EXCELSIOR-XXXXXXXXX MOTORCYCLE
MANUFACTURING COMPANY
[LOGO]
AUTHORIZED DEALERSHIP AGREEMENT
TABLE OF CONTENTS
PAGE
1. APPOINTMENT
1.1 Appointment........................................ 1
1.2 Area of Primary Responsibility..................... 1
1.3 Term and Renewal................................... 1
1.4 Non-Exclusive Territory............................ 2
1.5 Reservation of Product Rights...................... 2
1.6 Approved Location.................................. 2
2. EXCELSIOR-XXXXXXXXX UNDERTAKINGS
2.1 Product and Prices................................. 2
2.2 Shipping of the Products........................... 2
2.3 Sales Literature................................... 3
3. ACCEPTANCE OF ORDERS AND SHIPMENT OF PRODUCTS
3.1 Acceptance......................................... 3
3.2 Inconsistent Terms in an Order..................... 3
3.3 Allocation of Products............................. 3
3.4 Motorcycle Stock Orders............................ 4
3.5 Discharge of Excelsior-Xxxxxxxxx'x Obligation...... 4
3.6 Claims for Incomplete Delivery..................... 4
3.7 Return or Diversion on Failure to Accept........... 4
4. PAYMENTS FOR PRODUCTS
4.1 Terms of Payment................................... 4
4.2 Retention of Title................................. 5
4.3 No Setoffs or Deductions........................... 5
5. DEALER'S UNDERTAKINGS
5.1 Sale of Products................................... 5
5.2 Marketing Efforts.................................. 5
5.3 Operating Standards................................ 6
5.4 Signage............................................ 6
5.5 Employees.......................................... 6
5.6 Training........................................... 6
5.7 Condition of Approved Location and Hours of
Operation......................................... 6
5.8 Pre-delivery Inspection............................ 6
5.9 Product Inventory.................................. 7
5.10 Service and Repairs................................ 7
5.11 Tools.............................................. 7
5.12 Spare Parts........................................ 7
5.13 Safety Recalls..................................... 7
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5.14 Maintenance of Records............................. 7
5.15 Access to Premises and Records..................... 8
5.16 Compliance with Law................................ 8
5.17 Expenses........................................... 8
5.18 Forecast........................................... 8
5.19 Purchaser Registration............................. 8
5.20 Purchaser Manuals and Guides....................... 8
5.21 Product Liability Insurance........................ 8
6. CONFIDENTIAL INFORMATION.................................. 9
7. TRADEMARKS, PATENTS AND COPYRIGHTS
7.1 Ownership.......................................... 9
7.2 Display............................................ 9
7.3 Consent to Use Trademarks.......................... 10
7.4 Enforcement........................................ 10
7.5 Dealer............................................. 10
7.6 Preservation of Markings........................... 10
8. LIMITED PRODUCT WARRANTY
8.1 Limited Customer Warranty.......................... 10
8.2 Customer Warranties................................ 11
8.3 Performance of Warranty Work; Compensation......... 11
8.4 Warranty Procedure................................. 11
9. INDEMNIFICATION........................................... 11
10. INDEPENDENT CONTRACTOR RELATIONSHIP....................... 12
11. FORCE MAJEURE AND AVAILABILITY OF MATERIALS
11.1 Force Majeure...................................... 12
11.2 Availability of Materials.......................... 12
12. TERMINATION OF AGREEMENT
12.1 Termination with Cause............................. 13
12.2 Withdrawal from Market............................. 15
12.3 Survival of Obligations............................ 15
12.4 Repurchase of Products and Related Items........... 15
12.5 No Claim for Compensation.......................... 17
12.6 Further Obligations After Termination.............. 17
13. ENTIRE AGREEMENT; AMENDMENT............................... 17
14. NOTICES................................................... 18
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15. SEVERABILITY.............................................. 18
16. ASSIGNMENT................................................ 18
17. NO IMPLIED WAIVERS........................................ 19
18. CAPTIONS AND SECTION REFERENCES........................... 19
19. GENDER.................................................... 19
20. GOVERNING LAW............................................. 19
21. ARBITRATION............................................... 19
APPENDIX A .................................................... X-0
XXXXXXXX X Annual Performance Goals........................... B-1
APPENDIX C Area of Primary Responsibility..................... C-1
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EXCELSIOR-XXXXXXXXX MOTORCYCLE
MANUFACTURING COMPANY
AUTHORIZED DEALERSHIP AGREEMENT
THIS AUTHORIZED DEALERSHIP AGREEMENT ("Agreement") is made and entered into
as of the ___ day of _________, 199__ by and between Excelsior-Xxxxxxxxx
Motorcycle Manufacturing Company, a Minnesota corporation (hereafter
"Excelsior-Xxxxxxxxx"), and ____________________________________ whose legal
address and business locations are described in detail in Appendix A hereto
(hereinafter "Dealer").
RECITALS
A. Excelsior-Xxxxxxxxx manufactures and sells motorcycles, together
with related parts, accessories and clothing (hereinafter called the
"Products"). A summary description of Excelsior-Xxxxxxxxx'x current line of
Products is attached as part of Appendix A hereto. Excelsior-Xxxxxxxxx is
the exclusive owner of all manufacturing, distribution and trademark rights
with respect to the Products.
B. Excelsior-Xxxxxxxxx desires to appoint Dealer as an authorized
non-exclusive dealer for the resale of the Products at Dealer's address
described in Appendix A hereto, or such other location as Excelsior-Xxxxxxxxx
may approve from time to time in accordance with the provisions of this
Agreement (hereinafter called the "Approved Location").
C. Dealer desires to act as an authorized dealer for the Products in
accordance with the terms and conditions of this Agreement and the sales
policies which Excelsior-Xxxxxxxxx may establish from time to time.
AGREEMENT
In consideration of the mutual obligations contained herein and other
consideration, the receipt and sufficiency of which is acknowledged, the
parties agree as follows:
1. APPOINTMENT
1.1 APPOINTMENT. Subject to the terms and conditions of this
Agreement, Excelsior-Xxxxxxxxx hereby appoints Dealer as an authorized dealer
of the Products and grants to Dealer the non-exclusive right to sell the
Products from the Approved Location, and Dealer hereby accepts such
appointment upon the terms and conditions of this Agreement.
1.2 AREA OF PRIMARY RESPONSIBILITY. Excelsior-Xxxxxxxxx and Dealer
agree that Dealer's Area of Primary Responsibility for the sale and service
of the Products shall be the counties described in Appendix C hereto
1.3 TERM AND RENEWAL. The initial term of this Agreement is for a
period of five (5) years from the date of this Agreement. Upon expiration of
the initial term, this Agreement shall
renew automatically for successive one (1) year terms, unless either party
gives written notice to the other of its intent not to renew at least 90 days
prior to the expiration date of the then current term. Such written notice
not to renew may be given for any cause described in Section 12 and shall
cause this Agreement to terminate effective as of the end of the then current
term. At Excelsior-Xxxxxxxxx'x option, Dealer may be required, as a
condition to any renewal, to execute Excelsior-Xxxxxxxxx'x then current
standard Dealership Agreement and any related agreements, which shall
supersede this Agreement (except that the term thereof shall be modified if
necessary to be consistent with the terms of this Section 1.3).
1.4 NON-EXCLUSIVE TERRITORY. Dealer acknowledges that Dealer's rights
as an authorized dealer of the Products are non-exclusive and
Excelsior-Xxxxxxxxx retains and reserves to itself all rights with respect to
marketing, distribution and sale of the Products and the Trademarks.
Excelsior-Xxxxxxxxx reserves the right to appoint other authorized dealers
for the Products, either within Dealer's Area of Primary Responsibility or
elsewhere, as Excelsior-Xxxxxxxxx, in its sole discretion, may from time to
time determine in order to implement its marketing plans or as it may deem
desirable to provide Products and service to owners or potential owners of
the Products.
1.5 RESERVATION OF PRODUCT RIGHTS. Excelsior-Xxxxxxxxx reserves the
right to change the composition, design and packaging of any Product at any
time without notice to Dealer, or to discontinue particular Product lines
from time to time as Excelsior-Xxxxxxxxx shall deem necessary or appropriate,
in its sole discretion.
1.6 APPROVED LOCATION. Dealer is authorized to sell the Products only
from the Approved Location. Dealer shall not sell Products from any other
location, or move its place of business for sale of the Products to another
location, without the prior written consent of Excelsior-Xxxxxxxxx, which
consent shall not be unreasonably withheld.
2. EXCELSIOR-XXXXXXXXX UNDERTAKINGS
2.1 PRODUCT AND PRICES. Excelsior-Xxxxxxxxx shall sell the Products to
Dealer at such prices as are established by Excelsior-Xxxxxxxxx and
communicated to Dealer from time to time. Any price increase by
Excelsior-Xxxxxxxxx shall not affect any accepted orders for any Products
outstanding on the date Excelsior-Xxxxxxxxx gives Dealer notice of such price
increase. Unless otherwise specified by Excelsior-Xxxxxxxxx, all prices shall
be F.O.B. Belle Plaine, Minnesota or such other F.O.B. point as
Excelsior-Xxxxxxxxx may designate from time to time.
2.2 SHIPPING OF THE PRODUCTS. Subject to the provisions of this Agreement
and to production schedules and the needs of other customers, Excelsior-
Xxxxxxxxx shall ship to Dealer the Products set forth in an accepted order.
Excelsior-Xxxxxxxxx may from time to time designate the point from which any
shipments and deliveries of the Products shall be made to Dealer. Excelsior-
Xxxxxxxxx may ship the Products by such mode of transportation and on such route
as it selects from time to time. Procedures for shipping and delivery shall be
according to such terms and conditions as Excelsior-Xxxxxxxxx may adopt from
time to time. Freight, delivery and all related charges for Products shipped to
Dealer shall be Dealer's sole responsibility, unless otherwise agreed in
writing. Any carrier of Products for delivery to Dealer shall be deemed
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Dealer's agent, regardless of whether the carrier is selected by
Excelsior-Xxxxxxxxx or Dealer, and regardless of whether shipping is paid for
by Dealer or Excelsior-Xxxxxxxxx.
2.3 SALES LITERATURE. Excelsior-Xxxxxxxxx shall develop and offer to
furnish Dealer at its cost the following materials: (i) Excelsior-Xxxxxxxxx'x
then current price list, mailers, brochures, catalogs, technical
specifications, service manuals and business forms relating to the Products,
and (ii) such packaging, artwork, advertising, display and promotional
materials as Excelsior-Xxxxxxxxx deems appropriate. Unless supplied by
Excelsior-Xxxxxxxxx, Dealer agrees to prepare and furnish, at its own cost,
such packaging, artwork, advertising, display and promotional materials as
are necessary for the promotion of the Products in Dealer's Area of Primary
Responsibility; provided, however, that prior to display or use thereof,
Dealer shall submit such material to Excelsior-Xxxxxxxxx for prior review and
written approval and shall make any changes or modifications required by
Excelsior-Xxxxxxxxx and, further provided, that it shall be Dealer's
responsibility to comply with all applicable laws pertaining to the
marketing, trademark, unfair competition or otherwise regulating the
marketing or selling of the Products. Dealer acknowledges that the purpose
of Excelsior-Xxxxxxxxx'x review of such materials is to enable
Excelsior-Xxxxxxxxx to protect its Trademarks, reputation and the goodwill
associated with Excelsior-Xxxxxxxxx and the Products, and Excelsior-Xxxxxxxxx
shall not be obligated, and does not undertake, to review all advertisements
or promotional materials submitted by Dealer to Excelsior-Xxxxxxxxx and used
by Dealer with respect to the Products. Any review or approval by
Excelsior-Xxxxxxxxx of any advertisements or promotional materials submitted
to it by Dealer shall not be considered an endorsement by Excelsior-Xxxxxxxxx
of the content thereof. Dealer shall bear sole responsibility and be solely
liable for any and all claims arising out of advertisements or promotional
materials developed and used by Dealer.
3. ACCEPTANCE OF ORDERS AND SHIPMENT OF PRODUCTS
3.1 ACCEPTANCE. Excelsior-Xxxxxxxxx will not be bound by any order for
the Products placed by Dealer until such order has been accepted by
Excelsior-Xxxxxxxxx. Excelsior-Xxxxxxxxx may at its sole discretion accept
or reject any order in whole or in part for any reason. Upon
Excelsior-Xxxxxxxxx'x acceptance of an order submitted by Dealer, such order
shall constitute a binding agreement of Excelsior-Xxxxxxxxx to sell and ship,
and of Dealer to purchase and tender payment for, the Products specified.
Excelsior-Xxxxxxxxx'x acceptance of Dealer's order shall be evidenced by
either an invoice or shipment to Dealer, unless otherwise specified by
Excelsior-Xxxxxxxxx.
3.2 INCONSISTENT TERMS IN AN ORDER. In the event any terms or
conditions contained in an order from Dealer are inconsistent with, or in
addition to, the terms of this Agreement, such inconsistent or additional
terms or conditions shall be null and void and shall not be binding on
Excelsior-Xxxxxxxxx in the event that the order containing such inconsistent
or additional terms or conditions is accepted by Excelsior-Xxxxxxxxx.
3.3 ALLOCATION OF PRODUCTS. Dealer acknowledges that Dealer is not
entitled to any priority in the supply of Products over Excelsior-Xxxxxxxxx'x
other authorized dealers and customers. If at any time orders for Products
exceed Excelsior-Xxxxxxxxx'x supply, Excelsior-
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Xxxxxxxxx may in its sole discretion allocate the supply of available
Products among its dealers and customers, including Dealer, in any manner
Excelsior-Xxxxxxxxx deems reasonable.
3.4 MOTORCYCLE STOCK ORDERS. Excelsior-Xxxxxxxxx will not accept orders
from Dealer for a specific retail customer. Excelsior-Xxxxxxxxx will accept
only stock orders for motorcycles from Dealer. Dealer will be responsible for
providing the customers' specific motorcycle, parts and accessory needs from its
inventory.
3.5 DISCHARGE OF EXCELSIOR-XXXXXXXXX'X OBLIGATION. Excelsior-Xxxxxxxxx'x
obligation to ship the Products shall be fully and completely discharged, and
all risk of loss or damage shall immediately pass to Dealer, at the time the
Products are delivered F.O.B. Belle Plaine, Minnesota, or such other delivery
point(s) as Excelsior-Xxxxxxxxx may designate from time to time; provided,
however, that Excelsior-Xxxxxxxxx shall retain legal title to all Products as
provided in Section 4.2 until full payment is received.
3.6 CLAIMS FOR INCOMPLETE DELIVERY. All claims for incomplete delivery
of Products invoiced to Dealer must be made promptly and in accordance with
such procedures and within such limits as Excelsior-Xxxxxxxxx may from time
to time specify.
3.7 RETURN OR DIVERSION ON FAILURE TO ACCEPT. If Dealer should fail or
refuse or for any reason be unable to accept delivery of any Products ordered
by Dealer, or if Dealer should request diversion of a shipment from
Excelsior-Xxxxxxxxx, Dealer shall be responsible for and pay
Excelsior-Xxxxxxxxx promptly on demand the amount of all costs and expenses
incurred by Excelsior-Xxxxxxxxx in filling and shipping Dealer's order,
diversion (including but not limited to return to the original place of
shipment), demurrage and storage, plus restocking charges as determined by
Excelsior-Xxxxxxxxx. Excelsior-Xxxxxxxxx may direct that such Products be
returned to another destination, but the cost to Dealer for return to such
other destination shall not be greater than the cost of returning such
Products to their original place of shipment.
4. PAYMENTS FOR PRODUCTS
4.1 TERMS OF PAYMENT. All Products will be sold to Dealer upon such
payment terms as Excelsior-Xxxxxxxxx may in its sole discretion establish
from time to time. Excelsior-Xxxxxxxxx reserves the right to vary payment
terms at any time and from time to time upon written notice to Dealer.
Without limiting the generality of the foregoing, Excelsior-Xxxxxxxxx may
require, in its sole discretion and at any time, cash payment or satisfactory
security before delivery or as a condition to Excelsior-Xxxxxxxxx'x
acceptance of a Dealer order for Products. In all events, time shall be of
the essence with regard to Dealer's payment obligations to
Excelsior-Xxxxxxxxx. Any amount not paid by Dealer when due shall accrue
interest at the lower of 1.5% per month or the highest legal rate allowed
under applicable law. All payments due hereunder shall be tendered in United
States currency. In the event Excelsior-Xxxxxxxxx engages legal counsel to
collect any debt owing from Dealer to Excelsior-Xxxxxxxxx under this
Agreement, Dealer shall pay Excelsior-Xxxxxxxxx'x reasonable attorneys' fees,
in addition to any other expenses of collection. Excelsior-Xxxxxxxxx may set
off the amount of any moneys owed by Dealer to Excelsior-Xxxxxxxxx against
any moneys owed by Excelsior-Xxxxxxxxx to Dealer.
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4.2 RETENTION OF TITLE. Excelsior-Xxxxxxxxx shall retain title to all
Products delivered to Dealer until Dealer has paid Excelsior-Xxxxxxxxx the
full invoice price due with respect to a particular Product. Dealer agrees
to execute any documents, financing statements or similar instruments as
Excelsior-Xxxxxxxxx may from time to time require in order to protect
Excelsior-Xxxxxxxxx'x interest in such Products and to give third parties
public notice of such interest. Any deposits, proceeds of sale or insurance
proceeds received by Dealer with respect to any such Products shall be deemed
to be held by Dealer as trustee of an express trust for the benefit of
Excelsior-Xxxxxxxxx, and Dealer agrees to segregate all such proceeds in a
separate trust account and not to commingle such funds with other funds of
Dealer. Notwithstanding Excelsior-Xxxxxxxxx'x retention of title to the
Products, all risk of damage or loss with respect to the Products shall pass
to Dealer upon delivery of the Products to Dealer F.0.B. Belle Plaine,
Minnesota or such other delivery point as Excelsior-Xxxxxxxxx may designate
from time to time. Dealer will maintain insurance covering the Products
against loss or damage by fire, theft, collision and against such other risks
as Excelsior-Xxxxxxxxx may from time to time require, with loss payable to
Dealer and Excelsior-Xxxxxxxxx as their respective interests may appear.
Dealer shall furnish certificates and other evidences of insurance to
Excelsior-Xxxxxxxxx upon Excelsior-Xxxxxxxxx'x request. Dealer's policy or
policies of insurance covering the Products shall provide that
Excelsior-Xxxxxxxxx shall receive written notice prior to any cancellation or
non-renewal of such policies. Excelsior-Xxxxxxxxx shall be entitled, at any
time and without notice, to enter into Dealer's premises and reclaim any
Products for which Dealer is delinquent in any payment due with respect to
such Products, or if for any reason Excelsior-Xxxxxxxxx deems itself to be
insecure with respect to its interest in the Products.
4.3 NO SETOFFS OR DEDUCTIONS. All obligations of Dealer to
Excelsior-Xxxxxxxxx under this Agreement shall be absolute and independent of
any other obligations imposed by this Agreement or by law, and shall not be
subject to any setoff, deduction or counterclaim.
5. DEALER'S UNDERTAKINGS
5.1 SALE OF PRODUCTS. Dealer agrees that it shall purchase
Excelsior-Xxxxxxxxx Products for resale only from Excelsior-Xxxxxxxxx and
pursuant to the terms of this Agreement. Dealer shall not sell the Products
for resale to non-retail customers other than United States authorized
Excelsior-Xxxxxxxxx dealers. Excelsior-Xxxxxxxxx reserves the right to
establish from time to time such policies and position statements it believes
are necessary or advisable to carry out the purpose or intent of this part of
this Agreement. Dealer, for itself and its representatives and employees,
agrees to conduct all of its business activities relating to the sale or
distribution of the Products in a lawful manner, consistent with the highest
standards of fair trade, fair competition and business ethics.
5.2 MARKETING EFFORTS. Dealer agrees to use its best efforts to
diligently and faithfully promote and develop demand for the Products within
Dealer's Area of Primary Responsibility and to solicit purchases of the Products
so as to maintain a substantial volume of sales of the Products and to meet the
sales goals set forth in Appendix B and as established by Excelsior-Xxxxxxxxx
each year during the term of this Agreement based upon demographic and market
information relating to Dealer's Area of Primary Responsibility, while
preserving the goodwill that is presently associated with the name and
reputation of Excelsior-Xxxxxxxxx and the Products.
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5.3 OPERATING STANDARDS. Dealer shall operate its dealership at all
times according to Excelsior-Xxxxxxxxx'x Dealer Operating Standards, as the
same may be revised and updated by Excelsior-Xxxxxxxxx from time to time.
Excelsior-Xxxxxxxxx'x current Dealer Operating Standards are attached as part
of Appendix A hereto. Dealer shall promptly comply with any revised or
updated Dealer Operating Standards upon receipt of written notice from
Excelsior-Xxxxxxxxx of such revisions or updates.
5.4 SIGNAGE. At all times when this Agreement remains in effect,
Dealer shall prominently display signage at the Approved Location of a type,
size and quality specified in the Dealer Operating Standards in an
agreed-upon location or locations, which signage shall contain the
Excelsior-Xxxxxxxxx name and logo and shall identify Dealer as an authorized
independent dealer of Excelsior-Xxxxxxxxx motorcycles, parts and accessories.
Dealer expressly warrants as a condition precedent to Excelsior-Xxxxxxxxx'x
entering into this Agreement that there are no contractual, lease, zoning or
other restrictions applicable to Dealer which would prevent Dealer from
displaying Excelsior-Xxxxxxxxx signage in accordance with the Dealer
Operating Standards.
5.5 EMPLOYEES. Dealer shall at all times maintain an adequate staff of
qualified and experienced employees for sales, servicing, supply and
administration of the Products, all as determined by Excelsior-Xxxxxxxxx from
time to time. Dealer's employees shall deal with customers in a courteous
and professional manner and shall conduct themselves at all times according
to the highest ethical standards. Dealer shall be solely responsible for all
wages, taxes, benefits, unemployment insurance and all other obligations and
claims relating to Dealer's hiring, employment and termination of Dealer's
employees. Dealer shall bear sole responsibility for, and shall be solely
liable for, the quality of Dealer's employees and for the actions or
omissions of its employees, whether in connection with the sales, service or
repair of Products or otherwise.
5.6 TRAINING. Excelsior-Xxxxxxxxx may from time to time require that
Dealer or designated members of Dealer's staff attend and complete training
courses or seminars relating to sales or service of the Products. Dealer
shall bear the full travel and lodging costs of attendance at such training
courses or seminars.
5.7 CONDITION OF APPROVED LOCATION AND HOURS OF OPERATION. Dealer
shall at all times maintain the Approved Location in a clean, orderly and
professional state. Dealer shall maintain such hours of operation as
Excelsior-Xxxxxxxxx shall from time to time determine to be competitive with
other motorcycle dealers within Dealer's Area of Primary Responsibility.
Dealer's initial hours of operation shall be as described in Appendix A
hereto.
5.8 PRE-DELIVERY INSPECTION. Dealer shall cause each new or used
Excelsior-Xxxxxxxxx motorcycle sold by Dealer to undergo a thorough
inspection by a qualified mechanic prior to delivery to the purchaser. No
new or used Excelsior-Xxxxxxxxx motorcycle shall be sold by Dealer unless and
until such inspection has been completed and the motorcycle has been found to
be safe and in proper working condition. The inspection shall be conducted
according to a pre-delivery inspection form included within the Dealer
Operating Standards, as the same may be revised and updated from time to
time. All Dealer demonstration motorcycles shall also undergo such
inspection before being used by Dealer or its customers.
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5.9 PRODUCT INVENTORY. Dealer shall maintain at all times an adequate
and representative inventory of Excelsior-Xxxxxxxxx motorcycles, parts,
service tools and other Products, all subject to availability from
Excelsior-Xxxxxxxxx, as described more particularly by Excelsior-Xxxxxxxxx in
the Dealer Operating Standards, as the same may be revised and updated from
time to time.
5.10 SERVICE AND REPAIRS. Dealer acknowledges that top quality repair
and maintenance service is essential to the maintenance of the goodwill and
reputation of Excelsior-Xxxxxxxxx. Dealer shall provide efficient, courteous
and professional repair and maintenance service for all Excelsior-Xxxxxxxxx
motorcycle owners at fair and competitive rates regardless of whether such
motorcycles were purchased from Dealer and regardless of whether such
motorcycles are covered by Excelsior-Xxxxxxxxx'x warranty. Dealer shall
adhere to the highest standards of ethics and honesty in conducting its
repair operations. All service shall be performed in accordance with
Excelsior-Xxxxxxxxx service standards as communicated from time to time by
Excelsior-Xxxxxxxxx to Dealer. Excelsior-Xxxxxxxxx may from time to time
inspect and evaluate Dealer's service performance, and Dealer agrees to
implement any changes or improvements to its service operations which may be
recommended by Excelsior-Xxxxxxxxx from time to time. Notwithstanding the
foregoing, Dealer, as an independent contractor, shall bear sole
responsibility for, and shall be solely liable for, the manner of performance
by Dealer of any and all service and repairs of any Excelsior-Xxxxxxxxx
Products or motorcycles.
5.11 TOOLS. Dealer shall purchase all specialized tools, equipment,
manuals and other materials which Excelsior-Xxxxxxxxx shall from time to time
specify as being necessary for the proper assembly, maintenance and repair of
the Products.
5.12 SPARE PARTS. Dealer shall use its best efforts to promote the
sale of Excelsior-Xxxxxxxxx brand spare parts and accessories (whether
manufactured by Excelsior-Xxxxxxxxx or authorized suppliers of
Excelsior-Xxxxxxxxx brand parts). Dealer agrees to maintain an adequate
inventory of Excelsior-Xxxxxxxxx parts consistent with the volume or
anticipated volume of Dealer's sales and service. Dealer shall in no event
sell or use in its repair and service of Excelsior-Xxxxxxxxx motorcycles any
parts which have not been expressly approved in writing by
Excelsior-Xxxxxxxxx. Dealer shall not identify any parts as being
Excelsior-Xxxxxxxxx parts unless such parts are in fact genuine
Excelsior-Xxxxxxxxx brand parts. In no event shall Dealer sell or offer for
sale any parts for use with Excelsior-Xxxxxxxxx motorcycles which are not in
full compliance with all requirements, standards and specifications required
by applicable law.
5.13 SAFETY RECALLS. In the event Excelsior-Xxxxxxxxx notifies Dealer
of any Product recall, Dealer shall carry out the recall in accordance with
the terms of the recall notice regardless of whether any recalled Product was
purchased from Dealer. All recall work shall be performed at no charge to
customers unless otherwise indicated by Excelsior-Xxxxxxxxx, and shall be
considered as warranty service work performed by Dealer for compensation and
all other purposes.
5.14 MAINTENANCE OF RECORDS. Dealer shall keep and maintain detailed and
accurate records of all Dealer sales and service activities, inventories and
warranty claims, on such forms
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and such manner as Excelsior-Xxxxxxxxx shall specify from time to time.
Records shall be maintained for so long as Excelsior-Xxxxxxxxx may from time
to time specify.
5.15 ACCESS TO PREMISES AND RECORDS. Dealer shall permit
Excelsior-Xxxxxxxxx, through its authorized representatives, to have full
access to Dealer's place of business during normal business hours for
purposes of inspection and assuring Dealer's compliance with the terms of
this Agreement. Excelsior-Xxxxxxxxx shall also have the right from time to
time during normal business hours to enter Dealer's premises in order to
inspect and photocopy any of Dealer's books and records relating to the
Products sold or serviced by Dealer. Excelsior-Xxxxxxxxx'x rights under this
Section 5.15 shall survive any termination or expiration of this Agreement.
5.16 COMPLIANCE WITH LAW. Dealer shall be solely responsible for
ascertaining all applicable laws, regulations, ordinances, licensing
requirements, and other governmental requirements ("Laws") which must be
complied with in connection with the operation of Dealer's business and the
sale of the Products, and shall comply fully with such laws. Without
limiting the foregoing, Dealer shall take all action necessary to comply with
all applicable Laws in Dealer's jurisdiction relating to Dealer licensing,
salesperson licensing, title registration, odometer certification, model year
requirements, advertising, and sales taxes, each with respect to both new and
used Products.
5.17 EXPENSES. Unless otherwise expressly agreed in writing, Dealer
shall pay any and all of its costs and expenses of operating as a dealer
under this Agreement and shall be solely responsible for the acts and
expenses of its employees and representatives.
5.18 FORECAST. Dealer shall submit to Excelsior-Xxxxxxxxx quarterly
and annual written forecasts of its purchases and sales of the Products in a
format approved by Excelsior-Xxxxxxxxx and containing marketing information
about the Products and competitive goods, as well as such other data and
details as Excelsior-Xxxxxxxxx may from time to time reasonably request.
5.19 PURCHASER REGISTRATION. Dealer agrees that it shall promptly
provide written notice to Excelsior-Xxxxxxxxx of the names and addresses of
all persons or entities that purchase any Excelsior-Xxxxxxxxx motorcycles
from Dealer on such forms as are specified by Excelsior-Xxxxxxxxx from time
to time so that Excelsior-Xxxxxxxxx may notify purchasers of
Excelsior-Xxxxxxxxx motorcycles and other Products of significant information
as required by law or otherwise.
5.20 PURCHASER MANUALS AND GUIDES. Dealer shall provide to the
purchasers of the Products any applicable owners manual, warranty guides and
other manuals or guides prepared for use with such Products. In addition,
Dealer shall provide to each purchaser of Excelsior-Xxxxxxxxx motorcycles a
copy of the Motorcycle Safety Foundation Manual.
5.21 PRODUCT LIABILITY INSURANCE. Dealer shall at all times maintain
in full force and effect policies of insurance providing coverage in the
amount of $1,000,000 per occurrence and in the aggregate for product
liability claims and claims of negligence in the service and repair of
Excelsior-Xxxxxxxxx motorcycles and other Products. Dealer shall furnish
certificates and other evidences of such insurance to Excelsior-Xxxxxxxxx
upon request. Excelsior-Xxxxxxxxx makes
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no representation to Dealer that such amount of insurance is adequate to
protect Dealer from such claims and Dealer is advised to exercise its own
business judgment in consultation with its professional advisors in
determining an adequate amount of such insurance. Dealer shall bear sole
responsibility for, and shall be solely liable for, any failure to maintain
such policies of insurance in full force and effect.
6. CONFIDENTIAL INFORMATION
Dealer shall treat as confidential and prevent unauthorized duplication
or disclosure of any confidential information concerning the Products or the
business affairs of Excelsior-Xxxxxxxxx which Dealer may acquire during the
course of its activities under this Agreement (or any prior agreements
between Excelsior-Xxxxxxxxx and Dealer) and shall not use such confidential
information for any purpose other than in furtherance of Dealer's obligations
under this Agreement. In addition, Dealer shall take all necessary
precautions to prevent any such disclosure by its employees and
representatives. Dealer further acknowledges and agrees that any right,
title and interest in and to the aforesaid confidential information is vested
in Excelsior-Xxxxxxxxx and that such information is the sole property of
Excelsior-Xxxxxxxxx. For purposes of this Agreement, the term "confidential
information" means any information concerning the business of
Excelsior-Xxxxxxxxx or the Products which is not in the public domain and
shall include, but is not limited to, the terms of this Agreement. The
obligations of confidentiality provided hereunder shall survive for a period
of five (5) years after the expiration, cancellation or termination of this
Agreement, for any reason; provided, however, that with respect to any item
of confidential information which is a trade secret under applicable law, the
obligations of confidentiality hereunder shall survive the expiration of such
five (5) year period and remain in full force and effect for so long as such
confidential information remains a trade secret under applicable law.
7. TRADEMARKS, PATENTS AND COPYRIGHTS
7.1 OWNERSHIP. Dealer acknowledges and agrees that Excelsior-Xxxxxxxxx
is the exclusive owner of the various trademarks, service marks, trade names
and other word and design marks described on Appendix A hereto, including
copyrights, which Excelsior-Xxxxxxxxx uses in connection with the Products
and the servicing thereof and the services or products licensed by
Excelsior-Xxxxxxxxx (referred to in this Agreement as "licensed products") or
which Excelsior-Xxxxxxxxx otherwise claims (referred to in this Agreement as
the "Trademarks"). Dealer further acknowledges the great value of the
goodwill associated with the Trademarks and the fact that they have a
secondary meaning in the mind of the public. Dealer, during the term of this
Agreement and thereafter, shall neither have nor claim any rights in respect
to the Trademarks or otherwise attach the title or any rights of
Excelsior-Xxxxxxxxx in and to the Trademarks.
7.2 DISPLAY. Dealer is granted the non-exclusive, non-transferable
license to display the Trademarks solely in the conduct of its authorized
Excelsior-Xxxxxxxxx dealership business but only in the manner approved by
Excelsior-Xxxxxxxxx from time to time. The right to use the Trademarks in
connection with the Products is limited to the Products purchased from
Excelsior-Xxxxxxxxx or licensed products purchased from an authorized
licensee of Excelsior-Xxxxxxxxx, and Dealer shall use the Trademarks only in
connection with services which are authorized and conform to quality
standards established by Excelsior-Xxxxxxxxx from time to time. Such
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Trademarks may be used as part of the name under which Dealer's authorized
Excelsior-Xxxxxxxxx dealership business is conducted only with the express
written approval of Excelsior-Xxxxxxxxx and within such guidelines as
Excelsior-Xxxxxxxxx may establish from time to time. This license or any
approval previously granted by Excelsior-Xxxxxxxxx shall terminate
automatically upon the termination of this Agreement for any reason, or may
be cancelled or withdrawn by Excelsior-Xxxxxxxxx at any time without cause.
Moreover, Dealer shall discontinue immediately the display or use of any
Trademarks or change the manner in which such Trademarks are displayed or
used whenever requested to do so by Excelsior-Xxxxxxxxx. The Trademarks may
not be used by any business owned or controlled in whole or in part by Dealer
or any of its owner(s) without Excelsior-Xxxxxxxxx'x prior written consent.
Dealer shall acquire no rights in the Trademarks by virtue of any such use,
but such use shall inure to the benefit of Excelsior-Xxxxxxxxx.
7.3 CONSENT TO USE TRADEMARKS. Dealer agrees that it has no right
whatsoever to object to or otherwise prevent Excelsior-Xxxxxxxxx'x allowing
any other dealer to display the trademarks or use them as part of any
business name.
7.4 ENFORCEMENT. If Dealer shall refuse or neglect to keep and perform
its obligations under this Section 7, Dealer shall reimburse
Excelsior-Xxxxxxxxx for all costs, reasonable attorneys' fees and other
expenses incurred by Excelsior-Xxxxxxxxx in connection with any action to
require Dealer to comply therewith.
7.5 DEALER. As used in this Section 7 with respect to restrictions on
Dealer, the term "Dealer" shall also include any affiliates of or other
companies owned by Dealer and all managers and/or owner(s) of Dealer.
7.6 PRESERVATION OF MARKINGS. Dealer agrees that it will in no way
alter, deface, remove, cover up or mutilate in any manner whatsoever, any
trademark, serial or model number, the word "patent" and/or the patent
number, copyright symbol, brand or name which Excelsior-Xxxxxxxxx may attach
or affix to or make a part of any of the Products, spare parts, components
and/or assemblies of the Products, or any packaging or sales literature
relating thereto.
8. LIMITED PRODUCT WARRANTY
8.1 LIMITED CUSTOMER WARRANTY. All of the Products supplied to Dealer
from Excelsior-Xxxxxxxxx shall be warranted by Excelsior-Xxxxxxxxx solely as
provided in Excelsior-Xxxxxxxxx'x written warranty to customers which may be
revised and amended from time to time by Excelsior-Xxxxxxxxx.
EXCELSIOR-XXXXXXXXX'X WRITTEN LIMITED CUSTOMER WARRANTY AS REVISED AND
AMENDED FROM TIME TO TIME SHALL BE EXCLUSIVE AND EXCELSIOR-XXXXXXXXX
EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT
NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE. IN NO EVENT WILL EXCELSIOR-XXXXXXXXX BE LIABLE TO
DEALER, ITS CUSTOMERS OR ANY OTHER PARTY FOR ANY SPECIAL, INDIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE, WHETHER BASED IN CONTRACT,
TORT OR OTHERWISE, THAT ARISE IN CONNECTION WITH THE
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PRODUCTS OR IN CONNECTION WITH EITHER EXCELSIOR-XXXXXXXXX'X FAILURE TO
DELIVER OR ITS LATE DELIVERY OF THE PRODUCTS (INCLUDING, BUT NOT LIMITED TO,
LOSS OF USE OF THE PRODUCTS AND LOSS OF PROFITS).
8.2 CUSTOMER WARRANTIES. Dealer shall provide each customer purchasing
Products from Dealer with a copy of Excelsior-Xxxxxxxxx'x then current
limited customer warranty at the time of sale. Dealer shall not make any
statement or representation purporting to grant to the customer any warranty
on behalf of Excelsior-Xxxxxxxxx other than Excelsior-Xxxxxxxxx'x then
current limited customer warranty and Dealer shall bear sole responsibility
for, and shall be solely liable for, any other statements, representations or
warranties (whether oral or written) made by Dealer or on Dealer's behalf
with respect to any of the Products. If Dealer should elect to give its
customers any Dealer warranty with respect to the Excelsior-Xxxxxxxxx
Products in addition to Excelsior-Xxxxxxxxx'x limited customer warranty, such
Dealer warranty shall provide in a clear and conspicuous manner that such
warranty is being provided by Dealer and not by Excelsior-Xxxxxxxxx.
8.3 PERFORMANCE OF WARRANTY WORK: COMPENSATION. Dealer shall perform
all warranty service work requested for Excelsior-Xxxxxxxxx Products,
regardless of whether such Products were purchased from Dealer.
Excelsior-Xxxxxxxxx shall provide compensation to Dealer for labor and
Excelsior-Xxxxxxxxx parts used in the performance of Excelsior-Xxxxxxxxx
warranty work in such reasonable amounts, and subject to such terms and
conditions, as Excelsior-Xxxxxxxxx may from time to time establish. Dealer
shall not charge any customer for any work covered by an Excelsior-Xxxxxxxxx
warranty and reimbursed from Excelsior-Xxxxxxxxx to Dealer. Dealer shall use
Excelsior-Xxxxxxxxx parts in work performed under the Excelsior-Xxxxxxxxx
customer warranty or otherwise reimbursed by Excelsior-Xxxxxxxxx. The
determination whether any work is covered under the Excelsior-Xxxxxxxxx
limited customer warranty shall be made solely by Excelsior-Xxxxxxxxx.
Notwithstanding the foregoing, Dealer, as an independent contractor, shall
bear sole responsibility for and shall be solely liable for, the manner of
performance by Dealer of any and all warranty service and repairs.
8.4 WARRANTY PROCEDURE. Dealer shall follow and comply with all
procedures, instructions, guidelines and policies communicated from time to
time by Excelsior-Xxxxxxxxx to Dealer regarding warranty work to be performed
by Dealer under the Excelsior-Xxxxxxxxx limited customer warranty, including
without limitation procedures, forms and standards for submission and
approval of warranty claims.
9. INDEMNIFICATION
Dealer shall indemnify and hold harmless Excelsior-Xxxxxxxxx and its
officers, directors, agents, employees, shareholders, legal representatives,
successors and assigns, and each of them, from and against any and all
claims, actions and suits, whether groundless or otherwise, and from and
against any and all liabilities, judgments, losses, damages, costs, charges,
attorneys' fees, and other expenses of every nature, kind and character
incurred or suffered by reason of Dealer's business, all actions with respect
to Dealer's sale, distribution, service or repair of the Products and/or
Dealer's failure to perform or fulfill any of its obligations set forth in
this Agreement (including, but not limited to, claims by Dealer's customers,
employees or agents), except for
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claims, actions and suits covered under Excelsior-Xxxxxxxxx'x warranty as set
forth in Section 8 hereof and except for claims, actions or suits arising
solely from the negligent acts or omissions of Excelsior-Xxxxxxxxx.
Excelsior-Xxxxxxxxx may undertake the responsibility of defending any claims
with counsel chosen by Excelsior-Xxxxxxxxx in its sole discretion, or upon
Excelsior-Xxxxxxxxx'x request, Dealer shall assume responsibility for such
defense; in either event, Dealer shall pay all expenses, fees and costs
associated with such defense and judgments, fines, penalties or interest
imposed on or against Excelsior-Xxxxxxxxx as a result thereof, including
without limitation, the expenses, fees and costs of defense counsel chosen by
Excelsior-Xxxxxxxxx in its sole discretion. Dealer further agrees that the
provisions contained in this Section 9 and any other provisions in this
Agreement concerning indemnification obligations of Dealer shall survive the
termination or expiration of this agreement and shall be liberally construed
in favor of Excelsior-Xxxxxxxxx.
10. INDEPENDENT CONTRACTOR RELATIONSHIP
Dealer shall be deemed to be an independent contractor and shall bear
all of its own expenses in connection with this Agreement. Dealer
acknowledges that it is not a partner, joint venturer, franchisee, employee
or agent of Excelsior-Xxxxxxxxx. Dealer shall have no authority, whether
express or implied, to assume or create any obligation on behalf of
Excelsior-Xxxxxxxxx nor shall Dealer issue or cause to be issued any
quotations or draft any letters or documents over the name of
Excelsior-Xxxxxxxxx.
11. FORCE MAJEURE AND AVAILABILITY OF MATERIALS
11.1 FORCE MAJEURE. Except for Dealer's monetary obligations to
Excelsior-Xxxxxxxxx hereunder, neither party will be in default in the
performance of its obligations under this Agreement if such performance is
prevented or delayed because of war, hostilities, revolution, civil
commotion, riot, strike, labor dispute, lack or failure of transportation
facilities, failure of equipment, lack of necessary products or materials,
epidemic, fire, wind, earthquake, storm or flood, application of any law,
order, proclamation, regulation or ordinance of any government, or of any
subdivision thereof, because of acts of God or for any other cause, whether
similar or dissimilar to those enumerated, that is beyond the reasonable
control and without the fault or negligence of the party whose performance is
affected.
11.2 AVAILABILITY OF MATERIALS. All deliveries by Excelsior-Xxxxxxxxx
are contingent on Excelsior-Xxxxxxxxx receiving timely shipment of necessary
products, materials, parts and components for the production, assembly or
supply of the Products, and Excelsior-Xxxxxxxxx may delay, reduce or cancel
deliveries to Dealer to the extent such deliveries are affected by delay,
reduction or cancellation of shipments of necessary products, materials,
parts and components to Excelsior-Xxxxxxxxx.
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12. TERMINATION OF AGREEMENT
12.1 TERMINATION WITH CAUSE. At any time either party may terminate
this Agreement for cause, as follows:
(a) The non-breaching party may cancel or terminate this Agreement
upon ninety (90) days' written notice if any of the following events occur:
(1) Dealer fails to meet the sales goals established pursuant to
Section 5.2 hereof;
(2) Dealer defaults in its payment obligations to Excelsior-
Xxxxxxxxx within the time periods provided in Section 4
hereof;
(3) Dealer fails to comply with Excelsior-Xxxxxxxxx'x Dealer
Operating Standards with respect to the condition of its
facilities, service, personnel or inventories; or
(4) a party breaches any other material provision contained in
this Agreement;
provided that the breaching party has not (i) cured the breach during the
thirty (30) day period following such notice, or (ii) taken substantial
steps, during such thirty (30) day period, to cure a non-monetary breach
which in good faith could not be totally cured within such thirty (30) day
period. In the event termination is delayed pursuant to (ii) above due to
the breaching party's taking substantial steps to cure a non-monetary
breach, termination shall become effective immediately and without further
notice if such party ceases diligent efforts to cure such breach, or in any
case if such breach is not cured or is not curable within ninety (90) days
following the date of the termination notice.
(b) Notwithstanding the provisions of subsection (a) above,
Excelsior-Xxxxxxxxx may cancel or terminate this Agreement upon giving
written notice with no opportunity for Dealer to cure in the following
circumstances:
(1) If Dealer becomes insolvent by any definition, makes any
assignment for the benefit of its creditors, or is placed in
receivership, liquidation or bankruptcy (voluntary or
involuntary).
(2) On the commencement of the winding up of Dealer.
(3) If the management or control, or both, of Dealer's business
is vested by law, decree, ordinance of other governmental
action, in or made subject to the control or direction of
any government agent, officer, appointee or designee, or
of any other person, firm or company not a party to this
Agreement.
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(4) If Excelsior-Xxxxxxxxx shall have given Dealer notice of a
default under subsection (a) above and Dealer shall commit
substantially the same default within a period of twelve
(12) consecutive months after the date of Dealer's initial
default.
(5) If Dealer's default is material and results from intentional
misconduct or grossly negligent acts or omissions.
(6) If Excelsior-Xxxxxxxxx should terminate any other agreement
between the parties as a result of a Dealer default
thereunder.
(7) If Dealer should attempt to assign any of its rights under
this Agreement in contravention of Section 16 hereof.
(8) If Dealer has engaged in any deceptive, unethical or illegal
trade practice in connection with the sale of the Products.
(9) If Dealer should violate any federal, state or local laws,
rules or regulations applicable to Dealer's operation of the
dealership, including without limitation dealership
licensing laws, the National Traffic and Motor Vehicle
Safety Act of 1966, as amended, or the Clean Air Act.
(10) If Dealer should enter into any contract, conspiracy,
combination or agreement, whether written or oral, for the
purpose of fixing prices of Excelsior-Xxxxxxxxx Products or
other illegal practices.
(11) If Dealer should attempt to sell Excelsior-Xxxxxxxxx
Products from any location other than the Approved Location
without the express written consent of Excelsior-Xxxxxxxxx,
which consent shall not be unreasonably withheld.
(c) Notwithstanding the provisions of subsections (a) or (b) above,
Excelsior-Xxxxxxxxx may cancel or terminate this Agreement upon fifteen
(15) days' written notice, with no opportunity for Dealer to cure, in the
following circumstances:
(1) Dealer's abandonment of the operations of the dealership or
failure to operate as a going concern during hours and days
of operation customary for retail businesses in Dealer's
market area. For purposes of this subparagraph (1), if
Dealer fails to open for business for any period of seven
(7) or more consecutive days, Dealer shall be deemed to have
abandoned the dealership.
(2) If Dealer submits or makes to Excelsior-Xxxxxxxxx any false
or fraudulent statement, application (including Dealer's
initial Dealership Application), reimbursement request or
report, including
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without limitation false or fraudulent claims with respect
to any warranty matters.
(3) If Dealer's motor vehicle dealership license is suspended,
revoked or not renewed by any applicable licensing
authority.
(4) If Dealer or any principal owner of Dealer should be
convicted or plead no contest to a felony or any crime
involving fraud or dishonesty.
In the event Excelsior-Xxxxxxxxx gives notice of termination under any
subsection of this Section 12.1, the grounds specified by Excelsior-Xxxxxxxxx
in such notice of termination shall not be exclusive and shall not preclude
Excelsior-Xxxxxxxxx from later proving that additional grounds for
termination existed at the time such notice was given.
12.2 WITHDRAWAL FROM MARKET. In addition to the foregoing,
Excelsior-Xxxxxxxxx may cancel this Agreement upon 180 days' notice to Dealer
at any time that Excelsior-Xxxxxxxxx withdraws from distribution of the
Products, either within Dealer's Area of Primary Responsibility or generally.
12.3 SURVIVAL OF OBLIGATIONS. The expiration, cancellation or
termination of this Agreement, for whatever reason, will not discharge or
relieve either party from any obligation which accrued prior to such
expiration, cancellation or termination, will not relieve any party that has
breached this Agreement from liability for damages resulting from such breach
and will not destroy or diminish the binding force and effect of any of the
provisions of this Agreement that expressly, or by reasonable implication,
come into or continue in effect on or after cancellation or termination
hereof.
12.4 REPURCHASE OF PRODUCTS AND RELATED ITEMS.
(a) Upon any termination or expiration without renewal of this
Agreement, upon written request from either party hereto to the other
delivered within five (5) days following such termination or expiration,
Dealer shall sell, and Excelsior-Xxxxxxxxx shall purchase from Dealer,
all of the Products in Dealer's inventory, all approved signage bearing
the Trademarks, and all special tools and equipment designed
specifically for use in connection with the Products and the purchase of
which was required by Excelsior-Xxxxxxxxx hereunder. In the case of
Excelsior-Xxxxxxxxx motorcycles, Excelsior-Xxxxxxxxx shall be obligated
to repurchase only those motorcycles which are new, of the then current
model year, unused, undamaged, and in first class, salable condition.
In the case of Excelsior-Xxxxxxxxx parts, Excelsior-Xxxxxxxxx shall be
obligated to repurchase only those parts which are new, listed in
Excelsior-Xxxxxxxxx'x then current price book, in original packaging,
unused, undamaged and in first class, salable condition. In the case of
signs, tools and equipment, Excelsior-Xxxxxxxxx shall be obligated to
purchase only signs approved by Excelsior-Xxxxxxxxx bearing the
Excelsior-Xxxxxxxxx Trademarks, and such special tools and equipment
designed specifically for service with the Products, the purchase of
which was required by Excelsior-Xxxxxxxxx and which are in good repair
and
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working condition. In the event either party exercises its option
hereunder, Dealer shall promptly supply to Excelsior-Xxxxxxxxx a list of
all of the Products, tools, signs and equipment subject to repurchase by
Excelsior-Xxxxxxxxx hereunder.
(b) The purchase price for any Excelsior-Xxxxxxxxx motorcycles or
parts purchased by Excelsior-Xxxxxxxxx pursuant to Section 12.5(a) shall be
equal to 100% of the net cost (including transportation costs) to Dealer
for such motorcycles and parts. The purchase price for signs, tools and
equipment shall be the price paid by Dealer less all depreciation
computed on a straight-line basis over a five (5) year useful life.
(c) In the event of any repurchase by Excelsior-Xxxxxxxxx pursuant
to this Section 12.4, Dealer shall permit Excelsior-Xxxxxxxxx'x personnel
and representatives to enter Dealer's premises and inspect and count all
Products, signs, tools and equipment proposed to be repurchased hereunder.
(d) Dealer shall store, at Dealer's sole expense, all Products and
other items which Excelsior-Xxxxxxxxx becomes obligated to repurchase
pursuant to this Section 12.4 until receipt of shipping instructions
from Excelsior-Xxxxxxxxx. Dealer shall have sole responsibility for
packing such Excelsior-Xxxxxxxxx Products suitably for shipping and for
paying all freight and insurance charges from Dealer to
Excelsior-Xxxxxxxxx'x central distribution or such other location within
the United States as Excelsior-Xxxxxxxxx shall designate.
(e) Dealer shall bear all risk of loss or damage to any of the
Products or other items which Excelsior-Xxxxxxxxx becomes obligated to
purchase hereunder until such items have been delivered to the
destination designated by Excelsior-Xxxxxxxxx and have been inspected
and accepted by Excelsior-Xxxxxxxxx, and in no event shall
Excelsior-Xxxxxxxxx be required first to claim against any carrier or
insurer with respect to any such loss or damage for items lost or
damaged in transit.
(f) Dealer represents and warrants that all Products and other items
tendered to Excelsior-Xxxxxxxxx for repurchase pursuant to this Section
12.4 shall be sold to Excelsior-Xxxxxxxxx free and clear of any liens,
encumbrances, security interests or claims and attachments whatsoever at
the time of purchase by Excelsior-Xxxxxxxxx. Dealer shall, at Dealer's
sole expense, take such actions and execute such documents as are
necessary to vest in Excelsior-Xxxxxxxxx clear title, free of liens,
encumbrances, security interests, claims and attachments, including
without limitation compliance with all applicable bulk sales laws.
Dealer understands and agrees that Excelsior-Xxxxxxxxx shall have no
obligation to purchase any Products or other items hereunder unless
Dealer can convey clear title as provided herein.
(g) All payments due from Excelsior-Xxxxxxxxx to Dealer hereunder
shall be made promptly after all items tendered for repurchase have been
delivered to Excelsior-Xxxxxxxxx, inspected and accepted by
Excelsior-Xxxxxxxxx with clear title as provided in subsection (f)
above, and, in the case of Excelsior-Xxxxxxxxx motorcycles, after
Excelsior-Xxxxxxxxx shall have received the manufacturer's certificate
of origin or other
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applicable certificates of title. Excelsior-Xxxxxxxxx shall have the
right to set off and deduct from any amounts due Dealer in connection
with such repurchase any sums due and owing from Dealer to
Excelsior-Xxxxxxxxx or any of its affiliates for any reason.
12.5 NO CLAIM FOR COMPENSATION. Dealer expressly acknowledges that
Dealer's sole source of compensation under this Agreement will be from the
revenue, if any, derived from its resale of the Products. In the event this
Agreement expires or is canceled or terminated pursuant to the provisions of
this Section 12, Dealer will not assert or claim nor have any right to
receive, and Excelsior-Xxxxxxxxx will have no obligation to pay, any
compensation, indemnity or reimbursement for any of the following: loss of
profit, loss of goodwill, loss of clientele, costs of advertising,
promotional materials or samples, termination of employees, employees'
salaries, the losses associated with buildings, stocks, machinery,
transportation, or other similar assets or expenditures in which Dealer
invests or expends funds in connection herewith, or for any other reason
whatsoever.
12.6 FURTHER OBLIGATIONS AFTER TERMINATION. In the event of a
termination or expiration of this Agreement in any manner, the following
further provisions shall take effect:
(a) All rights granted to Dealer under or pursuant to this Agreement
shall cease, and, where legally possible, revert to Excelsior-Xxxxxxxxx.
(b) Dealer shall cease to hold itself out in any way as a dealer of
Excelsior-Xxxxxxxxx Products.
(c) Dealer shall cease to use the Trademarks and shall refrain from
using any colorable imitation thereof. Dealer shall immediately cease to
use and destroy any stationery, order sheets, advertising materials and
other printed matter bearing the Trademarks and shall remove all signs
containing same.
(d) Dealer shall immediately return to Excelsior-Xxxxxxxxx any
originals and copies of all confidential information, technical data or
material, including but not limited to brochures, letters, price or
customer lists and memoranda, service records, warranty information or
other information pertaining to the Products.
(e) At Excelsior-Xxxxxxxxx'x option, all sums owed by each party
hereto to the other shall become due and payable immediately upon
expiration or other termination of this Agreement. Excelsior-Xxxxxxxxx,
at its option, may offset any sums due or to become due to Excelsior-
Xxxxxxxxx from Dealer against any sums owed by Excelsior-Xxxxxxxxx to
Dealer.
13. ENTIRE AGREEMENT; AMENDMENT
This Agreement, including all Appendices hereto, contains the entire
understanding between the parties with respect to the subject matter hereof
and supersedes all prior and contemporaneous written or oral negotiations and
agreements between them regarding the subject matter hereof. Except as
expressly contained herein, neither party has made or relied upon any
representations, warranties, assurances, "side deals" or understandings.
Without limiting the
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generality of the foregoing, Dealer acknowledges that Excelsior-Xxxxxxxxx has
made no forecasts, guarantees, representations or assurances regarding
Dealer's potential sales, profits or earnings capability as a dealer of the
Products under this Agreement. This Agreement may be amended only by a
writing signed by both of the parties. With respect to any consents,
approvals, waivers or amendments which may be granted by Excelsior-Xxxxxxxxx
to Dealer hereunder, including without limitation consents to assignment or
to a change in the Approved Location, no such consent, approvals, waivers or
amendments shall be valid or binding upon Excelsior-Xxxxxxxxx unless in
writing and signed by an officer of Excelsior-Xxxxxxxxx of at least Vice
President. Under no circumstances may Dealer rely upon any oral
representations or assurances from Excelsior-Xxxxxxxxx personnel with respect
to consents, approvals, waivers or amendments.
14. NOTICES
All notices and other communications hereunder shall be in writing and
shall be deemed to have been given only if and when (i) personally delivered
or (ii) five (5) business days after mailing, postage prepaid, certified or
registered mail, or (iii) when delivered (and receipted for) by an express
delivery service, or (iv) when first sent by telex, telecopy or other means
of instantaneous communication, provided such communication is properly
confirmed by personal delivery, certified or registered mail or an express
delivery service as provided above, to the respective addresses shown in
Appendix A hereto. Either party may change the address for the giving of
notices and communications to it by written notice to the other party in
conformity with the foregoing. In the event Excelsior-Xxxxxxxxx cannot
effect notice to Dealer because Dealer has abandoned its place of business or
refuses to accept such notice, such notice may be served by
Excelsior-Xxxxxxxxx through the Department of Motor Vehicles (or its
equivalent) in the state in which the Approved Location is located.
15. SEVERABILITY
If any provision of this Agreement should be held invalid or
unenforceable for any reason whatsoever or to violate any law, this Agreement
shall be considered divisible as to such provisions and such provisions shall
be deemed amended to comply with such law, or if it cannot be so amended
without materially altering the tenor of the Agreement, then such
provision(s) shall be deemed deleted from the Agreement in such jurisdiction,
and in either case, the remainder of this Agreement shall be valid and
binding.
16. ASSIGNMENT
The parties acknowledge that this Agreement constitutes a personal services
contract between Excelsior-Xxxxxxxxx and Dealer. Dealer may not transfer or
assign this Agreement or any of its rights hereunder without Excelsior-
Xxxxxxxxx'x prior written consent, which consent shall not be unreasonably
withheld, and any attempted assignment shall be void and shall constitute
grounds for termination by Excelsior-Xxxxxxxxx pursuant to Section 12.1(b)(7)
hereof. This Agreement shall be binding upon and shall inure to the benefit of
Excelsior-Xxxxxxxxx and its successors and assigns, and shall be binding upon
and inure to the benefit of Dealer and its permitted assignees. For purposes of
this Section 16, any transfer of any shares of stock or other
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ownership interest in Dealer to any party other than the current owners or
shareholders listed in Appendix A shall be deemed as an assignment of
Dealer's rights under this Agreement.
17. NO IMPLIED WAIVERS
The failure of either party at any time to require performance by the
other party of any provision hereof shall not affect in any way the right to
require such performance at any later time nor shall the waiver by either
party of a breach of any provision hereof be taken or held to be a waiver of
such provision.
18. CAPTIONS AND SECTION REFERENCES
The captions of the sections and subsidiary sections of this Agreement
are included for reference purposes only and are not intended to be a part of
the Agreement or in any way to define, limit or describe the scope or intent
of the particular provision to which they refer. Any reference in this
Agreement to a section or subsection shall be deemed to include a reference
to any subsidiary sections whenever the context requires.
19. GENDER
Masculine, feminine and neuter terms shall be interchangeable (and shall
include a corporation, a partnership, or another entity), and shall be
singular and plural, where the context makes a change of gender or number
appropriate.
20. GOVERNING LAW
The parties acknowledge that this Agreement shall take effect upon
execution by Excelsior-Xxxxxxxxx at its offices in Minneapolis, Minnesota.
The parties further acknowledge that the mutual performance hereof by
Excelsior-Xxxxxxxxx and Dealer constitutes a substantial contact with that
State. Accordingly, the parties invoke the protection of the laws of
Minnesota with respect to the protection of their rights and enforcement of
their obligations hereunder and they mutually stipulate that this Agreement
is in all respects (including, but not limited to, all matters of
interpretation, validity, performance and the consequences of breach) to be
construed, governed and enforced in accordance with the internal laws
(excluding all conflict of laws rules) of Minnesota, as from time to time
amended and in effect, and any applicable federal laws of the United States
of America, as from time to time amended and in effect.
21. ARBITRATION
(a) The parties agree to use every reasonable effort to settle any
dispute or disagreement between them relative to this Agreement by
amicable means and if appropriate utilize assistance of their respective
chief executive officers and not to resort to legal action unless and
until the parties have in good faith attempted to settle such dispute or
disagreement in the foregoing manner.
(b) If this method of resolution should have proved to be
impracticable or unsuccessful, any controversy or claim arising out of or
relating to this Agreement shall be
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submitted to and be finally resolved by arbitration pursuant to the
provisions of the United States Arbitration Act (9 US C. SECTION 1 ET
SEQ.), to be conducted by the American Arbitration Association ("AAA"),
with such arbitration to be held in Minneapolis, Minnesota in accordance
with the AAA's Commercial Arbitration Rules then in effect. Each party
hereby irrevocably agrees that service of process, summons, notices or
other communications related to the arbitration procedure shall be
deemed served and accepted by the other party if given in accordance
with Section 14. The arbitrator shall render a judgment of default
against any party who fails to appear in a properly noticed arbitration
proceeding. The arbitration shall be conducted by one arbitrator, as
selected by the AAA. Any award or decision rendered in such arbitration
shall be final and binding on both parties, and judgment may be entered
thereon in any court of competent jurisdiction if necessary. Judgments
rendered in any arbitration proceedings shall be limited to actual
damages sustained by the party in whose favor such judgment is rendered,
and no consequential, punitive, exemplary, special or multiplied damages
shall be awarded. Each party shall bear its own costs and expenses of
such arbitration proceeding. Notwithstanding the foregoing, the
following categories of claims and disputes shall not be subject to
mandatory arbitration pursuant to the provisions of this Section 21: (i)
any claim by Excelsior-Xxxxxxxxx for moneys owed by Dealer in connection
with any sale of Products and (ii) any claim or dispute arising under
the Xxxxxx Act, or under any state law or common law alleging
infringement or misuse of the Trademarks. In case any dispute arises
involving the claims described in (i) and (ii) of the preceding sentence
which also involve matters subject to mandatory arbitration hereunder,
unless both parties agree otherwise the matters subject to mandatory
arbitration shall be severed from the claims which are not subject to
mandatory arbitration, and claims subject to mandatory arbitration shall
be decided by arbitration as provided herein, while the claims not
subject to arbitration will be decided in the appropriate judicial forum.
(c) Notwithstanding subsections (a) and (b) of this Section to the
contrary, any party may seek injunctive relief against the other party at
any court of proper jurisdiction with respect to any and all preliminary
injunctive or restraining procedures pertaining to this Agreement or the
breach thereof. Any provisions to the contrary herein notwithstanding, the
law applicable in the jurisdiction of such court shall apply with respect,
but limited to, all such preliminary injunctive or restraining procedures.
(d) Any judicial proceeding challenging the validity of the parties'
agreement to arbitrate pursuant to this Section 21 shall be brought in a
state or federal court located in Minneapolis, Minnesota and each of the
parties hereby submits to the personal jurisdiction and consents to
venue in any such court for such proceeding, and hereby waives to the
fullest extent possible any defense of FORUM NON CONVENIENS.
-20-
Each of the parties has executed this Agreement through their duly authorized
officers or agents whose signatures appear below, effective as of the date shown
at the beginning of this Agreement.
EXCELSIOR-XXXXXXXXX MOTORCYCLE DATE:
MANUFACTURING COMPANY -----------------------------
BY: BY:
-------------------------------- -------------------------------
Xxxxxx X. Xxxxxx Xxxxx X. Xxxxxx
Co-Founder Co-Founder
DEALERSHIP
DATE:
----------------------------------- ------------------------------
(PRINT NAME OF DEALERSHIP)
BY:
--------------------------------
TITLE:
-----------------------------
EXCELSIOR-XXXXXXXXX:
DISTRICT SALES MANAGER DATE:
------------------------------
-----------------------------------
-21-
APPENDIX A
TO
EXCELSIOR-XXXXXXXXX MOTORCYCLE
MANUFACTURING COMPANY
AUTHORIZED DEALERSHIP AGREEMENT
1. NAME AND LEGAL FORM OF DEALER:
a. Full Legal Name of Dealer:
---------------------------------------------
------------------------------------------------------------------------
b. Legal Form: (check one)
/ / individual (sole proprietor) / / corporation
/ / partnership / / limited liability company
/ / other (specify)
-------------
c. State of incorporation (or if other than a corporation, state of legal
domicile):
------------------------------------------------------------------------
d. List all owners, nature of ownership, interest and percentage interest
(continue on separate sheet if necessary):
Nature of Interest
Ownership (Corporate Stock, Partnership
Name Percentage Interest, Other (Explain))
------------------- ----------------- -----------------------------
1.
----------------- ----------------- -----------------------------
2.
----------------- ----------------- -----------------------------
3.
----------------- ----------------- -----------------------------
4.
----------------- ----------------- -----------------------------
5.
----------------- ----------------- -----------------------------
2. APPROVED LOCATION (STREET ADDRESS):
----------------------------------------------------------------------------
----------------------------------------------------------------------------
----------------------------------------------------------------------------
A-1
3. INITIAL HOURS OF OPERATION:
---------------------- ---------------------
SUMMER HOURS WINTER HOURS
---------------------- ---------------------
Monday a.m. to p.m. a.m. to p.m.
---- ---- ---- ----
Tuesday a.m. to p.m. a.m. to p.m.
---- ---- ---- ----
Wednesday a.m. to p.m. a.m. to p.m.
---- ---- ---- ----
Thursday a.m. to p.m. a.m. to p.m.
---- ---- ---- ----
Friday a.m. to p.m. a.m. to p.m.
---- ---- ---- ----
Saturday a.m. to p.m. a.m. to p.m.
---- ---- ---- ----
Sunday a.m. to p.m. a.m. to p.m.
---- ---- ---- ----
4. EXCELSIOR-XXXXXXXXX TRADEMARKS:
EXCELSIOR-XXXXXXXXX
EXCELSIOR
XXXXXXXXX
SUPER X
X
X Twin
5. ADDRESSES FOR NOTICES:
Excelsior-Xxxxxxxxx: Excelsior-Xxxxxxxxx Motorcycle Manufacturing Company
000 Xxxx Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
Attention: National Sales Manager
Dealer:
-------------------------------
-------------------------------
-------------------------------
-------------------------------
A-2
6. EXCELSIOR-XXXXXXXXX DEALER OPERATING STANDARDS:
(1) SALES
(a) The Showroom
Well displayed and lit with a floor size to accommodate an
"Excelsior-Xxxxxxxxx display" of at least ___ motorcycles
(supply permitting) and/or of at least ______ sq. ft.,
accessories and Excelsior-Xxxxxxxxx apparel.
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
Floor, walls, ceiling and windows to be well maintained and
of good, clean appearance.
Adequate heating, lighting and ventilation.
Effective use of point of sale materials as and when supplied
by Excelsior-Xxxxxxxxx.
(b) Corporate Signage
A variety of sign sizes and prices have been developed to provide
choices for the Excelsior-Xxxxxxxxx dealers.
Signage requirements will be discussed individually with each
dealer in order to select an option which meets local planning
regulations and which best complements the existing individual
identity of that dealer.
The selections are:
OUTSIDE SIGNAGE (required)
(see sign order materials from XXXX)
INTERNAL SIGNAGE (optional)
(see sign order materials from XXXX)
A-3
(2) SERVICE
(a) Service Department and Staffing
Service Department of sufficient size to support the new
Excelsior-Xxxxxxxxx models in addition to other motorcycle
brands sold by the dealer.
Service Department to be sufficiently equipped and capable of
undertaking the following functions to a level expected on
modern day, hi-tech, large capacity motorcycles including:
*to be determined
(b) Service Equipment
Dealers with existing motorcycle dealerships will already
possess the great majority of Excelsior-Xxxxxxxxx'x equipment
requirements. For reference purposes we have specified each
item:
*to be determined
(c) Tools
(i) Technician's Tools
*to be determined
(ii) Dealership Tools
*to be determined
(iii) Special Excelsior-Xxxxxxxxx Service Tools
*to be determined
(iv) Optional Special Excelsior-Xxxxxxxxx Tools
*to be determined
A-4
(3) PARTS
Sufficient space must be allocated within the premises for the stocking and
retailing of genuine Excelsior-Xxxxxxxxx spare parts.
There will be an initial dealer parts kit that each dealer is required to
purchase that reflects fast moving, routine service and repair work items.
The volume of fast moving items must be kept at a sufficient level within
the dealership to ensure a high level of customer service satisfaction for
Excelsior-Xxxxxxxxx owners.
(4) PRE-DELIVERY INSPECTION
Pre-Delivery inspections must include the completion of a PDI inspection
sheet supplied by and as subsequently amended by Excelsior-Xxxxxxxxx.
A-5
EXCELSIOR-XXXXXXXXX MOTORCYCLE
MANUFACTURING COMPANY
PRE DELIVERY INSPECTION
To be Developed
A-6
EXCELSIOR-XXXXXXXXX MOTORCYCLE
MANUFACTURING COMPANY
LIMITED WARRANTY
To be Developed
X-0
XXXXXXXX X
TO
EXCELSIOR-XXXXXXXXX MOTORCYCLE
MANUFACTURING COMPANY
AUTHORIZED DEALERSHIP AGREEMENT
#
----------------------------- -------------
DEALER'S NAME DEALER NUMBER
ANNUAL PERFORMANCE GOALS
Dealer and Excelsior-Xxxxxxxxx mutually agree that Dealer will sell at retail
the following volume of new and unused Excelsior-Xxxxxxxxx Products during the
applicable selling season defined as January 1, 1998 through December 31, 1998.
-------------------------------------
NUMBER OF NEW MOTORCYCLE UNITS
-------------------------------------
WHOLESALE VALUE OF CLOTHING
-------------------------------------
WHOLESALE VALUE OF PARTS
EXCELSIOR-XXXXXXXXX MOTORCYCLE
MANUFACTURING COMPANY
------------------------------------ DATE:
DISTRICT SALES MANAGER -----------------------
DEALER
------------------------------------ DATE:
-----------------------
B-1
APPENDIX C
TO
EXCELSIOR-XXXXXXXXX MOTORCYCLE
MANUFACTURING COMPANY
AUTHORIZED DEALERSHIP AGREEMENT
AREA OF PRIMARY RESPONSIBILITY
STATE COUNTY/COUNTIES
#1
-----------------------------
#2
-----------------------------
#3
-----------------------------
#4
-----------------------------
#5
-----------------------------
#6
-----------------------------
#7
-----------------------------
#8
-----------------------------
#9
-----------------------------
#10
-----------------------------
DEALER SIGNATURE DATE
--------------------------- ---------------------------
DISTRICT SALES MANAGER DATE
---------------------- ---------------------------
C-1
