EXHIBIT 10.12
2003-2004 VIPER MOTORCYCLE COMPANY
DEALER AGREEMENT
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DATE:
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PARTIES: Viper Motorcycle Company
Here within referred to as Viper
0000 Xxxxxxxxxxxxx Xxxxxxx
Xxx Xxxx, XX 00000
("Dealer" (Corporation or entity)
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("Dealer Operator")
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("Authorized Retail Location")
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Dealer may sell, subject to all the terms and conditions described in this
agreement, Viper Motorcycles, together with related parts, accessories and
clothing for Viper Motorcycle Company ("Products"). Dealer acknowledges that
this Agreement grants no rights regarding any other products manufactured and/or
sold by Viper Motorcycle Company.
THIS AGREEMENT INCLUDES AN ARBITRATION PROVISION (SEE SECTION 18)
By
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(Representative of Viper Motorcycle Company)
The undersigned is authorized to execute this Agreement on behalf of the Dealer
By
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(Dealer Signature)
Title:
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Date:
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The additional terms and conditions of this Agreement are as follows:
1. APPOINTMENT OF DEALER.
a. Subject to the terms of this agreement, Viper Motorcycle
Company nonexclusive dealer at retail of Products at the Authorized
retail Location. This is a personal services agreement, entered into in
reliance on the qualifications of the Dealer Operator and on Dealer's
assurances that the Dealer Operator will provide personal service by
exercising full managerial authority over dealership operations. Dealer
Operator will have an unencumbered ownership interest in Dealer of at
least 15 percent at all times. Dealer Operator must be a competent
businessperson, an effective manager, must have demonstrated a caring
attitude towards customers, and have demonstrated the ability to manage a
dealership. The Dealer Operator, however, is not a party to this
Agreement and has no independent rights hereunder.
b. Dealer acknowledges that Viper distributes its Products
through a network of authorized dealers at approved locations, and that
those dealers must be appropriate in number, located properly, and have
proper facilities to represent and service the Products competitively.
Through such a dealer network, Viper Motorcycle Company can maximize the
convenience of customers in purchasing Products and having them serviced.
Accordingly, Dealer may not in any way sell or otherwise deal in the
Products at any location other than the Authorized Location without Viper
Motorcycle Company's prior written consent, which consent may be withheld
in Viper Motorcycle Companies pursuant to its business judgment. Viper
reserves the right, in its sole discretion pursuant to its business
judgment, to appoint any other dealer at any other location or to allow
another dealer to relocate. Nothing in this Agreement is intended to
require Dealer's consent to the establishment of an additional dealer or
the relocation of another dealer.
2. PURCHASE OF PRODUCTS BY DEALER.
a. Viper will sell Products to Dealer subject to availability
and the terms of this Agreement. Viper Motorcycle Company (in whole or in
part) any order without liability to Dealer or any other person. Without
limiting the generality of the foregoing, Viper Motorcycle Company
reserves the right unilaterally to alter accepted purchase orders by
decreasing the quantity of any particular products subject to such order,
and agrees to give Dealer written or oral notice of such change. Dealer
will cooperate with any program established by Viper Motorcycle Company
for advance ordering of Products.
b. Viper may discontinue or change the specifications for and
design of any Products, alter or substitute materials in any Products,
and add to the Products without notice, or any liability to Dealer.
c. Dealer shall accept all Products ordered. No cancellation
of any order and no returns may be made without Viper's written
authorization. All sales are solely subject to the provisions of this
Agreement and Viper's general sales terms, conditions, and programs,
notwithstanding the terms and conditions of any purchase order or other
communications from Dealer. All title to and risk of loss for the
Products shall pass to Dealer upon shipment from factory.
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d. All delivery dates agreed upon by the parties are
tentative, not withstanding any terms in any order or other communication
of either party. Viper will attempt to deliver in accordance with such
dates, but shall not be in breach of any duty to Dealer if it fails to
meet such delivery dates for any reason.
3. PRICE AND PAYMENT.
a. Products will be sold at the dealer prices, terms, and
discounts established by Viper and in effect on the date of Viper
Motorcycle Company's shipment regardless of when the order was submitted
or accepted. Viper Motorcycle Company may change such prices and
discounts in effect upon thirty (30) days prior written or oral notice to
Dealer.
b. Full payment on all Products is due and payable in cash
upon shipment unless Viper has agreed otherwise in writing in advance, in
which case the payment for such product is due and payable as provided in
such other agreement. Dealer may participate in any financing plans
established from time to time by Viper or by others at Viper's request
for its sale of Products, if permitted under local law and if Dealer
qualifies under and meets all of the terms thereof. Dealer's
participation in such financing plan will be subject to all of the terms
and conditions of such plan, as may be changed from time to time. If
Dealer fails to fulfill its obligations under any such financing plan and
Viper is required to repurchase any Products to Dealer, Dealer shall
reimburse Viper for any deficiency between the repurchase cost and resale
price and for any costs and expenses which Viper incurs in connection
with the sale of any such Products, notwithstanding any voluntary
surrender agreement with any financing institution. Viper may deduct any
amounts due or becoming due from Dealer to Viper or any amounts held by
Viper, from any sums or accounts due or to become due from Viper to
Dealer to satisfy such deficiencies.
4. SECURITY INTEREST. Dealer grants Viper a continuing first priority
purchase money security interest on all products now or here after acquired or
reacquired by Dealer, and all proceeds thereof, secure any and all of its
indebtedness or obligations of any character to Viper, regardless of when
incurred. Dealer will execute or procure all financing statements, personal
guaranties and other instruments, agreements and documents relating to assurance
of payment of all Dealers' obligations to Viper's requests.
5. REPORTING OF PACKING SHORTAGES AND DEFECTS. Dealer shall inspect
all products immediately upon arrival. Dealer shall notify Viper in writing
within ten (10) days after the arrival of any products of any packing shortages
and shall submit all packing slips and inspection reports along with such
written notice of any claimed packing shortage. Viper reserves the right to
refuse to adjust any packing shortage if Dealer has not complied with this
notice requirement. Dealer shall, within ten (10) days after arrival, notify
Viper in writing of any other failure of any Products to conform to this
Agreement which is reasonably discoverable upon such arrival, and shall notify
Viper in writing of any other failures to conform within ten (10) days after the
earlier of (i) the date of actual discovery or (ii) the date on which such
failures should have been discovered in the exercise of reasonable diligence.
All shortages or other failures to conform not reported to Viper as required by
this Section 5 shall be deemed waived by Dealer.
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6. DUTIES OF DEALER. Dealer shall use its best efforts to promote and
increase the distribution and sale of Products. Without limiting the generality
of the foregoing, Dealer shall:
a. Purchase such number and model mix of Products as shall be
agreed by Viper and Dealer at the commencement of each season. Such
purchases by Dealer shall comply with Viper's then existing Stocking
Requirements Program, which is incorporated herein. Viper has the right
to modify the Stocking Requirements Program in its sole discretion
pursuant to its business judgment. Absent agreement for purchases for the
season, Viper shall have the right to specify such numbers in its
absolute discretion pursuant to its business judgment, considering such
information as it has available concerning Dealer's previous sales, local
population, the motorcycle market and other factors Viper deems
appropriate. Dealer shall at all times employ a sales person dedicated to
sales of the product.
b. Maintain a suitable, modern place of business at the
Authorized Location with adequate space and facilities for sales,
service, display, arid storage, and display prominently there a Viper 5'
x 8' outdoor electric sign, in form and of a quality satisfactory to
Viper, and maintain reasonable business hours for the vicinity in which
it operates. If local sign ordinances prohibit prominent display of the
Viper sign, Dealer must obtain written approval from the Viper Vice
President of Sales of this requirement, in which case Viper shall have
the right in its sole discretion pursuant to its business judgment to
require Dealer to provide a sign. Dealer's facility shall conform to
Viper's Image Requirements and will have sufficient showroom space to
display representative models of each of the Products, pursuant to the
Stocking Requirements Program.
c. Maintain an adequate stock of Viper parts, accessories and
clothing, or parts, accessories, and clothing meeting quality
specifications equal to or better than those sold by Viper and at all
times employ a parts person for the Products.
d. Perform Viper warranty and service program(s) in effect
from time to time, maintain and train adequate staff and personnel,
maintain adequate tools and service equipment to perform such warranty
and service program(s) and send service personnel to schools conducted by
Viper from time to time. Dealer shall be responsible for all
out-of-pocket expenses incurred by such personnel, including (without
limitation) transportation and lodging. Dealer at all times shall employ
a full-time service manager satisfactory to Viper and who has completed
Viper's service school.
e. Sell motorcycles only after the units are uncrated and set
up in accordance with Viper pre-delivery instructions located within the
hardware packages.
f. Conduct reasonable amounts of local advertising (in
newspapers, on radio, or in other appropriate media), place prominent
Yellow Page display ad and spend reasonable amounts on local promotional
activities relating to Viper products, and participate in cooperative
advertising and other promotional programs adopted by Viper from time to
time. Dealer shall not use any advertising copy or other materials, which
have not been approved in advance in writing by Viper and must comply
with all
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advertising regulations regarding safety prescribed by Viper, including
but not limited to age recommendations and warnings.
g. Attend all national Viper sales meeting and seminars.
Dealer shall be responsible for all out-of-pocket expenses incurred by
such personnel, including (without limitation) transportation and
lodging.
h. Submit orders for Products, warranty reimbursement claims,
claims or other information as Viper may designate.
i. Obtain and maintain insurance, through solvent and
reputable carriers, in sufficient types and amounts and provide Viper
with a copy of the certificate of insurance.
j. Reimburse Viper for any payment Viper makes to any retail
financing institution relating to dealer's obligations under agreements
with said financial institutions.
k. Maintain a flooring account with an approved financial
institution with a credit line sufficient to cover its orders.
l. Promptly inform Viper of any changes or proposed changes in
state or local regulations and legislation, of which Dealer is aware,
relating to the Products and inform Viper of any matters, of which Dealer
is aware, indication a safety concern regarding the Products.
m. Comply with all laws and regulations applicable to its
business of selling Products and maintain all necessary licenses and
permits.
n. Sell Products only to consumers purchasing Products for
consumer use in the United States, or to other authorized Viper dealers
of products who at that time have an effective Dealer Agreement for the
product line with Viper itself. Dealer agrees to refrain from selling or
transferring products to anyone else including, but not limited to,
dealers not approved in writing by Viper.
o. Communicate to purchasers all safety and other information
Viper requires it to communicate to such purchasers, and take all other
steps required by Viper regarding safety matters, including but not
limited to, cooperation with Product modification or recall programs.
p. Make no representations, which are inconsistent with
safety-related requirements specified by Viper, to actual or prospective
Product purchasers and comply with all age recommendations as prescribed
by state law. Dealer shall provide its staff with adequate training to
ensure compliance with this requirement.
q. Maintain minimum new working capital necessary for Dealer
to conduct dealership operations under this Agreement.
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r. Maintain records for a minimum of five years of(i) all
sales of Products, parts, or service; (ii) all warranty records; and
(iii) profit and loss statements of the Dealer. Dealer shall make such
records available to NMC for examination or audit upon request.
7. WARRANTY. The Viper warranty on the Products shall be as set forth
in the current Viper Warranty program furnished to Dealer by Viper. SUCH
WARRANTIES SHALL BE THE ONLY WARRANTIES MADE OR DEEMED TO BE MADE TO ANY PERSON
BY VMC AND ARE EXPRESSLY IN LIEU OF ALL OTHER MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, AND NONINFRJNGEMENT. THE REMEDIES SET FORTH IN SUCH
WARRANTIES SHALL BE THE ONLY REMEDIES AVAILABLE TO ANY PERSON. Neither Dealer
nor any other person shall have authority to bind Viper to any other
representation or warranty. Dealer shall indemnify Viper for all losses,
damages, liabilities, or expenses (including but not limited to reasonable
attorneys' fees and litigation expenses) which Viper may incur as a result of or
in connection with any claim under such warranty by reason of any act or
omission of Dealer, its servants or agents. Viper neither assumes nor authorizes
anyone to assume for it any other obligation or liability in connection with its
Products, and Viper's maximum liability under the Viper Warranty Program is to
repair or replace the Product.
8. TRADEMARKS. Dealer may use the trademark "Viper Motorcycle
Company," the logo, "Viper Motorcycle Company" and any other Viper trademarks
authorized by Viper in writing, in forms approved in writing by Viper, (the
"Trademarks"), in connection only with promotion, advertising, selling, and
servicing of the Products, and for no other purpose. Dealer shall not use the
Trademarks in connection with any products (whether or not for resale) that are
not specifically authorized by Viper. Dealer shall not use any of the Trademarks
as a part of Dealer's firm, trading, or corporate name, and shall not display or
use such Trademarks except in a form or Manner approved by Viper in writing in
advance. If Dealer for any reason ceases to be an authorized dealer of the
products, Dealer will immediately cease all use of the Trademarks and will
remove all signs bearing such Trademarks use in connection with its business.
9. CERTAIN REPORTS. Upon request, Dealer shall furnish Viper a
detailed written inventory of Products on hand, together with complete
information with respect to its sales of Products, including orders received;
shipments made, and unfilled orders on hand. Dealer also shall furnish to Viper,
on Viper's request, additional written reports and copies of forms or other
documents in Dealer's possession or under its control which Viper in good faith
believes will assist it in evaluating the market and/or Dealer's performance
under this Agreement. Such reports shall be in forms specified by Viper. Dealer
also agrees to submit to Viper on request such financial statements and other
information relating to Dealer's financial condition as Viper may request.
Dealer also agrees to submit, if requested by Viper, a Business plan for
Dealer's operations.
10. VIPER MOTORCYCLE COMPANY DUTIES. Except as otherwise provided
herein, Viper's duties shall be limited to:
a. Providing parts catalogs, service manuals, current
servicing information, and such service training, as Viper reasonably
deems necessary to qualify Dealer's
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employees to service the Products. The time, place, and frequency of such
training are to be determined by Viper.
b. Conducting annual Dealer sales reviews, individually and in
groups.
11. INDEPENDENT CONTRACTOR. Dealer for all purposes shall be an
independent contractor, and not an agent, employee, partner, joint venturer, or
franchisee of Viper. Dealer shall have the sole right to determine the manner in
which it performs its duties under this Agreement, except as otherwise expressly
provided in this Agreement. No fiduciary obligations are created by this
Agreement.
12. CONFIDENTIAL INFORMATION. Viper has communicated and will
communicate to the Dealer valuable information with respect to the Products and
the servicing thereof, as well as promotional and advertising know-how and sales
merchandising information which Dealer agrees is of substantial value to Viper's
business. Dealer acknowledges that such information is confidential, and Dealer
shall maintain its confidentiality and not disclose it to any other party during
or after the termination of this Agreement, and shall take reasonable steps to
prevent its employees, officers, agents, shareholders, or partners from doing
so.
13. TERMINATION.
a. Unless otherwise terminated for any of the causes and in
the manner specified in Sections 13(b), (c) or (d) or any other section
of this Agreement, this Agreement shall remain in force from the date
specified at the top of this Agreement until September 30, 2004, when it
shall automatically expire, unless Viper shall give Dealer written
notice, prior to such date, of its intention to renew this Agreement
until the following September 30 and Dealer consents to such renewal in
writing within thirty (30) days thereafter. Viper Motorcycle Company's
offer to renew shall occur only in the form of a letter signed by a duly
authorized representative of Viper expressly stating that it is an offer
to renew, and inviting Dealer accept such offer. Requests for sales
projections for future periods, requests for orders for future periods,
invitations to annual or other conventions or meetings, or any other act
whatsoever other than the specified written notice, shall not constitute
an offer to renew this Agreement. Nothing shall prohibit Viper from
offering to renew upon terms and conditions different from or additional
to the terms and conditions of this agreement.
b. If any of the following events occur, Viper has the
absolute right, in its sole discretion pursuant to its business judgment,
upon ten (10) days written notice, terminate this Agreement, except that
no advance notice shall be required as to Sections 13 (b) (i) or (v):
(i) Dealer becomes insolvent, or a petition in
bankruptcy is filed, or Dealer makes a general assignment for the
benefit of creditors, or if a receiver or trustee is appointed for
any significant portion of Dealer's property, or if a petition for
dissolution or for an assignment or for the reorganization of its
affairs is filed; or
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(ii) There is any material adverse change in the
financial position of Dealer which Viper believes may impair its
prospect of receiving timely and full payment of may increase
Viper's own financial risk; or
(iii) There is, without Viper's prior written approval,
any change in Dealer's facility location or in Dealer's executive
management, ownership, or control; or
(iv) Refusal by Dealer to timely furnish sales, service,
or financial information, or to permit Viper's examination or
audit of Dealer's accounts and records: or
(v) Any finding by a governmental agency or court or a
settlement or plea arising from charges that Dealer, or
predecessor of Dealer owned or controlled by the same person,
committed a misdemeanor or unfair or deceptive business practice
or a felony, which in Viper's sole business judgment may adversely
affect the reputation or interests of Viper; or
(vi) Failure of Dealer to maintain a line of credit
pursuant to paragraph 6(k) above; or
(vii) Failure of Dealer to timely pay its obligations to
Viper; or
(viii) Failure of Dealer to conduct customary sales and
service operations during customary business hours for 30 days; or
(ix) Dealer materially breaches any provision of this
Agreement. No provision of this Agreement indication that a
particular breach or default shall be deemed material is intended
to imply that other breaches or defaults not so identified shall
not also be considered to be material.
c. If Viper, in its sole business judgment, determines that
Dealer's facility at the Authorized Location is not acceptable, or that
Dealer has failed to adequately perform its sales or service
responsibilities, Viper shall notify Dealer of the nature of which Dealer
will have the opportunity to correct the failure. If Dealer does not
correct the failure by the expiration of the period, Viper may terminate
this Agreement by giving the Dealer 60 days advance written notice. This
paragraph does not apply to the reasons for termination set forth in
paragraph 13(b) (i) - (ix) above.
d. Upon termination or nonrenewal of this Agreement by either
party, for any reason whatsoever, all Dealer's rights and privileges
hereunder shall cease and terminate immediately. Dealer shall
nevertheless remain obligated under the provisions of the Agreement,
which by their express terms or by implication survive termination or
nonrenewal. All indebtedness of Dealer to Viper shall become immediately
due and payable. Dealer and Dealer's guarantors shall also remain
obligated under any agreements between it or them and Viper or a
financing institution with respect to the financing of its purchase of
Products. Dealer, at its expense, promptly shall return to
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Viper all service or other manuals and promotional and advertising
materials (including but not limited to indoor and outdoor signs and
logos) provided by Viper hereunder.
e. Viper Motorcycle Company will repurchase Dealer's inventory
of current model new, unused and undamaged Viper motorcycles in crates,
motorcycle parts and accessories, for the current and the immediately
preceding two (2) model years, and the current year's model motorcycle
clothing, provided that (i) Viper elects not to renew this Agreement
under Section 13 (a), (ii) Dealer is not in default to Viper or to any
financing institution, (iii) Dealer has paid any sums due Viper, and (iv)
Dealer releases Viper (in form and substance satisfactory to Viper) from
all claims and liabilities, except future warranty claims. All such
repurchased Products shall at delivery be free and clear of all liens,
security interests, claims, or other encumbrances of any kind. If Viper
does not purchase all of the Products owned by Dealer upon any such
nonrenewal, then Dealer may sell the balance of any such Products on
hand.
f. Within Thirty (30) days after termination or nonrenewal of
this Agreement, Dealer shall assign and transfer to Viper or its designee
such unfilled orders and contracts, together with any advance payments
thereon, for the purchase of Products from Dealer as Viper or such
designee elects to accept. Viper shall have no obligation to reimburse
Dealer for any expenses in procuring such orders.
g. Should any provision of the Section 13 be inconsistent with
any applicable law protecting Dealer, Dealer agrees to waive any and all
rights and remedies it may have under such law to the extent it may waive
such rights and remedies.
14. LIMITATION OF REMEDIES.
a. No party terminating or failing to renew this Agreement in
accordance with its terms shall by reason of such termination or failure
to renew be liable to the other for compensation, reimbursement, or
damages of any kind relating to such termination or nonrenewal, whether
for expenditures, investments, losses, lost profits, or commitments in
connection with the business or goodwill of the other party, or
otherwise.
b. In the event of the failure of either party to fulfill any
of its obligations hereunder, the exclusive remedy of the other party
shall be to request that such obligation be fulfilled and, if that does
not occur promptly thereafter, to terminate this Agreement, and where
appropriate pursue arbitration under paragraph 18 below. Neither party
shall have any liability to the other for damages for any violation of
the terms of this Agreement except for monies due hereunder and neither
party shall have any liability to the other for lost profits, loss of
good will, or other incidental or consequential damages. The foregoing
limitation on liability does not apply to the indemnity provisions of
paragraphs 7 and 17.
c. Either party may bring no action, regardless of form, or
request for arbitration arising out of this Agreement more than two (2)
years after the cause of action or claim has arisen, or in the case of a
claim for nonpayment, more than two (2) years from the date payment was
due.
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15. FORCE MAJEURE AND SUSPENSION OF PERFORMANCE FOR BREACH. Viper
Motorcycle Company shall not be liable to any person for any delay in delivery
or for non-delivery caused in whole or in part by the occurrence of any
contingency beyond the control of Viper. Additionally, if Dealer is at any time
in breach (whether or not such breach is material) of any obligation to Viper
under this or any other agreement between them or between Dealer, the financier
of inventory, Viper may without notice suspend its own performance under this
and/or such other agreements until such breach is cured, in addition to
exercising any other rights and remedies Viper may have with respect to such
breach.
16. NOTICES. All notices required or permitted by this Agreement shall
be addressed to the recipient at the address designated above, or any other
address hereafter designated in writing by the recipient, shall be in writing
(except where otherwise expressly permitted by this Agreement) and shall be
either hand delivered, or sent by facsimile or first class mail, correct postage
prepaid. Such notices shall be considered given when given orally (if oral
notice is permitted), hand delivered, confirmation is received of the facsimile
transmission or mailed, as the case may be.
17. INDEMNITY. Dealer will defend, indemnify, and hold Viper harmless
from and against any and all claims, loss, damage, liability, and expense
relating to or arising out of any breach of this Agreement by Dealer or relating
to any other act or omission of Dealer or any of its employees or agents. This
provision shall survive termination or nonrenewal of this Agreement by any party
for any reason.
18. ARBITRATION.
a. All disputes, controversies, and claims arising out of or
in connection with the execution, interpretation, performance,
nonperformance, or breach (including without limitation the validity,
scope, enforceability, and voidability under any statute, regulation,
ordinance, or ruling), or termination or nonrenewal of this Agreement, or
of any provision of this Agreement (including without limitation this
arbitration provision and the arbitrability of any issue), or arising out
of or in connection with any claimed duty, right, or remedy (whether
arising under this Agreement or any statute, regulation, ordinance, or
other rule of law or otherwise) relating to any of the foregoing, shall
be solely and finally settled by arbitration in Minneapolis, Minnesota in
accordance with the United States Arbitration Act (9 U.S.C. 1 ET. SEQ..),
and the rules of the -- --- American Arbitration Association relating to
commercial arbitration. There shall be a single arbitrator who shall be a
lawyer with at least five years of significant experience related to
business law. The arbitrator shall have the right to award or include in
any award the specific performance of this Agreement; provided, that the
arbitrator shall not have the right to issue any award or include in any
award any relief which is more than could be awarded by a federal or
state court located in the State of Minnesota. Viper shall have the right
to prevent or remedy a material breach of this Agreement by the Dealer if
such breach could materially impair the goodwill associated with the
Viper trademarks or names. Viper Motorcycle Company shall be entitled
without bond to the entry of temporary restraining orders and temporary
and permanent injunctions relating to the latter.
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b. The arbitrator's decision or award shall be fully and
finally binding on the parties and the parties waive all respective
rights to further appeal or redress in any other forum as to matters
decided by such arbitratory, except solely for the purpose of obtaining
execution of the decision and award rendered by the arbitrator, and
except and permitted by 9 U.S.C. subsections 10 and 11. The parties agree
that judgment upon the award of the arbitratory may be entered in any
court having jurisdiction over the losing party or its assets. The
arbitrator shall divide all costs (other than attorney's fees) incurred
in conducting the arbitration in the final award in accordance with what
he or she deems just and equitable under the circumstances. Viper and
Dealer shall fully perform this Agreement during the pendency of any
arbitration proceeding, except any proceeding relating to any
cancellation, termination, or nonrenewal of this Agreement.
c. The parties agree to facilitate arbitration by:
(i) promptly making available to one another and to the
arbitrator for inspection and copying all documents, books, and
records required by the arbitrator to be made available; and
(ii) observing strictly the time periods established by
the arbitrator for the submission of evidence and of briefs and
the holding of hearings.
d. If either party asserts in any forum a claim, counterclaim,
or defense, the subject matter of which, under statute or current
judicial decision is nonarbitrable for public policy reasons, the parties
agree that any legal proceedings relating to such nonarbitrable matters
shall be stayed pending the decision and award of the arbitrator with
respect to matters which are subject to arbitration. Any such
nonarbitrable cause of action arising between the parties shall be
brought only in a court having jurisdiction and venue in Minneapolis
Minnesota.
e. This Section 18 shall survive termination or nonrenewal of
this Agreement by either party for any reason.
19. MISCELLANEOUS.
a. Dealer shall not assign, or sell any part of its rights or
obligations under this Agreement or the ownership of Dealer without the
prior written consent of Viper. Any attempt to do so without such prior
written consent shall be wholly void and without effect. If Dealer wishes
to change ownership, it must submit a proposal to Viper in writing, using
the forms supplies by Viper, at least 60 days prior to the effective date
of such change. Viper has the right, in its sole discretion pursuant to
its business judgment, to approve or disapprove such a change. If Dealer
submits a proposal for a change of ownership, Viper shall have a right of
first refusal to purchase the dealership assets regardless of whether the
proposed buyer is qualified to be a dealer. Viper Motorcycle Company will
have a reasonable opportunity to inspect the assets, including real
estate, before making its decision. Viper may assign any rights or
obligations under this Agreement to any affiliated or successor company,
and will provide Dealer written notice of such assignment or delegation.
Such assignment shall not relieve Viper of liability for
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the performance of its obligations under this Agreement. This Agreement
shall be binding upon and inure to the benefit of the permitted
successors and assigns of Dealer and the successors and assigns of Viper.
This Agreement is not enforceable by any third parties and is not
intended to convey any rights or benefits to anyone who is not a party to
this Agreement.
b. If any part of this Agreement is held by the final order of
any court, tribunal, or administrative agency having jurisdiction over
this Agreement of the subject matter hereof to be invalid, contrary to
the law or public policy, or otherwise enforceable, such part or parts
shall be severed here from to the minimum extent necessary to avoid such
invalidity or illegality and such severance shall not affect any other
part of parts of this Agreement.
c. Dealer is responsible for all local, state, and federal or
other applicable taxes and tax returns related to its dealership business
and will hold Viper harmless from any related claims or demands made by
any taxing authority.
d. This Agreement and the enforcement hereof shall be governed
by the internal laws (but not the choice or conflicts of law rules) of
the State of Minnesota. This provision shall survive the termination or
nonrenewal of this Agreement by any party for any reason.
e. The following agreements and undertakings are hereby
incorporated into Agreement:
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f. This Agreement cancels and supersedes all prior written and
unwritten agreements and understandings between the parties pertaining to
the matters covered in this Agreement. No obligations, agreements or
understandings shall be implied from any of the terms and provisions of
this Agreement, all obligations, agreements and understandings with
respect to the subject matter hereof being expressly set forth herein.
The parties in entering into this Agreement forth herein, relied upon no
representations or statements, other than those expressly set. No
modifications or waiver of, addition to, or deletion from the terms of
the Agreement shall be effective unless reduced to writing and signed by
Dealer and a representative of Viper authorized to execute this
Agreement. No waiver of any particular breach shall be deemed to apply to
any other breach, whether prior or subsequent to the waiver. No provision
of any purchase order submitted by Dealer shall be binding on Viper, even
if accepted by Viper, other than quantity and description, and even those
provisions shall be subject to alteration by Viper as elsewhere provided
in this Agreement.
12
