider ) and its/their Representatives. SHMC will cause the Service Providers to perform the obligations set forth below. References to: (x) SHO below include SHOs Affiliates, (y) stores includes stores owned or operated by SHO, its Affiliates or SHO Authorized Sellers (collectively, SHO Stores ), and (z) Customers means customers of SHO, its Affiliates or SHO Authorized Sellers. SHO shall cause each of its Affiliates and SHO Authorized Sellers to perform SHOs obligations set forth below.
For purposes of this Appendix Products means the Products purchased by SHO and its Affiliates under the Merchandise Agreement (as defined therein the Sears Provided Products ), and also includes merchandise purchased by SHO from parties other than Service Provider and its Affiliates (the SHO Provided Products ) for which Service Provider provides Supply Chain Services. For clarity, the parties acknowledge that SHO Provided Products includes Buyer-Unique Products, Buyer-Direct Merchandise and all merchandise purchased under a purchase order issued by SHO and its Affiliates. The parties agree that the Merchandise Agreement and this Supply Chain Services Appendix are integrally related and that neither party would have entered into this Appendix or the Merchandise Agreement individually.
1. WAREHOUSING AND DISTRIBUTION SERVICES.
(a) Service Providers Appointment .
(i) Appointment. Except as otherwise expressly stated herein and subject to SHOs right to discontinue Services as provided for in the Services Agreement, SHO appoints Service Provider during the Supply Chain Services Period for SHO, its Affiliates and each SHO Authorized Seller, as their sole and exclusive service contractor (with only the exceptions expressly set forth in Attachment I hereto (Exceptions to Supply Chain Services)) to transport and warehouse Products (the Supply Chain Services ) as set forth in this Appendix, including Attachment II (Supply Chain Service Description).
(ii) Limitations on Service Providers Services. Notwithstanding any other provision of this Agreement, Service Provider may, in its sole discretion, decline to perform any transportation, warehousing or other supply chain service not expressly set forth herein at the charges set forth herein that Service Provider does not provide for its own Affiliates. In addition, Service Provider may decline to provide any Supply Chain Services which, using commercially reasonable efforts, is unable to perform (or is unable to perform at a commercially reasonable cost), including for Products for which Service Provider does not normally provide supply chain services.
(iii) Service/System Changes. If SHO still desires to receive any service declined by Services Provider under Section 1(a)(ii) (Limitations on Service Providers Services), and/or SHO desires any other Service Changes, SHO will submit such request pursuant to Section 1.01E (SHOs Requests for Services/System Changes) of the Agreement. If the Parties do not agree to an Amendment for Service Provider to provide such new services within 60 days, then SHO may: (A) perform such services itself or retain a third party to provide such services but only if SHO and/or its Representatives do not need access to Service Provider and its Affiliates facilities to perform such services and
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the performance of such services by SHO and/or its Representatives will not interfere with Service Providers services hereunder, or (B) terminate all Service Provider services that would be affected by SHO and/or its Representatives performance of such new services and begin (either directly or through a third party) performing such new services on or after the effective date of such SHO termination.
(iv) Audits. SHO will allow Service Provider and its Representatives to conduct audits and examinations of SHO and its Affiliates and SHO Authorized Sellers operations to confirm SHOs compliance with this Agreement. Except for audits in connection with governmental investigations, such access will be performed upon reasonable notice and during normal business hours, except as may be required on an emergency basis. SHO, its Affiliates, and SHO Authorized Sellers will provide Service Provider and its Representatives, and any applicable governmental authorities, access to the facilities, systems, books, records and information reasonably necessary to perform the audits described herein.
(b) Service Providers Obligations . Service Provider will perform the Supply Chain Services in a workmanlike manner consistent with performance standards prevailing from time to time in the supply chain distribution industry. Service Provider will have the sole and absolute discretion to determine the management and work flow for performing Supply Chain Services, but Service Provider may not favor Service Providers other customers (including the Service Providers Retail Businesses) over SHO. Service Provider may perform the Distribution Services utilizing third-party contractors at Service Providers discretion. Service Provider will be responsible to SHO in accordance with the terms and conditions of this Agreement for Supply Chain Services performed by all third-party contractors including in accordance with this Agreement.
(c) Supply Chain Service Warranties . Service Provider hereby warrants to SHO that all Supply Chain Services performed by Service Provider hereunder shall be performed in a workmanlike manner and shall be free from defects in materials and workmanship for a period of thirty (30) days from the date the Supply Chain Services are performed. If Service Provider is notified during the 30-day warranty period of a claim based on the performance of the Supply Chain Services, then Service Provider will arrange for the necessary remediation to be made promptly without additional charges to SHO. EXCEPT AS PROVIDED IN THIS SECTION, SERVICE PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUPPLY CHAIN SERVICES IT PROVIDES INCLUDING 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 (INCLUDING THOSE SET FORTH IN THE AGREEMENT), AND EXPRESSLY EXCLUDE THE PAYMENT OF SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS, LOST SALES OR ANY OTHER INCIDENTAL OR CONSEQUENTIAL LOSS). Service Provider shall not be liable for any failure or delay in the performance of its obligations due to circumstances beyond Service Providers reasonable control.
(d) Obligations of SHO .
(i) Package Labeling. By tendering a shipment of SHO Provided Products to Service Provider, SHO warrants that such shipment has been prepared to ensure safe ground transportation and has been packaged in accordance with applicable law and customary industry practice. SHO shall require all suppliers of SHO Provided Products to legibly mark each package before tendering the shipment for transportation. SHO shall require all suppliers of SHO Provided Products to adequately protect and package any article that is susceptible to damage by ordinary handling and label and mark it conspicuously to alert Service Provider of the possibility of damage from ordinary handling.
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(ii) Hazardous Materials. SHO shall notify Service Provider of any danger inherent in any shipment of SHO Provided Products (other than Products subject to a Seller Warranty), including whether the shipment is radioactive, flammable, explosive, corrosive, oxidizing, asphyxiating, biohazardous, toxic, pathogenic, reactive, allergenic, or are hazardous under applicable state or federal laws or regulations (each a Hazardous Condition ). SHO shall indemnify and hold Service Provider harmless from any loss, injury, death or damage, including all expenses and attorneys fees arising from such condition of the shipment if the shipment is other than as described and notified by SHO to Service Provider. For Sears Provided Products SHO and Service Providers Affiliates will indemnify and hold Service Provider harmless (in proportion to their Subsidy Pro Rata Share for such Product category (as that percentage is calculated under the Merchandising Agreement) from any loss, injury, death or damage, including all expenses and attorneys fees arising from any Hazardous Condition of Sears Provided Product.
2. SERVICES DESCRIPTIONS.
(a) Acceptance of Products .
(i) Rejection of Non-Conforming Products. In the event that SHO Provided Products tendered for Supply Chain Services do not materially conform to the description contained herein, Service Provider may refuse to accept such goods.
(ii) Change Order. SHO acknowledges that Service Provider may modify the rates scheduled if the product storage, handling or accessorial services requested do not match the Supply Chain Services described in this Appendix; provided , however, that any changes to the rate schedule must be mutually agreed in writing. All changes to the Services described in this Appendix must follow the change process set forth in Section 1.01E. (SHOs Requests for Services/System Changes) of the Agreement.
(b) Tender for Storage . SHO shall deliver and shall require its suppliers to deliver all SHO Provided Products for storage at the warehouse properly marked and packaged for handling. SHO (or its supplier) shall furnish at or before delivery a manifest showing marks, brands, or sizes to be kept and accounted for separately, and the class of storage and other services desired.
(c) Transfer, Termination of Storage, Removal of Products .
(i) Timing of Instructions. Instructions to transfer Products on the books of the Service Provider are not effective until delivered to and accepted by Service Provider, and all charges up to the time transfer is made are chargeable to the depositor of record. A transfer (the move of goods from one facility to another, e.g., DDC to MDO or DDC to DDC) that involves handling Products is subject to a charge.
(ii) Moving of Products. Service Provider reserves the right to move Products in storage from the warehouse in which they may be stored to any other of its warehouses as necessary to perform the Supply Chain Services.
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(iii) Removal of Products. Service Provider may, upon written notice to the SHO, the depositor of record or any other person known by Service Provider to claim an interest in the SHO Provided Products, require the removal of any particular SHO Provided Products by the end of the next succeeding four-week storage period. Such notice shall be given to the last known place of business or abode of the person to be notified. If SHO Provided Products are not removed before the end of the next succeeding four-week storage period, the Service Provider may assess additional storage charges for the SHO Provided Products. Under no circumstances may Service Provider sell the SHO Provided Products without first obtaining the written consent of SHO. For purposes of clarity, the Parties note, that this Section 2(c)(iii) (Removal of Products) does not give Service Provider the right to partially terminate this Appendix, but instead only allows Service Provider to require the removal of specific SHO Provided Products in Good Faith.
(iv) Removal of Hazardous Materials. If as a result of a quality or condition of the SHO Provided Products of which the Service Provider had no notice at the time of deposit the SHO Provided Products are a hazard to other property or to the warehouse or to persons, the Service Provider shall notify SHO of the quality or condition promptly upon discovering it. Service Provider may take reasonable, good faith steps to protect the safety of people and property that could be affected thereby, including by relocating the SHO Provided Products, and will charge SHO the reasonable costs of such efforts. SHO shall remove any such SHO Provided Products at Service Providers request. If SHO fails to remove the Products within a reasonable time after Service Providers notice (not to exceed 30 days) Service Provider may dispose of the SHO Provided Products at SHOs expense.
(v) Additional Storage. Additional storage time that is required due to a refused customer delivery or an extended customer delivery appointment, beyond 14 days from acceptance at Service Providers MDO, will result in additional storage charges. Service Provider will send a SHO weekly notice of all Products that have been stored over 7 days.
(d) Handling .
(i) Handling Charges. The fixed handling charge covers the ordinary labor involved in unloading and loading Products, receiving Products at the warehouse door, placing Products in storage, and returning Products to the warehouse door.
(ii) Additional Expenses. Unless otherwise agreed to in writing, additional expenses incurred by the Service Provider in unloading, loading, receiving, or handling of damaged SHO Provided Products from the depositor of record will be charged to SHO; with labor priced at a rate of $50 per hour. These additional handling charges are due and payable on invoicing, unless otherwise agreed to in writing.
(e) Delivery Requirements .
(i) Instructions. No SHO Provided Products shall be shipped out or transferred except upon receipt by the Service Provider of complete written (including electronic) instructions by SHO.
(ii) Delays in Shipping. Service Provider will not be liable for failure or delay in shipping out Products in accordance with SHOs written instructions because of any event specified in Section 6.12 (Force Majeure) of the Agreement, any seizure under legal process, strikes, lockouts, or civil commotions. In any such event, the Service Provider will not be liable for failure to carry out such instructions and Products remaining in storage will continue to be subject to regular storage charges.
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(f) Special Services .
(i) Labor Rate. Warehouse labor required for services other than ordinary handling (e.g., storage temperature range requirements, stacking limitations, etc.) and storage will be charged to SHO at the special rates specified below or agreed to by the parties per subsection (ii) below. Products will be given ordinary handling by Service Provider unless otherwise agreed to in writing.
(ii) Services Outside Scope. Special services outside of the scope of this Agreement and its Appendices requested by SHO will be subject to Section 1.01E (SHOs Requests for Services/System Changes).
(iii) Packaging Materials. Dunnage, bracing, packing materials or other special supplies, may be provided to SHO for SHO Provided Products at a cost equal to Service Providers cost multiplied by 106.5%, subject to SHOs prior agreement.
(iv) Off Hour Receipts. By prior arrangement, Products may be received or delivered during other than usual business hours and may be subject to an agreed upon charge.
(v) EDI Reporting. Service Provider has the ability to transmit data via EDI. The standard fields available to be mapped are available by mutual agreement between SHO and Service Provider. Additional programming or integration will be subject to mutual agreement between the parties.
(g) Sears Provided Products . Nothing in this Appendix shall be deemed to alter when Sears Provided Products (as defined above) are deemed sold and delivered to SHO and its Affiliates under the Merchandise Agreement, including when risk of loss for such Products transfers under the Merchandise Agreement.
(h) Web2Store Supply Chain Flow Path . After the Amendment Effective Date, SHO will submit a SHO Request for establishing a flow path for delivery of Products to SHOs Outlet Stores that are ordered on Sears.com for pick-up in an Outlet Store. SHMC agrees, that notwithstanding Section 1.01 E.(ii) (SHMC Review), SHMC will, in Good Faith, propose an Amendment for implementation of such flow path, as well as any necessary changes to SHMC Systems.
3. ADMINISTRATION OF PRODUCTS SUBJECT TO SUPPLY CHAIN SERVICES.
(a) Liability for Misshipment . If Service Provider negligently misships Products, Service Provider shall pay the reasonable transportation charges incurred to return the misshipped Products to the warehouse and SHO will be entitled to a credit in amount of any charge for re-shipping the goods to the correct destination. Further, if the consignee fails to return the Products, Service Providers maximum liability for such loss will be the invoice value of the lost or damaged Products.
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(b) Reconciliation of Inventory Records . If at any time, discrepancies exist between SHOs records and the physical inventory, Service Provider and SHO shall provide to each other their records of all inventory adjustments from the time of the previous reconciliation to the time of the inventory count in which the discrepancy was found.
(c) Right to Store Products . SHO represents and warrants that SHO: (i) is lawfully possessed of the SHO Provided Products (other than the Buyer-Unique Products which are still possessed by Service Provider or its Affiliates under the Merchandising Agreement) and (ii) has the right and authority to store the SHO Provided Products with Service Provider. All claims, demands, litigation, or suits brought by third parties related to the SHO Provided Products (other than Seller Claims under the Merchandise Agreement) shall be deemed to be a SHO Claim under Section 5.01 of this Agreement.
(d) Demurrage . Service Provider is not liable for demurrage, detention, or delays in obtaining and loading cars or vehicles for outbound shipments, except to the extent the demurrage, detention or delays are the result of Service Providers actions or omissions.
(e) Accurate Information . SHO will provide Service Provider with information concerning the stored Products (other than Products subject to a Seller Warranty) that is accurate and complete in order to allow Service Provider to comply with all laws and regulations concerning the storage, handling and transporting of the stored goods. SHO will indemnify and hold Service Provider harmless from all loss, cost, penalty and expense (including reasonable attorneys fees) that Service Provider pays or incurs as a result of SHO failing to fully discharge this obligation.
(f) Documents of Title . Documents of Title, including warehouse receipts, may be issued either in physical or electronic form at the option of the parties.
(g) Claims . The Parties will follow the procedures for handling claims of loss and damage to the Products as set forth below:
(i) Timing of Claims. SHO must follow the process set forth in Attachment II (Supply Chain Service Description) for all overage, shortage and damage claims of SHO Stores. Further, SHO must file any claims for: (A) damage to Products against Service Provider within four (4) months from the incident giving rise to such claim and (B) loss of Products in Service Providers possession within four (4) months after SHO learns of the loss. Claims by SHO first filed after those dates are deemed invalid. Claims for alleged overcharge or undercharge (due to other than product damage or loss) must be made by SHO within four (4) months of Service Providers invoice.
(ii) Legal Actions. No action may be maintained by SHO or others against Service Provider or its Affiliates for damage or loss to the Products stored unless: (I) the process provided for in (Supply Chain Service Description) and Section 3(g)(i) has been followed, (II) SHO provides timely written notice of its claim in accordance with Section 3(g)(i) , and (III) such an action for damage is filed in a court of competent jurisdiction within 18 months after the date of the occurrence giving rise to the claim, or such an action for loss is filed within 18 months after SHO learns of the loss.
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(h) Risk of Loss . The risk of loss to SHO Provided Products will be borne by Service Provider once SHO delivers the Products to Service Provider or Service Providers contractor or carrier and Service Providers or Service Providers contractor or carrier gains possession and control (as between Service Providers and SHO) of the load. SHO shall work with Service Provider to submit, and at SHOs request, Service Provider shall submit all claims for damage/loss that occurs during shipment by Service Providers shippers; however Service Provider will have no liability for any amount which shipper fails to pay on such claims.
(i) Damage to Products. Service Provider is liable to SHO for any physical loss or damage to SHO Provided Products due to any cause other than by the mere passage of time while in the possession of Service Provider or Service Providers contractor. Service Provider shall promptly notify SHO of the loss of any Products in its possession.
(ii) Aggregate Liability. Service Providers total aggregate liability to SHO under this Agreement for loss or damage to the SHO Provided Products will be subject to a maximum limit of $2,500,000.
(i) SHO Reviews . Service Provider will allow SHO (but not SHOs Affiliates nor SHOs Authorized Sellers) and SHOs Representatives access to SP Facilities, to perform the specific reviews set forth below. Except for reviews in connection with governmental investigations, such access will be given upon reasonable advance written notice and during normal business hours, except as may be required on an emergency basis. Service Provider and its Affiliates will provide SHO (but not SHOs Affiliates nor SHOs Authorized Sellers) and SHOs Representatives access to the facilities and any information reasonably necessary to perform the following reviews:
| Reviews by SHOs lenders (and its lenders agents) of SHO Provided Products (excluding Buyer-Unique Products) held at SP Facilities; |
| Reviews by SHOs external auditors and their agents to perform audits as requested by SHOs Audit Committee in order for the Audit Committee to meet its obligations in accordance with applicable law. |
| Reviews by SHO external auditors required for compliance with SOX or other Applicable Laws, including access to SHOs internal auditors to the extent they are participating in such reviews at the direction of SHOs external auditors; and |
| Reviews of SHO Provided Products (excluding Buyer-Unique Products) which have been damaged or subject to HAZMAT or other regulatory/compliance claims, including stop-sale merchandise, product recalls, and manufacturer shipping/loading compliance issues. |
Service Provider may require SHO and its representative to agree to reasonable terms and conditions (re confidentiality, site access, safety and security); prior to giving SHO and its Representatives access to SP Facilities. In addition, Service Provider will allow governmental regulators access to SP Facilities as required by Applicable Law.
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4. TERMINATION OF SERVICES
(a) Exit of a Distribution Center . SHO may not terminate individual Services within a facility (i.e., a service that occurs within that facility, or otherwise at the location, e.g., CRC, LSC, DDC, RRC, MDO) provided by Service Provider, its Affiliates or its/their Representatives (each a SP Facility ); instead SHO must terminate all Service Provider Supply Chain Services at the SP Facility and all cross dock Supply Chain Services related to that SP Facility. If SHO terminates its use of a SP Facility, there will be no adjustment to the fixed costs set forth herein, unless and until SHO exits all of the Supply Chain Services in the Territory supported by that SP Facility.
(b) Outbound Distribution . SHO may not terminate outbound distribution Supply Chain Services from a SP Facility unless and until SHO has terminated all Supply Chain Services at that SP Facility. Notwithstanding the foregoing, SHO may pick-up Products at an MDO via the MPU functionality as provided below (and subject to the addition fees stated herein).
(c) Partial Termination of a Product Flow Path . SHO may not 1 terminate a portion of the product flow path, for example the delivery of cross docked Products (e.g., picking up Products at the cross dock SP Facility is not permitted); however SHO may terminate inbound delivery to a SP Facility for SHO Provided Product (other than Buyer-Unique Product).
(d) End of Existing Exclusive Service . Subject to the restrictions set forth herein, SHO may terminate the exclusive nature of any Supply Chain Services provider herein upon 90 days prior written notice to Service Provider; provided however, if such termination would require Service Provider to alter any of its remaining Services (including making any changes to SHMC Systems or processes), such changes will be subject to Section 1.01E . (SHOs Requests for Services/System Changes).
End of Main Body of Appendix
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Attachment I
(Exceptions to Supply Chain Services)
The following are the only logistics, warehousing, transportation, home delivery, haul away and reverse logistic (including, customer return center operations) and other services similar to those set forth in this Appendix that SHO and its Affiliates may, as of the Effective Date, provide for themselves and/or contract with third parties for:
1. Warehousing of Outlet Products (as that term is defined in the Merchandising Agreement) and SHO Provided Products at SHO and its Affiliates ORDCs.
2. Delivery Services from SHO Stores.
3. For Sears Provided Products and Buyer Unique Products not bearing a Seller Mark, SHO may, upon 30 days prior written notice to Sears (each a Retention Notice ); elect to retain defective and returned units of such Products; provided that on and after the effective date of each such Retention Notice, SHO shall no longer be entitled to share in defective and returned subsidy for such Products.
4. Delivery of Products to customers from Sears Outlet Stores and : (a) delivery of Products from SearsOutlet.com, (b) delivery of Products stored in the Puerto Rico DC for Puerto Rico Outlet Stores. Absent a mutually agreed to Amendment to this Appendix 1.01-C (Supply Chain Services), the delivery Services set forth in §2(a) and (b) will provided at the existing rates until, July 1, 2016 (the Outlet Decision Date ) and thereafter will be discontinued; absent a written amendment to this Appendix signed by both parties to the contrary.
5. Delivery of SHO Provided Products directly to SHO Stores, SHO ORDCs and other SHO Facilities (including delivery to SHO ORDCs of distressed and refurbished products that SHO buys from third parties).
End of Attachment I
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Attachment II
(Supply Chain Service Description)
Table I . The following table only applies to Sears Provided Products:
Service or Business Area |
Table I - Services for Sears Provided Products |
Fees |
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Transportation |
1. International Transportation: Ocean Carriers
Service Provider manages the shipment of goods on ocean vessel from foreign port to US destination.
If final destination of the shipment is inland US, this service also includes the truck or rail transportation movement and cost to deliver the goods from the US port of arrival to the Distribution Center (DC) destination.
Optimize routing to minimize transit times and costs, negotiate contracts with carriers, provide volume forecasts, oversee performance and timely delivery of shipments to deconsolidation centers and distribution centers.
Expedites shipments as necessary using alternate transportation modes, carriers and routing. |
Transportation Services: Freight Charges will be passed through to SHO at cost.
Ad Hoc Services $75 per man hour
Freight Cost Allocation: Service Provider will allocate freight costs to SHO as follows: The total transportation cost of each shipment is allocated to SHO based on the percentage of each SHO destinations shipping volume to the total volume shipped in that transport.
Rates and costs are subject to change based on rate negotiations with Service Providers carriers. |
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2. Freight Forwarding. Services provided by Forwarders :
Service Provider serves as liaison between vendors and ocean carriers to create booking (reservation) for goods to ship on designated vessels.
Manages exceptions and obtain approval from Service Provider for shipments outside tolerance
Freight Forwarders provide consolidation services overseas to optimize container loading utilization.
Forwarder verifies the shipment quantity and provides the Advance Ship Notice (ASN) to alert Service Provider systems of the shipment details
Oversees performance, ensuring optimal container loading, timely and accurate data transmissions |
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Service or Business Area |
Table I - Services for Sears Provided Products |
Fees |
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Provides shipment tracking tools to Service Provider users
Creates transit matrix which establishes lead time from vendor delivery to store delivery
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3. Customs :
Brokerage Services: Service Provider provides the services of customs agents who file Customs entry for import merchandise shipments on behalf of SHO, following all of the applicable rules and regulations for US Customs and other Government Agencies to allow goods to enter the commerce of the United States
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4. Costs incurred :
Service Provider pays taxes due the US Government, including Duty, Harbor Maintenance Fees, Merchandise Processing Fees, etc. for Sears Provided Products.
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5. Other costs incurred for import shipments reported to US Customs :
Service Provider pays royalty fees for SHO to have the right to sell goods with a brand or trademark which is owned by another company
Service Provider pays commissions due to Buying and Selling agents who have assisted with the purchase of foreign goods, usually a percent of the cost
Service Provider declares classification according to the US Harmonized Tariff Schedule for every imported item
Service Provider determines the duties owed and establishes costs that must be reported to US Customs
Oversight of Customs Broker performance: on time filing, accuracy (including annual audit), and timely clearance
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6. Deconsolidation
Service Provider provides processes and facilities to break down (deconsolidate) large imported shipments into quantities that can be distributed efficiently to the various distribution centers that serve SHO retail locations and then ships them to those distribution facilities. At Service Providers Third Party Operated Flow-Through facilities, Service Provider:
Takes in ocean containers shipped from multiple countries and use the Inventory Allocations to build outbound loads to inland distribution centers, optimizing US freight costs, acting as deconsolidation and consolidation center
Moves full truckloads of merchandise from Deconsolidation center to distribution centers or stores
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Service or Business Area |
Table I - Services for Sears Provided Products |
Fees |
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Cost includes the facility handling costs as well as domestic transportation cost from Decon center to inland DC
Provides direction and forecasts to ensure efficient and timely flow of goods, continuously monitor performance
Expedites shipments as necessary by prioritizing cargo, employing alternate transportation modes, carriers and routing
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7. Domestic Transportation :
Inbound . Service Provider transports vendor freight collect merchandise to the various distribution centers that serve SHO retail locations. As part of this service, Service Provider:
Manages all vendor freight collect to DC transportation
Establishes vendor routing guides and monitor compliance
Dynamically optimizes daily freight movements using the Transportation Management System to determine the least cost flow alternative to meet the specified dates
Tracks, traces and expedites individual shipments to meet desired specified business needs
Manages claims asserted by or against carriers, such as cargo damage, demurrage, etc.
Manages and ensures consistent evaluation of carrier performance
Outbound . Service Provider transports goods from its distribution centers to stores. This service includes:
Contracting for domestic inbound/ outbound transportation through a sequential combinatorial bid process using historical lane volumes and store clusters. Lanes awards to carriers take into account the least cost alternative that meets the service requirements
Managing flow of merchandise from DC to all SHO locations
Managing load planning, tracking and tracing of home delivery from Direct Delivery Centers ( DDC ) to store and to Market Delivery Operations ( MDO s )
Establishing store delivery schedules from DCs to store based on historical volumes.
Note: Effective April 30, 2016: |
Inbound Freight and Outbound Freight are charged as set forth in Section 1 (International Transportation: Ocean Carriers) above.
If the percentage of SKUs for SHO Provided Products ever exceeds 5% of the total SKUs sold by SHO, then the Outbound Freight will equal the Service Providers cost multiplied the SPP Shipping Upcharge set forth in the Table II below in the Domestic Transportation Section. |
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Service or Business Area |
Table I - Services for Sears Provided Products |
Fees |
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(a) SHO will take over all shipments of full truckloads of products to (inbound) and from SHOs ORDCs (outbound). Service Provider will continue to provide LTL and Parcel shipments inbound and outbound from the ORDCS for a period not to exceed 90 days from the Amendment Effective Date (to provide SHO time to find other carriers). Service Provider will, upon SHOs written request, provide during such 90 day period a good faith quote for the price at which Service Provider would be willing to continue such LTL and Parcel shipments beyond such 90 day period.
(b) In addition SHO will take over responsibility for shipment of Outlet Products from Service Providers MDOs to SHOs ORDCS provided that SHO: (i) provides Service Providers MDO teams with contact info for SHOs carriers, (ii) SHO agrees to provide requested trailers(s) within 72 hours of Service Providers request to SHOs carriers, and (iii) SHOs carriers remove their trailers from the MDOs within 48 hours of the MDOs notice that the trailer is ready for pick-up. If SHO does not comply with the foregoing, Service Provider will have the right to ship the Outlet Products to SHOs ORDCs, using Service Providers own carrier, and SHO will pay the cost of such shipment plus 10%.
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8. IT System
System integration for Service Providers systems only.
Network security and system access for Service Providers systems only.
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Inventory Management |
See description of services and processes set forth in Appendix 6 of the Merchandising Agreement. |
$121,000 for each FTE associate dedicated 100% to serving SHOs business.
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Warehouse Distribution |
1. Inbound Receiving
Receive Goods and update appropriate systems based on receipt
Unload, count and verify
Reconcile actual receipts to PO using vendor ASN
Update on hand and on order
File OS & Ds on behalf of Service Provider
Follow standard seal control process
Receive Goods and Advance Ship Notices (ASN) directly from a Vendor or customer.
Receive replenishment stock Goods as well as flow-through Goods
Receive via three inbound modes |
See Exhibit 2 and Billing Methodology Language below. |
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Service or Business Area |
Table I - Services for Sears Provided Products |
Fees |
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Drop trailer/ container
Live unload appointment (minimum 24 hour advance notice)
Small package
Take delivery of shipments per Service Provider requirements
Receiving vendor compliance
Pass receipt information to existing Service Provider Vendor Compliance
Liquidate and dispose of problem receipt items per Service Provider defined disposition rules
Carton inspection
Provided as a Special Services as SHO requests
Receive goods with priority given to age of trailer on lot and demand for product
Receiving documents retention
Maintain electronic data for receipt to PO visibility (At least 120 days for RRC; At least 180 days for DDC)
Keep hard copy Bills of Lading and Vendor Manifests for period specified by Service Provider
Unload and Put-away
Unload and put away/ store Service Provider items per recommended handling vendor packaging guidelines and Service Provider current operating processes.
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2. Outbound Shipping
Fill Customer Orders by shipping on Point of Sale assigned date dependent on inventory availability.
Ship Customer orders as priority over store replenishment orders.
Receive Orders throughout the day, everyday
Fill Replenishment Orders dependent on inventory availability
Ship replenishment orders on requested ship date with ability of DCs to pull forward or push out based upon current parameters with Service Provider
Ship Layaway orders if SHO elects Layaway when SHO removes layaway pend at Point of Sale.
Exception Handlings
At time of order filling, if item is not available to fulfill a customer order:
Customer orders - Service Provider will pick except to backorder
Home delivery electronically notify Home Services/CCN to reschedule/ re-reserve order
Back to store electronically notify Service Provider POS (SCIM)
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Service or Business Area |
Table I - Services for Sears Provided Products |
Fees |
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RIM orders (store replenishment) Service Provider will pick except/cancel
Replenishment systems will reorder as needed
Place fulfilled orders onto outbound trailers
Generate an outbound ASN (EDI 856 Electronic Shipping Notice) which matches contents of the trailer to support store receiving process
Create a Bill of Lading (BOL) which supports the Department of Transportation (DOT) requirements
Ship to the stores on regular delivery schedule and communicate any changes/ exceptions to the store
DC will provide Seal Control log with each shipment for Loss Prevention verification to ensure trailer integrity. For multi-stop trailers DC Service Provider will provide the number of seals for each stop to ensure integrity between stores.
Support current Loss Prevention and Quality Assurance processes
Provide shipping services to the 50 US states, District of Columbia, Puerto Rico, Guam and Bermuda.
Upon request, SHO will make available for pick-up all pallets provided by Service Provider.
For export shipping, Service Provider will ship to selected offshore freight forwarder. SHO is responsible for providing necessary export documentation to their freight forwarder
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3. Storage
Service Provider will provide the real estate footprint to accommodate DC planned inventory.
If SHO misses forecasts which results in exceeding available capacity Service Provider will, at Service Providers discretion, obtain additional capacity whether it is storage trailers, short term leased space or 3 rd party providers.
Capacity available will be based on plan; rate will be dependent on rate addendum. If actual storage is 110% or more in excess of plan, the rate on the storage in excess of the 100% capacity will increase by 20%. Storage will be defined in cubic feet for RRCs and square feet for DDCs. If SHOs actual use of storage is under plan, storage charges will reflect a reduction in the variable costs. Fixed costs will remain the same.
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These charges will be calculated quarterly. | |||
4. Physical Inventory Ownership : At no point in time will ownership of the inventory be transferred to Service Provider |
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Service or Business Area |
Table I - Services for Sears Provided Products |
Fees |
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Title of Goods
Title to Goods and any proceeds of such Goods will remain at all times with the owner and shall not pass to Service Provider under any circumstances.
It is agreed that title to such Goods will pass to SHO upon receipt at a Hometown Store or an Outlet store or appropriate SHO facility.
Physical Responsibility:
Inventory responsibility will not transfer from the owner to Service Provider until Goods are identified and receipted in at point of unloading and confirmed receipts verified.
Inventory responsibility will be concluded as product is loaded and confirmed out of the facility via the printing of a trailer bill of lading ( BOL ) by the DC.
Inventory Accuracy
Processes will be consistent with Service Provider and continue as in past
Cycle count program will continue to follow current Service Provider Audit Program
Cycle counting will be performed at a rate of 12% (locations) per month for nine consecutive months
Conduct an annual Sampling
An annual sampling is completed at each Distribution Center in the spring with a % of bins identified in advance which are counted on the designated date by an independent auditing team. Results are compared and verified.
Inventory shrink is calculated based on comparison of book (General Ledger) vs. perpetual (DOS). An inventory shrink/gain allowance is in effect with Service Provider and current process will remain in place. Service Provider is not liable to SHO for inventory shrink/gain.
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5. Special Services
Subject to the limitations in the right hand column, requests from SHO for the Special Services which are not part of Service Providers base Receiving, Order Filling or Shipping will be handled via a Special Project Request at Special Project rate.
All Special Project Requests will be handled through Service Provider assigned Manager of Supply Chain Operations for Hometown and Hardware Stores and through the Service Provider Director of Return Logistics for Outlet Stores. |
For Special Services, $50 per hour (unless a separate rate is negotiated by the Parties and agreed to in advance and in writing).
All ongoing changes to Services and incidents which |
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Service or Business Area |
Table I - Services for Sears Provided Products |
Fees |
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Special Requests are defined as not normal day to day business of receiving, order filling and shipping which may include but are not limited to:
Product/ carton Inspection
Out of area shipping
Vendor or item specific on hand verification
QA Issues like product re-labeling, re-ticketing, re-cartoning etc.
On demand cycle counts
Stop Sale and/or Stop Shipping (lock bins)
Full Truckload special off-site store sales
Store Openings
Store Closings
Planned
Unplanned
Other services not specified in this Appendix.
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are reasonably expected to exceed $50,000 shall be not be performed as Special Services but instead will be subject to Section 1.01E (SHOs Requests for Services/System Changes) of the Agreement. | |||
6. Disposition of Unsalable, Defective and Obsolete Goods
Process DC returns to Vendor via RA/RGI procedures (Return Authorization/Return Goods Invoice)
Provide liquidation service (sell to salvager, destroy/deface and dispose) per Service Provider direction
Manage the liquidation of damaged merchandise (assigned to damage bin) per Service Provider guidelines
Service Provider manages store liquidation recoveries such as Craftsman Tool Returns and Store RA/RGI flowing via its reverse logistics network.
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7. Facility Operations
Description of the facilities available to SHO and Facility hours of operations
These services are performed from network of approximately 34 distribution facilities in the U.S.
Facilities operate year round with the exception of Holidays as per Service Providers standard operating procedures.
Access to facilities will be accommodated in accordance with Service Providers standard operating procedures
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8. Logistics Administrative Services
Customer Service
Service Provider will assign a Manager of Supply Chain Operations (MSCO) to act as single point of contact for SHO. The following services are included:
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Service or Business Area |
Table I - Services for Sears Provided Products |
Fees |
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Works with business on new initiatives and defining new requirements
Provides escalation support for day to day activities
Logistics Planning as described below.
Expedited Shipments (Inbound & Outbound)
Inventory Transfers
QA Issues, such as product re-labeling
Product Inspection
Vendor or item specific on hand verification
Out of area shipping
Vendor Support
Facilitate Vendor Returns
Support initial and seasonal sets, and new product launches
Participate in early planning sessions with Business
Assist in flow path decisions
Communicate volume and timing to Transportation/DC prior to product flowing
Act as conduit within the Supply Chain network
Identify cost/service impacts for business initiatives
Note: Vendor Inbound Shipment/ Tracking services are performed between order entry inventory management and transportation
Store Support Department ( SSD )
Provide a single national contact phone # of the servicing distribution center - the SSD
Provide a load quality survey with every shipment to allow stores to provide electronic feedback to the Distribution Centers
Work on behalf of store:
For claims Overs/Shorts/Damages (OS & Ds)
Trailer damage to property
Transportation Management Visibility (OTM)
Provide a Website link for stores to see their truck delivery time and current shipment planned ETA and summary of contents
DC/Store Support
Review specific business requirements with Managers of Supply Chain Operations and translate into a prioritized action plan for Logistics Services, Inventory Management, Transportation and Distribution Centers
Coordinate resolution with Corporate SHMC/SHO businesses for DC service issues
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Service or Business Area |
Table I - Services for Sears Provided Products |
Fees |
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Provide corporate project management and process directions to the Distribution Centers
Develop and document business function operating policies
Assist with the development and implementation of strategic planning
Work with operations teams to determine optimal product placement and handling strategies
Manage and perform any special requests as required within the network
Execute Network Realignments as needed; communicate with various stakeholders; monitor so that necessary tasks are completed at correct times.
Approve all Reverse Flow (store back to DC) requests; execute properly for each retail format
Network Design and Flow Path
Provide long term network plan based on the mid to long term corporate initiatives
Incorporate SHO stores (both Hometown and Outlet) into Network Planning Models for alignment to the Distribution Centers while keeping Home Delivery dependencies intact
Work on four-walls continuous improvement projects by simulating and mathematically modeling DC Operations
Work with Supply Chain Finance and Industrial Engineering to establish rates for activities performed
Assist SHO with distribution options for new product lines.
Conduct Flow Path Analysis of distribution options. Provide feedback for expense and inventory levels. Analysis to be provided under terms of the Billing Methodology.
Import vs. Domestic Buy
Flow vs. DC Stock
Direct to Store vs. DC Stocking
Case Pack vs. Repack
Project Management resources
Return Logistics (Central Return Centers)
Manage all Vendor return and product liquidation processes/ agreements
Third Party Warehouse Management
Procure and manage 3 rd party DC relationships and contracts as needed to meet SHO requirements.
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Service or Business Area |
Table I - Services for Sears Provided Products |
Fees |
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Short-term and long-term project management
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9. Logistics for Puerto Rico
Provide all logistics support for shipments of Sears Provided Products to and from SHO locations in Puerto Rico
Pricing / rates for Supply Chain Services will be consistent with Service Provider rates for Service Providers Affiliates location in Puerto Rico
Any rate changes will be reviewed with SHO 90 days prior to implementation.
Provide all logistics support for the delivery of Sears Provided Products to Customers sold via Home Delivery, on an as needed basis.
Provide all logistics support necessary to complete store or customer generated RORs, on an as needed basis
ROR process in Puerto Rico, including transfer rates, will be consistent with Service Provider mainland processes and rates for Sears Provided Products
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10. Home Delivery for Puerto Rico (Puerto Rico Warehouse)
Delivery services to customers homes in Puerto Rico market (excluding Outlet) unless otherwise agreed upon as a Hybrid delivery market (same as mainland Home Delivery services).
Haul away of existing customer product (s) (as applicable)
Basic hook-up / overview of product in the customer home will be offered (as applicable)
Fly by and Fly Back
Pick up customer sold product at the store for delivery which is an additional stop charge expense.
Provide merchandise pick-up (MPU) from warehouse for customer orders
RORs (Record of Return)
ROR process in Puerto Rico will be consistent with Service Provider mainland processes and rates for SHO Provided Products.
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11. Outlet store scope with Service Provider Central Return Centers:
Service Provider (through its Central Return Centers) will deliver Outlet Products to SHOs Outlet Stores. Outlet Products (non-hazardous) means DRM, MOS and other Outlet Products sold to SHO as defined in the Merchandise Agreement.
Perform facility management and data processing services for SHO at the CRC Facilities.
1. Acceptance of Outlet Products : Receive and verify receipt of all Outlet Products and scan or enter product information into the data processing system. |
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2. Loading and Handling : Direct the loading of the Outlet Products so as to promote safety of the Outlet Products in transit and ease of handling in delivery. Service Provider shall mark, stencil, apply bill of lading information (as applicable) and segregate all Outlet Products and shall block, brace and/or gate the containers, trailers or trucks as appropriate.
3. Shipping Schedules and Load Factors : Adhere to the shipping and departure schedules mutually agreed upon by Service Provider and SHO. SHO agrees to provide shipment destination information on each completed load within 2 business days of being notified that the load is ready for shipping.
4. Service Provider Transportation : Maintain shipping schedules while achieving an acceptable load factor, in cooperation with Service Provider Carrier Management on all truckload shipments.
5. Documentation : Prepare and maintain bills of lading and other shipping documents. Bills of lading and other shipping documents shall be made available to carriers at the scheduled shipping or departure times, in a form that facilitates the receipt of Outlet Products at the designated receiving location and the filing of claims by SHO or its vendors against carriers for Outlet Products lost or damaged in transit, if necessary.
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Compliance | ||||
Global Compliance |
For Sears Holdings Provided Products, SHMC will monitor and enforce compliance by vendors and manufacturers with applicable local law, SHLD internal standards, and other SHLD social compliance requirements with respect to child labor, wages, hours, benefits, pay, discrimination, harassment, environment, and health, and safety. To the extent SHO or its Affiliates may sell any products that are labeled or marketed under an SHLD-owned brand, SHO agrees to perform its own factory audits for these products through a third party, at SHOs own cost, and a program approved by SHLD, and will provide the results of those audits to SHLD.
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Product Safety | For Sears Provided Products, SHMC will provide routine notifications of stop sale/recall information for Product bearing a Seller Mark (as that term is defined in the Merchandising Agreement). | No Additional Charge |
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BILLING METHODOLOGY
1. Logistics Billing Methodology
Variable handling billing
Rates for the RRCs are by flow path and by product size (Small, Medium, Large and Extra Large). Each Div-Line is placed into a size group at the beginning of the year based on prior years average inbound carton cube for that Div-Line.
Rates for the DDCs are by flow path and division.
SHO will be billed based on disbursement volume out of the distribution centers.
Fixed handling billing
Fixed Handling represents the portion of logistics cost that does not vary with volume and that is not related to storing merchandise.
SHO will be charged the fixed rates set forth in Exhibit 2 .
Storage billing
Cost is based on usage of DC inventory space.
SHO will be billed based on cubic feet of RRC inventory space and square feet of DDC inventory space.
Cubic/Square foot space usage is allocated to SHO based on the % of total division level volume attributed to the business.
There are, as of the Effective Date, no charges for RDC services to SHO. SHO will be charged variable handling rates for RDC services for merchandise shipped directly from an RDC to a SHO store, if that service is requested.
Storage and Handling Rates by Flow Path are listed in Exhibit 2- Logistics Rates.
2. CRC Handling and Transportation
CRC handling services are billed on a per scan basis.
Transportation rates are based on the average size of the item. SHO is assigned a rate based on the average cube per selling unit.
Salvage revenue is derived from recovery of salvageable merchandise. Rate is set in accordance with Service Providers agreement with third party(ies). |
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3. Billing of Overhead Expenses
SHO will be billed for other Logistics Overhead expenses based on the percentage of total DC handling expenses (fixed and variable) attributed to SHO. Other Overhead Expenses are defined as Supply Chain Management overhead minus Inventory Management, Space Management and Global Sourcing. |
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4. DC Markdowns
DC Markdowns include inbound damage, price change markdowns, price protection subsidy, and damage caused during storage and handling at the DC.
Service Provider will allocate DC Markdowns to SHO as follows, consistent with the parties past practices:
Each fiscal month, Service Provider will determine DC Markdowns entered by merchandise division from SHMCs Essbase system data.
Based on SPRS data, Service Provider will determine the allocation of DC Markdowns for the fiscal month by merchandise division and by format (internet, Auto Center, Contract Sales, Hometown Store, etc.)
Using the allocation determined from SPRS data above, the total of DC Markdowns determined by Essbase will be allocated to SHO. |
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5. Special Projects
Special requests for non-standard services, such as re-ticketing or re-cartoning, will be charged to SHO on a per project basis.
Amount of the charge will be equal to the number of hours worked on the project multiplied by $50 (the hourly special project rate); unless a different rate is agreed to as provided for herein.
The project must be pre-approved by submitting the Special Project request form. SHO should contact its MSCO if it requires a Special Project.
All ongoing changes to Services and incidents which are reasonably expected to exceed $50,000 shall be not be performed as Special Services but instead will be subject to Section 1.01E (SHOs Requests for Services/System Changes ) of the Agreement. |
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6. Third Party Warehouse Management .
Third Party rates and billing will be agreed upon by SHO, Service Provider and the Third Party where Third Party services are determined by SHO and Service Provider to be the best option. |
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7. Supply Chain Services charges for Sears Provided Products will be billed monthly and trued-up to the actual expense at the end of each quarter. This will involve a comprehensive review of all Supply Chain Services charges.
8. Puerto Rico Warehousing No Charge
9. Puerto Rico Home Delivery : SHO will be charged the carrier expense for home deliveries. SHO stores will be billed a percentage of the total MDO monthly carrier expense equal to SHOs percentage of total home delivery stops completed in Puerto Rico during the month. |
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CLAIMS |
Claims for OSD (Over/ Short/Damages) shall be processed with the following guidelines:
1. All SHO Stores and ORDCS will have 48 business hours from delivery arrival to call in all shortages, overages, or other discrepancies.
2. All SHO Stores and ORDCS will have 48 business hours from delivery arrival to call in all damages.
3. All OSD claims shall begin with contacting the SSD at the respective DC facility. If the SSD is not available at the time of the call, the SHO Store representative shall leave a detailed message regarding the OSD, including identifying affected Products.
4. The SSD department will issue a claim number for each incident.
5. The SSD will research the claim and determine an appropriate resolution. |
Table II . The following table only applies to SHO Provided Products (including Buyer-Unique Products) which are to be sold at the following SHO formats: (a) Sears Hometown Stores, (b) Sears Home Appliance Showrooms, and (c) Sears Hardware Stores. The following Supply Chain Services do not apply to: (x) SHOs Sears Outlet Stores, and (y) Outlet Products sold to SHO under the Merchandising Agreement.
For all SHO Provided Products (other than Buyer-Unique Products), the following Services, and the related charges will be subject to revision as part of Service Providers review and approval of SHOs proposed Migration Plan for the SHO PO System and its integration with Service Provider Provided Systems pursuant to Section 1.03 (SHOs Migration Off of Transition Services) of this Agreement. In order for Service Provider to assist SHO under this Appendix with SHO Provided Products (other than Buyer Unique Products) which SHO will be taking ownership of overseas, SHO must: (a) prior to any such Products purchase secure (and maintain for the Supply Chain Period) SHOs own importer of record number (which number will be used for all SHO Provided Products), and (b) prior to the shipment of such Products, enter into (and maintain for the Supply Chain Period), ocean freight contract(s) with an ocean freight provider who, at the time of such shipment, is providing ocean freight for Service Provider or its Affiliates.
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New Merchandising Implementations |
For Buyer-Unique Products SHO is limited each year to the amount of the Buyer-Unique Product permitted under the Merchandising Agreement. For all SHO Provided Products (including Buyer-Unique Products), the Parties will establish a cap on the amount of SHO Provided Products (the SPP Cap ) that SHO may store in Service Providers and its Affiliates distribution facilities ( DCs , including DDCs and RRCs) for the balance of the year in which the SHO PO System is implemented, as well as a SKU count plan (each a SPP SKU Count Plan ) for the Sears Provided Products which would be purchased in accordance with the SPP Cap; provided that Service Provider has agreed to a SPP Cap for 2016 of $ 17 million. For each fiscal year thereafter, SHO must provide by November 30 th a formal plan for Service Providers approval with the following year estimate of SHO Provided Product SKUs and volumes. After receipt of such estimate, Service Provider will establish a SPP Cap and SPP SKU Count Plan for the following year.
For each new SHO Provided Product
1. SHO will provide weekly reports to Service Provider listing all SHO Provided Products, by SKU, which SHO desires Service Provider to provide Services for under this Appendix over the next 90 days. For each SKU SHO will list the proposed vendor and whether such SKU has been purchased by Service Provider or its Affiliates from such vendor previously or not.
(i) The Parties, including respective designees, will meet 2 times each month to review the SHO provided weekly reports and discuss SHO Provided Products SHO desires Service Provider to support under this Appendix. SHO will identify SHO Provided Products to be purchased, vendor of that inventory, and SHOs desired flow path for such Products.
(ii) Service Provider is not obligated to support any SHO Provided Products which: (I) in Service Providers view would cause the amount of SHO Provided Products to in the future exceed the SPP Cap, or (II) would violate any other restriction in this Agreement, including causing Service Provider to violate any applicable law in the storage, distribution or delivery of such SHO Provided Products.
(iii) If Service Provider does not have the warehouse space to accommodate SHOs forecasted needs for SHO Provided Products, Service Provider will promptly notify SHO and if requested by SHO (per Section 1.01E (SHOs Requests for Services/System Changes) of the Agreement), Service Provider will obtain a proposal for additional warehousing space for those |
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SHO Provided Products.
(iv) New SHO Provided Products onboarding process
(A) SHO will submit new unique items that require DC stocking to Service Provider following established flow path process:
(1) Items must be approved under this process before the products are shipped to Service Provider facilities.
(2) SHO must provide 90 day advance notice regarding SKU additions of more than the greater of: (a) 5% over the original SPP SKU Count Plan for that year, or (b) 25 SKUs over the original SPP SKU Count Plan for that year.
(3) SHO must provide volume forecast of new SKUs at time of submittal (inbound, outbound, storage as described under forecasting requirements
(4) If SHOs change in SKU or flow paths resulting from additions or subtractions of SHO Provided Products and corresponding changes to needs for Sears Provided Products has a significant impact on Service Providers productivity costs and/or storage capacity, the parties will need to agree to an adjustment to the costs hereunder and the costs under the Merchandise Agreement (each via an written amendment, subject to the necessary approvals) before Service Provider will be required to purchase, distribute, store and/or sell such SHO Provided Products.
(B) SHO will identify and communicate a (single point of contact) to work with Service Provider for planning assistance with new product launches seasonal sets, new or closing stores, flow path decisions and operational issues.
(C) SHO will provide feedback via digital load quality surveys
(D) SHO will provide competent inventory management to drive inventory productivity and space utilization
(E) Service Provider reserves right to adjust pricing per flowpath review for non-conforming, home deliverable items (e.g., tractor/shed that needs more assembly). |
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Transportation |
1. International Transportation: Ocean Carriers
SHO manages the shipment of goods on ocean vessel from foreign port to US destination using an Ocean Carrier acceptable to Service Provider.
If final destination of the shipment is inland US, Service Provider will be responsible for the truck or rail transportation movement and cost to deliver the goods from the US port of arrival to the Distribution Center (DC) destination. |
Transportation Services: Freight Charges will be billed to SHO at a rate equal to 106.5% multiplied by Service Providers cost. |
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Service Provider will optimize routing to minimize transit times and costs, oversee performance and timely delivery of shipments to deconsolidation centers and distribution centers.
SHO will be responsible for providing accurate volume forecasts.
Upon SHO request, Service Provider will, at SHOs sole cost and expense, expedite shipments as necessary using alternate transportation modes, carriers and routing. |
Ad Hoc Services $75 per man hour
Freight Cost Allocation: Service Provider will allocate freight costs to SHO as follows: The total transportation cost of each shipment is allocated to SHO based on the percentage of each SHO destinations shipping volume to the total volume shipped in that transport. |
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2. Freight Forwarding. Services provided by Forwarders:
Service Provider serves as liaison between vendors and ocean carriers to create booking (reservation) for goods to ship on designated vessels.
Manages exceptions and obtain approval from Service Provider for shipments outside tolerance
Freight Forwarders provide consolidation services overseas to optimize container loading utilization.
Forwarder verifies the shipment quantity and provides the Advance Ship Notice (ASN) to alert Service Provider systems of the shipment details
Oversees performance, ensuring optimal container loading, timely and accurate data transmissions
Provides shipment tracking tools to Service Provider users
Creates transit matrix which establishes lead time from vendor delivery to store delivery |
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3. Customs:
Brokerage Services: Service Provider provides the services of customs agents who file Customs entry for import merchandise shipments on behalf of SHO, following all of the applicable rules and regulations for US Customs and other Government Agencies to allow goods to enter the commerce of the United States |
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4. Costs incurred: |
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SHO pays taxes due the US Government, including Duty, Harbor Maintenance Fees, Merchandise Processing Fees, etc. for Sears Provided Products.
Service Provider pays the fees for Customs Broker services (the Broker Charges ) for Sears Provided Products and SHO will pay Service Provider 106.5% times the Broker Charges. |
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5. Other costs incurred for import shipments reported to US Customs:
SHO pays royalty fees for SHO to have the right to sell goods with a brand or trademark which is owned by another company
SHO pays commissions due to Buying and Selling agents who have assisted with the purchase of foreign goods, usually a percent of the cost
SHO declares classification according to the US Harmonized Tariff Schedule for every imported item
SHO determines the duties owed and establishes costs that must be reported to US Customs
Service Provider provides oversight of Customs Broker performance: on time filing, accuracy (including annual audit), and timely clearance |
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6. Deconsolidation
Service Provider provides processes and facilities to break down (deconsolidate) large imported shipments into quantities that can be distributed efficiently to the various distribution centers that serve SHO retail locations and then ships them to those distribution facilities. At Service Providers Third Party Operated Flow-Through facilities, Service Provider:
Takes in ocean containers shipped from multiple countries and use the Inventory Allocations to build outbound loads to inland distribution centers, optimizing US freight costs, acting as deconsolidation and consolidation center
Moves full truckloads of merchandise from Deconsolidation center to distribution centers or stores
Cost includes the facility handling costs as well as domestic transportation cost from Decon center to inland DC
Provides direction and forecasts to ensure efficient and timely flow of goods, continuously monitor performance
Expedites shipments as necessary by prioritizing cargo, employing alternate transportation modes, carriers and routing |
Deconsolidation Services will be billed to SHO at a rate equal to 106.5% multiplied by Service Providers cost. |
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carriers, (ii) SHO agrees to provide requested trailers(s) within 72 hours of Service Providers request to SHOs carriers, and (iii) SHOs carriers remove their trailers from the MDOs within 48 hours of the MDOs notice that the trailer is ready for pick-up. If SHO does not comply with the foregoing, Service Provider will have the right to ship the Outlet Products to SHOs ORDCs, using Service Providers own carrier, and SHO will pay the cost of such shipment plus 10%. |
The SPP Shipping Upcharge will be determined at the end of each Service Provider fiscal quarter, and the new SPP Shipping Upcharge, if any, will be applied to the following fiscal quarter.
For example, if in the 4 th fiscal quarter of 2018, the SHO SKU % went from 4% to 10%, the SHO would, at the start of the 1 st fiscal quarter for 2019 begin paying a SPP Shipping Upcharge of 1.0150 (e.g., if the Outbound Freight cost for a shipment was $80, SHO would pay $81.20 for each delivery (regardless of whether the Product was a Sears Provided Product or a SHO Provided Product). |
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Warehouse Distribution |
1. Inbound Receiving
Receive Goods on behalf of SHO and update appropriate systems based on receipt
Unload, count and verify
Reconcile actual receipts to PO using vendor ASN
Update on hand and on order
File OSD claims on behalf of SHO
Follow standard seal control process
The existing Service does not include special receipt and warehousing treatment (e.g., locked cages) for high-value goods (e.g., jewelry, premium priced home appliances or home electronics). If SHO desires such Services, they will be subject to Section 1.01E (SHOs Requests for Services/System Changes) of the Agreement.
Receive Goods and Advance Ship Notices (ASN) directly from a Vendor or customer. |
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Receive replenishment stock goods as well as flow-through goods
Receive via three inbound modes
Drop trailer/ container
Live unload appointment (minimum 24 hour advance notice)
Small package
Take delivery of shipments per Service Provider requirements
Receiving vendor compliance
Pass receipt information to existing Service Provider Vendor Compliance for Buyer-Unique Products and to SHO for all other SHO Provided Products.
Liquidate and dispose of problem receipt items per SHO defined disposition rules
Carton inspection
Provided as a Special Services as SHO requests
Receive goods with priority given to age of trailer on lot and demand for product
Receiving documents retention
Maintain electronic data for receipt to PO visibility (At least 120 days for RRC; At least 180 days for DDC)
Keep hard copy Bills of Lading and Vendor Manifests for period consistent with what Service Provider does for Sears Provided Products.
Unload and Put-away
Unload and put away/ store SHO Provided Products items per recommended handling vendor packaging guidelines and Service Provider current operating processes. |
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2. Outbound Shipping
Fill Customer Orders by shipping on Point of Sale assigned date dependent on inventory availability.
Ship Customer orders as priority over store replenishment orders.
Receive Orders throughout the day, everyday
Fill Replenishment Orders dependent on inventory availability
Ship replenishment orders on requested ship date with ability of DCs to pull forward or push out based upon current parameters
Exception Handlings
At time of order filling, if item is not available to fulfill a customer order:
Customer orders - Service Provider will pick except to backorder
Home delivery electronically notify Home Services/CCN to reschedule/ re-reserve order |
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Back to store electronically notify Service Provider POS (SCIM)
RIM orders (store replenishment) Service Provider will pick except/cancel
Replenishment systems will reorder as needed
Place fulfilled orders onto outbound trailers
Generate an outbound ASN (EDI 856 Electronic Shipping Notice) which matches contents of the trailer to support store receiving process
Create a Bill of Lading which supports the Department of Transportation (DOT) requirements
Ship to the stores on regular delivery schedule and communicate any changes/ exceptions to the store
DC will provide Seal Control log with each shipment for loss prevention verification to ensure trailer integrity. For multi-stop trailers DC Service Provider will provide the number of seals for each stop to ensure integrity between stores.
Support current loss prevention and quality assurance processes
Provide shipping services to the 50 US states, District of Columbia, Puerto Rico, Guam and Bermuda.
Upon request, SHO will make available for pick-up all pallets provided by Service Provider.
For export shipping, Service Provider will ship to selected offshore freight forwarder. SHO is responsible for providing necessary export documentation to their freight forwarder. |
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3. Inbound Vendor Cross Docking
Cross dock cartons by 2 forms:
Cross dock inbound Vendor cartons from upstream DCs and move cartons to stores while providing systemic information of contents (JIT, RIM Flow and Central Stocking processes)
Cross dock Vendor Direct to Store cartons via servicing RRC (EMP Expedited Merchandise Process)
RRC acknowledges the carton ID (no receipt) as arrived at RRC and ships out on next store delivery
RRC passes vendor provided information via ASN to store. Store receipt triggers payment to vendor.
Move cross dock cartons to stores on next outbound delivery. DCs do not stock cross dock product |
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Support stores that ship directly from Service Provider distribution centers (DDCs and RRCs). HAS (Home Appliance Showrooms) do not have cross dock services (break pack, EMP, JIT, multiple items/multiple stores per carton) available. For HAS Service Provider will continue to support: (a) RRC to MDO to Store flow path, (b) bi-weekly shipments from the RRC of central stock break packs via parcel delivery service (e.g., UPS). |
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4. Storage
Service Provider will provide the real estate footprint to accommodate DC planned inventory.
If SHO misses forecasts which results in exceeding available capacity, including space utilized for any pack-away request, Service Provider will, at Service Providers discretion, obtain additional capacity whether it is storage trailers, short term leased space or 3rd party providers at additional cost to SHO
Capacity available will be based on plan; rate will be dependent on rate addendum. If actual storage is 110% or more to plan, the rate on the storage in excess of the 100% capacity will increase by 20%. Storage will be defined in cubic feet for RRCs and square feet for DDCs.
If SHO comes in under planned storage usage, the storage charges will reflect a reduction in the variable costs. Fixed costs will remain the same. |
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5. Physical Inventory Ownership: At no point in time will ownership of the inventory be transferred to Service Provider.
Title of Goods
Title to SHO Provided Products and any proceeds of such Products will remain at all times with SHO and shall not pass to Service Provider under any circumstances.
Physical Responsibility:
Inventory responsibility will not transfer from SHO to Service Provider until SHO Provided Products are identified and receipted in at point of unloading and confirmed receipts verified.
Inventory responsibility will be concluded as product is loaded and confirmed out of the facility via the printing of a trailer BOL by the DC.
If Service Provider provides transportation for SHO Provided Products, SHO must file a claim for loss or damage to cargo, in accordance with the Service Providers customary process |
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Inventory Accuracy
Processes will be consistent with Service Provider and continue as in past
Cycle count program will continue to follow current Service Provider Audit Program
Cycle counting will be performed at a rate of 12% (locations) per month for nine consecutive months. After each month, Service Provider will provide SHO with a report of any adjustments to SHO Provided Products that were made in the prior month.
Conduct an annual Sampling
An annual sampling is completed at each Distribution Center in the spring with a % of bins identified in advance which are counted on the designated date by an independent auditing team. Results are compared and verified.
Service Provider is not liable to SHO for inventory shrink/gain; except as expressly set forth in the Billing Section below. |
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6. Special Services
Subject to the limitations in the right hand column, requests from SHO for the Special Services which are not part of Service Providers base Receiving, Order Filling or Shipping will be handled via a Special Project Request at Special Project rate.
All Special Project Requests will be handled through Service Provider assigned Manager of Supply Chain Operations for Hometown and Hardware Stores and through the Service Provider Director of Return Logistics for Outlet Stores.
Special Requests are defined as not normal day to day business of receiving, order filling and shipping which may include but are not limited to:
Product/ carton Inspection
Out of area shipping
Vendor or item specific on hand verification
QA Issues like product re-labeling, re-ticketing, re-cartoning etc.
On demand cycle counts
Stop Sale and/or Stop Shipping (lock bins)
Full Truckload special off-site store sales
Store Openings
Store Closings
Planned |
For Special Services, $50 per hour (unless a separate rate is negotiated by the Parties and agreed to in advance and in writing).
All ongoing changes to Services and incidents which are reasonably expected to exceed $50,000 shall be not be performed as Special Services but instead will be subject to Section 1.01E (SHOs Requests for Services/System Changes) of the Agreement. |
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Unplanned
Other services not specified in this Appendix |
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7. Disposition of Unsalable, Defective and Obsolete Goods
Process DC returns to Vendor via RA/RGI procedures (Return Authorization/Return Goods Invoice)
Manage the movement of damaged/returned SHO Provided Products (assigned to damage bin) per SHO guidelines or by agreement with_Service Provider; however all such damaged/returned SHO Provided Products must be removed from Service Provider DCs, and other facilities within 30 days; unless otherwise agreed, in advance, and in writing by both Service Provider and SHO.
Service Provider manages store liquidation recoveries such as Store RA/RGI flowing via our reverse logistics network. |
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8. Facility Operations
Description of the facilities available to SHO and SP Facilities hours of operations
These services are performed from Service Providers network of approximately 34 distribution facilities in the U.S.
Facilities operate year round with the exception of Holidays as per Service Providers standard operating procedures.
Access to SP Facilities will be accommodated in accordance with Service Providers standard operating procedures |
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9. Logistics Administrative Services
Customer Service
Service Provider will assign a Manager of Supply Chain Operations (MSCO) to act as single point of contact for Hometown and Hardware Stores. The following services are included:
Works with business on new initiatives and defining new requirements
Provides escalation support for day to day activities
Logistics Planning as described below.
Expedited Shipments (Inbound & Outbound)
Inventory Transfers
QA Issues, such as product re-labeling
Product Inspection
Vendor or item specific on hand verification
Out of area shipping
Vendor Support
Facilitate Vendor Returns
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Support initial and seasonal sets, and new product launches
Participate in early planning sessions with Business
Assist in flow path decisions
Communicate volume and timing to Transportation/DC prior to product flowing
Act as conduit within the Supply Chain network
Identify cost/service impacts for business initiatives
Note: Vendor Inbound Shipment/ Tracking services for these types of orders is not provided. Only confirmation of vendor receipts will be provided.
SSD
Provide a single national contact phone # of the servicing distribution center - SSD
Provide a load quality survey with every shipment to allow stores to provide electronic feedback to the Distribution Centers
Work on behalf of store:
For claims Overs/Shorts/Damages (OSDs)
Trailer damage to property
DC/Store Support
Review specific business requirements with Managers of Supply Chain Operations and translate into a prioritized action plan for Logistics Services, Inventory Management, Transportation and Distribution Centers
Coordinate resolution with Corporate Service Provider/SHO businesses for DC service issues
Provide corporate project management and process directions to the Distribution Centers
Develop and document business function operating policies
Assist with the development and implementation of strategic planning
Work with operations teams to determine optimal product placement and handling strategies
Manage and perform any special requests as required within the network
Execute Network Realignments as needed; communicate with various stakeholders; monitor so that necessary tasks are completed at correct times.
Network Design and Flow Path
Provide long term network plan based on the mid to long term corporate initiatives
Incorporate SHO stores (both Hometown and Outlet) into Network Planning Models for alignment to the Distribution Centers while keeping Home Delivery dependencies intact |
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Work on four-walls continuous improvement projects by simulating and mathematically modeling DC Operations
Work with Supply Chain Finance and Industrial Engineering to establish rates for activities performed
Assist SHO with distribution options for new product lines.
Conduct Flow Path Analysis of distribution options. Provide feedback for expense and inventory levels. Analysis to be provided under terms of the Billing Methodology.
Import vs. Domestic Buy
Flow vs. DC Stock
Direct to Store vs. DC Stocking
Case Pack vs. Repack
Project Management resources
Return Logistics (Central Return Centers)
Manage all Vendor return and product liquidation processes/ agreements
Third Party Warehouse Management
Procure and manage 3rd party DC relationships and contracts as needed to meet SHO requirements.
Short-term and long-term project management |
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10. Logistics for Puerto Rico
Provide all logistics support for shipments of Sears Provided Products to and from SHO locations in Puerto Rico
Any rate changes will be reviewed with SHO 60 days prior to implementation.
Provide all logistics support for the delivery of SHO Provided Products to Customers sold via Home Delivery, on an as needed basis.
Provide all logistics support necessary to complete store or customer generated RORs, on an as needed basis
ROR process in Puerto Rico, including transfer rates, will be consistent with Service Provider mainland processes and rates for SHO Provided Products |
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11. Home Delivery for Puerto Rico (Puerto Rico Warehouse)
Delivery services to customers homes in Puerto Rico market unless otherwise agreed upon as a Hybrid delivery market (same as mainland Home Delivery services). |
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Haul away of existing customer product (s) (as applicable)
Basic hook-up / overview of product in the customer home will be offered (as applicable)
Fly by and Fly Back
Pick up customer sold product at the store for delivery which is an additional stop charge expense.
Provide merchandise pick-up (MPU) from warehouse for customer orders
RORs (Record of Return)
ROR process in Puerto Rico will be consistent with Service Provider mainland processes and rates. |
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Social Compliance |
For SHO Provided Products (other than Buyer-Unique Products) SHO shall establish (prior to the purchase of SHO Provided Products) and maintain a social compliance program and requirements and ensure that its vendors and factories operate in accordance with it (the SHO Global Compliance Program ). SHO shall ensure that the requirements of the SHO Global Compliance Program are substantially similar to the Sears Holdings Global Compliance Program requirements for all Products which are sold on a website or at a store using a name licensed from Service Provider or its Affiliates. SHO will provide Service Provider a copy of the SHO Global Compliance Program and its requirements prior to its implementation (for Service Providers review and comment), and any future modifications thereto (again for Service Provider review and comment). Furthermore, SHO is responsible for ensuring that its vendors comply with all applicable local laws governing issues related to child labor, wages, benefits, working hours, harassment, health and safety and factory security.
Social Compliance Services
SHMC shall perform the following services in factories producing Buyer- Unique Products and upon written request, other SHO Provided Products. For any SHO Provided Products sold on a website or at a store using a name licensed from Service Provider or its Affiliates, SHO must either use Service Provider for the following functions or establish and maintain a substantially similar program prior to such purchase. SHO will provide Service Provider a copy of the SHO social compliance program and its requirements prior to its implementation (for Service Providers review and comment), and any future modifications thereto (again for Service Provider review and comment). |
Fees and Expenses
For each required factory audit, SHMC shall directly invoice the SHO vendor for the cost of the audit, in keeping with the current cost structure for SHC vendors and factories.
SHO shall pay a $500 fee per audit to cover all additional services rendered by SHMC.
Since the pricing to SHO and the stated implication of reputational risk to SHO and SHC assumes the timely payment of vendor invoices to SHMC, SHMC will notify SHO when a vendor is more than 60 days overdue in the payment of invoices for audit services. If such invoice remains unpaid 10 business days after the transmittal of all overdue amounts such invoice,
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Fees |
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Register all vendors and factories producing unique product for SHO in the Global Compliance database.
Identify high risk factories based on location, volume, and certifications, and conduct routine social compliance audits in these factories.
Audit based on the Follow-Up Schedule as defined by the SHC Global Compliance Program. A follow-up audit will be conducted in each high risk factory 6-18 months after the initial audit, depending on the compliance level of the factory.
SHMC will consult with each vendor and factory as needed to assist in improving compliance levels.
SHMC will alert SHO to factories that represent a reputational risk to SHO or SHMC.
Offer and provide compliance training to vendors and factories.
Research and respond to media and NGO inquiries regarding factories producing unique SHO product.
Provide manuals and posters for use by SHO vendors and factories which reflect the SHC Global Compliance Program Requirements.
For factories located in Bangladesh, manage the activities of those factories that are required to participate in the Alliance for Bangladesh Worker Safety.
Manage the activities related to Better Work and Better Factories Cambodia as required for factories located in relevant countries and producing exclusively for SHO.
Provide audit results to SHO for all audits conducted, and reports, as needed and requested, related to all data in the SHC Global Compliance Database related to vendors and factories producing unique product for SHO.
Included Expenses
Membership fees related to the Alliance for Bangladesh Worker Safety.
Payment to 3 rd party audit service providers for audits conducted in factories producing merchandise for SHO.
Travel related to industry meetings, training, or the conducting of audits. |
SHO shall assume responsibility for and SHO shall pay Service Provider all amounts overdue from such vendor.
SHMC shall provide a quarterly invoice for the Fee due for each Payment Period. SHO will make payment directly to SHMC according to the instructions on the invoice, within 30 days after receipt of the undisputed invoice. |
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Payment to Better Work and Better Factories Cambodia for factories participating in these programs.
The cost of factory remediation efforts.
Vendor and factory compliance workshops.
SHO Responsibilities
To facilitate the delivery of the services by SHMC, SHO shall inform its merchants and buyers of the need for SHO vendors and factories producing unique product to register with the SHC Global Compliance Department.
SHO shall work collaboratively with SHMC in educating SHO vendors and factories on the policies of the SHC Global Compliance Program Requirements.
SHO will provide a contact who is familiar with the Global Compliance section of this agreement, and can facilitate the registration process with SHO vendors and factories as required by this agreement. |
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Product Safety |
For Buyer Unique Products, SHMC will provide routine notifications of stop sale/recall information for: (a) Products bearing a Seller Mark (as that term is defined in the Merchandising Agreement) at no charge, and (b) for Products bearing a SHO brand, at $300 per stop sale/recall.
For all other SHO Provided Products, SHO shall be solely responsible for managing all stop sale/recall activities. SHO shall immediately inform Service Provider of any stop sale/recalls that impact Products for which Service Provider is providing Supply Chain Services. |
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Global Sourcing | SHMC will provide the Services for a particular Product under this Global Sourcing Section upon SHOs request. SHO does not have to use SHMC for any particular product, but if SHOs requests SHMC assistance for a product, SHMC will provide the following Services: | |||
Global Sourcing The Supply Chain Services described under the Global Sourcing section only apply to SHO Provided Products which SHO exclusively uses Service |
1. Merchandising Support
SHO Representative Support
Familiarize and remain up-to-date with SHOs sourcing, supply and merchandise needs, policies and requirements provided by SHO in writing.
Market Trend & Country of Origin advantage: Provide up-to-date market |
For Service Providers Global Sourcing services, SHO will be charged a rate of 10% multiplied by the F.O.B invoice cost for each SHO Provided Product (the Global Sourcing |
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Provider to assist in sourcing. |
information, trends competitor information and productivity by category by country where Service Provider is assisting SHO in procurement of SHO Provided Products to help SHO Representatives identify suitable products and potential vendors.
Facilitate communications between SHO and the potential vendors and, when necessary, act as a translator for SHOs Representatives in meetings with potential vendors.
Use commercially reasonable efforts to assist SHO in the investigation and prosecution of any manufacturer, supplier or other party suspected of infringing upon SHOs proprietary rights (when requested by SHO in writing).
If SHOs Representatives reject delivery of any of the SHO Provided Products for whatever reason, Service Provider will use commercially reasonable efforts to monitor compliance with SHOs trademark guidelines and prevent the Vendor from disposing of SHO Provided Products without removing Trademarks, labels, brand names or other markings (e.g., logos) which may be attached to the SHO Provided Products or collateral material (e.g., hangtags, packaging).
Vendor Qualification and Assessment
Vendor Qualifications: based on vendors product strength, production capacity, U.S. market and retail direct experience, annual business volume, internal quality control, company terms including payment terms, defective policy, UTC, PLI, their service level in terms of communication and follow up, response time based on our request
Assist SHO in working with selected vendors on product selection, price negotiations, packaging development and order placement.
Procure from prospective vendors the information required by SHOs applicable company or factory profile questionnaire.
Work with vendors to comply with the applicable provisions of any SHO provided manuals and vendor import guidelines.
Product Development
Product Development Stage based on SHOs needs and requirements, source and designate the potential vendor matrix
Advance sample approval use commercially reasonable efforts to review to determine if the product being produced at the factory is the same level or higher standard per SHOs approval sample |
Fee ); provided that if SHO pays more than $500,000 in Global Sourcing Fees in any of Service Providers fiscal years, the percentage used for calculating the Global Sourcing Fee will be reduced from 10% to 5% for the remainder of that fiscal year (with the percentage reverting to 10% at the start of the next fiscal year). |
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Table II - Services for SHO Provided Products |
Fees |
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Packaging approval - use commercially reasonable efforts to review to determine if the packaging quality used on the product is per SHOs requirement
Use commercially reasonable efforts to investigate whether the Design Materials used in or obtained or ordered for the manufacture of SHO Provided Products are being used for any purpose other than the production of SHO Provided Products. Design Materials means items identified by SHO as being owned by SHO or its Affiliates or licensed by them from someone other than the manufacturer; Design Materials include documents, designs, drawings, artwork, sketches, patterns, photographs, images, fabric and/or samples in whatever form, whether written, physical or electronic.
Costing
Costing Stage - Solicit with vendors on quotation, sample preparation and align cost vs. design requirements as defined by SHO
In accordance with the SHO Representatives instructions, place orders and use commercially reasonable efforts to negotiate and achieve the combination of price, quality and delivery most favorable to SHO for SHO Provided Products and which comply with the SHO Provided Product Specifications (previously provided by SHO in writing), with the explicit understanding that SHOs Representative shall have the right, but not the obligation, to directly participate in all such negotiations.
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2. Production Management
Order Management Order processing, training vendor base on SHOs testing, inspection and factory audit requirements, monitor sample approval, packaging approval and vendors production and on-time performance
Regularly follow-up on production and shipments under orders.
Keep close contact with all vendors to determine if the production of the SHO Provided Products is running according to the delivery schedule set by SHO for each item.
After becoming aware of any delivery delays, other noncompliance with the applicable SHO T&Cs or order, or other problems, promptly inform SHO Representative, and use commercially reasonable efforts to implement SHOs decisions regarding new delivery terms and/or cancellation of orders.
Unless otherwise instructed by SHOs Representative in writing, instruct vendors that SHO Provided Products are not to be shipped to SHO after the shipment or cancellation date specified in the applicable order without SHOs prior written consent. |
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Fees |
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In the event of claims, assist in negotiations with the vendors and shippers on behalf of SHO to obtain settlement in the best interest of SHO.
Use commercially reasonable efforts to determine if SHOs vendors are transshipping SHO Provided Products to conceal the true country of origin or the labeling of SHO Provided Products with information that is deceptive as to the true country where the SHO Provided Products were manufactured. |
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3. Quality Assurance and Technical Support
Testing & Inspection Product Specifications and requirements are verified through pre-production / production testing as well as final inspections. If there is an existing Sears Holdings testing report for the same item, the same testing report may be applied to the shipment for SHO; provided Service Providers Affiliates and SHO agree in advance and in writing on the how the cost of such testing will be shared by the Parties.
Conduct reasonable sampling inspections of SHO Provided Products procured for SHO (including at the Vendors facility, if SHOs Representative so requests) to help determine if the SHO Provided Products meet the SHO provided specifications and all fabric, quality, labeling, packaging and other standards and requirements prescribed by SHOs Representative.
A certificate verifying the conduct of and results of the final inspection shall be submitted upon request by SHOs Representative. SHO shall have the right to inspect those inspection records which relate to product ordered by and shipped to SHO.
Inspections will not relieve the Vendor of its responsibility to SHO for the quality and quantity of the products or services supplied and SHMCs agent shall instruct all Vendors of their responsibility in this regard. |
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4. Logistics Support
Facilitate the processing of export documentation necessary for customs clearance in the port of entry, using SHOs importer of record number.
Monitor the on-time shipment of orders and communicate exceptions to SHO Representative for approval.
Prior to the exportation of the SHO Provided Products to the United States (or such other country as SHOs Representative shall designate), Service Provider shall facilitate the collection of and provide all documents, certificates, forms, statements and information appropriate or necessary for exportation to and importation into the United States, or other country of destination. |
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Table II - Services for SHO Provided Products |
Fees |
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Analyze best flow path per SHOs target in-store dates and provide ocean freight and in-land shipping cost estimation / options
Secure Vessel space and equipment
Confirm shipping documentations are reflecting the correct details per SHO purchase orders for smooth customs clearance
Follow up on shipping ASN (Advance Ship Notice) |
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5. Finance Support
Claims Processing
Creation of claims against vendors on behalf of SHO
Monitor offset of claims receivables against FOB payable
Implement routine and necessary collection efforts
Exercise hold payment if directed to do in writing by SHO Representatives
Assist SHO in the resolution of disputes.
Letter of Credit (LC) and payment processing
Processing steps leading to issuance of LC (by SHO LC provider) to vendors
Attend to all routine and ad hoc issues relating to LC processing
Prepare wire transfer requests
Product Liability Insurance Compliance
Monitor product liability insurance applications
Confirm vendor compliance to SHO establish product liability insurance requirements (as provided by SHO in advance and in writing) |
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BILLING METHODOLOGY
1. Logistics Billing Methodology
Variable handling billing
Rates for the RRCs are by flow path,
Rates for the DDCs are by flow path and division. |
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Table II - Services for SHO Provided Products |
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SHO will be billed based on disbursement volume out of the distribution centers.
Fixed handling billing
Fixed Handling represents the portion of logistics cost that does not vary with volume and that is not related to storing merchandise.
SHO will be charged the amounts for fixed handling set forth on Exhibit 3 .
Storage billing
Cost is based on usage of DC inventory space.
SHO will be billed based on cubic feet of RRC inventory space and square feet of DDC inventory space.
Cubic/Square foot space usage is allocated to SHO based on the % of total division level volume attributed to the business. |
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Storage and Handling Rates by Flow Path are listed in Exhibit 3- Logistics Rates. |
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2. CRC Handling and Transportation
CRC handling services are billed on a per scan basis.
Transportation rates are based on the average size of the item. SHO is assigned a rate based on the average cube per selling unit.
Salvage revenue is derived from recovery of salvageable merchandise. Rate is set in accordance with Service Providers agreement with third party(ies).
Freight and handling planned revenue is based on 2015 average actual rate. |
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3. DC Markdowns
DC Markdowns for SHO Provided Products, include inbound damage, shrink and damage caused during storage and handling at a SP Facility will be solely borne by SHO; except to the extent SHO can demonstrate that such loss was directly attributable to theft or other willful misconduct by Service Provider or its Representatives. |
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4. Special Projects
Special requests for non-standard services, such as re-ticketing or re-cartoning, will be charged to SHO on a per project basis.
Amount of the charge will be equal to the number of hours worked on the project multiplied by $50 (the hourly special project rate); unless a different rate is agreed to as provided for herein.
The project must be pre-approved by submitting the Special Project request form. SHO should contact its MSCO if it requires a Special Project. |
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All ongoing changes to Services and incidents which are reasonably expected to exceed $50,000 shall be not be performed as Special Services but instead will be subject to Section 1.01E (SHOs Requests for Services/System Changes) of the Agreement.
5. Third Party Warehouse Management
Third Party rates and billing will be agreed upon by SHO, Service Provider and the Third Party where Third Party services are determined by SHO and Service Provider to be the best option.
6. Monthly Billing Quarterly True-Up . Supply Chain Services charges for SHO Provided Products will be billed monthly and trued-up to the actual expense at the end of each quarter. This will involve a comprehensive review of all Supply Chain Services charges.
7. Puerto Rico Warehousing SHO will be charged a warehousing fee upon ship-out for each item of SHO Provided Product at the following rates:
For accessories pieces to SHO Provided Product major home appliance items (hose clamps, dryer vent kits, etc.): $2.10 per piece.
For all other SHO Provided Product items: $25.84 per piece;
The above fees include all variable and fixed warehouse handling costs and storage, excluding aged inventory storage according to Service Providers GT 80 criteria.
8. Puerto Rico Home Delivery : SHO will be charged the carrier expense for home deliveries, plus 6.5%. SHO stores will be billed a percentage of the total MDO monthly carrier expense equal to SHOs percentage of total home delivery stops completed in Puerto Rico during the month.
9. Other PR Transportation . Transportation between SHO Store and MDO incidental to Home Delivery operations (including Fly By and Fly Back runs) for SHO Provided Products will be charged to SHO at $55.22 per truck for up to five pieces on the truck; an additional $55.22 for six to ten pieces, an additional $55.22 for 11 15 pieces, etc. |
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CLAIMS |
Claims for OSDs (Overs/Shorts/Damages) shall be processed with the following guidelines |
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1. All SHO Stores and ORDCS will have 48 business hours from delivery arrival to call in all shortages, overages, or other discrepancies for SHO Provided Products. |
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2. All SHO Stores and ORDCS will have 48 business hours from delivery arrival to call in all damages for SHO Provided Products. |
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3. All OSD claims shall begin with contacting the SSD at the respective DC facility. If the SSD is not available at the time of the call, the SHO Store representative shall leave a detailed message regarding the OSD, including identifying affected Products. |
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4. The SSD department will issue a claim number for each incident. |
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5. The SSD will research the claim and determine an appropriate resolution. |
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Table III . The following table applies to both Sears Provided Products and SHO Provided Products:
Service or Business Area |
Table III - Home and Commercial Delivery Services |
Fees |
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HOME DELIVERY |
1. Home Delivery
Delivery Services will be made available to all SHO markets unless a market is otherwise agreed upon as a Hybrid delivery market.
Haul Away of existing customer product(s) (as applicable)
Basic hookup / overview of product in the customer home will be offered (as applicable) Pickup of returned goods (RORs) from consumer
The rates cover all carrier and 4-wall MDO expenses and related carrier management, carrier negotiation, site management, routing, customer engagement and containment, infrastructure costs and all Customer Care Network (CCN) costs.
Delivery Services for items outside of Service Providers and its Affiliates stocked merchandise assortment that are larger or heavier than items in Service Providers and its Affiliates stocked merchandise assortment, or that have delivery requirements that are not met by Service Providers ordinary home delivery operations (e.g., spoilage, environmental or safety risks) will be subject to Section 1.01E . (SHOs Requests for Services/System Changes) of the Agreement.
The Customer Care Network (CCN) costs cover the services related to customer engagement and satisfaction.
The rate is per stop - if multiple products are delivered on a single retail customer stop, only 1 charge will be incurred.
The Delivery rates stated for SHO Store locations do not include a potential fuel surcharge (see fuel surcharge table).
The Delivery rates for all SHO Formats (except Outlet) are included in the Hometown Market Delivery Rate Table set forth in Exhibit 1 to this Appendix 1.01-C .
Rates as shown in the Market Delivery Rate Table may be changed by Service Provider upon 90 days written notice to SHO.
Hybrid Delivery Market Process |
Delivery Fee
SHO (Hometown HTS, HAS or AHS) Standard Delivery Charge is based on Market Delivery Rate Table, in Exhibit 1 .
SearsOutlet.com deliveries will be performed at historical rates through the Outlet Decision Date. Service Provider will only continue to provide deliveries for SearsOutlet.com after that date if the parties have agreed to a written amendment to this Appendix for Service Provider to provide all Outlet Store and SearsOutlet.com deliveries. |
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Table III - Home and Commercial Delivery Services |
Fees |
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A Hybrid Delivery Market is a market that is either serviced out of a Sears, Roebuck and Co. full-line department store (SDO) or out of a SHO Store (by the SHO Store owner). SHO will assign the Delivery Rate for each zip code and transmit the completed zip code file with the rates to Home Services Delivery for entry into the POS (Point of Sale) system. | ||||
When a Sears full-line store sells merchandise for delivery into a Hybrid Delivery Market zip code that is assigned to a SHO store, Service Providers Affiliate will transfer to the SHO store performing the delivery: (a) 50% of the SPRS margin earned on the Product sale, and (b) all of the delivery charges actually collected from the customer; in each such case, net of any returns, non-collectable amounts, etc. | ||||
Thru February 1 st , 2020, Service Provider will use the SHO Stores who have been selected for Hybrid Delivery as of the October 31, 2013 exclusively to provide deliveries to customer location zip codes identified as Hybrid Delivery Markets. On and after July 31, 2016, Service Provider may cease using one or more of the SHO Stores for Hybrid Delivery. Service Provider will provide the SHO Stores 60 days notice of any termination for convenience. Service Provider may terminate its use of any SHO Store for Hybrid Delivery for cause upon written notice. | ||||
The Parties will work in Good Faith to expand the list of Hybrid Delivery Markets where economically justified. | ||||
SDO and STI Carrier Rates.
Notwithstanding the above when a delivery for a SHO Store occurs outside the delivery territory for a SHO Store and is instead delivered to a zip code supported by a Sears Store Delivery Operation ( SDO ) or by a third party carrier (e.g., STI), SHO will be charged the delivery charges assessed by Service Provider for such zip codes. |
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Home Delivery Fuel Surcharge
In addition to the fees for Home Delivery services set forth in the Agreement, SHO agrees to pay to Service Provider an additional amount to compensate Service Providers home delivery business unit for increases in the retail cost of fuel for trucks used to provide the Services (a Fuel Surcharge ) when such cost equals or exceeds $4.40 per gallon (National Averages), calculated as follows: |
Fuel Surcharge table is set forth below. |
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Table III - Home and Commercial Delivery Services |
Fees |
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On the last day of each calendar month, Service Provider shall establish the retail cost of its truck fuel by reviewing average price for the month based on the Gasoline and Diesel Fuel Update as published by the U.S. Department of Energys Information at:
http://www.eia.gov/petroleum/gasdiesel/ .
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1. When the Gasoline and Diesel Fuel Update average price for any calendar month is equal to or greater than $4.40 per gallon, Service Provider shall charge and SHO agrees to pay Service Provider a Fuel Surcharge as described in the chart below. |
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Home Delivery Fuel Surcharge Table |
Monthly Average Diesel Price |
Fuel surcharge per | |||
At Least |
But Less Than |
billed stop |
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$2.40 | $4.40 | |||
$4.40 | $4.60 | $0.36 | ||
$4.60 | $4.80 | $0.72 | ||
$4.80 | $5.00 | $1.08 | ||
$5.00 | $5.20 | $1.44 | ||
$5.20 | $5.40 | $1.80 | ||
$5.40 | $5.60 | $2.16 | ||
$5.60 | $5.80 | $2.52 | ||
$5.80 | $6.00 | $2.88 | ||
$6.00 | $6.20 | $3.24 | ||
$6.20 | $6.40 | $3.60 | ||
$6.40 | $6.60 | $3.96 | ||
$6.60 | $6.80 | $4.32 | ||
$ 6.80 | $ 7.00 | $4.68 |
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Table III - Home and Commercial Delivery Services |
Fees |
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In the event the fuel cost increases above $7.00 per gallon, an additional Fuel Surcharge of $.36 will be added for each $.20 increment. |
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When the Gasoline and Diesel Fuel Update average price for any calendar month is equal to or less than $2.40 per gallon, Service Provider shall rebate SHO a Fuel Surcharge as described in the chart below. |
Monthly Average Diesel Price |
Fuel surcharge per | |||
At Least |
But Less Than |
billed stop |
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$2.20 |
$2.40 | ($0.36) | ||
$2.00 |
$2.20 | ($0.72) | ||
$1.80 |
$2.00 | ($1.08) | ||
$1.60 |
$1.80 | ($1.44) | ||
$1.40 |
$1.60 | ($1.80) | ||
$1.20 |
$1.40 | ($2.16) | ||
$1.00 |
$1.20 | ($2.52) |
In the event the fuel cost decreases below $1.00 per gallon, an additional Fuel Surcharge of $.36 will be rebated for each $.20 increment. |
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Merchandise Pick-Up (MPU)
Merchandise Pick-Up (MPU) represents Home Appliances product picked up at an MDO for delivery or installation by anyone other than a Home Services Delivery carrier.
This MPU fee will be billed by division to the selling unit. MPU does not qualify as a billable stop. |
Merchandise Pick-Up Fee
The rate for MPU service will be a flat rate of $10.00 per deliverable unit. Home Delivery Services will rebate $5.00 for each Service Provider Retail Installation Contractor pickup (excluding Outlet Stores). |
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Table III - Home and Commercial Delivery Services |
Fees |
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MDO Concessions / Damage Charges
Charges are related to:
Customer Accommodation Costs (Gift Cards) related to concealed damage. Merchandise Depreciation / Markdowns on Concealed Damages for Saleable and Non-Saleable items.
Depreciation rates on saleable items are set between the Service Provider BUs and SHO (Outlet business).
Hard Inventory Markdowns on Products in the MDO Inventory.
Charges to SHO are based on percentage of SHO ROR stops to total ROR stops by merchandise division. |
For SHO (HTS/HAS/AHS only), Service Provider has agreed to rebate $5.00 per Home Appliance MPU related to a Service Provider Retail Installation contractor pickup. The installation must be sold at POS as that data is used to determine the rebate. | |||
Installation Services
Retail Installation Services provided include: Garage Door Opener, Garbage Disposal, Hot Water Heater and Built In Appliance |
Retail Installation Services Fees are market specific and loaded in the SHO POS system. | |||
Commission Rate:
Service Provider (through its Retail Installation Services unit) will pay 15% commission on the Net Revenue (after cancellations) of the installation sale sold in SHO locations. Fee Basis is per Installation order soldnet of cancelled customer orders. SHO receives a Sell Short chargeback at month end for installations sold below the set installation price at POS. |
Commission Rate is 15% on the Net Revenue |
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COMMERCIAL CUSTOMER DELIVERY |
Delivery
Service Provider will delivery to SHO, its Affiliates and the SHO Authorized Sellers Commercial Customers (as that term is defined in the Merchandising Agreement). |
Delivery Rate. National truck rate of up to $625 per day for each such delivery. The above Home Delivery Fuel Surcharges shall also apply to deliveries to Commercial Customers. |
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Exhibit 1
Market Delivery Rates
Hometown Market Delivery Rates
Type of Store |
Store # | MDO | 2014 Rate | |||||||||
Hometown |
3439 | 45078 | 89.08 | |||||||||
Hometown |
3409 | 45078 | 89.08 | |||||||||
Hometown |
5501 | 45078 | 89.08 | |||||||||
Hometown |
7392 | 45094 | 82.06 | |||||||||
Hometown |
5467 | 45094 | 82.06 | |||||||||
Hometown |
3161 | 45094 | 82.06 | |||||||||
Hometown |
7163 | 45094 | 82.06 | |||||||||
Hometown |
7203 | 45094 | 82.06 | |||||||||
Hometown |
9632 | 32980 | 88.66 | |||||||||
Hometown |
3099 | 32980 | 88.66 | |||||||||
Hometown |
3492 | 32980 | 88.66 | |||||||||
Hometown |
5824 | 32980 | 88.66 | |||||||||
Hometown |
3838 | 45573 | 88.57 | |||||||||
Hometown |
3856 | 45573 | 88.57 | |||||||||
Hometown |
7816 | 45573 | 88.57 | |||||||||
Hometown |
7377 | 45573 | 88.57 | |||||||||
Hometown |
6420 | 45117 | 87.53 | |||||||||
Hometown |
3281 | 45117 | 87.53 | |||||||||
Hometown |
3091 | 45117 | 87.53 | |||||||||
Hometown |
1832 | 45117 | 87.53 | |||||||||
Hometown |
3930 | 45117 | 87.53 | |||||||||
Hometown |
5584 | 45117 | 87.53 | |||||||||
Hometown |
5710 | 45117 | 87.53 | |||||||||
Hometown |
5811 | 45117 | 87.53 | |||||||||
Hometown |
3204 | 45117 | 87.53 | |||||||||
Hometown |
7821 | 45117 | 87.53 | |||||||||
Hometown |
5777 | 45119 | 108.02 | |||||||||
Hometown |
2726 | 45119 | 108.02 | |||||||||
Hometown |
5407 | 45119 | 108.02 | |||||||||
Hometown |
5918 | 45119 | 108.02 | |||||||||
Hometown |
5272 | 45119 | 108.02 | |||||||||
Hometown |
5469 | 45119 | 108.02 | |||||||||
Hometown |
3430 | 45119 | 108.02 | |||||||||
Hometown |
5520 | 45120 | 95.45 |
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Type of Store |
Store # | MDO | 2014 Rate | |||||||||
Hometown |
5559 | 45120 | 95.45 | |||||||||
Hometown |
3849 | 45120 | 95.45 | |||||||||
Hometown |
5524 | 45568 | 110.15 | |||||||||
Hometown |
5232 | 45568 | 110.15 | |||||||||
Hometown |
3294 | 45568 | 110.15 | |||||||||
Hometown |
6087 | 45568 | 110.15 | |||||||||
Hometown |
3610 | 45569 | 93.18 | |||||||||
Hometown |
2780 | 45569 | 93.18 | |||||||||
Hometown |
5929 | 45569 | 93.18 | |||||||||
Hometown |
3081 | 45569 | 93.18 | |||||||||
Hometown |
7211 | 45569 | 93.18 | |||||||||
Hometown |
5220 | 45569 | 93.18 | |||||||||
Hometown |
3482 | 45569 | 93.18 | |||||||||
Hometown |
6558 | 45570 | 92.94 | |||||||||
Hometown |
6213 | 45570 | 92.94 | |||||||||
Hometown |
8146 | 45570 | 92.94 | |||||||||
Hometown |
3887 | 45130 | 101.22 | |||||||||
Hometown |
7301 | 45130 | 101.22 | |||||||||
Hometown |
7515 | 45130 | 101.22 | |||||||||
Hometown |
5945 | 45130 | 101.22 | |||||||||
Hometown |
6720 | 45130 | 101.22 | |||||||||
Hometown |
3944 | 45130 | 101.22 | |||||||||
Hometown |
5588 | 45133 | 98.22 | |||||||||
Hometown |
3576 | 45133 | 98.22 | |||||||||
Hometown |
6288 | 45133 | 98.22 | |||||||||
Hometown |
6741 | 45133 | 98.22 | |||||||||
Hometown |
5534 | 45133 | 98.22 | |||||||||
Hometown |
5891 | 45136 | 119.83 | |||||||||
Hometown |
5510 | 45136 | 119.83 | |||||||||
Hometown |
5495 | 45136 | 119.83 | |||||||||
Hometown |
3647 | 45136 | 119.83 | |||||||||
Hometown |
6240 | 45136 | 119.83 | |||||||||
Hometown |
3936 | 45136 | 119.83 | |||||||||
Hometown |
3525 | 45148 | 115.82 | |||||||||
Hometown |
5735 | 45148 | 115.82 | |||||||||
Hometown |
3445 | 45148 | 115.82 | |||||||||
Hometown |
5505 | 45566 | 79.55 | |||||||||
Hometown |
5620 | 45566 | 79.55 | |||||||||
Hometown |
3870 | 45566 | 79.55 |
2
Execution Copy
Type of Store |
Store # | MDO | 2014 Rate | |||||||||
Hometown |
2753 | 45566 | 79.55 | |||||||||
Hometown |
3739 | 45566 | 79.55 | |||||||||
Hometown |
5826 | 45566 | 79.55 | |||||||||
Hometown |
3974 | 45566 | 79.55 | |||||||||
Hometown |
5835 | 45166 | 92.43 | |||||||||
Hometown |
3123 | 45166 | 92.43 | |||||||||
Hometown |
5815 | 45166 | 92.43 | |||||||||
Hometown |
3463 | 45166 | 92.43 | |||||||||
Hometown |
6979 | 45166 | 92.43 | |||||||||
Hometown |
5759 | 45166 | 92.43 | |||||||||
Hometown |
3690 | 45166 | 92.43 | |||||||||
Hometown |
7476 | 45583 | 119.79 | |||||||||
Hometown |
1846 | 45583 | 119.79 | |||||||||
Hometown |
7267 | 45583 | 119.79 | |||||||||
Hometown |
3898 | 45583 | 119.79 | |||||||||
Hometown |
5760 | 45583 | 119.79 | |||||||||
Hometown |
3545 | 45583 | 119.79 | |||||||||
Hometown |
7468 | 45591 | 110.12 | |||||||||
Hometown |
3875 | 45591 | 110.12 | |||||||||
Hometown |
8108 | 45591 | 110.12 | |||||||||
Hometown |
5193 | 45062 | 76.70 | |||||||||
Hometown |
1444 | 45062 | 76.70 | |||||||||
Hometown |
7703 | 45062 | 76.70 | |||||||||
Hometown |
5462 | 45064 | 77.75 | |||||||||
Hometown |
3694 | 45064 | 77.75 | |||||||||
Hometown |
5960 | 45064 | 77.75 | |||||||||
Hometown |
6637 | 45064 | 77.75 | |||||||||
Hometown |
3514 | 45064 | 77.75 | |||||||||
Hometown |
7262 | 45065 | 65.86 | |||||||||
Hometown |
3384 | 45065 | 65.86 | |||||||||
Hometown |
5194 | 45065 | 65.86 | |||||||||
Hometown |
6966 | 45065 | 65.86 | |||||||||
Hometown |
3609 | 45065 | 65.86 | |||||||||
Hometown |
7694 | 45070 | 84.14 | |||||||||
Hometown |
2713 | 45070 | 84.14 | |||||||||
Hometown |
5876 | 45070 | 84.14 | |||||||||
Hometown |
3246 | 45070 | 84.14 | |||||||||
Hometown |
3426 | 45070 | 84.14 | |||||||||
Hometown |
1926 | 45070 | 84.14 |
3
Execution Copy
Type of Store |
Store # | MDO | 2014 Rate | |||||||||
Hometown |
3965 | 45070 | 84.14 | |||||||||
Hometown |
2634 | 45070 | 84.14 | |||||||||
Hometown |
7506 | 45070 | 84.14 | |||||||||
Hometown |
5180 | 45076 | 68.85 | |||||||||
Hometown |
1849 | 45076 | 68.85 | |||||||||
Hometown |
3469 | 45076 | 68.85 | |||||||||
Hometown |
3449 | 45076 | 68.85 | |||||||||
Hometown |
3448 | 45077 | 93.11 | |||||||||
Hometown |
7658 | 45079 | 76.59 | |||||||||
Hometown |
5822 | 45079 | 76.59 | |||||||||
Hometown |
2579 | 45079 | 76.59 | |||||||||
Hometown |
3611 | 45081 | 99.50 | |||||||||
Hometown |
3883 | 45081 | 99.50 | |||||||||
Hometown |
5216 | 45081 | 99.50 | |||||||||
Hometown |
3791 | 45081 | 99.50 | |||||||||
Hometown |
2172 | 45081 | 99.50 | |||||||||
Hometown |
6726 | 45081 | 99.50 | |||||||||
Hometown |
4951 | 45081 | 99.50 | |||||||||
Hometown |
3983 | 45081 | 99.50 | |||||||||
Hometown |
7638 | 45083 | 74.39 | |||||||||
Hometown |
3101 | 45083 | 74.39 | |||||||||
Hometown |
8030 | 45083 | 74.39 | |||||||||
Hometown |
6475 | 45083 | 74.39 | |||||||||
Hometown |
6611 | 45088 | 78.22 | |||||||||
Hometown |
7870 | 45088 | 78.22 | |||||||||
Hometown |
7370 | 45088 | 78.22 | |||||||||
Hometown |
3102 | 45088 | 78.22 | |||||||||
Hometown |
3341 | 45088 | 78.22 | |||||||||
Hometown |
6573 | 45088 | 78.22 | |||||||||
Hometown |
9890 | 45088 | 78.22 | |||||||||
Hometown |
7290 | 45088 | 78.22 | |||||||||
Hometown |
3250 | 45095 | 77.85 | |||||||||
Hometown |
1933 | 45095 | 77.85 | |||||||||
Hometown |
9607 | 45095 | 77.85 | |||||||||
Hometown |
7357 | 45095 | 77.85 | |||||||||
Hometown |
7406 | 45095 | 77.85 | |||||||||
Hometown |
5400 | 45095 | 77.85 | |||||||||
Hometown |
3181 | 45095 | 77.85 | |||||||||
Hometown |
7952 | 45095 | 77.85 |
4
Execution Copy
Type of Store |
Store # | MDO | 2014 Rate | |||||||||
Hometown |
5231 | 45095 | 77.85 | |||||||||
Hometown |
9291 | 45572 | 80.46 | |||||||||
Hometown |
9292 | 45572 | 80.46 | |||||||||
Hometown |
6856 | 45572 | 80.46 | |||||||||
Hometown |
5494 | 45572 | 80.46 | |||||||||
Hometown |
5977 | 45105 | 84.74 | |||||||||
Hometown |
1848 | 45105 | 84.74 | |||||||||
Hometown |
3649 | 45106 | 77.09 | |||||||||
Hometown |
1801 | 45109 | 79.11 | |||||||||
Hometown |
6908 | 45109 | 79.11 | |||||||||
Hometown |
2572 | 45109 | 79.11 | |||||||||
Hometown |
7284 | 45109 | 79.11 | |||||||||
Hometown |
9270 | 45109 | 79.11 | |||||||||
Hometown |
1741 | 45109 | 79.11 | |||||||||
Hometown |
1806 | 45109 | 79.11 | |||||||||
Hometown |
1803 | 45109 | 79.11 | |||||||||
Hometown |
5825 | 45109 | 79.11 | |||||||||
Hometown |
6583 | 45109 | 79.11 | |||||||||
Hometown |
2930 | 45109 | 79.11 | |||||||||
Hometown |
3591 | 45565 | 77.48 | |||||||||
Hometown |
2701 | 45565 | 77.48 | |||||||||
Hometown |
5542 | 45565 | 77.48 | |||||||||
Hometown |
5482 | 45565 | 77.48 | |||||||||
Hometown |
6614 | 45116 | 97.32 | |||||||||
Hometown |
3112 | 45116 | 97.32 | |||||||||
Hometown |
3612 | 45116 | 97.32 | |||||||||
Hometown |
7630 | 45116 | 97.32 | |||||||||
Hometown |
1852 | 45116 | 97.32 | |||||||||
Hometown |
7433 | 45116 | 97.32 | |||||||||
Hometown |
3472 | 45116 | 97.32 | |||||||||
Hometown |
5724 | 45116 | 97.32 | |||||||||
Hometown |
6586 | 45116 | 97.32 | |||||||||
Hometown |
3830 | 45116 | 97.32 | |||||||||
Hometown |
5738 | 45116 | 97.32 | |||||||||
Hometown |
7742 | 45116 | 97.32 | |||||||||
Hometown |
1842 | 45116 | 97.32 | |||||||||
Hometown |
3242 | 45116 | 97.32 | |||||||||
Hometown |
3921 | 45116 | 97.32 | |||||||||
Hometown |
3652 | 45116 | 97.32 |
5
Execution Copy
Type of Store |
Store # | MDO | 2014 Rate | |||||||||
Hometown |
5464 | 45127 | 118.93 | |||||||||
Hometown |
7954 | 45127 | 118.93 | |||||||||
Hometown |
5751 | 45127 | 118.93 | |||||||||
Hometown |
6325 | 45127 | 118.93 | |||||||||
Hometown |
7291 | 45127 | 118.93 | |||||||||
Hometown |
9209 | 45598 | 105.74 | |||||||||
Hometown |
2024 | 45598 | 105.74 | |||||||||
Hometown |
3526 | 45598 | 105.74 | |||||||||
Hometown |
1939 | 45598 | 105.74 | |||||||||
Hometown |
3259 | 45598 | 105.74 | |||||||||
Hometown |
3565 | 45598 | 105.74 | |||||||||
Hometown |
3674 | 45598 | 105.74 | |||||||||
Hometown |
7271 | 45598 | 105.74 | |||||||||
Hometown |
5748 | 45129 | 88.23 | |||||||||
Hometown |
5790 | 45129 | 88.23 | |||||||||
Hometown |
3969 | 45129 | 88.23 | |||||||||
Hometown |
3055 | 45129 | 88.23 | |||||||||
Hometown |
8164 | 45129 | 88.23 | |||||||||
Hometown |
7815 | 45134 | 83.45 | |||||||||
Hometown |
7737 | 45134 | 83.45 | |||||||||
Hometown |
8092 | 45134 | 83.45 | |||||||||
Hometown |
5915 | 45134 | 83.45 | |||||||||
Hometown |
5916 | 45134 | 83.45 | |||||||||
Hometown |
9628 | 45134 | 83.45 | |||||||||
Hometown |
5919 | 45134 | 83.45 | |||||||||
Hometown |
5875 | 45135 | 89.13 | |||||||||
Hometown |
7483 | 45135 | 89.13 | |||||||||
Hometown |
7807 | 45135 | 89.13 | |||||||||
Hometown |
3036 | 45135 | 89.13 | |||||||||
Hometown |
3636 | 45135 | 89.13 | |||||||||
Hometown |
5695 | 45560 | 113.85 | |||||||||
Hometown |
5165 | 45560 | 113.85 | |||||||||
Hometown |
6622 | 45560 | 113.85 | |||||||||
Hometown |
6643 | 45154 | 97.33 | |||||||||
Hometown |
3473 | 45154 | 97.33 | |||||||||
Hometown |
3913 | 45154 | 97.33 | |||||||||
Hometown |
3603 | 45154 | 97.33 | |||||||||
Hometown |
3134 | 45154 | 97.33 | |||||||||
Hometown |
3148 | 45154 | 97.33 |
6
Execution Copy
Type of Store |
Store # | MDO | 2014 Rate | |||||||||
Hometown |
5504 | 45156 | 70.45 | |||||||||
Hometown |
7893 | 45156 | 70.45 | |||||||||
Hometown |
5412 | 45156 | 70.45 | |||||||||
Hometown |
5152 | 45156 | 70.45 | |||||||||
Hometown |
3871 | 45156 | 70.45 | |||||||||
Hometown |
7102 | 45164 | 78.09 | |||||||||
Hometown |
3434 | 45164 | 78.09 | |||||||||
Hometown |
7693 | 45164 | 78.09 | |||||||||
Hometown |
3712 | 45164 | 78.09 | |||||||||
Hometown |
6846 | 45165 | 76.21 | |||||||||
Hometown |
5507 | 45165 | 76.21 | |||||||||
Hometown |
5756 | 45165 | 76.21 | |||||||||
Hometown |
9272 | 45165 | 76.21 | |||||||||
Hometown |
1845 | 45169 | 93.79 | |||||||||
Hometown |
6135 | 45170 | 89.23 | |||||||||
Hometown |
7378 | 45170 | 89.23 | |||||||||
Hometown |
6581 | 45170 | 89.23 | |||||||||
Hometown |
7720 | 45170 | 89.23 | |||||||||
Hometown |
3150 | 45170 | 89.23 | |||||||||
Hometown |
9843 | 45599 | 86.47 | |||||||||
Hometown |
5711 | 45599 | 86.47 | |||||||||
Hometown |
3374 | 45599 | 86.47 | |||||||||
Hometown |
7813 | 45176 | 82.90 | |||||||||
Hometown |
6557 | 45137 | 101.45 | |||||||||
Hometown |
3587 | 45137 | 101.45 | |||||||||
Hometown |
3217 | 45137 | 101.45 | |||||||||
Hometown |
6740 | 45137 | 101.45 | |||||||||
Hometown |
7726 | 45137 | 101.45 | |||||||||
Hometown |
3906 | 45137 | 101.45 | |||||||||
Hometown |
3007 | 45137 | 101.45 | |||||||||
Hometown |
7202 | 45137 | 101.45 | |||||||||
Hometown |
3574 | 45060 | 84.65 | |||||||||
Hometown |
7545 | 45060 | 84.65 | |||||||||
Hometown |
3003 | 45060 | 84.65 | |||||||||
Hometown |
3673 | 45060 | 84.65 | |||||||||
Hometown |
5461 | 45060 | 84.65 | |||||||||
Hometown |
3285 | 45060 | 84.65 | |||||||||
Hometown |
3064 | 45060 | 84.65 | |||||||||
Hometown |
3503 | 45061 | 100.73 |
7
Execution Copy
Type of Store |
Store # | MDO | 2014 Rate | |||||||||
Hometown |
5455 | 45061 | 100.73 | |||||||||
Hometown |
2702 | 45061 | 100.73 | |||||||||
Hometown |
4864 | 45061 | 100.73 | |||||||||
Hometown |
6686 | 45061 | 100.73 | |||||||||
Hometown |
5522 | 45061 | 100.73 | |||||||||
Hometown |
7573 | 45061 | 100.73 | |||||||||
Hometown |
5847 | 45067 | 64.75 | |||||||||
Hometown |
5734 | 45067 | 64.75 | |||||||||
Hometown |
5192 | 45067 | 64.75 | |||||||||
Hometown |
5955 | 45067 | 64.75 | |||||||||
Hometown |
9698 | 45067 | 64.75 | |||||||||
Hometown |
5533 | 45067 | 64.75 | |||||||||
Hometown |
3640 | 45578 | 109.97 | |||||||||
Hometown |
3121 | 45578 | 109.97 | |||||||||
Hometown |
5828 | 45578 | 109.97 | |||||||||
Hometown |
9970 | 45068 | 97.45 | |||||||||
Hometown |
5853 | 45068 | 97.45 | |||||||||
Hometown |
5993 | 45068 | 97.45 | |||||||||
Hometown |
5858 | 45068 | 97.45 | |||||||||
Hometown |
7550 | 45073 | 71.86 | |||||||||
Hometown |
5820 | 45073 | 71.86 | |||||||||
Hometown |
2426 | 45073 | 71.86 | |||||||||
Hometown |
3166 | 45577 | 89.11 | |||||||||
Hometown |
1825 | 45577 | 89.11 | |||||||||
Hometown |
3226 | 45577 | 89.11 | |||||||||
Hometown |
6224 | 45577 | 89.11 | |||||||||
Hometown |
5867 | 45577 | 89.11 | |||||||||
Hometown |
2004 | 45577 | 89.11 | |||||||||
Hometown |
5852 | 45577 | 89.11 | |||||||||
Hometown |
5690 | 45577 | 89.11 | |||||||||
Hometown |
5836 | 45577 | 89.11 | |||||||||
Hometown |
5696 | 45577 | 89.11 | |||||||||
Hometown |
3236 | 45577 | 89.11 | |||||||||
Hometown |
5704 | 45074 | 93.08 | |||||||||
Hometown |
5498 | 45581 | 79.78 | |||||||||
Hometown |
3450 | 45581 | 79.78 | |||||||||
Hometown |
1861 | 45581 | 79.78 | |||||||||
Hometown |
1860 | 45581 | 79.78 | |||||||||
Hometown |
5754 | 45581 | 79.78 |
8
Execution Copy
Type of Store |
Store # | MDO | 2014 Rate | |||||||||
Hometown |
2159 | 45574 | 85.96 | |||||||||
Hometown |
5515 | 45574 | 85.96 | |||||||||
Hometown |
5888 | 45574 | 85.96 | |||||||||
Hometown |
5937 | 45574 | 85.96 | |||||||||
Hometown |
3549 | 45574 | 85.96 | |||||||||
Hometown |
8034 | 45574 | 85.96 | |||||||||
Hometown |
6574 | 45084 | 69.57 | |||||||||
Hometown |
7671 | 45084 | 69.57 | |||||||||
Hometown |
3432 | 45084 | 69.57 | |||||||||
Hometown |
5895 | 45084 | 69.57 | |||||||||
Hometown |
3980 | 45084 | 69.57 | |||||||||
Hometown |
4789 | 45084 | 69.57 | |||||||||
Hometown |
5933 | 45559 | 72.28 | |||||||||
Hometown |
3303 | 45559 | 72.28 | |||||||||
Hometown |
5951 | 45559 | 72.28 | |||||||||
Hometown |
3261 | 45559 | 72.28 | |||||||||
Hometown |
5903 | 45559 | 72.28 | |||||||||
Hometown |
5212 | 45559 | 72.28 | |||||||||
Hometown |
3280 | 45559 | 72.28 | |||||||||
Hometown |
5536 | 45559 | 72.28 | |||||||||
Hometown |
9655 | 45089 | 61.23 | |||||||||
Hometown |
9666 | 45089 | 61.23 | |||||||||
Hometown |
9668 | 45089 | 61.23 | |||||||||
Hometown |
5855 | 45089 | 61.23 | |||||||||
Hometown |
1483 | 45089 | 61.23 | |||||||||
Hometown |
4661 | 45089 | 61.23 | |||||||||
Hometown |
7860 | 45091 | 70.70 | |||||||||
Hometown |
7674 | 45091 | 70.70 | |||||||||
Hometown |
5276 | 45099 | 68.66 | |||||||||
Hometown |
5312 | 45099 | 68.66 | |||||||||
Hometown |
1867 | 45099 | 68.66 | |||||||||
Hometown |
7617 | 45099 | 68.66 | |||||||||
Hometown |
3590 | 45099 | 68.66 | |||||||||
Hometown |
7497 | 45099 | 68.66 | |||||||||
Hometown |
3826 | 45100 | 85.05 | |||||||||
Hometown |
1839 | 45100 | 85.05 | |||||||||
Hometown |
3349 | 45100 | 85.05 | |||||||||
Hometown |
6526 | 45100 | 85.05 | |||||||||
Hometown |
5803 | 45100 | 85.05 |
9
Execution Copy
Type of Store |
Store # | MDO | 2014 Rate | |||||||||
Hometown |
1815 | 45101 | 66.76 | |||||||||
Hometown |
5202 | 45101 | 66.76 | |||||||||
Hometown |
9099 | 45101 | 66.76 | |||||||||
Hometown |
2559 | 45101 | 66.76 | |||||||||
Hometown |
7408 | 45101 | 66.76 | |||||||||
Hometown |
3519 | 45101 | 66.76 | |||||||||
Hometown |
9228 | 45058 | 57.91 | |||||||||
Hometown |
4718 | 45058 | 57.91 | |||||||||
Hometown |
9219 | 45058 | 57.91 | |||||||||
Hometown |
5956 | 45058 | 57.91 | |||||||||
Hometown |
9080 | 45104 | 71.81 | |||||||||
Hometown |
3037 | 45104 | 71.81 | |||||||||
Hometown |
1841 | 45104 | 71.81 | |||||||||
Hometown |
1829 | 45104 | 71.81 | |||||||||
Hometown |
7537 | 45104 | 71.81 | |||||||||
Hometown |
4778 | 45104 | 71.81 | |||||||||
Hometown |
3048 | 45107 | 57.64 | |||||||||
Hometown |
9206 | 45108 | 122.35 | |||||||||
Hometown |
5938 | 45111 | 92.20 | |||||||||
Hometown |
5191 | 45111 | 92.20 | |||||||||
Hometown |
9941 | 45111 | 92.20 | |||||||||
Hometown |
7514 | 45111 | 92.20 | |||||||||
Hometown |
5303 | 45111 | 92.20 | |||||||||
Hometown |
7782 | 45111 | 92.20 | |||||||||
Hometown |
5706 | 45111 | 92.20 | |||||||||
Hometown |
5521 | 45112 | 89.45 | |||||||||
Hometown |
5812 | 45112 | 89.45 | |||||||||
Hometown |
2761 | 45112 | 89.45 | |||||||||
Hometown |
5950 | 45112 | 89.45 | |||||||||
Hometown |
3192 | 45113 | 100.64 | |||||||||
Hometown |
7657 | 45113 | 100.64 | |||||||||
Hometown |
5489 | 45113 | 100.64 | |||||||||
Hometown |
5742 | 45113 | 100.64 | |||||||||
Hometown |
4663 | 45113 | 100.64 | |||||||||
Hometown |
7502 | 45114 | 97.74 | |||||||||
Hometown |
8036 | 45114 | 97.74 | |||||||||
Hometown |
3738 | 45115 | 70.30 | |||||||||
Hometown |
5570 | 45115 | 70.30 | |||||||||
Hometown |
5859 | 45115 | 70.30 |
10
Execution Copy
Type of Store |
Store # | MDO | 2014 Rate | |||||||||
Hometown |
3702 | 45115 | 70.30 | |||||||||
Hometown |
5869 | 45115 | 70.30 | |||||||||
Hometown |
3453 | 45115 | 70.30 | |||||||||
Hometown |
2941 | 45115 | 70.30 | |||||||||
Hometown |
5949 | 45115 | 70.30 | |||||||||
Hometown |
1821 | 45115 | 70.30 | |||||||||
Hometown |
5850 | 45115 | 70.30 | |||||||||
Hometown |
6150 | 45115 | 70.30 | |||||||||
Hometown |
3802 | 45115 | 70.30 | |||||||||
Hometown |
3532 | 45115 | 70.30 | |||||||||
Hometown |
6414 | 45115 | 70.30 | |||||||||
Hometown |
2192 | 45115 | 70.30 | |||||||||
Hometown |
3572 | 45115 | 70.30 | |||||||||
Hometown |
5952 | 45115 | 70.30 | |||||||||
Hometown |
1940 | 45115 | 70.30 | |||||||||
Hometown |
3440 | 45115 | 70.30 | |||||||||
Hometown |
5839 | 45115 | 70.30 | |||||||||
Hometown |
5582 | 45115 | 70.30 | |||||||||
Hometown |
3391 | 45115 | 70.30 | |||||||||
Hometown |
1862 | 45115 | 70.30 | |||||||||
Hometown |
9982 | 45115 | 70.30 | |||||||||
Hometown |
6437 | 45115 | 70.30 | |||||||||
Hometown |
1931 | 45115 | 70.30 | |||||||||
Hometown |
7559 | 45122 | 72.89 | |||||||||
Hometown |
3321 | 45122 | 72.89 | |||||||||
Hometown |
5893 | 45122 | 72.89 | |||||||||
Hometown |
5975 | 45122 | 72.89 | |||||||||
Hometown |
9242 | 45122 | 72.89 | |||||||||
Hometown |
6747 | 45122 | 72.89 | |||||||||
Hometown |
5827 | 45122 | 72.89 | |||||||||
Hometown |
9077 | 45122 | 72.89 | |||||||||
Hometown |
9227 | 45122 | 72.89 | |||||||||
Hometown |
2706 | 45122 | 72.89 | |||||||||
Hometown |
3977 | 45122 | 72.89 | |||||||||
Hometown |
2708 | 45122 | 72.89 | |||||||||
Hometown |
5840 | 45122 | 72.89 | |||||||||
Hometown |
7569 | 45122 | 72.89 | |||||||||
Hometown |
9472 | 45122 | 72.89 | |||||||||
Hometown |
1816 | 45122 | 72.89 |
11
Execution Copy
Type of Store |
Store # | MDO | 2014 Rate | |||||||||
Hometown |
9504 | 45122 | 72.89 | |||||||||
Hometown |
6665 | 45122 | 72.89 | |||||||||
Hometown |
3307 | 45122 | 72.89 | |||||||||
Hometown |
9073 | 45122 | 72.89 | |||||||||
Hometown |
8076 | 45122 | 72.89 | |||||||||
Hometown |
3135 | 45125 | 102.21 | |||||||||
Hometown |
5491 | 45125 | 102.21 | |||||||||
Hometown |
3704 | 45125 | 102.21 | |||||||||
Hometown |
6267 | 45125 | 102.21 | |||||||||
Hometown |
3125 | 45125 | 102.21 | |||||||||
Hometown |
3145 | 45125 | 102.21 | |||||||||
Hometown |
5973 | 45125 | 102.21 | |||||||||
Hometown |
7363 | 45125 | 102.21 | |||||||||
Hometown |
3918 | 45125 | 102.21 | |||||||||
Hometown |
7220 | 45126 | 90.47 | |||||||||
Hometown |
3346 | 45126 | 90.47 | |||||||||
Hometown |
7350 | 45126 | 90.47 | |||||||||
Hometown |
6684 | 45126 | 90.47 | |||||||||
Hometown |
7709 | 45126 | 90.47 | |||||||||
Hometown |
5726 | 45126 | 90.47 | |||||||||
Hometown |
5691 | 45132 | 92.06 | |||||||||
Hometown |
3787 | 45132 | 92.06 | |||||||||
Hometown |
7491 | 45132 | 92.06 | |||||||||
Hometown |
5917 | 45132 | 92.06 | |||||||||
Hometown |
5887 | 45132 | 92.06 | |||||||||
Hometown |
3736 | 45132 | 92.06 | |||||||||
Hometown |
3950 | 45132 | 92.06 | |||||||||
Hometown |
7210 | 45132 | 92.06 | |||||||||
Hometown |
3012 | 45132 | 92.06 | |||||||||
Hometown |
3915 | 45132 | 92.06 | |||||||||
Hometown |
1869 | 45132 | 92.06 | |||||||||
Hometown |
7614 | 45132 | 92.06 | |||||||||
Hometown |
3157 | 45132 | 92.06 | |||||||||
Hometown |
3186 | 45132 | 92.06 | |||||||||
Hometown |
6208 | 45132 | 92.06 | |||||||||
Hometown |
6504 | 45132 | 92.06 | |||||||||
Hometown |
6753 | 45132 | 92.06 | |||||||||
Hometown |
9286 | 45138 | 58.36 | |||||||||
Hometown |
7728 | 45138 | 58.36 |
12
Execution Copy
Type of Store |
Store # | MDO | 2014 Rate | |||||||||
Hometown |
5658 | 45138 | 58.36 | |||||||||
Hometown |
6911 | 45138 | 58.36 | |||||||||
Hometown |
5663 | 45138 | 58.36 | |||||||||
Hometown |
5947 | 45138 | 58.36 | |||||||||
Hometown |
5656 | 45138 | 58.36 | |||||||||
Hometown |
5657 | 45138 | 58.36 | |||||||||
Hometown |
5359 | 45139 | 75.11 | |||||||||
Hometown |
5626 | 45139 | 75.11 | |||||||||
Hometown |
5681 | 45139 | 75.11 | |||||||||
Hometown |
3039 | 45139 | 75.11 | |||||||||
Hometown |
3908 | 45139 | 75.11 | |||||||||
Hometown |
6402 | 45139 | 75.11 | |||||||||
Hometown |
6410 | 45139 | 75.11 | |||||||||
Hometown |
3999 | 45139 | 75.11 | |||||||||
Hometown |
5707 | 45139 | 75.11 | |||||||||
Hometown |
5343 | 45140 | 51.00 | |||||||||
Hometown |
9295 | 45140 | 51.00 | |||||||||
Hometown |
5557 | 45142 | 71.72 | |||||||||
Hometown |
7609 | 45142 | 71.72 | |||||||||
Hometown |
5530 | 45142 | 71.72 | |||||||||
Hometown |
5535 | 45142 | 71.72 | |||||||||
Hometown |
5674 | 45142 | 71.72 | |||||||||
Hometown |
3437 | 45142 | 71.72 | |||||||||
Hometown |
3038 | 45142 | 71.72 | |||||||||
Hometown |
5576 | 45142 | 71.72 | |||||||||
Hometown |
5565 | 45142 | 71.72 | |||||||||
Hometown |
5615 | 45142 | 71.72 | |||||||||
Hometown |
3079 | 45142 | 71.72 | |||||||||
Hometown |
5727 | 45142 | 71.72 | |||||||||
Hometown |
5453 | 45143 | 95.24 | |||||||||
Hometown |
3859 | 45143 | 95.24 | |||||||||
Hometown |
2169 | 45143 | 95.24 | |||||||||
Hometown |
3046 | 45143 | 95.24 | |||||||||
Hometown |
5250 | 45145 | 61.09 | |||||||||
Hometown |
5686 | 45145 | 61.09 | |||||||||
Hometown |
7789 | 45145 | 61.09 | |||||||||
Hometown |
5636 | 45145 | 61.09 | |||||||||
Hometown |
5743 | 45145 | 61.09 | |||||||||
Hometown |
5609 | 45145 | 61.09 |
13
Execution Copy
Type of Store |
Store # | MDO | 2014 Rate | |||||||||
Hometown |
5642 | 45145 | 61.09 | |||||||||
Hometown |
5606 | 45145 | 61.09 | |||||||||
Hometown |
5682 | 45145 | 61.09 | |||||||||
Hometown |
5889 | 45146 | 60.28 | |||||||||
Hometown |
5633 | 45146 | 60.28 | |||||||||
Hometown |
3178 | 45146 | 60.28 | |||||||||
Hometown |
5612 | 45146 | 60.28 | |||||||||
Hometown |
5635 | 45146 | 60.28 | |||||||||
Hometown |
5643 | 45146 | 60.28 | |||||||||
Hometown |
5637 | 45146 | 60.28 | |||||||||
Hometown |
5645 | 45146 | 60.28 | |||||||||
Hometown |
5654 | 45146 | 60.28 | |||||||||
Hometown |
5650 | 45146 | 60.28 | |||||||||
Hometown |
5628 | 45146 | 60.28 | |||||||||
Hometown |
5648 | 45146 | 60.28 | |||||||||
Hometown |
7557 | 45149 | 74.50 | |||||||||
Hometown |
2235 | 45149 | 74.50 | |||||||||
Hometown |
7565 | 45149 | 74.50 | |||||||||
Hometown |
2785 | 45149 | 74.50 | |||||||||
Hometown |
4746 | 45149 | 74.50 | |||||||||
Hometown |
5221 | 45149 | 74.50 | |||||||||
Hometown |
3520 | 45151 | 69.03 | |||||||||
Hometown |
5052 | 45151 | 69.03 | |||||||||
Hometown |
6561 | 45151 | 69.03 | |||||||||
Hometown |
7482 | 45151 | 69.03 | |||||||||
Hometown |
3020 | 45151 | 69.03 | |||||||||
Hometown |
3113 | 45153 | 74.21 | |||||||||
Hometown |
5832 | 45153 | 74.21 | |||||||||
Hometown |
5755 | 45153 | 74.21 | |||||||||
Hometown |
5490 | 45153 | 74.21 | |||||||||
Hometown |
7853 | 45153 | 74.21 | |||||||||
Hometown |
5807 | 45153 | 74.21 | |||||||||
Hometown |
6795 | 45153 | 74.21 | |||||||||
Hometown |
2751 | 45153 | 74.21 | |||||||||
Hometown |
9361 | 45153 | 74.21 | |||||||||
Hometown |
2739 | 45158 | 75.95 | |||||||||
Hometown |
1858 | 45158 | 75.95 | |||||||||
Hometown |
9201 | 45158 | 75.95 | |||||||||
Hometown |
7567 | 45158 | 75.95 |
14
Execution Copy
Type of Store |
Store # | MDO | 2014 Rate | |||||||||
Hometown |
8105 | 45158 | 75.95 | |||||||||
Hometown |
7686 | 45158 | 75.95 | |||||||||
Hometown |
6017 | 45158 | 75.95 | |||||||||
Hometown |
6206 | 45158 | 75.95 | |||||||||
Hometown |
1811 | 45158 | 75.95 | |||||||||
Hometown |
1936 | 45158 | 75.95 | |||||||||
Hometown |
1856 | 45158 | 75.95 | |||||||||
Hometown |
3497 | 45158 | 75.95 | |||||||||
Hometown |
3388 | 45158 | 75.95 | |||||||||
Hometown |
1928 | 45158 | 75.95 | |||||||||
Hometown |
1937 | 45158 | 75.95 | |||||||||
Hometown |
5927 | 45158 | 75.95 | |||||||||
Hometown |
3697 | 45158 | 75.95 | |||||||||
Hometown |
1819 | 45158 | 75.95 | |||||||||
Hometown |
3528 | 45158 | 75.95 | |||||||||
Hometown |
6400 | 45158 | 75.95 | |||||||||
Hometown |
7489 | 45160 | 78.93 | |||||||||
Hometown |
3961 | 45160 | 78.93 | |||||||||
Hometown |
4798 | 45160 | 78.93 | |||||||||
Hometown |
3816 | 45160 | 78.93 | |||||||||
Hometown |
5818 | 45160 | 78.93 | |||||||||
Hometown |
3458 | 45160 | 78.93 | |||||||||
Hometown |
3756 | 45160 | 78.93 | |||||||||
Hometown |
4693 | 45160 | 78.93 | |||||||||
Hometown |
9774 | 45160 | 78.93 | |||||||||
Hometown |
7222 | 45160 | 78.93 | |||||||||
Hometown |
7667 | 45161 | 84.46 | |||||||||
Hometown |
5795 | 45161 | 84.46 | |||||||||
Hometown |
2709 | 45162 | 70.89 | |||||||||
Hometown |
3468 | 45162 | 70.89 | |||||||||
Hometown |
5809 | 45162 | 70.89 | |||||||||
Hometown |
7787 | 45162 | 70.89 | |||||||||
Hometown |
7391 | 45162 | 70.89 | |||||||||
Hometown |
7379 | 45162 | 70.89 | |||||||||
Hometown |
1808 | 45162 | 70.89 | |||||||||
Hometown |
1859 | 45162 | 70.89 | |||||||||
Hometown |
7403 | 45162 | 70.89 | |||||||||
Hometown |
5794 | 45162 | 70.89 | |||||||||
Hometown |
1857 | 45162 | 70.89 |
15
Execution Copy
Type of Store |
Store # | MDO | 2014 Rate | |||||||||
Hometown |
5414 | 45162 | 70.89 | |||||||||
Hometown |
5868 | 45162 | 70.89 | |||||||||
Hometown |
8033 | 45162 | 70.89 | |||||||||
Hometown |
1965 | 45162 | 70.89 | |||||||||
Hometown |
1938 | 45162 | 70.89 | |||||||||
Hometown |
3607 | 45162 | 70.89 | |||||||||
Hometown |
1932 | 45162 | 70.89 | |||||||||
Hometown |
7178 | 45162 | 70.89 | |||||||||
Hometown |
1809 | 45162 | 70.89 | |||||||||
Hometown |
2187 | 45579 | 89.92 | |||||||||
Hometown |
5854 | 45579 | 89.92 | |||||||||
Hometown |
7697 | 45579 | 89.92 | |||||||||
Hometown |
6722 | 45579 | 89.92 | |||||||||
Hometown |
5946 | 45579 | 89.92 | |||||||||
Hometown |
5175 | 45579 | 89.92 | |||||||||
Hometown |
3686 | 45579 | 89.92 | |||||||||
Hometown |
3948 | 45579 | 89.92 | |||||||||
Hometown |
7907 | 45579 | 89.92 | |||||||||
Hometown |
7114 | 45579 | 89.92 | |||||||||
Hometown |
5885 | 45579 | 89.92 | |||||||||
Hometown |
5897 | 45579 | 89.92 | |||||||||
Hometown |
3215 | 45051 | 87.36 | |||||||||
Hometown |
3305 | 45051 | 87.36 | |||||||||
Hometown |
5587 | 45051 | 87.36 | |||||||||
Hometown |
6502 | 45051 | 87.36 | |||||||||
Hometown |
5673 | 45051 | 87.36 | |||||||||
Hometown |
5821 | 45051 | 87.36 | |||||||||
Hometown |
4780 | 45051 | 87.36 | |||||||||
Hometown |
4855 | 45051 | 87.36 | |||||||||
Hometown |
7180 | 45576 | 64.50 | |||||||||
Hometown |
5547 | 45576 | 64.50 | |||||||||
Hometown |
3073 | 45576 | 64.50 | |||||||||
Hometown |
7190 | 45576 | 64.50 | |||||||||
Hometown |
7172 | 45576 | 64.50 | |||||||||
Hometown |
3743 | 45163 | 61.51 | |||||||||
Hometown |
2552 | 45163 | 61.51 | |||||||||
Hometown |
3006 | 45163 | 61.51 | |||||||||
Hometown |
4763 | 45163 | 61.51 | |||||||||
Hometown |
2194 | 45163 | 61.51 |
16
Execution Copy
Type of Store |
Store # | MDO | 2014 Rate | |||||||||
Hometown |
3323 | 45163 | 61.51 | |||||||||
Hometown |
2202 | 45163 | 61.51 | |||||||||
Hometown |
7692 | 45163 | 61.51 | |||||||||
Hometown |
2733 | 45593 | 96.69 | |||||||||
Hometown |
1817 | 45593 | 96.69 | |||||||||
Hometown |
3494 | 45593 | 96.69 | |||||||||
Hometown |
5882 | 45593 | 96.69 | |||||||||
Hometown |
1836 | 45593 | 96.69 | |||||||||
Hometown |
1923 | 45593 | 96.69 | |||||||||
Hometown |
5872 | 45593 | 96.69 | |||||||||
Hometown |
9916 | 45168 | 75.45 | |||||||||
Hometown |
3745 | 45168 | 75.45 | |||||||||
Hometown |
6474 | 45171 | 73.54 | |||||||||
Hometown |
2566 | 45171 | 73.54 | |||||||||
Hometown |
2925 | 45171 | 73.54 | |||||||||
Hometown |
1855 | 45171 | 73.54 | |||||||||
Hometown |
5321 | 45171 | 73.54 | |||||||||
Hometown |
7825 | 45172 | 88.21 | |||||||||
Hometown |
5162 | 45172 | 88.21 | |||||||||
Hometown |
1912 | 45172 | 88.21 | |||||||||
Hometown |
7070 | 45172 | 88.21 | |||||||||
Hometown |
8155 | 45172 | 88.21 | |||||||||
Hometown |
7285 | 45172 | 88.21 | |||||||||
Hometown |
7734 | 45177 | 70.57 | |||||||||
Hometown |
1903 | 45177 | 70.57 | |||||||||
Hometown |
5496 | 45177 | 70.57 | |||||||||
Hometown |
5512 | 45177 | 70.57 | |||||||||
Hometown |
1812 | 45113 | 100.64 | |||||||||
Hometown |
1870 | 45084 | 69.57 | |||||||||
Hometown |
1929 | 45176 | 82.90 | |||||||||
Hometown |
2178 | 45146 | 60.28 | |||||||||
Hometown |
2193 | 45081 | 99.50 | |||||||||
Hometown |
2531 | 45073 | 71.86 | |||||||||
Hometown |
2542 | 45099 | 68.66 | |||||||||
Hometown |
2723 | 45132 | 92.06 | |||||||||
Hometown |
2914 | 45065 | 65.86 | |||||||||
Hometown |
2971 | 45116 | 97.32 | |||||||||
Hometown |
3011 | 45113 | 100.64 | |||||||||
Hometown |
3023 | 45163 | 61.51 |
17
Execution Copy
Type of Store |
Store # | MDO | 2014 Rate | |||||||||
Hometown |
3049 | 45100 | 85.05 | |||||||||
Hometown |
3054 | 45168 | 75.45 | |||||||||
Hometown |
3065 | 45070 | 84.14 | |||||||||
Hometown |
3109 | 45145 | 61.09 | |||||||||
Hometown |
3114 | 45116 | 97.32 | |||||||||
Hometown |
3119 | 45105 | 84.74 | |||||||||
Hometown |
3165 | 45573 | 88.57 | |||||||||
Hometown |
3208 | 45099 | 68.66 | |||||||||
Hometown |
3212 | 45106 | 77.09 | |||||||||
Hometown |
3290 | 45101 | 66.76 | |||||||||
Hometown |
3297 | 45127 | 118.93 | |||||||||
Hometown |
3330 | 45111 | 92.20 | |||||||||
Hometown |
3357 | 45581 | 79.78 | |||||||||
Hometown |
3367 | 45122 | 72.89 | |||||||||
Hometown |
3370 | 45115 | 70.30 | |||||||||
Hometown |
3378 | 45158 | 75.95 | |||||||||
Hometown |
3385 | 45122 | 72.89 | |||||||||
Hometown |
3395 | 45583 | 119.79 | |||||||||
Hometown |
3402 | 45058 | 57.91 | |||||||||
Hometown |
3419 | 45076 | 68.85 | |||||||||
Hometown |
3429 | 45076 | 68.85 | |||||||||
Hometown |
3446 | 45165 | 76.21 | |||||||||
Hometown |
3470 | 45099 | 68.66 | |||||||||
Hometown |
3508 | 45158 | 75.95 | |||||||||
Hometown |
3536 | 45116 | 97.32 | |||||||||
Hometown |
3537 | 45058 | 57.91 | |||||||||
Hometown |
3566 | 45116 | 97.32 | |||||||||
Hometown |
3581 | 45111 | 92.20 | |||||||||
Hometown |
3583 | 45153 | 74.21 | |||||||||
Hometown |
3626 | 45126 | 90.47 | |||||||||
Hometown |
3635 | 45573 | 88.57 | |||||||||
Hometown |
3639 | 45162 | 70.89 | |||||||||
Hometown |
3681 | 45172 | 88.21 | |||||||||
Hometown |
3718 | 45084 | 69.57 | |||||||||
Hometown |
3727 | 45136 | 119.83 | |||||||||
Hometown |
3762 | 45104 | 71.81 | |||||||||
Hometown |
3827 | 45160 | 78.93 | |||||||||
Hometown |
3843 | 45598 | 105.74 | |||||||||
Hometown |
3878 | 45172 | 88.21 |
18
Execution Copy
Type of Store |
Store # | MDO | 2014 Rate | |||||||||
Hometown |
3889 | 45111 | 92.20 | |||||||||
Hometown |
3900 | 45140 | 51.00 | |||||||||
Hometown |
3902 | 45104 | 71.81 | |||||||||
Hometown |
3962 | 45101 | 66.76 | |||||||||
Hometown |
3986 | 45583 | 119.79 | |||||||||
Hometown |
4111 | 45130 | 101.22 | |||||||||
Hometown |
4139 | 45133 | 98.22 | |||||||||
Hometown |
4142 | 45137 | 101.45 | |||||||||
Hometown |
4172 | 45599 | 86.47 | |||||||||
Hometown |
4256 | 45149 | 74.50 | |||||||||
Hometown |
4463 | 45136 | 119.83 | |||||||||
Hometown |
4651 | 45094 | 82.06 | |||||||||
Hometown |
4652 | 45058 | 57.91 | |||||||||
Hometown |
4654 | 45101 | 66.76 | |||||||||
Hometown |
4702 | 45088 | 78.22 | |||||||||
Hometown |
4774 | 45068 | 97.45 | |||||||||
Hometown |
4828 | 45058 | 57.91 | |||||||||
Hometown |
4950 | 45125 | 102.21 | |||||||||
Hometown |
4973 | 45073 | 71.86 | |||||||||
Hometown |
4979 | 45084 | 69.57 | |||||||||
Hometown |
4981 | 45081 | 99.50 | |||||||||
Hometown |
5186 | 32980 | 88.66 | |||||||||
Hometown |
5248 | 45160 | 78.93 | |||||||||
Hometown |
5405 | 45573 | 88.57 | |||||||||
Hometown |
5408 | 45572 | 80.46 | |||||||||
Hometown |
5468 | 45060 | 84.65 | |||||||||
Hometown |
5480 | 45070 | 84.14 | |||||||||
Hometown |
5497 | 45081 | 99.50 | |||||||||
Hometown |
5517 | 45122 | 72.89 | |||||||||
Hometown |
5528 | 45158 | 75.95 | |||||||||
Hometown |
5538 | 45099 | 68.66 | |||||||||
Hometown |
5574 | 45104 | 71.81 | |||||||||
Hometown |
5580 | 45120 | 95.45 | |||||||||
Hometown |
5591 | 45119 | 108.02 | |||||||||
Hometown |
5595 | 45104 | 71.81 | |||||||||
Hometown |
5693 | 45113 | 100.64 | |||||||||
Hometown |
5697 | 45158 | 75.95 | |||||||||
Hometown |
5698 | 45142 | 71.72 | |||||||||
Hometown |
5713 | 45099 | 68.66 |
19
Execution Copy
Type of Store |
Store # | MDO | 2014 Rate | |||||||||
Hometown |
5723 | 45559 | 72.28 | |||||||||
Hometown |
5732 | 45140 | 51.00 | |||||||||
Hometown |
5733 | 45108 | 122.35 | |||||||||
Hometown |
5746 | 45572 | 80.46 | |||||||||
Hometown |
5753 | 45058 | 57.91 | |||||||||
Hometown |
5778 | 45136 | 119.83 | |||||||||
Hometown |
5792 | 45125 | 102.21 | |||||||||
Hometown |
5796 | 45111 | 92.20 | |||||||||
Hometown |
5802 | 45160 | 78.93 | |||||||||
Hometown |
5805 | 45111 | 92.20 | |||||||||
Hometown |
5808 | 45598 | 105.74 | |||||||||
Hometown |
5831 | 45076 | 68.85 | |||||||||
Hometown |
5848 | 45129 | 88.23 | |||||||||
Hometown |
5877 | 45160 | 78.93 | |||||||||
Hometown |
5878 | 45081 | 99.50 | |||||||||
Hometown |
5879 | 45158 | 75.95 | |||||||||
Hometown |
5883 | 45094 | 82.06 | |||||||||
Hometown |
5890 | 45572 | 80.46 | |||||||||
Hometown |
5892 | 45572 | 80.46 | |||||||||
Hometown |
5921 | 45099 | 68.66 | |||||||||
Hometown |
5924 | 45078 | 89.08 | |||||||||
Hometown |
5926 | 45109 | 79.11 | |||||||||
Hometown |
5928 | 45078 | 89.08 | |||||||||
Hometown |
5935 | 45577 | 89.11 | |||||||||
Hometown |
5936 | 45135 | 89.13 | |||||||||
Hometown |
5941 | 45134 | 83.45 | |||||||||
Hometown |
5942 | 45099 | 68.66 | |||||||||
Hometown |
5968 | 45060 | 84.65 | |||||||||
Hometown |
5970 | 45125 | 102.21 | |||||||||
Hometown |
5979 | 45081 | 99.50 | |||||||||
Hometown |
6000 | 45579 | 89.92 | |||||||||
Hometown |
6016 | 45153 | 74.21 | |||||||||
Hometown |
6076 | 45151 | 69.03 | |||||||||
Hometown |
6207 | 45060 | 84.65 | |||||||||
Hometown |
6278 | 45573 | 88.57 | |||||||||
Hometown |
6286 | 45160 | 78.93 | |||||||||
Hometown |
6463 | 45070 | 84.14 | |||||||||
Hometown |
6556 | 45168 | 75.45 | |||||||||
Hometown |
6606 | 45574 | 85.96 |
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Execution Copy
Type of Store |
Store # | MDO | 2014 Rate | |||||||||
Hometown |
6668 | 45577 | 89.11 | |||||||||
Hometown |
6672 | 45559 | 72.28 | |||||||||
Hometown |
6695 | 45133 | 98.22 | |||||||||
Hometown |
6863 | 45165 | 76.21 | |||||||||
Hometown |
6864 | 45122 | 72.89 | |||||||||
Hometown |
6901 | 45099 | 68.66 | |||||||||
Hometown |
6914 | 45078 | 89.08 | |||||||||
Hometown |
6942 | 45083 | 74.39 | |||||||||
Hometown |
6970 | 45058 | 57.91 | |||||||||
Hometown |
6984 | 45122 | 72.89 | |||||||||
Hometown |
6989 | 45578 | 109.97 | |||||||||
Hometown |
6997 | 45104 | 71.81 | |||||||||
Hometown |
7123 | 45137 | 101.45 | |||||||||
Hometown |
7173 | 45104 | 71.81 | |||||||||
Hometown |
7224 | 45104 | 71.81 | |||||||||
Hometown |
7773 | 45058 | 57.91 | |||||||||
Hometown |
7814 | 45068 | 97.45 | |||||||||
Hometown |
7940 | 45111 | 92.20 | |||||||||
Hometown |
8010 | 45577 | 89.11 | |||||||||
Hometown |
8011 | 45122 | 72.89 | |||||||||
Hometown |
8025 | 45099 | 68.66 | |||||||||
Hometown |
8051 | 45158 | 75.95 | |||||||||
Hometown |
8083 | 45126 | 90.47 | |||||||||
Hometown |
8099 | 45574 | 85.96 | |||||||||
Hometown |
8125 | 45160 | 78.93 | |||||||||
Hometown |
8188 | 45574 | 85.96 | |||||||||
Hometown |
9210 | 45111 | 92.20 | |||||||||
Hometown |
9248 | 45138 | 58.36 | |||||||||
Hometown |
9299 | 45058 | 57.91 | |||||||||
Hometown |
9906 | 45083 | 74.39 | |||||||||
Hometown |
9935 | 45158 | 75.95 | |||||||||
Hometown |
9936 | 45076 | 68.85 | |||||||||
Hometown |
9937 | 45145 | 61.09 | |||||||||
Hometown |
9958 | 45574 | 85.96 |
21
Execution Copy
Exhibit 2
FIXED HANDLING BILLING | Monthly Billing Rate | |||
Hardware |
$ | 269,594 | ||
Hometown |
903,140 | |||
Outlet |
10,915 | |||
|
|
|||
Total |
$ | 1,183,649 |
VARIABLE HANDLING BILLING | Charge based upon carton disbursement volume and rate by flow path and size/division |
RRC Variable Handling Rates
Flowpath | Metric | Small | Medium | Large | X-Large | Per Pick | ||||||||||||||||
ACD |
Case | $ | 0.17 | $ | 0.17 | $ | 0.17 | $ | 0.17 | $ | | |||||||||||
EMP |
Case | 0.57 | 0.58 | 0.68 | 0.99 | | ||||||||||||||||
Stock Case |
Case | 0.30 | 0.33 | 0.64 | 1.62 | | ||||||||||||||||
Stock Case NonCon |
Case | 1.08 | 1.11 | 1.35 | 2.11 | | ||||||||||||||||
Stock Repack Each |
Case | 0.63 | 0.66 | 0.86 | 1.53 | 0.13 | ||||||||||||||||
Stock Repack Inner |
Case | 0.63 | 0.66 | 0.86 | 1.53 | 0.13 | ||||||||||||||||
Stock Double Break |
Case | 1.29 | 1.32 | 1.53 | 2.19 | 0.13 | ||||||||||||||||
Stock Repack Case |
Case | 0.41 | 0.43 | 0.64 | 1.31 | 0.13 | ||||||||||||||||
Auto Case |
Case | 1.43 | 1.43 | 1.43 | 1.43 | | ||||||||||||||||
Game Domain Case |
Case | 0.96 | 0.96 | 0.96 | 0.96 | | ||||||||||||||||
Game Domain Repack |
Case | $ | 0.72 | $ | 0.72 | $ | 0.72 | $ | 0.72 | $ | 0.11 |
DDC Variable Handling Rates
Accessories Accessories | ||||||||||||||||||
Billpath | Metric | B2S | MDO | B2S | MDO | |||||||||||||
Fridge & Freezer |
Each | $ | 2.45 | $ | 2.23 | $ | 0.18 | $ | 0.16 | |||||||||
Dishwasher |
Each | 1.90 | 1.67 | 0.18 | 0.16 | |||||||||||||
Laundry |
Each | 1.74 | 1.51 | 0.18 | 0.16 | |||||||||||||
Tractors |
Each | 2.62 | 2.39 | 0.18 | 0.16 | |||||||||||||
Microwaves |
Each | 1.86 | 1.64 | 0.18 | 0.16 | |||||||||||||
Other Divisions |
Each | 1.78 | 1.55 | 0.18 | 0.16 | |||||||||||||
Range |
Each | 2.02 | 1.79 | 0.18 | 0.16 | |||||||||||||
TVs |
Each | 1.63 | 1.40 | 0.18 | 0.16 |
RDC Variable Handling Rates
Flowpath | Metric | Small | Medium | Large | X-Large | Per Pick | ||||||||||||||||
ACD |
Case | $ | 0.10 | $ | 0.10 | $ | 0.10 | $ | 0.10 | $ | | |||||||||||
Flow Pallet NonCon |
Case | 5.45 | 5.45 | 5.45 | 5.45 | | ||||||||||||||||
Stock Pallet NonCon |
Case | 7.40 | 7.40 | 7.40 | 7.40 | | ||||||||||||||||
Flow Case |
Case | 0.28 | 0.30 | 0.37 | 0.73 | | ||||||||||||||||
Flow NonCon |
Case | 0.20 | 0.22 | 0.33 | 0.89 | | ||||||||||||||||
Stock Case |
Case | 0.29 | 0.32 | 0.47 | 1.24 | | ||||||||||||||||
Stock Repack Each |
Case | 0.64 | 0.65 | 0.72 | 1.09 | 0.13 | ||||||||||||||||
Stock Repack Inner |
Case | 0.64 | 0.65 | 0.72 | 1.09 | 0.13 | ||||||||||||||||
Stock Double Break |
Case | 2.73 | 2.75 | 2.82 | 3.18 | 0.13 | ||||||||||||||||
Stock Case NonCon |
Case | 0.53 | 0.57 | 0.73 | 1.62 | |
RSC Variable Handling Rates
Flowpath | Metric | Small | Medium | Large | X-Large | Per Pick | ||||||||||||||||
ACD |
Case | $ | 0.12 | $ | 0.12 | $ | 0.12 | $ | 0.12 | $ | | |||||||||||
Stock Case |
Case | $ | 0.33 | $ | 0.35 | $ | 0.40 | $ | 0.54 | $ | | |||||||||||
Stock Repack Each |
Case | $ | 0.85 | $ | 0.90 | $ | 1.00 | $ | 1.31 | $ | 0.21 | |||||||||||
Stock Repack Inner |
Case | $ | 0.85 | $ | 0.90 | $ | 1.00 | $ | 1.31 | $ | 0.21 | |||||||||||
Stock Double Break |
Case | $ | 1.03 | $ | 1.85 | $ | 1.95 | $ | 5.48 | $ | 0.21 | |||||||||||
Stock Case NonCon |
Case | $ | 0.77 | $ | 0.83 | $ | 0.94 | $ | 1.30 | $ | |
1
Execution Copy
Exhibit 2 Continued
STORAGE BILLING |
||||||
RRC Storage Rate |
$ | 0.27 | per cubic foot per month | |||
DDC Storage Rate |
$ | 1.42 | per square foot per month | |||
RDC Storage Rate |
$ | 0.28 | per cubic foot per month | |||
RSC Storage Rate |
$ | 0.62 | per cubic foot per month | |||
CRC BILLING |
||||||
CRC Handling Rate |
||||||
Hardware |
$ | 0.405 | per scan charge | |||
Hometown |
$ | 0.405 | per scan charge | |||
Outlet |
$ | 0.405 | per scan charge | |||
CRC Transportation Rate |
||||||
Hardware |
$ | 0.240 | per cubic foot by division | |||
Hometown |
$ | 0.240 | per cubic foot by division | |||
Outlet |
$ | 0.240 | per cubic foot by division | |||
CRC Supplies & Other Rate |
||||||
Hardware |
$ | 0.077 | per scan charge | |||
Hometown |
$ | 0.077 | per scan charge | |||
Outlet |
$ | 0.077 | per scan charge | |||
CRC Revenue |
||||||
Hardware |
salvage revenue recovery rate with 3rd Party by division | |||||
Hometown |
salvage revenue recovery rate with 3rd Party by division | |||||
Outlet |
salvage revenue recovery rate with 3rd Party by division | |||||
CRC Freight & Handling Credit |
10 | % | handling credit rate |
OTHER |
||
Space Management |
$38.50/hour | |
Inventory Management |
$10,070 / month | |
Billing Adjustment |
Quarterly true up of actual logistics expense performed. |
Logistics Overhead Billing Rate
Feb | Mar | Apr | May | Jun | Jul | Aug | Sep | Oct | Nov | Dec | Jan | |||||||||||||||||||||||||||||||||||||
Hometown |
86,511 | 121,517 | 103,689 | 78,032 | 76,951 | 73,050 | 70,063 | 68,687 | 68,821 | 69,415 | 76,294 | 82,082 | ||||||||||||||||||||||||||||||||||||
Hardware |
21,914 | 38,325 | 42,771 | 25,075 | 22,920 | 20,681 | 20,443 | 20,690 | 18,498 | 19,444 | 21,057 | 26,292 | ||||||||||||||||||||||||||||||||||||
Outlet |
1,048 | 1,814 | 917 | 929 | 1,045 | 688 | 754 | 823 | 1,001 | 766 | 685 | 838 |
2
Execution Copy
Exhibit 3
2016 SHO Provided Product Rates
VARIABLE HANDLING BILLING | Charge based upon carton disbursement volume and rate by flow path |
RRC Variable Handling Rates
Flowpath |
Inbound
Case |
Inbound
Pallet |
Outbound
Case |
Per
Pick |
||||||||||||
ACD |
$ | | $ | | $ | 0.21 | $ | | ||||||||
EMP |
| | 1.49 | | ||||||||||||
Stock Case |
0.20 | 4.42 | 0.35 | | ||||||||||||
Stock Case NonCon |
0.20 | 4.42 | 1.36 | | ||||||||||||
Stock Repack Each |
0.20 | 4.42 | 0.45 | 0.14 | ||||||||||||
Stock Repack Inner |
0.20 | 4.42 | 0.45 | 0.14 | ||||||||||||
Stock Double Break |
0.20 | 4.42 | 0.45 | 0.25 | ||||||||||||
Stock Repack Case |
0.20 | 4.42 | 0.17 | 0.14 | ||||||||||||
Auto Case |
0.20 | 4.42 | 1.13 | | ||||||||||||
Game Domain Case |
0.20 | 4.42 | 0.96 | | ||||||||||||
Game Domain |
||||||||||||||||
Repack |
$ | 0.20 | $ | 4.42 | $ | 0.72 | $ | 0.13 |
DDC Variable Handling Rates
Billpath | Metric | Inbound | B2S | MDO |
Accessories
Inbound |
Accessories
B2S |
Accessories
MDO |
|||||||||||||||||||||
Fridge & Freezer |
Each | $ | 1.62 | $ | 2.51 | $ | 2.14 | $ | 0.12 | $ | 0.18 | $ | 0.14 | |||||||||||||||
Dishwasher |
Each | 0.85 | 2.35 | 1.97 | 0.12 | 0.18 | 0.14 | |||||||||||||||||||||
Laundry |
Each | 0.80 | 2.12 | 1.74 | 0.12 | 0.18 | 0.14 | |||||||||||||||||||||
Tractors |
Each | 1.35 | 3.06 | 2.68 | 0.12 | 0.18 | 0.14 | |||||||||||||||||||||
Microwaves |
Each | 0.74 | 2.40 | 2.02 | 0.12 | 0.18 | 0.14 | |||||||||||||||||||||
Other Divisions |
Each | 0.51 | 2.49 | 2.11 | 0.12 | 0.18 | 0.14 | |||||||||||||||||||||
Range |
Each | 1.10 | 2.31 | 1.93 | 0.12 | 0.18 | 0.14 | |||||||||||||||||||||
TVs |
Each | 0.64 | 2.11 | 1.73 | 0.12 | 0.18 | 0.14 | |||||||||||||||||||||
Mattresses |
Each | 1.91 | 4.85 | 3.98 | 0.12 | 0.18 | 0.14 | |||||||||||||||||||||
Recliners |
Each | 1.63 | 4.16 | 3.42 | 0.12 | 0.18 | 0.14 |
RDC Variable Handling Rates
Flowpath |
Inbound Case |
Inbound Pallet |
Outbound Case |
Per Pick |
||||||||||||
ACD |
$ | | $ | | $ | 0.16 | $ | | ||||||||
Flow Pallet NonCon |
| 6.55 | 2.90 | | ||||||||||||
Stock Pallet NonCon |
| 6.55 | 3.92 | | ||||||||||||
Flow Case |
0.17 | 3.34 | 0.22 | | ||||||||||||
Flow NonCon |
0.17 | 4.69 | 0.54 | | ||||||||||||
Stock Case |
0.17 | 3.34 | 0.22 | | ||||||||||||
Stock Repack Each |
0.83 | 2.01 | 0.09 | 0.16 | ||||||||||||
Stock Repack Inner |
0.83 | 2.01 | 0.09 | 0.16 | ||||||||||||
Stock Double Break |
0.83 | 2.01 | 0.09 | 0.24 | ||||||||||||
Stock Case NonCon |
0.17 | 4.69 | 0.54 | |
RSC Variable Handling Rates
Flowpath |
Inbound Case |
Inbound Pallet |
Outbound Case |
Per Pick |
||||||||||||
ACD |
$ | | $ | | $ | 0.18 | $ | | ||||||||
Stock Case |
$ | 0.26 | $ | 2.38 | $ | 0.25 | $ | | ||||||||
Stock Repack Each |
$ | 1.14 | $ | 5.06 | $ | 0.09 | $ | 0.33 | ||||||||
Stock Repack Inner |
$ | 1.14 | $ | 5.06 | $ | 0.09 | $ | 0.33 | ||||||||
Stock Double Break |
$ | 1.14 | $ | 5.06 | $ | 0.09 | $ | 0.55 | ||||||||
Stock Case NonCon |
$ | 0.26 | $ | 6.45 | $ | 0.87 | $ | |
1
Execution Copy
Exhibit 3
2016 SHO Provided Products Rates (continued)
STORAGE BILLING |
||||||
RRC Storage Rate |
$ | 0.37 | per cubic foot per month | |||
DDC Storage Rate |
$ | 2.56 | per square foot per month | |||
RDC Storage Rate |
$ | 0.50 | per cubic foot per month | |||
RSC Storage Rate |
$ | 1.01 | per cubic foot per month | |||
CRC BILLING |
||||||
CRC Handling Rate |
||||||
Hardware |
$ | 0.465 | per scan charge | |||
Hometown |
$ | 0.465 | per scan charge | |||
Outlet |
$ | 0.465 | per scan charge | |||
CRC Transportation Rate |
||||||
Hardware |
$ | 0.260 | per cubic foot by division | |||
Hometown |
$ | 0.260 | per cubic foot by division | |||
Outlet |
$ | 0.260 | per cubic foot by division | |||
CRC Supplies & Other Rate |
||||||
Hardware |
$ | 0.090 | per scan charge | |||
Hometown |
$ | 0.090 | per scan charge | |||
Outlet |
$ | 0.090 | per scan charge | |||
CRC Revenue |
||||||
Hardware |
salvage revenue recovery rate with 3rd Party by division | |||||
Hometown |
salvage revenue recovery rate with 3rd Party by division | |||||
Outlet |
salvage revenue recovery rate with 3rd Party by division | |||||
CRC Freight & Handling Credit |
10 | % | handling credit rate |
OTHER |
||
Space Management |
$42.50/hour | |
Inventory Management |
$10,070 / month | |
Billing Adjustment |
Quarterly true up of actual logistics expense performed. | |
On-boarding |
$650 per vendor |
| Collect Documents |
W9
Contract
COI (insurance)
| Research D&B |
| Confirm TIN (Tax ID) |
| System setup |
Build duns (pay, order, ship)
Add Vendor Master Data in VDB/CORE/DC systems
CRC setup
| EDI testing and setup 3rd party |
GIS (850)
Liaison (850)
ePartner (850)
DCs (856)
| Label testing in house |
| Setup vendor users for system access |
Maintenance | $50/monthly fee/vendor |
| EDI Production Support |
| EDI Operational Expense (kilocharacter charges) |
| Help Desk support/Ship point maintenance/Vendor changes |
2
Execution Copy
Appendix 1.01-D
eCommerce Services
For the duration of the eCommerce Term (defined in the Services Agreement and except as noted below), all rights, obligations and Services provided for under this Appendix 1.01-D (this Appendix ) will be provided by SHMC and SHO. References to: (x) SHO include SHOs Affiliates, (y) SHO Stores means: (i) stores owned or operated by SHO, its Affiliates or SHO Authorized Sellers (ii) that uses as its tradename a name that includes the name sears which is licensed to SHO from SHMC or one of its Affiliates. SHO shall cause each of its Affiliates and SHO Authorized Sellers to perform SHOs obligations set forth below and abide by the restrictions set forth herein. To the extent necessary for SHMC to comply with this Appendix, SHMC will cause its Affiliates to perform its obligations set forth herein. This Appendix will become effective on the Amendment Date (as defined in the Services Agreement (defined below) to which this Appendix is attached (the Appendix Effective Date ). Capitalized terms used and not otherwise defined herein shall have the meanings ascribed to them in the Services Agreement (as amended, Services Agreement ) or the Amended and Restated Merchandising Agreement ( Merchandising Agreement ) as applicable.
PART I: DEFINITIONS.
(a) Commissions means the applicable fee based on a percentage whether Current or Full paid by one Party to the other under this Appendix for a transaction pursuant to an eCommerce Capability. The applicable Commissions are set forth in Part III , Section 4 (Commissions) and on Attachment A (Commissions Chart) . For the sears.com eCommerce Capabilities (noted as SH in first column of Capabilities Chart, the Commissions will transition from Current to Full Commissions as set forth on the Commissions Chart. The Commissions Chart does not apply to the existing searsoutlet.com or the New SearsOutlet.com. Any modifications to the Commissions Chart will be mutually agreed to pursuant to an amendment executed by both parties.
(b) eCommerce Capabilities means the different methods under this Appendix by which a customer order may be fulfilled. The eCommerce Capabilities are set forth on Attachment B (eCommerce Capabilities) ( Capabilities Chart ) attached hereto. Any modifications, including but not limited to adding new eCommerce Capabilities not listed on Attachment B, will be mutually agreed to pursuant to an amendment executed by both parties. For purposes of interpreting the Capabilities Chart, the following acronyms apply:
(i) SHO means SHO
(ii) SH means Sears
(iii) M means Sears Marketplace
(iv) S means Sears Additional Offering
(v) W2S means Web to Store
(vi) W2H means Web to Home
(vii) S2H means Store to Home
(viii) S2S means Store to Store
1
Execution Copy
(ix) DBC means Shopper Recap and Digital Business Card functionality
(c) Kiosk means a customer terminal in a SHO Store which uses as its tradename a name that includes the name sears which name is licensed from SHMC or one of its Affiliates and connects to a website for customers to place orders. Kiosk does not include any other devices or application accessed by a store associate (but not a customer) that is capable of placing orders, (i.e. ipads or other mobile devices). SHO, its Affiliates and SHO Authorized Sellers will not make (or have third parties make) available to its customers, in a SHO Store, any other devices for ordering from websites.
(d) Licensed Domain Names means for purposes of this Appendix, (i) searsoutlet.com, (ii) searshomeapplianceshowroom.com, (iii) searshometownstores.com, and (iv) searshardwarestores.com. The Licensed Domain Names are licensed to SHO pursuant to the License Agreement.
(e) New Products for purposes of this Appendix means any products that are, in each case: (i) new and in a box, (ii) current, not obsolete, models and (iii) that are sold by SHMC or its Affiliates. Models that have been designated as discontinued by their manufacturers (or for products sold under a Seller Mark, such discontinued designation has made by SHMC or its Affiliates) will not be deemed New Products. For clarity, the Parties note that the definition of New Products in the Merchandising Agreement does not apply to this Appendix.
(f) New SearsOutlet.com means the web platform operated by SHO or a third party provider (other than SHMC or its Affiliates) that uses the searsoutlet.com domain name but no longer uses Seller Work Product.
(g) Products means for purposes of this Appendix the Products purchased by SHO and its Affiliates under the Merchandising Agreement (as defined therein), and also includes merchandise purchased by SHO from parties other than Sears, Roebuck and Co. and its Affiliates.
(h) Sears means for purposes of this Appendix, Sears, Roebuck and Co.
(i) SH Shopper Recap/DBC means the SHMC or its Affiliates owned and developed Shopper Recap and Digital Business Card functionality.
(j) Sears Additional Offering means a sale transaction that (i) originates on a SHO Web Platform in a manner similar to the way SHMC allows third party to sell products on its marketplace; (ii) consist of merchandise that are not part of the SHO Web Offering (i.e., merchandise not available for sale at a SHO Store) and; (iii) that is fulfilled by SHMC or its Affiliate.
(k) SHMC Web Offering means the Sears Additional Offering and the following eCommerce Capabilities: SH/W2S, SH/S2H, SH/S2S and SH/M/S2H.
(l) SHO Authorized Seller is defined in the Services Agreement.
(m) SHO Hometown Go-Live Date means the date that the SHO Web Platforms (other than the New SearsOutlet.com) become operational to take customer orders (e.g., once one of the SHO eCommerce Capabilities is operational). However, if SHMC refuses to turn on the functionality enabling all SHO Store locations to be live on sears.com for store locator and store pick up for Sears Home Appliance Showrooms, Sears Hometown Stores, and Sears Hardware stores for any reason other than due to failure by SHO to demonstrate that it has in production the necessary equipment (both software and hardware) to properly manage W2S customer orders, then the SHO Hometown Go-Live Date will not commence until SHMC turns on such functionality.
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Execution Copy
(n) SHO Outlet Go-Live Date means the date that the New SearsOutlet.com web-property becomes operational to take customer orders (e.g., one of the SHO eCommerce Capabilities is operational). However, if SHMC refuses to turn on the functionality enabling all Sears Outlet store locations to be live on sears.com for store locator and store pick up for any reason other then due to failure by SHO to demonstrate that it has in production the necessary equipment (both software and hardware) to properly manage W2S customer orders, than the SHO Outlet Go-Live Date will not commence until SHMC turns on such functionality. Upon the occurrence of the SHO Outlet Go-Live Date, the existing searsoutlet.com website will be retired and no longer be operational. Attachment C (searsoutlet.com Statement of Work) will terminate on the SHO Outlet Go-Live Date provided that SHO has provided sixty (60) days prior notice required under the Services Agreement.
(o) SHO Shopper Recap/DBC means the SHO yet to be developed shopper recap and Digital Business functionality.
(p) SHO Web Offering means for the SHO Web Platforms (other than searsoutlet.com and the New SearsOutlet.com) Products that SHO is allowed to sell under this Appendix subject to the following conditions: (i) they are Products in the HTS Product Categories set forth on Appendix 3(a) (HTS Product Categories) in the Merchandising Agreement; and (ii) that in each case are either: (1) Products that are available for sale (meaning Products that are on the selling floor and are marked with the applicable price; or (2) such Product is available via SHMCs Hold for Merchandise (HFM) system for pick up at a SHO Store. In order to qualify for HFM designation, the Product must be available in a Sears distribution facility and are HFM Eligible (e.g., not be in a case pack) at SHO Stores. The SHO Web Offering eCommerce Capabilities are set forth in the Capabilities Chart and begin with SHO.
(q) SHO Web Platforms means the web platforms that both (i) use the Licensed Domain Names and (ii) are operated by SHO (including its Affiliates, but for purposes of this definition excluding the SHO Authorized Sellers) or third parties on SHOs behalf. For example, searshometownstores.com and the New SearsOutlet.com are each SHO Web Platforms.
(r) Web Territories is defined in Part III , Section 2(b ) herein.
(s) Zip Codes means the system of postal codes used in the United States to facilitate the delivery of mail.
PART II: ONLINE SERVICES
Part II of this Appendix sets forth the Services that SHMC will continue to provide to SHO, as such have been modified in this Part II, that were previously included in the Appendix 1.01.A of the Services Agreement. The revised Services are as follows:
1. | SEARS.COM |
a. | Senior Account Manager. SHMC will assign a Senior Account Management Executive to be the primary point of contact for SHO and will provide the following tasks: (i) Work directly with SHO to plan, support, prioritize new initiatives and business requirements for SearsOutlet.com; and (ii) Provide escalation support for day to day activities. There is no cost to SHO for the Senior Account Manager provided the annual spend under the SOW for SearsOutlet.com (see Attachment C ) is greater than $3M. |
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b. | Services and Functionality . |
i. | SHMC will continue displaying all SHO Store locations listed on the Appendix Effective Date on sears.com as pick-up locations. For SHO Store locations that become operational (new) after the Effective Date and for those that SHO makes ready to implement the SHMC Web Offerings, SHMC will display those locations on sears.com, as pick-up locations, provided SHO has given at least thirty (30) days written notice to SHMC prior to such new SHO Store becoming operational and/or that an existing locations is ready to implement the SHMC Web Offerings. Provided, further however, SHO is solely responsible for systems and costs with creating and maintaining such integration and functionality. For SHO Store locations not previously displayed on sears.com, the Parties will mutually agree upon a roll-out plan. |
ii. | SHMC will maintain all SHO Store locations on the sears.com store locator functionality and will not intentionally discriminate in the listing of SHO Store locations. |
iii. | SHO Outlet Regional Distribution Center will not be listed on sears.com as either a SHO Store or pick up location. |
iv. | SHMC will provide a link to the SHO Web Platforms allowing customers to navigate from sears.com to the SHO Web Platforms from Sears.com. |
v. | For eCommerce Capabilities on sears.com, SHMC will, to the extent that it does so for Sears.com web to home users, continue to provide existing support/functionality for all mobile (phone or tablet) websites or applications. |
c. | e Commerce Capabilities . SHMC will provide the eCommerce Capabilities listed on the Capabilities Chart under sears.com that begin with the letters SH in the first column. As an example, below is the sears.com, W2S capability description from the Capabilities Chart: |
eCommerce
|
Origin |
Seller of Record |
Who Recognizes Revenue |
Who Fulfills Order |
Where
|
AKA |
Definition and Example |
Ending/ Continuing/ Future |
||||||||
SH/W2S | sears.com | Sears | SHO | SHO | SHO Store |
Web to Store, Fusion |
Def: means a transaction that originates on sears.com and pick up is at a SHO Store
Ex: Customer buys a product sold by SHO on Sears.com and picks up at a SHO Store |
Continuing |
The SH/W2S eCommerce Capability shall be interpreted as follows: A transaction that originates on sears.com with the product picked up at a SHO Store. Sears is the seller of record and SHO recognizes the revenue and fulfills the order. This Capability is a continuing Service. For the financial implications including the applicable Commissions, see the Commissions Chart.
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d. | SH/Shopper Recap/DBC . The SH Shopper Recap/DBC functionality utilized by SHO will continue to be available on sears.com until the SHO Hometown Go-Live Date. SHO will continue to pay SHMC the applicable Commissions set forth of the Commissions Chart for all DBC sales made on sears.com |
2. | SEARSOUTLET.COM |
a. | General Services . SHMC will continue to provide the following design, development, project management, QA and system/functionality and support Services for searsoutlet.com (to the extent such Services are being currently provided to searsoutlet.com today) which are more fully described in that certain Statement of Work attached hereto as Attachment C (SOW for searsoutlet.com) until such time as SHO provides proper notice of termination in accordance with the SOW. All fees and charges related to Services for searoutlet.com are set forth in the SOW: |
i. | Full order and post-order management support via OMS including financial reporting (via a daily tranfile) that is generated by OMS and fed into SHMC core financial systems |
ii. | Full online customer profile support accessed via CAS |
iii. | Full support of existing Single Sign-on functionality and related databases which allows customers to migrate freely between existing SHMC websites |
iv. | Provide product data and related content from SPIN (Sears.com content management system) and necessary access for content creation and enhancements which will only appear on searsoutlet.com of products created in the SPIN System by SHMC or its Affiliates |
v. | Support existing employee discount functionality in online shopping cart/checkout |
vi. | Provide customer product review information and manage content delivery. Support should continue at current levels if provider changes or SHMC develops proprietary/internal customer/product review functionality |
vii. | Provide full support credit card authorization, fraud checks, and tax calculation |
viii. | Continue to support (a) integration with critical SHMC system infrastructure and (b) access to all production databases housing critical online inventory, fulfillment, and order information including: |
| SCIM/DOS systems for fulfilling online delivery orders. Functionality includes scheduling deliveries, ordering installation services, and fulfilling protection agreements. |
| NPOS - for 991 inventory and price feed |
| RIM - for non-991 inventory feed |
| PMS - non-991 price and Vendor Direct price feed |
| CORE - for accessory and protection agreement details, Hierarchy details |
| DOS - for details regarding zip code and MDO mapping data |
| Shipping Services - for calculation of SHOs shipping costs for shippable items (UPS) |
| RTI - for inventory/order management and non-991 shipping items quantity feed |
| Ciboodle - Guest user address validation service |
| SHMC Customer Data Warehouse (CDW) - Promotional email feed (CDW integrates with UNICA to validate and create email distribution lists) |
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ix. | Continue to provide hosting, production, and database support on servers located in the Sears Data Center |
x. | Continue to provide QA and testing environments as in todays environment. |
xi. | Continue to provide full issue escalation support via ESOC and other supporting groups/units within SHMC |
xii. | Continue to provide full integration with Shop Your Way Rewards platforms to allow for earning and redemption of points |
xiii. | SHMC will continue to provide full integration support and the actual service where noted for all existing third-party vendors. For purposes of Appendix actual service means a service that SHO is receiving from the third party vendor that SHMC is paying for today. If the service is not designated as actual service than it should be interpreted as SHO is paying for the service provided by the third party vendor and SHMC is only supporting the software integration point with such third party vendor: |
| Commission Junction - affiliate marketing network provider Omniture |
| Responsys - for production/distribution of all trigger and promotional e-mails. This includes the actual service |
| UNICA - integration with CDW to generate promotional e-mail lists. This includes the actual service. |
| PSIGEN - support of integration to manage, store, retrieve merchandise images station images for display on searsoutlet.com |
| SCENE7 - product images (data is provided by SPIN and the S7 URL is used for displaying image on website). This includes the actual service. |
| Commerce Hub - vendor direct orders/functionality. This includes the actual service. |
| Skava - mobile/tablet website provider for SearsOutlet.com; provided that this Service has been terminated effective January 30, 2016. |
| Bloomreach - dynamic onsite content creation to optimize paid & organic search programs |
| Monetate - software as a service platform to enhance onsite merchandising; provided that this Service has been terminated effective January 30, 2016. |
| Channel Intelligence - product information data feeds for inclusion in online shopping engine sites |
| Omniture Site Catalyst (Adobe) - full website site analytics platform. This includes the actual service. |
| Signal (formerly Bright Tag) - onsite pixel management technology. This includes the actual service. |
| Akamai - content delivery network. This includes the actual service. |
| Google Analytics premium- website analytics. This includes the actual service. |
| Adobe Media Optimizer - Paid searchbidding platform. Replaces Kenshoo. This includes the actual service. |
| Optimizely-A/B testing tool |
| Personali-personalzation and negotiation tool |
| Criteo-retargeting platform |
| PCMiler- distance calculator for home delivery |
| Paypal-Payment service |
| 24X7-Online Chat |
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| Channel advisor-market place integrator |
| Google Maps API-This includes the actual service. |
| Yotpo-site reviews |
| Revtrax-coupon service |
| STI (for special delivery)-OMS integration for delivery |
| XPO (for local delivery)- OMS integration for delivery |
| Universal Payments |
| Teradata-data warehousing. This includes the actual service. |
b. | Online Sales Commissions . If a SHMC business unit elects from time to time and in its sole discretion to have their products available for sale on searsoutlet.com or the New SearsOutlet.com, a commission will be paid by SHMC to SHO in accordance with the rate table included in Part III, Section 4 (Commissions) for each transaction that originates on either searsoutlet.com or the New SearsOutlet.com. The applicable commission rate will be charged monthly based on sales reporting by SHO. SHO, upon consultation with the applicable SHMC business unit, may remove product from either the searoutlet.com or the New SearsOutlet.com. Unless otherwise agreed to in writing by the parties pursuant to an amendment executed by the parties, the commission set forth below shall apply for the duration of the eCommerce Services Period. For the avoidance of doubt, the commission described in this subsection will not apply to sales made by SHMCs Affiliates. |
c. | Conversion of searsoutlet.com . It is understood that upon the occurrence of the SHO Outlet Go-Live Date the existing servers housing searsoutlet.com will be decommissioned and the existing searsoutlet.com will no longer be: (i) operational, nor (ii) considered to be a Seller Digital Method (as that term is defined in the Merchandising Agreement). |
PART III: SHO WEB PLATFORMS
Part III of this Appendix sets forth the terms and conditions under which SHO will operate the SHO Web Platforms. Part III is limited to the Licensed Domain Names. Any expansion to other domain names/websites will require the written approval of SHMC, in its sole discretion.
SHOs use of the Licensed Domain Names, their associated websites, the eCommerce Capabilities, and the sale of Products in connection with such websites are all subject to the provisions of the License Agreement under which such domain is licensed (including Section 4.3 (Quality Control Obligation) thereof).
1. | SHO WEB PLATFORMS. |
(a) | Licensed Domain Names . |
(i) Ownership. Nothing herein grants SHO any ownership rights to the Licensed Domain Names.
(ii) License Grant. Except as otherwise expressly modified herein, the licenses granted in Section 12(a)(iii) of the Merchandising Agreement will apply to this Appendix.
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(iii) Limitations/Restrictions. SHO, its Affiliates and the SHO Authorized Sellers are strictly prohibited from operating, interconnecting or cooperating in any manner with other eCommerce sites whether owned or operated by SHO, its Affiliates, the SHO Authorized Sellers or any other third party. Provided, however, SHO may operate new eCommerce sites that do not use the Licensed Domain Names or any other name licensed from SHMC or one of its Affiliates for new business lines acquired as long as such new sites do not offer for sale: (x) any of the Products bought by SHO from SHMC or its Affiliates, (y) any Services under the Services Agreement, or (z) content or other data provided by SHMC or its Affiliates.
Notwithstanding the foregoing, SHMC does not object to SHO selling DRM Products (as such term is defined in the Merchandising Agreement) subject to the following conditions being met: (1) the DRM Products do not carry/display a Seller Mark; (2) the eCommerce site used to sell such DRM Products does not use the Licensed Domain Names; (3) SHO acknowledges that SHMC is making no representations or warranties with respect to any content used by SHO or SHOs right to sell such products on such websites; and (4) in the event that SHMC receives notice of any third party claim in connection with SHOs listing of such DRM Products and/or content procured from SHMC and its Affiliates, SHMC may require that SHO cease using such listings immediately. Additionally, such third party claim such shall be deemed a SHO Claim under Section 5.01 of the Services Agreement (without regard to the exceptions set forth therein), irrespective of the fact that the DRM Products are not being sold on the SHO Web Platforms. If SHMC requires SHO to cease any such listing due to a third party claim, and SHO subsequently resolves such third party claim to SHMCs satisfaction, and per such resolution, the third party claimant agrees not to bring the same or a similar claim in the future, SHMC will lift the prohibition and SHO can begin to use such listing again.
Further, notwithstanding the foregoing, SHMC does not object to SHO selling products on an eCommerce site that does not use the Licensed Domain Names provided: (1) SHO did not acquire such products from SHMC and/or its Affiliates, and (2) such products are not New Products.
The Parties agree that the restrictions set forth in Part III, Section 1 of this Appendix including those on pricing and marketing restrictions are reasonable, necessary and proper to, among other things, allow for the Parties to more efficiently satisfy consumer demands, enable investments to better serve their consumers, expand the distribution of Products with Seller Marks and reduce consumer confusion.
(iv) KCD Products Offering. SHO is currently prohibited from offering for sale any KCD-Branded Products that are Outlet Products sold to SHO under the Merchandising Agreement on any third party website. In the event that SHO wishes to pursue such an offering, SHO must submit a SHO Request following the process detailed in Section 1.01E . (SHOs Requests for Services/System Changes) of the Services Agreement.
(b) SHO Web Platforms .
(i) Products. SHO may sell and market the Products (subject to the limitations in set forth herein an in the other Ancillary Agreements: (1) comprising the SHO Web Offering on the SHO Web Platforms; subject to the restrictions set forth in Section 2 below, and (2) on the New SearsOutlet.com; subject to the restrictions set forth in the following subsection (ii) (New Products).
(ii) New SearsOutlet.com. Subject to all the terms and conditions of this Agreement, SHMC hereby grants to SHO, including its Affiliates but for purposes of this Section excluding its Authorized Sellers, for and during the eCommerce Services Period, an exclusive, royalty-free, fully paid up, non-transferable and terminable right and license to operate the New Sears Outlet.com using the SearsOutlet.com Licensed Domain for sales in the Territory, including sales made by SHO Authorized
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Sellers, through which all Products, other than HTS Products (but including Outlet Products (as those terms are defined in the Merchandising Agreement), and the related services permitted herein will be offered and sold. Notwithstanding any other provision of this Appendix, SHO will not sell New Products on searsoutlet.com or the New SearsOutlet.com. The Parties agree that the foregoing restriction is reasonable way to prevent diminution in value of New Products.
(c) On-going Operation and Maintenance . SHO is solely responsible for all aspects of operating (inclusive of all customer support and call center support services and maintaining (technical and otherwise) the SHO Web Platforms. If SHO requests that SHMC provide any SHO Access, or any SHMC System, in connection with the SHO Web Platforms, SHMCs cooperation will be subject to Section 1.03 (a) including the provisions therein regarding additional approvals and charges to SHO.
(d) Customer Support/Call Center for sears.outlet.com . SHMC will continue to provide sears.outlet.com customer support including call center obligations until the close of business January 28, 2017. After the close of business on January 28, 2017, SHO will have the option of: (1) continuing with SHMC as the service provider at SHOs sole cost and expense; or (2) SHO may assume sole responsibility of all searsoutlet.com customer support including all call center obligations. If SHO does not select option (2) by January 28, 2017, SHMC will commence billing under option (1) for all customer support services provided, at SHMCs cost, and SHO shall pay such costs to SHMC.
(e) General Services . In connection with the SHO Web Platforms, SHO has requested that SHMC provide certain support services (to the same extent currently being provided) that SHO asserts that it receives today from SHMC in connection with its websites using the Licensed Domain Names (as set forth on Attachment D (Requested SHO Services) . As of the Appendix Effective Date, SHMC has not had an opportunity to assess the feasibility of whether such Services can be provided for the new SHO Web Platforms by SHMC under its current third party agreements. In order to facilitate an evaluation of the requested services, SHMC requests that SHO provide a SHO Migration Plan for the implementation of the each new SHO Web Platform in accordance with Section 1.03 (SHOs Migration Off of Transition Services) of the Services Agreement. Upon review of such SHO Migration Plan, SHMC will determine in Good Faith whether such requested services will be provided pursuant to the requirements of this subsection (e) and Section 1.01E . (SHOs Requests for Services/System Changes) of the Services Agreement. If providing the requested services is not problematic for SHMC, SHMC will provide such services to the same extent SHMC is currently providing such service for the current Licensed Domains (i.e., no expansion of current services) pursuant to a written amendment signed by both parties setting forth pricing and other terms which will apply to such services; provided that any such pricing proposed by SHMC will fair and reasonable, reflect actual cost (including internal and external cost) and will not be arbitrary. The following are examples of when the requested services could be problematic for SHMC to provide: (i) the current license or service agreement with the third party provider does not extend to providing such services to the new SHO Web Platforms; (ii) by providing the requested services, SHMCs architecture is negatively impacted; or (iii) there is a prohibitive increase in cost (whether internal to SHMC or by a third party provider) in order to provide such requested services. Further, in the event that SHMC provides any or all of the services requested on Attachment D , SHMC has the option to discontinue such services at the end of Fiscal Year 2017 and SHMC and its Affiliates will have no liability to SHO or its Affiliates in connection with such discontinuance of services.
2. | MARKETING LIMITATIONS. |
(a) Scope . The marketing limitations described in this Section 2 do not apply to marketing efforts specific to searsoutlet.com or to the New SearsOutlet.com unless otherwise specifically noted herein. For the avoidance of doubt and in connection with the restriction set forth in this Part III, Section 1(b)(ii) (New Products) above, SHO is prohibited from marketing New Products on searsoutlet.com and the New SearsOutlet.com.
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(b) Web Territories and Geographic Restrictions . For purposes of this Appendix and in connection with the SHO Web offering, SHO will limit its marketing efforts to users located within (inside) the Web Territories as defined herein. For purposes of this Appendix, Web Territories means Zip Codes from which:
(i) Each SHO Store (excluding SHOs Outlet Stores and Sears Hardware Stores) generates a total of 75% of its total annual Store Sales; and
(ii) Each SHO Store branded as a Sears Hardware Store generates a total of 85% of its total annual Store Sales.
Excluded further from the Web Territories definition, even if they satisfy the applicable restrictions of 75% or 85% total annual Store Sales above, are Zip Codes inside the mileage restrictions described in Section 9(b)(i)(B) (i.e., the 8 mile restriction) of the Merchandising Agreement.
Store Sales means all of the sales for a particular SHO Store including SH/S2H and SH/W2S sales but not including all other sales/revenue derived from the other eCommerce Capabilities. For purposes of validating the total annual sears.com sales under this provision, SHMC will certify as to its sales number. An initial listing of the Zip Codes comprising the Web Territories is set forth on Attachment E (Zip Codes/Web Territories) attached hereto. Attachment E will be modified as set forth below.
(c) Application to New SHO Stores . Prior to any new SHO Store (excluding SHOs Outlet Stores) being allowed to appear on either the SHO Web Platforms or through a Kiosk at a SHO Store, SHO will propose, in Good Faith (consistent with the definition of Web Territories and related exclusions/restrictions set forth in Section 2(b) above, an initial list of zip codes to be included in the Web Territory for such new SHO Store. Such initial list will be based, in Good Faith, on expected sales estimates for that new SHO Store (consistent with SHOs experience with past store openings). SHMC will be provided all of the supporting documentation supporting SHOs initial determination of the zip code list for SHMCs review. SHMC will review and propose changes, if any, and once the list is acceptable to SHMC, in Good Faith, SHMC will send written approval or changes to SHO within thirty (30) days of SHMCs receipt of the zip code list. Such initial determination will be in effect for the first six (6) months of operation. For all periods thereafter, such determination will be based on the applicable SHO Stores actual total annual Store Sales results calculated in accordance with the limitations set forth in Part III, Section 2(b) above.
(d) Annual Reassessment of Web Territories . SHO and SHMC will reassess annually the Zip Codes comprising the Web Territories in accordance with the limitations provided for in Part III, Section 2(b) above, and each Zip Code will be adjusted as determined in accordance with those restrictions For purposes of each reassessment under this subsection, SHO will provide to SHMC actual fiscal-year SHO Store Sales data per location by the last day of the following February; SHO shall mark such information as Highly Confidential Limited Distribution and SHMC will use reasonable efforts to ensure that such information is only used for the purposes described herein. SHMC will send written approval or changes to SHO within thirty (30) days of notice. SHO will implement all changes effective at the beginning of each fiscal April.
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(e) Marketing Restrictions .
(i) Subject to subsection (iii) of this Section, SHO, its Affiliates and SHO Authorized Sellers will only, directly or indirectly, provide: (a) eCommerce Marketing to users physically located within the Web Territories and (b) such eCommerce Marketing shall only reference eCommerce Capabilities listed in this Appendix. This subsection (e) does not grant SHO, including its Authorized Users, any right to use SHMC and its Affiliates trade names that they do not already have.
(ii) eCommerce Marketing means any form of any marketing or advertising (whether in print, online or other forms), now or hereafter developed, including but not limited to paid search, search engine marketing (SEM), search engine optimization (SEO), Google Adwords, re-targeting, emails, and physical marketing (e.g., circulars, other advertisements and billboards); that reference, have links to, or otherwise direct customers to the Licensed Domain Names or any other ecommerce capability (e.g., transactional websites, mobile apps, Facebook or twitter pages, etc.); whether owned or operated by SHMC, its Affiliates, SHO, its Affiliates, SHO Authorized Sellers or any third party. SHO its Affiliates and SHO Authorized Sellers will not directly or indirectly provide eCommerce Marketing to any users physically located outside of the Web Territories.
(iii) However, it is not a violation of this Section 2(e) for SHO to list in eCommerce Marketing (including on Facebook or Twitter) the SHO Web Platforms (by name only no marketing allowed (e.g., it would not be a violation of this restriction to state, visit us at searshometownstores.com but it would violate this restriction to state see web deals at searshometownstores.com).
(iv) Further, SHO does not need to determine the location of a customer, for purposes of sending such customer an eCommerce Marketing email, if SHO can demonstrate that: (a) such customer provided his/her email address to SHO, for SHOs use, while in a SHO Store or (b) such customer is a Shop Your Way Member, and, in the immediately preceding 12 months, the majority (in terms of dollars) of such Members purchases from SHMC and its Affiliates and SHO; where made at a SHO Store. SHMC makes no representations as to whether SHO has the right to email any customer.
(f) Sales Outside of the Web Territories. For transactions where Products are delivered outside of the Web Territories, SHO shall pay to SHMC the Commissions set forth in the Commissions Chart. SHMC may choose to systematically limit the sale of any or all of the Sears Additional Offering products outside of the Web Territories on SHOs Web Platforms.
(g) Pricing/Discount Obligations. In connection with the SHO Web Offering made via the SHO Web Platforms (excluding SearsOutlet.com): (i) SHOs pricing will be the same as SHOs in-store pricing, provided however, if required by a vendor minimum advertising policy ( MAP ) , SHO may limit the display of such pricing as required by the applicable MAP; and (ii) SHO will not offer any online only promotions or discounts.
(h) Shopper Recap/Digital Business Card .
(i) Until the End Date set forth in the Commission Chart, SHMC will continue to provide SH Shopper Recap/DBC on sears.com in accordance with Part II , Section 1(d) above.
(ii) The SHO Web Platform will not include the SH Shopper Recap/DBC functionality. SHMC hereby grants to SHO a revocable, non-transferable license to its existing patent (and patent application) rights (the SH Patent Rights ), if any, in the SH Shopper Recap/DBC processes for the sole purpose of allowing SHO to independently develop its own SHO Shopper Recap/DBC; provided however that SHMC and its Affiliates will be the sole owner of any derivatives that SHO and its Representatives create in such SH Patent Rights.
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(iii) For all transactions on the SHO Web Platform utilizing the SHO Shopper Recap/DBC, SHO shall pay SHMC the applicable Commissions set forth on the Commissions Chart irrespective of whether SHO relied on the SHMC license granted above to develop the SHO Shopper Recap/DBC. The SHO Shopper Recap/DBC is not permitted on sears.com transactions.
3. | SEARS ADDITIONAL OFFERING. |
(a) Terms and Conditions . The Sears Additional Offering will be sold by Sears, as the seller of record, on the SHO Web Platforms in accordance with Searss standard terms and conditions. SHMC and its Affiliates will be the only third party sellers allowed to appear on, or sell products or services on, the SHO Web Platforms (excluding searsoutlet.com).
(b) Availability of Functionality . The feasibility of the Sears Additional Offering has not been determined as of the Appendix Effective Date. Once SHO submits a SHO Migration Plan, in accordance with Part III, Section 6(a) below, for the implementation of each of the SHO Web Platforms, the Parties will determine the feasibility, timing and cost for such implementation. If the SHO Web Platforms are unable to support this functionality or the costs to implement are prohibitive, SHO reserves the right to omit this functionality and support the Sears Additional Offering through the existing sears.com Kiosk located in SHO Stores. Provided however, that if SHO chooses to implement the functionality through the existing sears.com Kiosk ( Kiosk Option ), SHO will be solely responsible for all hardware (including Kiosk itself) and software updates and changes and shall be financially liable for all costs associated with segmenting the feed to access the Sears Additional Offering products. SHO must elect to implement the Sears Additional Offering either on the SHO Web Platforms or the Kiosk Option on or before January 29, 2017. If SHO fails to make any election by such date, SHO will be deemed to have elected the Kiosk Option.
(c) SHO Responsibility . SHO shall be solely responsible for its own cost and the cost to SHMC to implement the technical functionalities in order to fulfill its obligations under this Section 3 . SHOs If SHO requires SHMCs cooperation in such implementation, SHO will provide to SHMC a proposed implementation plan to be mutually agreed to by the parties. SHMC reserves the right to charge SHO for such cooperation Services in accordance the rates set forth in Section 1.03(a)(v) (C) (Rates) of the Services Agreement.
(d) Commissions . In connection with each Sears Additional Offering transactions, SHMC shall pay SHO the applicable Commission set forth in the Commissions Chart under the heading SHO Web Platforms. Provided however, if SHO chooses to implement the Sears Additional Offering through the Kiosk Option, the Commissions and amounts paid by the parties will be adjusted as set forth in the Commissions Chart.
(e) General Terms and Conditions . As part of the approval of any SHO Migration Plan to implement the Sears Additional Offering, the Parties would need to negotiate the terms and conditions that would govern the sale of the Sears Additional Offering products. Such terms and conditions will be based on the architecture ultimately agreed to by the Parties (e.g., Marketplace like terms if Marketplace architecture is agreed to). However, such terms will not alter the Commissions set forth in this Appendix (inclusive of Attachment A) unless the Parties enter into a written agreement.
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4. | COMMISSIONS. |
(a) Commission Chart. All Commissions (Current and Full) are set forth in the Commissions Chart attached to this Appendix. The Commissions Chart does not apply to the existing searsoutlet.com or the New SearsOutlet.com.
(b) SHO Web Platform Transactions. For any completed transaction involving the SHO Web Platforms eCommerce Capabilities: (i) SHO will pay SHMC the applicable Commissions set forth herein even if ultimately the sale was completed on SHOs POS system; and (ii) SHO will pay SHMC the applicable Commissions set forth herein regardless if a SHO associate or other SHO system was involved in the transaction at an earlier stage.
(c) To be Paid by SHO . The Commissions set forth herein are in addition to (and not in lieu of) amounts payable by SHO to SHMC and its Affiliates under any other agreement between the parties (e.g., Royalties and Seller Warranty charges on Products sold to SHO under the Merchandising Agreement and resold to customers under this Appendix, Fees due on Services under the Appendix 1.01-B (Product Services) to this Agreement).
(d) To be Paid by SHMC . The Commission set forth herein are in addition to (and not in lieu of) amounts payable by SHMC and its Affiliates to SHO and its Affiliates under the Services Agreement (such as commissions for the sale of protection agreements) or the other Ancillary Agreements.
(e) Online Sales Commissions to be paid by SHMC . In accordance with Part II , Section 2b . (Online Sales Commissions), for each transaction SHMC will pay to SHO the Commissions set forth below and SHO will transfer to SHMC all charges actually collected from the customer (net of any returns, non collectable amounts, etc.) and all associated revenue for the sale of such product.
SHMC Business Unit |
Commission | |||
Consumer Electronics |
10 | % | ||
Home Appliances |
15 | % | ||
Sears/Kmart Apparel |
N/A | |||
Home Fashions, Mattresses, SKA |
15 | % | ||
Lawn & Garden |
15 | % | ||
Outdoor Living |
15 | % | ||
Sports Goods |
15 | % | ||
Tools |
15 | % | ||
Toys |
15 | % |
(f) Amounts to be paid on Sears.com Web to Home Sales With SHO Hybrid Delivery . When merchandise is sold on Sears.com for delivery to a customers home and that market has been assigned to SHO as a Hybrid Delivery Market (as that term is defined in Appendix 1.01-C (Supply Chain Services) SHMCs will transfer to the SHO store performing the delivery: (a) 100% of the margin Sears.com earns on the Product sale, and (b) all of the delivery charges actually collected from the customer; in each such case, net of any returns, non-collectable amounts, etc. For each such transaction, SHO will pay SHMC a commission equal to 5% of the revenue for such transaction (including Product and Delivery revenue).
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5. | AUDIT AND APPROVAL RIGHTS. |
(a) Administrative Rights . SHMC shall have Administrative Rights to the SHO Web Platforms. For purposes of this Appendix, Administrative Rights shall mean the ability to access all SHO information technology systems, whether owned by SHO, its Affiliates or a third party) (including all applications and servers) that comprise the SHO Web Platforms for the purpose of auditing SHOs compliance with terms of this Appendix in accordance with subsection (b)(Audit Rights) of this Section 5.
(b) Audit Rights . SHO will allow SHMC and its Representatives to conduct audits and examinations of SHO and its Affiliates and SHO Authorized Sellers operations to confirm SHOs compliance with this Appendix. Except for audits in connection with governmental investigations, such access will be granted and audits performed upon reasonable notice and during normal business hours, except as may be required on an emergency basis. SHO, its Affiliates and SHO Authorized Sellers will provide SHMC and its Representatives, and any applicable governmental authorities, access on a non-disruptive basis to SHOs facilities, systems, books, records and information to the extent reasonably necessary to perform the audits described herein.
(c) Approval Rights. SHMC shall have approval rights, in its sole discretion, in connection with any architectural changes to the SHO Web Platforms and Sears Additional Offering or other changes which may impact SHMC or its Affiliates. Such approval by SHMC must be provided in advance and in writing prior to such changes.
(d) SHO Obligation to Correct Breaches; Suspension . SHO will have the affirmative obligation and duty to promptly correct, at its sole cost and expense, any breaches (whether technical or operational) by SHO, its Affiliates, the SHO Authorized Sellers and/or its and their respective Representatives of the obligations of, and restrictions placed, on SHO, its Affiliates and the SHO Authorized Sellers in this Appendix (e.g., marketing restrictions, restrictions on the products that can be sold on the SHO Web Platform and/or License Agreement under which the applicable Licensed Domain Name is licensed). If SHO does not promptly remediate any such breach (whether raised by SHMC or identified by SHO), the issue will be escalated to the Services Operating Committee described in the Services Agreement and if such issue is not resolved within thirty (30) days, SHMC reserves the right to suspend SHOs access to any SHMC System that is used by SHO, its Affiliates and the SHO Authorized Sellers and its/their Representatives in connection with the SHO Web Platforms, the Sears Additional Offering and the SHMC Web Offerings until such breach has been remedied.
6. | SHOS SOLE COST, RISK, EXPENSE AND LIABILITY. |
(a) Migration and Implementation SHO is solely responsible (including all liability) for the migration and implementation of the SHO Web Platforms and the Sears Additional Offering. Section 1.03 (SHOs Migration Off of Transition Services) of the Services Agreement and will apply to the SHO Web Platform and the Sears Additional Offering, including the requirements that: (x) SHO create a detailed SHO Migration Plan for such migration/implementation, (y) SHO request SHO Access and changes to SHMC Systems in accordance with Section 1.03(ii) , and (z) SHO reimburse SHMC and its Affiliates for all time spent in connection SHOs Migration Plan and any requests pursuant to this Section 6(a) . The applicable rates set forth in the Services Agreement will be applicable to these Services.
(b) Liability Regarding SHO Web Platform . Except as expressly provided for herein, SHO shall solely bear all cost, risk and expense associated with the SHO Web Platform (including the products and services offered therein), SHO sales on other eCommerce sites (including the products and services offered therein), SHOs marketing in connection therewith and SHOs attempt to implement the SHO Web Platforms and its sales on other eCommerce sites (including any information, advice, Services or other assistance provided by SHMC, its Affiliates and its/their Representatives in connection therewith) notwithstanding any approval, advice, or assistance provided by any of the foregoing. Additionally, all claims, demands, litigation, or suits brought by third parties, related to the SHO Web Platform (including
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the products and services offered therein), other eCommerce Sites (including the products and services offered therein) and SHOs attempt to implement them and SHMC, its Affiliates and its/their Representatives assistance with them (including any information, advice, Services or other assistance provided by them), shall be deemed to be a SHO Claim under Section 5.01 (without regard to the exceptions set forth therein); except to the extent that such SHO Claims are found by a final judgment or opinion of an arbitrator or a court of appropriate jurisdiction to be caused by: (i) a willful breach of any provision of this Agreement by SHMC; or (ii) willful misconduct of SHMC, its Affiliates, or their respective Representatives in the performance of their obligations under this Agreement. FURTHER SHO ACKNOWLEDGES THAT SHMC, ITS AFFILIATES, AND ITS/THEIR REPRESENTATIVES HAVE MADE NO REPRESENTATION OR WARRANTY AND HAVE NO LIABILITY REGARDING ANY INFORMATION, ADVISE, SERVICES OR OTHER ASSISTANCE PROVIDED TO SHO IN CONNECTION WITH THE SHO WEB PLATFORMS (INCLUDING THE PRODUCTS AND SERVICES OFFERED THEREIN), SHO SALES ON OTHER ECOMMERCE SITES (INCLUDING THE PRODUCTS AND SERVICES OFFERED THEREIN) AND THEIR IMPLEMENTATION; EXCEPT AS EXPRESSLY PROVIDED FOR IN SECTION 1.04 (Standard of Care) OF THE SERVICES AGREEMENT.
End of Main Body of Appendix
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Attachment A
Commissions Chart
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Attachment A
Commissions Chart
| The Commissions set forth below are in addition to (not in lieu of) other Commissions or payments set forth in the eCommerce Services Appendix to which this Attachment A is attached. The Commissions included herein do not apply to the existing searoutlet.com or the New SearsOutlet.com. |
| In addition to the below Commissions, for transactions described in this Attachment, which result from a customer clicking on a SH Shopper Recap/DBC initiated in a SHO Store using SHMC provided functionality, SHO will pay SHMC an additional Commission as follows: Current- 0%, and Full-3%. |
TABLE I
SEARS.COM
eCommerce Capabilities |
Current Commission |
Current
Commission
|
Full Commission |
Effective Date of Full
|
End Date |
|||||
SH/W2S i | SHO pays SHMC 3% | Appendix Effective Date | SHO pays SHMC 5% |
Earlier of January 29, 2017 or SHO Hometown Go-Live Date.
For the SHO Stores that previously have not had this capability, the Full Commission shall apply upon implementation of this capability. |
The end date is the end of eCommerce Services Period. | |||||
SH/S2H ii | SHO pays SHMC 3% | Appendix Effective Date | SHMC pays SHO 7% |
Earlier of January 29, 2017 or SHO Hometown Go-Live Date for all SHO Web Platforms (other than searsoutlet.com).
For the SHO Stores that previously have not had a Kiosk, the Full Commission shall apply upon implementation of the Kiosk. |
SHO Hometown Go-Live Date unless SHO elects the Kiosk Option under Part III. Section 3(b) of the Appendix, then the end date is the end of eCommerce Services Period. |
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TABLE I
SEARS.COM
eCommerce Capabilities |
Current Commission |
Current
|
Full Commission |
Effective Date of Full
|
End Date |
|||||
SH/M/S2H | SHMC pays SHO 13% | Appendix Effective Date | SHMC pays SHO 7% | Earlier of January 29, 2017 or SHO Hometown Go-Live Date. | SHO Hometown Go-Live Date unless SHO elects the Kiosk Option under Part III, Section 3(b) of the Appendix, then the end date is the end of eCommerce Services Period. | |||||
SH/S2S i | SHO pays SHMC 3% | Appendix Effective Date | SHO pays SHMC 5% |
Earlier of January 29. 2017 or SHO Hometown Go-Live Date for all SHO Web Platforms (other than searsoutlet.com).
For the SHO Stores that previously have not had a Kiosk, the Full Commission shall apply upon implementation of the Kiosk. |
SHO Hometown Go-Live Date unless SHO elects the Kiosk Option under Part III, Section 3(b) of the Appendix, then the end date is the end of eCommerce Services Period. |
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| In addition to the below Commissions, for transactions described in this Attachment, which result from a customer clicking on a SHO Shopper Recap/DBC using SHO provided functionality initiated in a SHO Store, SHO will pay SHMC an additional Commission of 1.5%. |
| For clarity, the parties note that it is their intention that for all transactions that involve the SHO Web Platforms (other than the existing SearsOutlet.com and the New SearsOutlet.com), utilizing the existing or any new eCommerce Capabilities, SHO will pay SHMC a commission (with the minimum commission being 1% and with higher commissions applying as set forth in Table II below). Prior to SHO introducing a new eCommerce Capability functionality not set forth below, the parties must agree in writing as to the applicable commission. The parties further agree that if the Chart dictates an additional Commission, SHO will also pay such to SHMC (e.g., the DBC Commission of 1.5%). |
| If SHO requests to add a new eCommerce Capability not included in the Chart below after the SHO Migration Plan has been approved, SHO will follow the change order process set forth in the Services Agreement ( Section 1.01 E . (SHO Request for Services/System Changes)). |
TABLE II
SHO WEB PLATFORMS
eCommerce Capabilities |
Commission |
Commission Effective Date |
End Date |
|||
SHO/S/W2S/Sears Store iii (Sears Additional Offering) |
SHMC will pay SHO
7% |
SHO Hometown Go-Live Date | End of eCommerce Services Period | |||
SHO/S/W2S/SHO Store iii (Sears Additional Offering) |
SHMC will pay SHO 7% |
SHO Hometown Go-Live Date | End of eCommerce Services Period | |||
SHO/W2H | SHO pays SHMC 1% for sales within the Web Territories but 15% for sales outside of the Web Territories | SHO Hometown Go-Live Date | End of eCommerce Services Period | |||
SHO/W2S/SHO Store |
SHO pays SHMC
1% |
SHO Hometown Go-Live Date | End of eCommerce Services Period | |||
SHO/W2S/Sears Store iii |
SHMC will pay SHO 5% |
SHO Hometown Go-Live Date | End of eCommerce Services Period |
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TABLE II
SHO WEB PLATFORMS
eCommcrce Capabilities |
Commission |
Commission Effective Date |
End Date |
|||
SHO/S/S2S/Sears Store iii (Sears Additional Offering) |
SHMC will pay SHO
7% |
SHO Hometown Go-Live Date | End of eCommerce Services Period | |||
SHO/S/S2S/SHO Store iii (Sears Additional Offering) |
SHMC will pay SHO
7% |
SHO Hometown Go-Live Date | End of eCommerce Services Period | |||
SHO/S2H | SHO pays SHMC 1% for sales within the Web Territories but 15% for sales outside of the Web Territories | SHO Hometown Go-Live Date | End of eCommerce Services Period | |||
SHO/S2S/SHO Store |
SHO pays SHMC
1% |
SHO Hometown Go-Live Date | End of eCommerce Services Period | |||
SHO/S2S/Sears Store iii |
SHMC pays SHO
5% |
SHO Hometown Go-Live Date | End of eCommerce Services Period | |||
SHO/S/W2H iii (Sears Additional Offering) |
SHMC will pay SHO 5% |
SHO Hometown Go-Live Date | End of eCommerce Services Period | |||
SHO/S/S2H iii (Sears Additional Offering) |
SHMC will pay SHO 7% |
SHO Hometown Go-Live Date | End of eCommerce Services Period |
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i | For each transaction, SHMC will transfer the revenue and associated margin to SHO. Further, for each new SHO Store location (including all Sears Outlet Stores and Sears Home Appliance Showrooms) listed on sears.com after the Appendix Effective Date that have SH/W2S available for order placement, the Full Commission, not the Current Commission shall apply throughout the eCommerce Services Period. For the avoidance of doubt, for certain eCommerce Capabilities (i.e., SH/W2S and SH/S2S), in the event that SHO elects the Kiosk Option set forth in Part III , Section 3(b) of the Appendix relating to the Sears Additional Offering, the Commissions set forth in the Full Commissions column continue to apply and SHMC will transfer the revenue and associated margin to SHO per transaction. Notwithstanding any provision to the contrary in the Appendix, the parties agree that SHO Stores will not be listed as a merchandise pick up location for transactions where a customer selects a product that SHO cannot sell as part of the SHO Web Offering. |
ii | SHMC will pay SHO its SPRS margin for each transaction. For eCommerce Capability, SH/S2H in the event that SHO elects the Kiosk Option set forth in Part III , Section 3(b) of the Appendix relating to the Sears Additional Offering, the Commissions set forth in the Full Commissions column will no longer apply and SHMC will no longer pay SHO its SPRS margin per transaction but instead SHMC will pay SHO a flat Commission of 4% for each such sale in accordance with Part III , Section 3(d) (Commissions) of the Appendix. |
iii | For each transaction, SHO will transfer the revenue to SHMC. |
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Attachment B
eCommerce Capabilities Chart
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Capabilities Chart
sears.com
eCommerce Capabilities |
Origin |
Seller of
|
Who Recognizes Revenue |
Who Fulfills Order (Whose Inventory) |
Where it is
|
AKA |
Definition and Example |
Continuing/Future |
||||||||
SH/W2S | Sears.com | Sears | SHO | SHO | SHO Store | Web to Store, Fusion |
Def: means a transaction that originates on sears.com and pick up is at a SHO Store
Ex: Customer buys a product sold by SHO on Sears.com and picks up at a SHO Store |
Continuing through End Date detailed on Commissions Chart | ||||||||
SH/S2H | Sears.com via Kiosk at a SHO Store | Sears | Sears | Sears |
Customers Home |
Store to Home |
Def: means a transaction that originates on sears.com through a Kiosk at a SHO Store and delivery is to customers home.
Ex: Customer buys a product not sold by SHO on the kiosk via Sears.com and item is shipped to customers home |
Continuing through End Date detailed on Commissions Chart | ||||||||
SH/M/S2H | Sears.com via Kiosk at a SHO Store | Sears | Sears | Sears (via Marketplace) |
Customers Home |
Store to Home |
Def: means a transaction that originates on sears.com (via a marketplace seller) through a Kiosk at a SHO Store and delivery is to customers home.
Ex: Customer buys a product not sold by SHO on the kiosk via Sears.com and item is shipped to customers home |
Continuing through End Date detailed on Commissions Chart | ||||||||
SH/DBC |
Sears.com via Sears Shopper recap email/DBC initiated in a SHO Store |
Sears | Sears | Sears |
Customers Home |
Shopper recap/DBC |
Def: means any transaction on sears.com which result from a customer clicking on a shopper recap/digital business card initiated in a SHO Store.
Note: Unlike most other eCommerce Capabilities using sears.com, SH/DBC is not a standalone transaction type, but |
Continuing through SHO Hometown Go-Live Date |
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instead always occurs with another eCommerce Capability (e.g., a transaction is a SH/S2H and a SH/DBC, never just a SH/DBC)
Ex: Recap generated in SHO store via Sears DBC, customer purchases on Sears.com |
||||||||||||||||
SH/S2S | Sears.com via Kiosk at a SHO Store | Sears | SHO | SHO | SHO Store | Web to Store |
Def: means a transaction that originates on sears.com through a Kiosk at a SHO Store and delivery is to a SHO Store. Note-SPRS margin does not transfer to SHO. SHO does not pay a commission or receive any other benefit if the product is picked up in a Sears Store.
Ex: Customer buys a product sold by SHO on the kiosk via Sears.com and item is picked up at another SHO store |
Continuing through End Date detailed on Commissions Chart |
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Capabilities Chart
SHO Web Platforms
eCommerce Capabilities |
Origin |
Seller of
|
Who Recognizes Revenue |
Who Fulfills
(Whose
|
Where it is
|
AKA |
Definition and Example |
Ending/Continuing /Future |
||||||||
SHO/S/W2S/Sears Store (Sears Additional Offering) |
SHO Website |
Sears | Sears | Sears | Sears Store |
Def: means SHMC is the Seller and transaction originates on SHO Web Platform and pick up is at Sears Store
Ex: Customer buys a product that is part of the Sears Additional Offering on searshometownstores.com and picks up in a Sears Store |
Future | |||||||||
SHO/S/W2S/SHO Store (Sears Additional Offering) |
SHO Website |
Sears | Sears | Sears | SHO Store |
Def: means SHMC is the Seller and transaction originates on SHO Web Platform and pick up is at SHO Store
Ex: Customer buys a product that is part of the Sears Additional Offering on searshometownstores.com and picks up in a SHO Store |
Future | |||||||||
SHO/W2H |
SHO Website |
SHO | SHO | SHO |
Customers Home |
Def: means a transaction that originates on SHO Web Platform and delivery is to customers home
Ex: Customer buys a SHO product carried by SHO on searshometownstores.com and elects to have it delivered to their home |
Future | |||||||||
SHO/W2S/SHO Store |
SHO Website |
SHO | SHO | SHO | SHO Store |
Def: means a transaction that originates on SHO Web Platform and pick up is at SHO Store
Ex: Customer buys on searshometownstores.com and picks up in a SHO Store |
Future |
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eCommerce Capabilities |
Origin |
Seller of Record |
Who
|
Who Fulfills Order
(Whose
|
Where it is
|
AKA |
Definition and Example |
Ending/Continuing /Future |
||||||||
SHO/W2S/Sears Store |
SHO Website |
SHO | Sears | Sears | Sears Store |
Def: means a transaction that originates on SHO Web Platform and pick up is at Sears Store
Ex: Customer buys on searshometownstores.com and picks up in a Sears Store |
Future | |||||||||
SHO/S/S2S/Sears Store (Sears Additional Offering) |
SHO Website via Kiosk at a SHO Store |
Sears | Sears | Sears | Sears Store |
Def: SHMC is the Seller and transaction originates at a SHO Store via a Kiosk (to SHO Web Platform) and pick up is at Sears Store
Ex: Customer buys a product that is part of the Sears Additional Offering not sold by SHO on the kiosk and picks up is at a Sears store |
Future | |||||||||
SHO/S/S2S/SHO Store (Sears Additional Offering) |
SHO Website via Kiosk at a SHO Store |
Sears | Sears | Sears | SHO Store |
Def: SHMC is the Seller and transaction originates at a SHO Store via a Kiosk (to SHO Web Platform) and pick up is at SHO Store
Ex: Customer buys a product that is part of the Sears Additional Offering not sold by SHO on the kiosk and picks up at a SHO Store |
Future | |||||||||
SHO/S2H |
SHO Website via Kiosk at a SHO Store |
SHO | SHO | SHO |
Customers Home |
Def: means transaction that originates at a SHO Store via a Kiosk (to SHO Web Platform) and delivery is to customers home
Ex: Customer buys a SHO product while in store and elects to have it sent to their home rather than return to the store |
Future |
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eCommerce Capabilities |
Origin |
Seller of
|
Who Recognizes Revenue |
Who Fulfills
(Whose
|
Where it is
|
AKA |
Definition and Example |
Ending/Continuing /Future |
||||||||
SHO/S2S/SHO Store |
SHO Website via Kiosk at a SHO Store |
SHO | SHO | SHO | A different SHO store |
Def: means transaction that originates at a SHO Store via a Kiosk (to SHO Web Platform) and delivery is to a different SHO Store
Ex: Customer orders a product at one SHO store to be picked up at another SHO store via kiosk |
Future | |||||||||
SHO/S2S/Sears Store |
SHO Website via Kiosk at a SHO Store |
SHO | Sears | Sears | A Sears Store |
Def: means transaction that originates at a SHO Store via a Kiosk (to SHO Web Platform) and delivery is to a different Sears Store
Ex: Customer orders a product at SHO Store via a Kiosk to be picked up at Sears Store |
Future | |||||||||
SHO/S/W2H (Sears Additional Offering) |
SHO Website |
Sears | Sears | Sears |
Customers Home |
Def: SHMC is the Seller and transaction originates on SHO Web Platform and delivery is to customers home
Ex: Customer buys a product that is part of the Sears Additional Offering not sold by SHO on searshometownstores.com and ships to their home |
Future | |||||||||
SHO/S/S2H (Sears Additional Offering) |
SHO Website via Kiosk at SHO Store |
Sears | Sears | Sears |
Customers Home |
Def: SHMC is the Seller and transaction originates at SHO Store via a Kiosk (to SHO Web Platform) and delivery is to customers home
Ex: Customer buys a product that is part of the Sears Additional Offering not sold by SHO on the kiosk and ships to their home |
Future |
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SHO/DBC |
SHO website via SHO Shopper recap email/DBC |
SHO | SHO | SHO |
SHO Store or Customers Home |
Def: means any transaction on SHO Web Platform which result from a customer clicking on a shopper recap/digital business card initiated in a SHO Store.
Note: Unlike most other eCommerce Capabilities on the SHO Web Platforms, SHO/DBC is not a standalone transaction type, but instead always occurs with another eCommerce Capability (e.g., a transaction is a SHO/S2H and a SHO/DBC, never just a SHO/DBC)
Ex: Recap generated in store via SHO DBC, customer purchases on SHO website |
Future |
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Attachment C
SearsOutlet.com Statement of Work
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Statement of Work
Requesting Party | Sears Hometown and Outlet Stores, Inc. (SHO) | Contact: | Laurie Turjeman | |||
Responsible Party | Sears Holdings Management Corporation (SHMC) | Contact: | Philip Emmanuele | |||
Date Submitted: | 1/06/2016 |
Project Name: | 2016: SHO Engineering Retainer Services (for SearsOutlet.com) |
1 | Statement of Work (SOW) |
Project id (Budget Shark): | 1662 |
1.1 | Project Description |
The Member Technology Business Unit (MT) at Sears Holdings Management Corporation (SHMC) will provide design, development, project management, QA and Support services for the evolution and maintenance of the SHOs online platforms set forth below. The aim of this understanding is to provide a basis for close co-operation between the SHO and the MT in support of SHOs SearsOutlet.com website and supporting functionality, but does not address promotions, marketing or related capabilities.
Objectives of Service
1. | Propose the MT Delivery Team structure and associated budget to support the following SHO online platforms: SearsOutlet.com, ReturnsFlow.com, and |
2. | To define the cost structure associated with the services with the intent to achieve a price/value relationship that exceeds what can be managed/sourced via competitive bid by SHO from providers other than SHMC and its current supporting vendor/partners. |
3. | All changes to the Services described in this SOW must follow the change process set forth in Section 1.01E. (SHOs Requests for Services/System Changes) of the Services Agreement. |
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1.2 | Team |
| The MT will provide both dedicated and shared resources based on and offshore to drive and support the development needs of SHOs online business. |
| The current team, rates and overall annual budget projections can be found in Appendix A, below . |
| A dedicated resource will work primarily on SHO projects and will not be staffed onto other projects for significant time unless first discussed with and approved by SHO. Dedicated resources will continue to perform administrative, management, performance management, recruiting, and other MT required tasks outside of core project work. These tasks typically require no more than 5 hours per week. |
1.3 | Hiring and Staffing Notes |
| Increasing Team Size: MT requires 60 days-notice to add additional team members to those supporting SHOs projects. |
| Reducing Team Size: MT requires 60 days-notice to reduce the number of its team members supporting SHO projects. |
| MT will adjust the monthly billing based on any addition and reduction of resources throughout the year. |
| Interchanging Resources: At its discretion, MT may interchange resources on SHOs project(s) by providing 30 days prior notice to SHOs online team. MT will provide a week overlap between the outgoing and the incoming resource for knowledge transfer. During such a time, MT will not charge additional fees for overlapping time. The MT may then remove resources once a replacement is in place, and such replacement has undergone the previously described training/knowledge transfer process. |
| Hiring and Recruiting: MT is solely responsible for recruiting resources including compensation, bonus etc. However, MT will work closely with SHO to ensure SHOs needs for specific skills are met. MT is solely responsible for determining use of full time employees and/or contract resources. |
| Performance Management: On unsatisfactory resource performance, SHO will provide in writing the resource name and examples of poor performance. There after MT will determine how to handle resource issues (e.g. coaching, performance improvement plan, reallocate tasks/roles, interchange resources, etc.) |
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| Resource Replacement and backfill: MT will use commercially reasonable efforts to promptly backfill departing team members. Notwithstanding the forgoing, MT will continue to meet deliverable deadlines by adding temporary resources, working overtime, or other implementing other contingencies. |
| Team Location: Dedicated resources will be based either at Hoffman Estate, Chicago or offsite. |
| Temporary Resources: Additional temporary resources may be added to augment the team supporting SHO as needed and/or to meet specific skill set needs of SHO. This work will be quoted and contracted separately. |
1.4 | Term and Termination |
| SOW is in effect from February 1, 2016 through January 31, 2017. |
| After January 31, 2017, SOW will renew monthly unless a new SOW or extension is put in place. |
| This SOW may be terminated in accordance with the Services Agreement. |
| Upon termination, MT will release and/or redeploy team resources |
| Project costs may be evaluated and adjusted from time-to-time as necessary with mutual agreement from MT and SHO. |
2 | Funding and Chargeback |
Payment Terms (EFFECTIVE FEBRUARY 1 ST , 2016) : Sears Outlet shall be charged on a monthly basis. Details of the charges can be found in Appendix A of this SOW.
Expenses : Pricing does not include image royalty or software licensing, if applicable. All third party costs are estimates. Third party expenses directly incurred by the MT exclusively for SHO projects will be billed and paid by SHO at cost to MT.
Signature constitutes agreement to pay the fees outlined in Appendix A hereto in accordance with the Services Agreement and this SOW.
Sign-off: |
Name |
Title |
Signature |
Date |
||||
SHO Requestor | Lauri Turjeman | Director, E-Commerce | ||||||
SHO Approval | David Buckley | VP, Marketing & e- Commerce |
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3 | Annual Cost Summary |
SearsOutlet.com - 2016 Retainer Team Budget / Executive Summary |
||||
Cost Category |
$Amount | |||
Amount (in $) | ||||
A) Labor |
||||
MT Onshore |
$ | 2,282,280 | ||
SGT Onshore / SHI Offshore |
$ | 596,544 | ||
Infosys |
$ | 351,520 | ||
Labor Total |
$ | 3,230,344 | ||
Labor Total (after 10% Discount) > (A) |
$ | 2,907,310 | ||
B) Other Expenses |
||||
Site Hosting/Tools > (B) |
$ | 93,014 | ||
|
|
|||
Total Bill (Labor & Other Expenses) > (A + B) |
$ | 3,000,324 | ||
|
|
| Includes Labor for Core Outlet - Engineering Delivery Team Only |
| Other Expenses Includes |
| Sears Outlet site hosting and maintenance |
| SHO Returns Flow Site hosting and maintenance |
| Site Tools |
| Akamai (this cost is absorbed by Sears MT and not charged to SHO) |
| Doesnt include |
| Any new SHO required infrastructure (hardware or software) if needed for 2016 |
| Any new operational site monitoring tools that will be needed by SHO at later time (ex: Tea Leaf, etc.) |
| Incremental delivery work from MT or from rest of SHMC (Outside of Core Outlet Delivery Team) |
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4 | Appendix A |
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Attachment D
Requested SHO Services
i. | Full order and post-order management support via OMS including financial reporting (via a daily tranfile) that is generated by OMS and fed into SHMC core financial systems. |
ii. | Full support of existing Single Sign-on functionality and related databases which allows customers to migrate freely between existing SHMC websites |
iii. | Provide product data and related content from SPIN (Sears.com content management system) and full access for content creation and enhancements which only appear on searsoutlet.com of products created in the SPIN system by SHMC or its Affiliates. |
iv. | Provide customer product review information and manage content delivery. Support should continue at current levels if provider changes or SHMC develops proprietary/internal customer/product review functionality. |
v. | Provide fraud checks |
vi. | Continue to support (a) integration with critical SHMC system infrastructure and (b) access to all production databases housing critical online inventory, fulfillment, and order information including: |
| SCIM/DOS systems for fulfilling online delivery orders. Functionality includes scheduling deliveries, ordering installation services, and fulfilling protection agreements. |
| NPOS - for 991 inventory and price feed |
| RIM - for non-991 inventory feed |
| PMS - non-991 price and Vendor Direct price feed |
| CORE - for accessory and protection agreement details, Hierarchy details |
| DOS - for details regarding zip code and MDO mapping data |
| UPS Shipping Services-for calculation of SHOs shipping cost of shippable items |
| RTI - for inventory/order management and non-991 shipping items quantity feed |
| Ciboodle - Guest user address validation service |
vii. | Continue to provide full issue escalation support via ESOC and other supporting groups/units within SHMC |
viii. | Continue to provide full integration with Shop Your Way Rewards platforms to allow for earning and redemption of points |
ix. | Continue to provide full integration, support, and the actual service where noted for all existing third-party vendors. For purposes of this Attachment, actual service means a service that SHO is receiving from the third party vendor that SHMC is paying for today. If the service is not designated as actual service than it should be interpreted as SHO is paying for the service provided by the third party vendor and SHMC is only supporting the integration point with such third party vendor |
| Responsys - for production/distribution of all trigger, transactional and promotional e-mails. This includes the actual service. |
| UNICA - integration with CDW to generate promotional e-mail lists. This includes the actual service. |
| SCENE7 - product images (data is provided by SPIN and the S7 URL is used for displaying image on website) This includes the actual service. |
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Execution Copy
| Omniture Site Catalyst (Adobe) - full website site analytics platform. This includes the actual service. |
| Signal (formerly Bright Tag) - onsite pixel management technology. This includes the actual service. |
| Akamai - content delivery network. This includes the actual service. |
| Google Analytics premium- website analytics. This includes the actual service. |
| Adobe Media Optimizer - Paid search bidding platform. Replaces Kenshoo. This includes the actual service. |
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Attachment E
Zip Codes/Web Territories
For purposes of this Attachment:
HAS means Sears Home Appliance Showrooms.
HTS means Sears Authorized Hometown Stores.
AHS means Sears Appliance and Hardware Stores.
[***] A total of 52 pages are omitted. The use of [***] in this Exhibit indicates that a confidential portion has been omitted pursuant to a request for confidential treatment. The omitted material has been filed separately with the Securities and Exchange Commission.
Exhibit 10.4
Amendment No. 1 to Supplemental Agreement
This Amendment No. 1 to Supplemental Agreement (this Amendment ) is retroactive to May 1, 2016 (the Amendment Date ), is signed as of the dates listed below, and is between Sears Holdings Corporation ( SHLD ) and Sears Hometown and Outlet Stores, Inc. , ( SHO ). This Amendment amends the Supplemental Agreement between SHMC and the SHO dated as of December 9, 2013 (the Agreement ). Capitalized terms used but not defined to in this Amendment are defined in the Agreement.
WHEREAS , the parties have determined that it is in both parties interest to amend the Agreement as set forth below.
NOW, THEREFORE, in consideration of the above premises and the mutual covenants and other good and valuable consideration contained herein, the parties agree as follows:
1. | Amendments . The Agreement shall be modified as of the Amendment Date as set forth below: |
a. | Released Claims . Section 1.02(a) (Released Claims) is amended by: |
i. | Adding the following after the reference to Appendix #1 : and Appendix #1A ; and |
ii. | Deleting the last sentence of such Section (i.e., Appendix #2 hereto lists ...). |
b. | SHO Limited Release . Section 1.02(b) (SHO Limited Release) is amended by: |
i. | Changing each reference to Appendix 1 to be Appendix #1; |
ii. | Adding the following after each reference to Appendix #1 : and Appendix #1A ; and |
iii. | Deleting (other than the Open Issues) from such Section. |
c. | SHLD Limited Release . Section 1.02(b) is amended by: |
i. | Changing each reference to Appendix 1 to be Appendix #1; |
ii. | Adding the following after each reference to Appendix #1 : and Appendix #1A ; and |
iii. | Deleting (other than the Open Issues) from such Section. |
d. |
Unreleased Claims; Stale Claims . Section 1.02(d) is amended by deleting the language of the section and substituting the following sentence: |
The parties acknowledge that (i) this Agreement does not release any claims that the parties may have that do not arise from the Released Claims (ii) that arise from acts or omissions after the date of the applicable release, and (iii) with respect to unreleased claims nothing in the Agreement affects the operation of the Stale Claims provisions of the Ancillary Agreements that include those provisions. |
For clarity, the parties acknowledge that the placement of a Released Claim on Appendix #1 or Appendix #1A under: (a) the heading Claims Made By SHO, (b) the heading Claims Made By Sears Holdings or (c) under both headings, does not alter the fact that such Released Claims are being released by both Parties.
e. | Appendix #1A . A new Appendix 1A (Additional Released Claims) is added to the Agreement as set forth in Attachment #1 hereto. |
f. | Appendix #2 . Appendix 2 (Open Issues) is deleted from the Agreement. |
2. | Condition Precedent . It is a condition precedent to the effectiveness of this Amendment that the parties (or their Affiliates, as applicable) also execute (collectively the Related Amendments ): (a) that certain Amended and Restated Merchandising Agreement, (b) Amendment #4 to Services Agreement, (c) Amendment #1 to Employee Transition and Administrative Services Agreement, (d) Amendment #1 to Shop Your Way Rewards Retail Establishment Agreement, (e) Amendment #1 to Trademark License Agreement, (f) Amendment #4 to the prior Merchandising Agreement between the Parties, and (g) Amendment #2 to Store License Agreement (Outlet). |
3. | No Other Amendments . Except as expressly amended herein, the Agreement shall continue in full force and effect, in accordance with its terms, without any waiver, amendment or other modification of any provision thereof, including the parties choice of Illinois law (pursuant to Section 2.14(a) of the Agreement) which also applies to this Amendment. |
Signature Page Follows
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date set forth below by their respective officers thereunto duly authorized.
SEARS HOLDINGS CORPORATION | SEARS HOMETOWN AND OUTLET STORES, INC. | |||||
By: /s/ ROBERT A. RIECKER VP Controller May 10, 2016 |
By: /s/ RYAN D. ROBINSON Senior Vice President, Chief Financial Officer and Chief Administrative Officer May 11, 2016 |
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Attachment #1
Appendix #1A
(Additional Released Claims)
All references to SHO in this Appendix #1A shall be deemed references to SHO and its Affiliates and references to SHO stores means stores owned by SHO, its Affiliates and third parties authorized by SHO (e.g., franchisees, dealers). Further, all references to SHLD in this Appendix #1A shall be deemed references to and SHLD and its Affiliates.
Issue |
Claims Made By SHO |
|
1. W2S Expansion (All Formats) |
Claims that SHLD has refused to provide W2S and other ecommerce services to all SHOs stores. | |
2. Outlet HA Product |
Claims after the Effective Date that SHLD is obligated to sell SHO the following categories of DRM merchandise: (1) transitions (displays); (2) web order cancellations that are not part of SHLDs Take-It-Home-Today program; and (3) customer returns that are not otherwise subject to the Merchandising Agreement. | |
3. Store Delivery Operation |
Claims that products returned to SHLD store delivery operation units are DRM and that SHLD has failed sell them to SHO. | |
4. Exclusive Product |
Claims that SHO previously was granted an exclusive or similar rights to sell any KCD-Branded Products (as that term was defined in the Merchandising Agreement) and claims that such an arrangement can exist absent a written agreement between the parties. | |
5. Pilot Programs or other terminations of Services Do Not Require Delivery of Required Notes |
Claims that SHO did not have to provide the required notice period for termination of Services under the Services Agreement, including, without limitation, claims that SHO did not have to give notice for pilot programs, partial terminations etc. SHO agrees to provide proper written notice going forward. | |
6. SHO has the Right To Hire Its Own Repair Techs |
Claims that SHO had the right to hire its own repair techs for Outlet Store Stock Repairs or other repairs of products. | |
7. SHO, SHOS and Related Trademarks |
Claims that SHO had the right to register or use independently of the parties License Agreements marks that contain the term SHO and SHOS. SHO hereby agrees hereafter to never again register marks containing the term SHO or SHOS. | |
8. IT Service Requests |
Claims that SHLD improperly delayed or refused to implement various IT service requests made by SHO. | |
9. Subsidy Sharing |
Claims that SHLD did not properly share subsidy with SHO under the Merchandising Agreement. | |
10. Craftsman Ratchet Repairs |
Claims that SHO is entitled to reimbursement for lifetime warranty repairs of ratchets by SHO stores and claims that SHO has the right to return such product vs repairing it. |
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11. Renegotiation of Seller Compensation |
Claims by SHO that it had the right to unilaterally alter the amount SHO pays for Seller Compensation under the Merchandising Agreement. | |
12. Termination of Section 10 (Product Warranties and Repair) of the Merchandising Agreement |
Claims related to SHOs termination of Section 10 (Product Warranties and Repair) of the Merchandising Agreement, which termination the parties never gave effect to, including, without limitation, claims by SHO that SHLD was obligated to continue to sell KCD-Branded Products to SHO without a warranty. By signing the Amended and Restated Merchandising Agreement SHO has revoked such termination. | |
13. SYW Brands MOS |
Claims that SYW Brands merchandise constituted MOS and that SHLD refused to sell such merchandise to SHO. | |
Issue |
Claims Made By Sears Holdings |
|
1. Excess Inventory and Storage Fees |
Claims that SHO is not properly incented to control its demand forecast to SHLD because SHLD bears the carrying costs on DC inventory for SHO. | |
2. Clearance Centers |
Claims that SHLD is not permitted to open Clearance Centers. | |
3. CRC Pick-Up Timeframes |
Claims that SHO has not been picking up freight from Sears facilities in a timely manner. | |
4. Selective Acceptance by SHO of DRM From CRC |
Claims that SHO has been selectively rejecting certain goods from the CRC (e.g., Tempur-Pedic) | |
5. Damaged/Non-Saleable Goods |
Claims that SHO been complying with the Agreement by unilaterally taking markdowns for non-saleable DRM Products which SHO did not return. | |
6. Termination of Paid Call Product Intake By SHO and Related Claims Regarding Charges |
Claims that SHO improperly terminated the intake of paid calls for product repair services at its stores and related Claims by SHLD regarding charges for such calls. | |
7. Subsidy Sharing |
Claims that SHO did not properly share subsidy with SHLD. | |
8. Violations of The Product Services Exclusivity Provisions |
Claims that SHO violated the Product Services exclusivity provisions of the Merchandising Agreement, including claims that SHO did not have the right to perform cosmetic repairs and claims that SHO did not have the right to hire its own technicians. | |
9. SHO, SHOS and Related Trademarks |
Claims that SHLD was damaged by SHOs attempt to register or use independently of the parties License Agreements marks that contain the term SHO and SHOS, including Claims by SHLD that SHO is liable for SHLDs attorneys fees in the parties proceedings before the U.S. PTO which SHO voluntarily dismissed prior to the date hereof. |
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Exhibit 10.5
Amendment No. 1 to Employee Transition and Administrative Services Agreement
This Amendment No. 1 to Employee Transition and Administrative Services Agreement (this Amendment ) is retroactive, except as expressly set forth below, to May 1, 2016 (the Amendment Date ), is signed as of the dates listed below, and is between (1) Sears Holdings Management Corporation on behalf of itself and its Affiliates ( SHMC ) and Sears Hometown and Outlet Stores, Inc. , ( SHO ), Sears Authorized Hometown Stores, LLC ( Hometown ), and Sears Outlet Stores, L.L.C. (together with SHO and Hometown, collectively the SHO Group ). This Amendment amends the Employee Transition and Administrative Services Agreement between SHMC and the SHO Group dated as of August 31, 2012 (the Agreement ). Capitalized terms used but not defined to in this Amendment are defined in the Agreement.
WHEREAS , the parties have determined that it is in both parties interest to amend the Agreement as set forth below.
NOW, THEREFORE, in consideration of the above premises and the mutual covenants and other good and valuable consideration contained herein, the parties agree as follows:
1. | Amendments . Except as expressly stated below, the Agreement shall be modified as of the Amendment Date as set forth below: |
a. | Fee for Administrative Services . Section 5.1 (Fee for Administrative Services) is amended and restated in its entirety as follows: |
5.1 Fee for Administrative Services . In consideration for the Administrative Services, the SHO Group shall pay to Service Provider the fees and cost reimbursements set forth on Appendix A (collectively, the Administrative Service Fee ), in the manner set forth on Appendix A . The Administrative Service Fee will not include amounts payable under the Services Agreement and will not be subject to any right of setoff. The payment of the Administrative Service Fee shall be made by wire transfer to an account to be designated by Service Provider in accordance with the following:
1. SHMC will generally deliver invoices to SHO for all net amounts that SHO Group owes to SHMC hereunder after the end of each month.
2. From the Amendment Date through January 28, 2017, the payment due date is the three days after SHOs receipt of the invoice (e.g., Friday if the invoice is delivered on Tuesday). If SHO pays such invoice in full by such date, SHO may deduct from each such invoice an early payment discount equal to 37 basis points (i.e., to 0.37%) of the total amount of the invoice (the Early Payment Discount ). If SHO does not pay such invoice in full by such date, no Early Payment Discount is earned on such invoice.
3. For all Invoices delivered after January 28, 2017 (each a Post-2016 Invoice ), the payment due date is the 10th day following SHOs receipt of the invoice. No Early Payment Discount is earned on such invoices. If with respect to a Post 2016 Invoice SHMC requests in writing that the Early Payment Discount apply to the invoice, SHO in its sole discretion may, but will have no obligation to, agree to pay the invoice on the payment terms set forth in the immediately preceding subsection 2.
4. If the applicable payment date (i.e., the 3rd or 10th day) is a Saturday, Sunday, or bank holiday, SHO will pay on the next banking day, which will become the payment due date. Electronic fund transfers initiated on the payment due date will be timely made for purposes of this Agreement.
b. | Expenses . Section 5.5 (Expenses) of the Agreement is amended by adding the following at the end of such Section. |
If a third party vendor of SHMC, its Affiliates or its/their Representatives asserts that it is legally entitled to fees, expenses, increased charges, or penalties now or in the future, as a result of SHO, its Affiliates, SHO Authorized Resellers and/or its/their Representatives receiving benefits in connection with SHMC or its Affiliates relationship with such third party vendor (including software licenses, subscription agreements, etc.), then, in addition to all other amounts due hereunder, SHO shall pay to SHMC all of such additional fees, expenses, increased charges and/or penalties incurred by SHMC or its Affiliates to remedy such situation. SHMC will notify SHO promptly after it learns of any amounts due under the immediately foregoing sentence, and will work with the SHMC third party vendor to try to mitigate such amounts.
c. | The following is added at the end of Section 19.15(b)(ii) |
No Party may provide a Dispute Notice for any Dispute, or otherwise assert and/or claim a Dispute to the extent the Dispute relates to any act or omission of a Party, its Affiliates or its/their Representatives (other than clerical or accounting errors which the asserting Party was not aware of) in connection with, or related to, its rights, or the other Party, its Affiliates or its/their Representatives performance or non-performance under this Agreement that occurred more than 120 days prior to the time such claims, controversy, dispute, and/or disagreement is first asserted (together, Stale Claims ) and each Party waives on its behalf (and on behalf of its Affiliates and its/their Representatives) any rights to a Stale Claim. Notwithstanding the foregoing, the term Stale Claims does not include claims, controversies, disputes, and disagreements brought by either Party in regards to: (X) the other Partys rights and obligations under Section 14 (Indemnification); (Y) claims by a Party for reimbursement from the other Party for fees, expenses (including attorneys fees), charges, costs, damages penalties and other amounts paid by a Party or its Affiliates to a third party, including such amounts arising from non-indemnified third party claims, controversies and disagreements; provided that the Party brings such claim within 120 days after the Party makes such a payment; and (Z) an act or omission of the other Party, its Affiliates and/or its/their Representatives which the other Party demonstrates was intentionally done (or not done) with actual knowledge that it was in violation of this Agreement (including such Partys duty of Good Faith). For example: (I) a
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clerical or accounting error shall not include a claim by a Party that it should not be charged for activities for which it regularly received charges which instead shall be deemed to be a Stale Claim to the extent that such claim is for acts/omissions that are more than 120 days old; (II) a claim relating to charges which were incorrectly calculated due to a clerical or accounting error of which the claiming party was unaware would not be a Stale Claim to the extent based solely on such clerical or accounting error, (III) an intentional overcharge by a Party which it knew it was making in violation of this Agreement, will not be deemed to be a Stale Claim even if raised more than 120 days after such overcharge; provided that the claiming Party can prove such violation was intentional and made with actual knowledge that such overcharge was a violation of this Agreement.
d. Appendix A (Admin. Service Fees and Cost Reimbursement) . Appendix A to the Agreement is modified by deleting the following from the beginning of Section 1 (For each of the first 24 months) and by deleting Section 2 . In addition, effective August 1, 2016, the Base Rate shall be reduced to $19.78 per month to reflect the elimination of the Compensation Management service as shown on the revised Appendix A (Admin. Services) to the Statement of Work #1.
e. SOW . Appendix A (Admin. Services) to the Statement of Work #1 dated December 9, 2013 that is incorporated by reference into the Agreement is amended and restated as of January 30 th , 2016 in its entirety as set forth on Attachment #1 to this Amendment.
2. | Condition Precedent . It is a condition precedent to the effectiveness of this Amendment that the parties (or their Affiliates, as applicable) also execute (collectively the Related Amendments ): (a) that certain Amended and Restated Merchandising Agreement, (b) Amendment #4 to Services Agreement, (c) Amendment #1 to Shop Your Way Rewards Retail Establishment Agreement, (d) Amendment #1 to Trademark License Agreement, (e) Amendment #1 to Supplemental Agreement, (f) Amendment No. 4 to the prior Merchandising Agreement between the Parties and/or their Affiliates, and (g) Amendment #2 to Store License Agreement (Outlet). |
3. | No Other Amendments . Except as expressly amended herein, the Agreement shall continue in full force and effect, in accordance with its terms, without any waiver, amendment or other modification of any provision thereof, including the parties choice of Illinois law (pursuant to Section 9.17 of the Agreement) which also applies to this Amendment. |
Signature Page Follows
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date set forth below by their respective officers thereunto duly authorized.
SEARS HOLDINGS MANAGEMENT CORPORATION | SEARS HOMETOWN AND OUTLET STORES, INC. | |||||||
By: |
/s/ ROBERT A. RIECKER |
By: |
/s/ RYAN D. ROBINSON |
|||||
VP Controller |
Senior Vice President, Chief Financial Officer and Chief Administrative Officer May 11, 2016 |
|||||||
SEARS AUTHORIZED HOMETOWN STORES, LLC | SEARS OUTLET STORES, L.L.C. | |||||||
By: |
/s/ CHARLES J. HANSEN |
By: |
/s/ CHARLES J. HANSEN |
|||||
Vice President May 11, 2016 |
Vice President May 11, 2016 |
Attachment #1
Amended and Restated Appendix A
Administrative Services Provided by SHMC to the SHO Group
1. | SHMC will provide administrative services to the SHO Group as described in the following table and in accordance with the terms of the Agreement: |
Support Center |
Provide 88SEARS online and call center access and support to SHO employees in English and Spanish, generally including answering SHO employee questions, providing scenario specific information based on inquiries made and forwarding calls to more appropriate resources, as needed.
Key HR transactions for the purposes of transfers, promotions, terminations and general employee data changes per the standard SHMC process; provide PeopleSoft support to SHO HR as necessary to complete transactions if SHO is unable to process due to system issues not caused by SHO.
Note: Data entry services for new hire files from external service providers are not included. These must be paid for directly based on SHMC costs plus a 30% mark up (currently equal to $30/Hour). |
|
Payroll |
Process payroll according to ongoing SHMC payroll cycles (Silver, Weekly, Semi Monthly and Monthly); process incentive and bonus payments in the same manner.
Process manual paychecks (out of cycle) when necessary and on the same basis as SHMC currently employs.
Perform U.S. and Puerto Rico payroll and employee withholding tax remittances to local, state and federal agencies and filing of corresponding tax returns with respect to employee withholding and payroll taxes for SHO Group employees including Puerto Rico.
Maintain employee direct deposit records and voluntary deduction records for SHO Group employees.
Issue termination payments via on demand checks for SHO Group employees.
Process direct deposit recall, stop payment orders with appropriate bank confirmation and check reissue, where applicable, for SHO Group employeescharge a per transaction fee as currently done in SHMC; This does not include using the SHMC overpayment process to seek reimbursement of funds from employees overpaid as a result of any error or omission by SHO. If an overpayment is the result of any error or omission by SHMC, SHMC will take action it deems appropriate and reasonable under the circumstances, which may include using the SHMC overpayment process at its expense to promptly seek reimbursement of funds from employees.
Process garnishments, deductions and remittances to third parties with respect to SHO Group employeesthis will be handled in the same manner as the current SHMC process; SHO must provide adequate lead time, for example, in instances where vendor changes occur, resulting in IT and HR project work that will need to be estimated before work can commence or when SHO receives documents that require action. |
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Perform accounting accruals and reconciliations related to payroll that mirrors SHMC process.
Process and distribute SHO Group employee W-2 statements according to SHMC standard process on behalf of SHO. |
||
Time and Attendance |
Provide the system and punch technology / software within the point-of-sale system linked to payroll to enable capture of hours and time off for hourly associates in the same manner SHMC provides for its employees.
Provide time and attendance reporting according to SHMC standard process.
Scheduling is not included in services provided as these reside in retail operations.
Note: It is the sole responsibility of SHO to commit payroll data (e.g., number of hours worked, correct hourly rate/salary, commissions, etc.) to SHMC by the standard SHMC established deadlines to ensure timely processing. SHO acknowledges that processing delays caused by SHOs failure to meet the established cycle cutoffs may result in delayed payments to SHOs employees. In the event that errors in payroll data are caused by SHMC, SHMC will promptly reperform the services. |
|
HR Reporting & Analytics |
Provide ongoing access to WFA for SHO Group HR Reporting needs, and, if applicable, provide access to upgrades that SHMC has implemented in its sole discretion.
Support HR reporting requests for special reports using the standard request process found at http://support.searshc.com/wfi/SiteAdmin/WFIReportRequestForm/tabid/4372/Default.aspx
Note: Standard turnaround times that are published by the HRIS reporting team will apply to SHO. Upon request by SHO, SHMC may, at its sole discretion, provide expedited requests. Expedited requests will be considered incremental and result in a fee based on the effort involved in fulfilling the request (and the hourly rate charged will correspond to the incremental project rate in this SOW), provided the reporting team has the capacity to expedite the request as determined by SHMC. If SHO has a regulatory or litigation related request for information, SHO will make that request of the SHMC law department. Sharing of information for litigation purposes will be subject to the parties Separation Agreement.
Note: If the volume of requests increases by more than 10% over the prior year, SHMC reserves the right to charge for additional requests. Once these thresholds are met, the cost for additional reports will be charged at the incremental project rate in this SOW. |
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Employee Record Keeping |
Maintain standard employee files and documents in accordance with SHMC document storage practices.
Note: If SHO needs to obtain data dumps or copies of records, the fee will be the standard cost that is charged to SHMC by Xerox plus a 30% mark up. |
|
Compensation Management |
Provide administrative support for processing of exempt and non-exempt compensation programs including Annual Incentive Plans, Long Term Incentive Plans, and ad-hoc bonus plans as needed. Implementation of new SHO compensation plans will be incremental project work that will need to be scoped, estimated and planned before work can commence.
Note: SHO has terminated this Service (Compensation Management) effective July 31st, 2016. |
|
Benefits & Benefits Administration |
In accordance with and subject to Section 3.4 and subsection 3.4(f) (including Appendix B):
SHMC will continue to administer non-contracted benefits (e.g., vacation and personal days) in effect from time to time for SHO Group employees under standard SHMC processes.
If a request by SHO for any deviations from the SHMC process with respect to any Continuing Plan or any other benefit or payroll program or policy, is approved by SHMC and results in incremental project work, SHO will bear the cost of such incremental work.
SHMC will provide SHO employees with access to participate in the SHMC child development center pursuant to the terms and conditions of SHMCs arrangement with the child development center. |
|
HR Systems |
Access to the following systems will be provided the service provided is limited to the actual functionality of the system (SHO is responsible for entering information into the systems and processing transactions to ensure their data is accurate):
a. PeopleSoft
b. TPC
c. MPI
d. WFA
e. Red Prairie
SHO will be able to utilize the existing security profiles/setup established in the systems above that are used by SHMC. Creating additional profiles, configurations and rules will be considered incremental project work. |
2. | Unless otherwise stated herein, administrative services will be provided with the same level of effort, timeliness and in the same manner that SHMC provides the same administrative services to its internal operations. |
3. | Services not described in this SOW or not covered by this SOW (other than Inherent Services) are considered incremental services. All incremental services will be charged at a rate of $112.50/hour (unless specialty skills are required, in which case the cost would depend on the market rate for the resources needed to meet the needs). When possible, an estimate of total cost will be provided prior to work being initiated. However, SHO will be charged for actual hours worked by SHMC resources. If additional time is required above the estimate, SHMC will inform SHO of the revised time/cost as soon as practical. SHMC will disclose to SHO the number of hours worked by project for all incremental services. |
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4. | This SOW replaces the Human Resources Section in Appendix 1.01-A (Pages A-1 through A-4) of the Services Agreement between SHO and SHMC dated August 8, 2012. It is the intent of the parties that all human resource services provided by SHMC to SHO as of the Effective Date will be provided under this SOW and the Agreement, except that all charges and fees described in this SOW will become payable, if at all, only from and after the date of this SOW, except that all charges and fees described in this SOW will become payable, if at all, only from and after the Effective Date. For the avoidance of doubt, nothing stated in this Section 4 shall relieve SHO from any previously agreed to payment obligations for Services delivered prior to the Effective Date. |
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Exhibit 10.6
Amendment No. 2 to Store License Agreement (Outlet)
Dated: May 1, 2016
This Amendment No. 2 ( Amendment ), to that certain Store Licensing Agreement (the Agreement ) between SEARS ROEBUCK AND CO. , a New York corporation ( Sears ), and SEARS OUTLET STORES, L.L.C. , a Delaware limited liability company ( Outlet Stores ), is retroactive to the date listed above (the Amendment Date ) and is signed as of the dates listed below. Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Agreement.
Whereas , the parties have determined that it is in both parties interest to amend the Agreement;
Whereas , the parties have agreed to amended and restate the parties Merchandising Agreement, of even date herewith (the Amended and Restated Merchandising Agreement )
NOW, THEREFORE, in consideration of the above premises and the mutual covenants and other good and valuable consideration contained herein, the parties agree as follows:
1. | Amendments . The Agreement shall be modified as of the Amendment Dates set forth below: |
a. Merchandising Agreement . All references to the Merchandising Agreement in the Agreement (including the amendments below) shall hereafter be deemed to refer to the Amended and Restated Merchandising Agreement.
b. Springing License. Section 1.2 of the Agreement is amended by adding a new paragraph at the end as follows:
In addition, solely in the event a Termination Event (as defined below) occurs, Sears grants Outlet Stores, a springing, personal, exclusive, royalty-free, fully paid up, non-transferable and terminable right and license to use the domain name searsoutlet.com to promote and sell the Outlet Products (other than New Products) in the Territory via the New SearsOutlet.com until February 1, 2010. As used in this paragraph:
(i) Outlet Products has the meaning ascribed to it in the Amended and Restated Merchandising Agreement;
(ii) New Products and New SearsOulet.com have the meanings ascribed to them in Appendix 1.01-D (eCommerce Services) to that certain Services Agreement, dated August 8, 2012 between Sears Affiliate and Outlet Stores parent (as amended, the Services Agreement );
(iii) SHO means Outlet Stores Affiliates that are parties to the Amended and Restated Merchandising Agreement;
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(iii) Termination Event means the occurrence of one of the following: (a) SHO terminates the Merchandise Agreement in accordance with Section 2(c)(i) of the Merchandise Agreement, (b) SHO terminates for cause one or more of the agreements listed in Section 2(c)(iv) of the Merchandise Agreement, followed by the termination by SHO of the Merchandise Agreement in accordance with Section 2(c)(iv) of the Merchandise Agreement; (c) SHO terminates the Services Agreement in accordance with Section 3.02(a) of the Services Agreement, (d) a SHO Cover Event (as that term is defined in the Services Agreement) occurs, or (e) a court having jurisdiction over a bankruptcy case of SHMC enters an order resulting in the rejection of the Services Agreement or Appendix 1.01-D of the Services Agreement pursuant to Section 365(a) of Title 11 of the U.S. Code.
2. | Condition Precedent . It is a condition precedent to the effectiveness of this Amendment that the parties (or their Affiliates, as applicable) also execute (collectively the Related Amendments ) that certain: (a) Amended and Restated Merchandising Agreement, (b) Amendment #4 to Services Agreement, (c) Amendment #1 to Employee Transition and Administrative Services Agreement, (d) Amendment #1 to Shop Your Way Rewards Retail Establishment Agreement, (e) Amendment #1 to Supplemental Agreement; (f) Amendment No. 4 to the prior Merchandising Agreement between the Parties and/or their Affiliates; and (g) Amendment #1 to Trademark License Agreement. |
3. | No Other Amendments . Except as expressly amended herein, the Agreement shall continue in full force and effect, in accordance with its terms, without any waiver, amendment or other modification of any provision thereof, including the parties choice of Illinois law (pursuant to Section 12.14 of the Agreement) which also applies to this Amendment. |
Signature Page Follows
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date set forth below by their respective officers thereunto duly authorized.
SEARS, ROEBUCK AND CO. | ||
By: Sears Holdings Management Corporation, its Agent | ||
By: |
/s/ ROBERT A. RIECKER |
|
VP Controller | ||
Date: May 10, 2016 | ||
SEARS OUTLET STORES, L.L.C. | ||
By: |
/s/ WILL POWELL |
|
CEO and President | ||
Date: May 11, 2016 |
Exhibit 10.7
Amendment No. 1 to Shop Your Way Rewards Retail Establishment Agreement
This Amendment No. 1 to Shop Your Way Rewards Retail Establishment Agreement (this Amendment ) is retroactive to May 1, 2016 (the Amendment Date ), is signed as of the dates listed below, and is between (1) Sears Holdings Management Corporation ( SHMC ) and Sears Hometown and Outlet Stores, Inc. , ( SHO ). This Amendment amends the Shop Your Way Rewards Retail Establishment Agreement between SHMC and the SHO dated as of August 8, 2012 (the Agreement ). Capitalized terms used but not defined to in this Amendment are defined in the Agreement.
WHEREAS , the parties have determined that it is in both parties interest to amend the Agreement as set forth below.
NOW, THEREFORE, in consideration of the above premises and the mutual covenants and other good and valuable consideration contained herein, the parties agree as follows:
1. | Amendments . Except as expressly stated below, the Agreement shall be modified as of the Amendment Date as set forth below: |
a. Reconciliation and Payment . The language of Section VI.G (Reconciliation and Payment) of the Agreement is deleted and the following language is substituted:
G. Reconciliation and Payment . The amount or amounts that SHO owes to SHMC in accordance with this Agreement, and the amount or amounts that SHMC owes to SHO in accordance with this Agreement, will be determined by SHMC on a monthly basis, which amounts will be netted against each other. If SHMC owes an amount to SHO after the netting SHMC will remit the amount it owes to SHO within five days of the reconciliation. If SHO owes an amount to SHMC after the netting SHO will remit the amount it owes to SHMC in accordance with the following:
1. SHMC will generally deliver invoices to SHO for all net amounts that SHO owes to SHMC hereunder after the end of each month.
2. From the Amendment Date through July 31, 2016, the payment due date is three days after SHOs receipt of the invoice (e.g., Friday if the invoice is delivered on Tuesday). If SHO pays such invoice in full by such date, SHO may deduct from each such invoice an early payment discount equal to 37 basis points (i.e., to 0.37%) of the total amount of the invoice (the Early Payment Discount ). If SHO does not pay such invoice in full by such date, no Early Payment Discount is earned on such invoice.
3. For all Invoices delivered after July 31, 2016 (each a Post- July 2016 Invoice ), the payment due date is the 10th day following SHOs receipt of the invoice. No Early Payment Discount is earned on such invoices. If with respect to a Post- July 2016 Invoice SHMC requests in writing that the Early Payment Discount apply to the invoice, SHO in its sole discretion may, but will have no obligation to, agree to pay the invoice on the payment terms set forth in the immediately preceding subsection 2.
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4. If the applicable payment date (i.e., the 3rd or 10th day) is a Saturday, Sunday, or bank holiday, SHO will pay on the next banking day, which will become the payment due date. Electronic fund transfers initiated on the payment due date will be timely made for purposes of this Agreement.
5. Termination for Convenience . The language of Section XII.B (Termination for Convenience) of the Agreement is deleted and the following language is substituted:
Each Party may terminate this Agreement for any reason or no reason on or after December 31 st , 2019 by providing the other Party with one hundred eighty (180) days advance written notice of the Terminating Partys intent to terminate, which notice the Terminating Party may not deliver until after June 30 th , 2019. Termination in accordance with this section will be without penalty and further obligation of any kind except as provided in subsection C of this section.
b. | Disputes . The following is added at the end of Section XIV.B.2: |
Furthermore, no party may provide a Dispute Notice for any Dispute, or otherwise assert and/or claim a Dispute to the extent the Dispute relates to any act or omission of a Party, its Affiliates or its/their representatives (other than clerical or accounting errors which the asserting Party was not aware of) in connection with, or related to, its rights, or the other Party, its Affiliates or its/their representatives performance or non-performance under this Agreement that occurred more than 120 days prior to the time such claims, controversy, dispute, and/or disagreement is first asserted (together, Stale Claims ) and each Party waives on its behalf (and on behalf of its Affiliates and its/their representatives) any rights to a Stale Claim. Notwithstanding the foregoing, the term Stale Claims does not include claims, controversies, disputes, and disagreements brought by either Party in regards to: (X) the other Partys rights and obligations under Section 14 (Indemnification); (Y) claims by a Party for reimbursement from the other Party for fees, expenses (including attorneys fees), charges, costs, damages penalties and other amounts paid by a Party or its Affiliates to a third party, including such amounts arising from non-indemnified third party claims, controversies and disagreements; provided that the Party brings such claim within 120 days after the Party makes such a payment; and (Z) an act or omission of the other Party, its Affiliates and/or its/their representatives which the other Party demonstrates was intentionally done (or not done) with actual knowledge that it was in violation of this Agreement (including such Partys duty of Good Faith). For example: (I) a clerical or accounting error shall not include a claim by a Party that it should not be charged for activities for which it regularly received charges which instead shall be deemed to be a Stale Claim to the extent that such claim is for acts/omissions that are more than 120 days old; (II) a claim relating to charges which were incorrectly calculated due to a clerical or accounting error of which the claiming party was unaware would not be a Stale Claim to the extent based solely on such clerical or accounting error, (III) an intentional overcharge by a Party which it knew it was making in violation of this Agreement, will not be deemed to be a Stale Claim even if raised more than 120 days after such overcharge; provided that the claiming Party can prove such violation was intentional and made with actual knowledge that such overcharge was a violation of this Agreement.
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c. Expenses . Section XXII (Expenses) of the Agreement is amended by adding the following at the end of such Section:
If a third party vendor of SHMC, its Affiliates or its/their representatives asserts that it is legally entitled to fees, expenses, increased charges, or penalties now or in the future, as a result of SHO, its Affiliates, SHO Authorized Resellers (as that term in defined in the Services Agreement between the Parties and/or its/their representatives receiving benefits in connection with SHMC or its Affiliates relationship with such third party vendor (including software licenses, subscription agreements, etc.), then, in addition to all other amounts due hereunder, SHO shall pay to SHMC all of such additional fees, expenses, increased charges and/or penalties incurred by SHMC or its Affiliates to remedy such situation. SHMC will notify SHO promptly after it learns of any amounts due under the immediately foregoing sentence, and will work with the SHMC third party vendor to try to mitigate such amounts.
d. Rate Card . Appendix VII.A.1 (Rate Card and Email Support Services) is amended and restated as stated on Attachment I hereto.
2. | Condition Precedent . It is a condition precedent to the effectiveness of this Amendment that the parties (or their Affiliates, as applicable) also execute (collectively the Related Amendments ): (a) that certain Amended and Restated Merchandising Agreement, (b) Amendment #4 to Services Agreement, (c) Amendment #1 to Employee Transition and Administrative Services Agreement, (d) Amendment #1 to Trademark License Agreement, (e) Amendment #1 to Supplemental Agreement, (f) Amendment No. 4 to the prior Merchandising Agreement between the Parties and/or their Affiliates, and (g) Amendment #2 to Store License Agreement (Outlet). |
3. | No Other Amendments . Except as expressly amended herein, the Agreement shall continue in full force and effect, in accordance with its terms, without any waiver, amendment or other modification of any provision thereof, including the parties choice of Illinois law (pursuant to Section XXXVI.A. of the Agreement) which also applies to this Amendment. |
Signature Page Follows
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date set forth below by their respective officers thereunto duly authorized.
SEARS HOLDINGS MANAGEMENT CORPORATION | SEARS HOMETOWN AND OUTLET STORES, INC. | |||||||
By: |
/s/ ROBERT A. RIECKER |
By: |
/s/ RYAN D. ROBINSON |
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VP Controller |
Senior Vice President, Chief Financial Officer and Chief Administrative Officer May 11, 2016 |
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Attachment I
Appendix VII.A.1
Rate Card and Email Support Services
Definitions:
CPM means cost per thousand.
Solo means an email campaign that features a single business unit or store format.
TI means targeted interactions.
Trigger means any metric or event used to generate an automatic communication to a Member, for example, emails sent upon purchase of merchandise, or POS contact.
Rate Card
Email Campaign Development and Deployment Services |
Cost |
|
One (1) Dedicated Email Campaign Manager - required upon SHO request for an email campaign or campaigns. |
$170,000/annually; billed at $14,167/month; may be hired on a month-to-month basis as mutually agreed by the Parties. |
|
Email Campaigns to SHO Opt-Ins or Members designated as Implicit Interests (as defined in the Agreement)
Includes Transactional Communications, Existing Triggers, Shopper Recap, and eReceipts |
$4.00 CPM | |
Email Campaigns to Members not designated as SHO opt-ins or as Implicit SHO Interests
Includes Solos, SHMC/SYWR promotional, and other campaigns to non-SHO exclusive customers |
$15 CPM for Solo campaigns | |
One (1) Email Campaign per Month to 500,000 Members at $4 CPM Cost |
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Customized SYW Promotion and Event Campaigns
Includes for example campaigns such as Secret Sales, Liquidity Injection, or Extreme Redeem, etc. |
$15 CPM for Solo campaigns | |||
Special Projects/New Development defined in a separate SOW
Includes new Triggers, New/Revised transactional messaging and communications, or other net new campaigns |
Rate Card + CPM (if applicable, otherwise as defined in SOW) | |||
Email Creative/Coding Development Services | ||||
New Trigger/Transactional Template | $16,000 | |||
New Dynamic Promotional Template | $8,000 | |||
New Standard Email Postcard Template | $4,000 | |||
Banners/Trolleys | $500 | |||
Critical Changes | (changes requested less than 5 days prior to launch date) | |||
Hero | $5,000 | |||
Slice | $2,500 | |||
Analytics | ||||
Ad Hoc Analyses | $200/hour | |||
Segmentation and other larger projects |
Per agreed upon SOW |
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Personalization Services | ||||
TI @ POS (SHO) | $0.03 per print | |||
TI propensity models (includes quarterly re-scoring) | $15,000/each | |||
TI Implementation into new email campaign | $5,000 per campaign | |||
Other TI requests | Per agreed upon SOW | |||
Hourly rates for OBU Engineering/User experience/Marketing Planning personnel |
Group |
Role | Rate | ||||
Product Mgmt |
Product Manager | $ | 100.00 | |||
Merchandising |
Merchant | $ | 80.00 | |||
Marketing |
Marketing Coordinator | $ | 80.00 | |||
Creative & UX |
Creative Director | $ | 150.00 |
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Art Director | $125.00 | |||
Web Designer | $80.00 | |||
Principal UX Architect | $125.00 | |||
UX Architect | $95.00 | |||
Copywriter | $80.00 | |||
Taxonomist | $110.00 | |||
Front End Developer | $90.00 | |||
UX Project Manager | $90.00 | |||
Engineering | Technical Project Manager | $90.00 | ||
Engineering Lead | $110.00 | |||
Developer | $75.00 | |||
QA Engineer | $75.00 | |||
Support Engineer | $75.00 |
Email Support Schedule
Services | Notes | |||
Note: Fees for email support services not included in the Services Agreement will be the equivalent fees defined in the Rate Card | ||||
SHC/OBU will continue to provide support for non-SYW related promotional and trigger emails |
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Promotional emails |
a.) SHC/OBU will continue to provide standard promotional emails to Sears Opt-Ins with additional SHO Opt-In or Implicit Interest in SHO including specific business line/category promotional offer | |||
b.) SHO will continue to have the opportunity to purchase promotional banners/content in standard OBU promotional emails | ||||
Trigger Emails |
SHC/OBU will continue to provide support for the following trigger emails:
Shopping Cart Abandonment emails for SearsOutlet.com
Post Order emails for SearsOutlet.com |
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Shopper Recap emails
Digital receipt email
Post order emails for in-store purchases |
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Special Projects/New Campaign Development |
Defined in a separate written SOW |
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