Exhibit 10(f)
WESTERBEKE CORPORATION
DOMESTIC
MASTER DISTRIBUTOR AGREEMENT
This Agreement ("Agreement") is made by and between Westerbeke
Corporation, a Delaware corporation (hereinafter referred to as "Westerbeke"),
and __________ ______________________ (name of distributor), a(n) ____________
(individual, partnership or corporation), with its principal office at
_____________________ (street address), _________________ (city),
_____________ (county), ________________ (state) ________ (zip code)
(hereinafter referred to as "Distributor"), and will govern the relationship
between Westerbeke and the Distributor with respect to the promotion, sale,
repair and service of Westerbeke Products (as defined herein).
1. APPOINTMENT. Subject to the terms of this Agreement, Westerbeke
hereby appoints Distributor a non-exclusive distributor of the products and
the replacement parts and accessories related thereto listed on Schedule A to
this Agreement (said products, replacement parts and accessories are
hereinafter referred to as the "Westerbeke Products") within the geographic
areas of responsibility set forth on Schedule B to this Agreement (hereinafter
referred to as the "Area").
2. OBLIGATIONS OF DISTRIBUTOR. Distributor hereby accepts the
appointment described in Section 1 subject to the terms of this Agreement and
agrees that its obligations under this Agreement shall, without limitation,
include the following:
(a) Best Efforts. Distributor shall use its best efforts to
promote, sell, repair and service Westerbeke Products in the Area, which best
efforts shall include, but shall not be limited to, each of the obligations
specified in this Section 2.
(b) Retail Dealers. Distributor shall appoint a sufficient number
of retail dealers ("Dealers") within the Area for the sale, service, and
repair of Westerbeke Products; provided, however, that (i) all such Dealers
shall meet minimum reasonable requirements established by Westerbeke, (ii)
Distributor shall utilize in appointing such Dealers the Dealer Agreement form
provided by Westerbeke or a retail dealer agreement form acceptable to
Westerbeke, (iii) Distributor shall not, without Westerbeke's consent, solicit
orders for or sell Westerbeke Products to any Dealer or other person, unless
such Dealer or other person's selling area or place of business or residence,
in the case of a person not engaged in the business of resale, is completely
contained within the Distributor's Area, (iv) in no case shall Distributor
appoint any Dealer or sub-distributor in violation of, or contrary to, the
terms and conditions of this Agreement and (v) Distributor shall furnish to
Westerbeke, from time to time upon Westerbeke's request therefor, a list of
all such Dealers and such other information as Westerbeke shall reasonably
request that shall relate to the Distributor's network of Dealers and
Distributor's sales of Westerbeke Products to such Dealers. In the event that
Distributor shall violate the provisions of this paragraph, Westerbeke shall
have the right to elect, in addition to any other remedy contained in this
Agreement (including without limitation, Westerbeke's termination of such
Distributor), that Distributor pay Westerbeke, as liquidated damages, a sum
equal to the applicable Discount (as defined in Section 3 hereof) on any
Westerbeke Products the sale of which shall have been in violation of this
paragraph.
(c) Inventory; Facilities.
(i) Distributor shall maintain an inventory of Westerbeke Products
which is adequate for the Area (as determined in accordance with Section
2(c)(ii) hereof) and sales, parts, repair and service facilities, including
any special tools or equipment required to service and repair Westerbeke
Products, at a place or places of business of a size and character
satisfactory to Westerbeke and such place or places of business shall not be
moved or materially changed without the prior written consent of Westerbeke.
(ii) Distributor shall purchase (subject to the provisions of
Section 2(d) hereof) a sufficient quantity of Westerbeke Products such that
Westerbeke Products shall have a fair share of the total market for such types
of products in the Area, as determined by relevant marketing factors existing
in the Area. Distributor shall, if requested by Westerbeke, negotiate in good
faith with Westerbeke the quantity of Westerbeke Products necessary to satisfy
the provisions of the preceding sentence; provided, however, that if the
parties cannot agree in writing on such quantity, Westerbeke shall have the
right to establish such quantity by reference to such marketing factors.
(iii) Distributor shall furnish to Westerbeke on or prior to the
fifteenth day of each October, January, April and July, a list of
Distributor's current inventory of Westerbeke Products and an estimate of
Distributor's anticipated requirements for Westerbeke Products for the
succeeding six month period.
(d) Source of Requirements. In the event that Distributor shall
have made an election for Discount A pursuant to the terms of Section 3(a) of
this Agreement (and only in such event), Distributor shall purchase only from
Westerbeke and from no other source whatsoever all of Distributor's
requirements of such of the Westerbeke Products as constitute accessory or
replacement parts, except for those such accessory or replacement parts as are
set forth on Schedule C attached hereto. In the event that Distributor shall
violate the terms of the foregoing sentence, Distributor shall be deemed to
have elected, effective immediately upon the occurrence of any such violation,
for Discount B pursuant to the terms of Section 3(a) of this Agreement.
(e) Staff. Distributor shall, at all times, employ such numbers of
adequately trained and competent personnel as are necessary to fulfill all of
Distributor's obligations under this Agreement.
(f) Service. Distributor shall provide, at reasonable rates,
prompt and workmanlike repair and service, including repairs and service under
warranty in accordance with the provisions of this Agreement, for all
Westerbeke Products, whether or not such Westerbeke Products have been sold by
Distributor.
(g) Use of Westerbeke Name. Distributor shall identify itself as a
"Westerbeke Authorized Distributor" in telephone directories, on its
stationery, and in any advertising media such as newspapers, magazines, and
direct mailings that Distributor customarily uses, and Westerbeke hereby
grants Distributor a non-exclusive license for the duration of this Agreement
to use Westerbeke's trademarks or trade names or product designations
(including part numbers) (collectively, the "Trademarks") for such purposes;
provided, however, that Distributor shall not use Westerbeke's Trademarks in
its corporate name or as a style of doing business, and shall not place any of
Westerbeke's Trademarks on any product or item whatsoever, without the express
written consent of Westerbeke. Distributor hereby acknowledges that
Westerbeke owns exclusive rights to all Trademarks and any other trademarks
and trade names adopted or used by Westerbeke.
(h) End Use Purchasers. Distributor and its dealers shall develop
and maintain records sufficient for purposes of compliance with the Federal
Boat Safety Act to permit the identification of the end use purchaser of all
Westerbeke Products sold by Distributor or its Dealers, when provided by
Westerbeke with the Distributor's purchase order number, the model and the
serial numbers of the Westerbeke Product and its date of shipment by
Westerbeke, and Distributor shall assist Westerbeke in ascertaining the
identity of the end use purchaser, should Westerbeke, for any purpose, deem
that necessary.
(i) Sales to Boatbuilders. Distributor shall actively pursue sales
of Westerbeke Products to boatbuilders located within the Area and shall
develop and maintain (A) records of its efforts to sell to such boat builders
and (B) estimates of potential sales to boatbuilders within the Area, which
records and estimates it shall furnish Westerbeke upon Westerbeke's reasonable
request therefor. Notwithstanding anything contained in Section 1 of this
Agreement to the contrary, Westerbeke may elect to sell directly to any such
boatbuilder if Westerbeke, in its sole discretion, determines that such
boatbuilder's volume or potential volume of purchases is sufficiently large or
that the nature of such boatbuilder's business requires that it purchase
directly from Westerbeke. Provided that Distributor shall have complied with
the requirements of this Section 2(i), as determined by Westerbeke in its sole
discretion, Distributor will receive a commission of _____________________ of
the net sales price on any sales by Westerbeke to any such boatbuilder in
consideration of Distributor's efforts in establishing the boatbuilder's
account and for continued maintenance and service of the account. This
commission will not apply to sales by Westerbeke to the established national
accounts listed on Schedule D hereto.
(j) Promotion. Distributor shall diligently promote the sale of,
solicit orders for and stimulate interest in Westerbeke Products in the Area.
Distributor shall cooperate with Westerbeke in preparing reports, order
forecasts and other information concerning market coverage, and shall follow
all reasonable recommendations of Westerbeke as to marketing policy and market
coverage.
(k) Goodwill. Distributor shall take such necessary or desirable
steps to preserve and enhance Westerbeke's goodwill and reputation in the Area
as Westerbeke may reasonably request.
(l) Insurance. Distributor shall maintain during the term of this
Agreement: (i) Worker's Compensation Insurance as prescribed by law in the
state or states in which Distributor's business is maintained, (ii)
comprehensive general liability insurance (including product liability
insurance), and (iii) casualty insurance on the properties where Distributor
conducts any business related to the promotion, sale, repair or service of
Westerbeke Products.
(m) Financial Information. Distributor shall provide to Westerbeke
(i) an annual balance sheet and income statement for Distributor within 90
days after Distributor's fiscal year end, and (ii) such other financial
statements for Distributor as Westerbeke may reasonably request. In the event
that Distributor shall fail to do so, Westerbeke shall have the right to amend
the terms of credit, if any, applicable to such Distributor to such terms as
Westerbeke, in its sole discretion, shall deem desirable.
(n) Compliance with Law. Distributor shall (i) comply with all
statutes, laws and regulations of federal, state and local authorities which
are applicable to the Distributor's business and to the performance by it of
its obligations pursuant to this Agreement; (ii) promptly notify Westerbeke of
any such statute, law or regulation relating to the performance by the parties
of the terms of this Agreement, including without limitation any requirements
as to the form or specifications of any Westerbeke Product or any packing,
invoicing or shipping documents required to be provided with respect to any
shipment of Westerbeke Products, and of any change to any such statute, law or
regulation; provided, however, that Westerbeke shall not be responsible or
liable for any penalty that may result from its failure to comply with any
such statute, law or regulation if it has used reasonable efforts so to
comply; and (iii) not take any action the effect of which might be to cause
Westerbeke to be in violation of any such statute, law or regulation.
(o) Inspection. Westerbeke shall have the right to inspect
Distributor's places of business during regular business hours without notice
in order to monitor Distributor's compliance with its obligations under this
Agreement.
3. PRICES AND TERMS OF SALE.
(a) Price and Election of Discount. The prices of Westerbeke
Products sold to Distributor by Westerbeke shall be Westerbeke's list prices
(the "List Prices") in effect at the time of shipment less the applicable
discount (the "Discount") set forth in Schedule A hereto. The Discount shall
be either Discount A or Discount B (each as set forth on Schedule A), and
Distributor shall have made an election to that effect on the signature page to
this Agreement. In the event that Distributor shall elect Discount A (and only
in such event), the terms and provisions of Section 2(d) of this Agreement
shall apply. Westerbeke shall from time to time notify Distributor of its List
Prices, which it may amend from time to time without notice.
(b) Terms and Conditions of Sale. Unless Westerbeke agrees otherwise
in writing, the terms and conditions of such sale to Distributor of Westerbeke
Products shall be governed by Westerbeke's standard terms and conditions of
sale, which it shall from time to time announce and which it shall have the
right to amend without notice. Any additional terms and conditions of sale
shall be as set forth in Westerbeke's acknowledgment of Distributor's order.
Unless Westerbeke agrees otherwise in writing, payment for Westerbeke Products
shall be made in cash upon making any order or by irrevocable letter of credit
confirmed by a bank acceptable to Westerbeke.
(c) Exclusion of Taxes. Unless Westerbeke otherwise expressly agrees
in writing, prices for Westerbeke Products shall not include any sales, use,
excise, ad valorem, receipt or other such taxes, which may at any time be
imposed by federal, state or local authorities by reason of the sale by
Westerbeke of Westerbeke Products to Distributor and Distributor shall pay all
of such taxes other than income taxes imposed on Westerbeke by any
governmental authority.
4. ORDERS. Westerbeke shall not ship any Westerbeke Products
except upon receipt of firm orders. Each order of Distributor is subject to
acceptance by Westerbeke, and Westerbeke may, for any reason, reject an order
or any portion thereof. Westerbeke shall use its best efforts to ship accepted
orders, but shall not be liable for delays in shipping or delivery, or for
failure to ship such orders, for any reasonable cause.
5. CHANGE OF PRODUCTS. Unless otherwise specified, all orders for
Westerbeke Products shall refer to the type, model, line and style of
Westerbeke Products in production at the time Westerbeke receives such orders.
Westerbeke may, at any time and without prior notice, declare obsolete or
discontinue the manufacture or sale of any Westerbeke Products or any type,
model, line or style of Westerbeke Products, and may modify the construction
or classification of any Westerbeke Products. Westerbeke shall not be
obligated to manufacture or sell replacement parts or accessories for any such
Westerbeke Products that are declared obsolete or discontinued by Westerbeke
or modified by Distributor or any other person. Westerbeke may take any such
action without incurring any obligations to Distributor arising directly or
indirectly by reason of Distributor's previous purchases of Westerbeke
Products.
6. SHIPMENT. Westerbeke's responsibility for risk of loss of or
damage to Westerbeke Products ceases and title to Westerbeke Products passes
to Distributor upon the delivery of shipments to the carrier thereof.
Distributor shall accept all upon arrival at their destination and shall file
claims with or against any such carrier thereof for any losses, shortages or
damages of any kind.
The cost of any insurance arranged by Westerbeke shall be for
Distributor's account.
7. WARRANTY. Each of the Westerbeke Products sold by Westerbeke to
Distributor under this Agreement is subject to Westerbeke's express warranty
applicable to the particular Westerbeke Product in effect at the time
Westerbeke sells such Westerbeke Product to Distributor. Other than such
express warranty, Westerbeke makes no representation, express or implied
(including implied warranties of merchantability and fitness for a particular
purpose) concerning any Westerbeke Products or otherwise concerning the
matters contemplated by this Agreement. Westerbeke makes no warranty at all
with respect to any product or item which is not a Westerbeke Product.
Distributor shall make no representations or warranties with respect to any
Westerbeke Products without the prior consent of Westerbeke and Distributor
hereby agrees to indemnify and save Westerbeke harmless from any and all
liabilities, claims or damages that Westerbeke may suffer by reason of any
unauthorized representations or warranties made by Distributor.
Distributor acknowledges that the marine engine products business is a
high risk business and that Westerbeke shall not be responsible for damages
which Distributor may incur from delayed shipments or from any other cause,
whether liability is asserted in contract or tort (including negligence and
strict product liability). Distributor acknowledges and agrees that
Westerbeke's sole responsibility in the case of breach of the foregoing
warranty shall be for Westerbeke to comply with Westerbeke's policy for return
of defective products in effect at the time of such breach. In no event shall
Westerbeke be liable for loss of profits, loss of use, or incidental,
consequential or special damages of any kind.
8. WARRANTY WORK. Distributor must obtain authorization from
Westerbeke in advance of any major warranty work to be performed by
Distributor or one of its Dealers, including, but not limited to, any work
involving removal or reinstallation of an engine or generator. Westerbeke
may, in its sole discretion and with respect to any warranty work, determine
that such work shall be performed by Westerbeke or by any other party of its
own choice. If warranty work is performed by Distributor or one of its
Dealers, Distributor shall furnish to Westerbeke upon Westerbeke's request
reasonable evidence that such work was necessary within the applicable
provisions of the applicable warranty, and Distributor shall return to
Westerbeke, upon Westerbeke's request, within thirty (30) days, freight
collect, any part claimed to be defective under such warranty. Distributor
shall inform Westerbeke of any such part, the intended return thereof, and any
relevant information with respect thereto, sufficiently in advance of the
intended shipment date to allow Westerbeke to arrange for shipment, should
Westerbeke so desire. If Westerbeke, in its sole discretion, determines that
such part is defective and that the work performed was necessary, Westerbeke
shall pay Distributor for such parts at list price less the standard discount
established by Westerbeke for Dealers. Westerbeke shall pay Distributor for
any labor performed at the applicable warranty labor rate established by
Westerbeke, which rate shall be evaluated periodically by Westerbeke and may
be amended from time to time by Westerbeke without notice. If the warranty
work is performed by one of Distributor's Dealers, Distributor shall supply
any parts and pay to such retail dealer for labor the amount paid by
Westerbeke to Distributor for such labor.
9. SETOFF. Distributor agrees that Westerbeke shall have the right
to setoff against any amounts which may become payable by Westerbeke to
Distributor under this Agreement or otherwise, any amounts due from
Distributor to Westerbeke, including without limitation any amounts
anticipated to be owed to Westerbeke in the event that Westerbeke shall have
reason to believe such an amount may become due by virtue of the arising of
any claim by Westerbeke, whether arising under this Agreement or otherwise,
including without limitation any claims arising under Sections 1 and 2(g) of
this Agreement.
10. PERFORMANCE EXCUSED. Whenever either party shall be prevented
from or delayed in carrying out any obligation of such party hereunder (other
than for the payment of money) by reason of any act of God, war, riot,
accident, strike, lockout, injunction, boycott, inability to obtain power, raw
materials, or transportation facilities, breakage of machinery, national
defense requirements, or any other similar or dissimilar cause beyond the
control of such party, the performance of such obligation by such party shall
be excused to the extent of such prevention or delay. If, because of any such
cause, Westerbeke is unable to supply the total demand for Westerbeke
Products, Westerbeke may, in its sole discretion, allocate its available
supply among itself and all of its distributors and customers, including those
not under contract, in an equitable manner. Any deliveries suspended because
of any such circumstance shall be cancelled without liability, but this
Agreement shall otherwise remain unaffected.
11. ASSIGNMENT. Distributor may not assign its rights or delegate
its performance under this Agreement without the prior written consent of
Westerbeke, and any attempted assignment or delegation without such consent
shall be void. The sale or other transfer of control of Distributor shall be
deemed to be an assignment for purposes of this Section 11.
12. DISTRIBUTOR IS NOT AN AGENT. This Agreement does not create the
relation of principal and agent between Westerbeke and Distributor and under
no circumstances is either party to be considered an agent of the other.
Distributor buys and sells Westerbeke Products as an independent business
enterprise for its own account. Distributor has no authority either to bind
Westerbeke to any obligation or to represent Westerbeke in any circumstances,
and Distributor shall not so bind or represent Westerbeke.
13. TERMINATION OF AGREEMENT.
(a) Either party may terminate this Agreement without cause on not
less than ninety (90) days prior written notice.
(b) Either party may terminate this Agreement with immediate effect
upon written notice for cause. For purposes of this Section 13(b), "cause"
shall be deemed to include any of (i) the failure of Distributor to pay any
amount, or any portion thereof, outstanding to Westerbeke within ninety (90)
days following any shipment to Distributor or such other time as the same
shall have become due; (ii) the breach of any term of this Agreement on the
part of Distributor; (iii) an attempt by Distributor to assign this Agreement
or any right or obligation hereunder without Westerbeke's written consent;
(iv) an assignment by Distributor of all or a substantial part of
Distributor's assets for the benefit of creditors; (v) the insolvency of
Distributor or of any member of Distributor if it is a partnership; (vi) the
institution of voluntary or involuntary proceedings by or against Distributor
in bankruptcy or under insolvency laws or for a receivership or for the
dissolution of Distributor (if it is a corporation or a partnership); (vii)
the death, incapacity, resignation, or other elimination of Distributor (if it
is an individual), or of any partner in Distributor (if it is a partnership);
(viii) any change in the ownership, control or operating management of
Distributor, whether voluntary or involuntary; or (ix) the substantial
discontinuance of Distributor's distribution and resale activities in the
Area. Distributor agrees to advise Westerbeke immediately in writing of the
occurrence of any event specified in this paragraph.
(c) Notwithstanding any provisions of Sections 13(a) or (b) above
to the contrary, Westerbeke reserves the right to terminate this Agreement
with respect to any of the Westerbeke Products set forth on Schedule A at its
sole election upon not less than 90 days prior written notice or with
immediate effect upon written notice for cause (as such term is defined in
Section 13(b) above). In such event, Sections 14(a) and (b) below shall be
deemed to apply only with respect to the termination of this Agreement with
respect to such Westerbeke Products and Section 14(c) shall not apply.
14. EFFECTS OF TERMINATION.
(a) Westerbeke shall have the right to cancel wholly or partially
any or all unshipped orders and requisitions accepted from Distributor prior
to the date when notice of termination was given, and Westerbeke is not
obliged to accept any orders or requisitions after such notice has been given.
(b) If, after the date notice of termination was given, Westerbeke
accepts orders from Distributor or otherwise transacts business with
Distributor related to the sale of Westerbeke Products, all such transactions
will be governed by the same terms that this Agreement provides so far as
those terms are applicable, but no such acceptance of orders or transaction of
business shall be construed as a renewal of this Agreement or as a waiver of
termination.
(c) Upon termination Distributor shall cease to use stationery or
other printed matter identifying it as a Westerbeke Authorized Distributor,
shall remove signs from the exterior and interior of any of its properties so
identifying it, and shall take all necessary steps to change its listing in
telephone directories and to do all other acts necessary to remove any
identification as a Westerbeke Authorized Distributor.
(d) Distributor shall not be entitled to any payments in the nature
of termination indemnities or damages upon termination of this Agreement for
any reason whatsoever.
15. NON-COMPETITION; CONFIDENTIALITY.
(a) Distributor shall not, during the term of this Agreement,
without the express written consent of Westerbeke, directly or indirectly
engage, participate or invest in or assist, as owner, part-owner, shareholders
or partner, or in any other capacity, (i) in any business organization within
the Area whose activities or products are competitive with Westerbeke's
activities or Westerbeke Products, or whose products are like or similar to
the Westerbeke Products or perform or are designed to perform the same or a
similar function to or which otherwise compete with any of the Westerbeke
Products, or whose activities include, directly or indirectly, the design,
manufacture, production, importation, sale or promotion of any products which
are like or similar to the Westerbeke Products or which perform or are
designed to perform the same or a similar function to or which otherwise
compete with any of the Products, or (ii) in any such business organization
whose activities engaged in or products distributed, marketed or sold within
the Area are competitive with, are similar to or perform the same or similar
function as any of the Westerbeke Products. Distributor shall, further, not
distribute, sell or promote on a wholesale or retail basis, any such
competitive or similar products.
(b) Distributor shall, during the term of this Agreement and
forever after any termination or expiration hereof, keep confidential and
never disclose, divulge, use or distribute any proprietary or confidential
information or rights or any trade secrets or technical information, regarding
the Westerbeke Products or otherwise, divulged or made known to the
Distributor by Westerbeke, except where, pursuant to the prior written consent
of Westerbeke, such disclosure is necessary in order for Distributor to
perform its duties hereunder. The provisions of this Section 15(b) shall
survive the expiration or termination of this Agreement.
16. LIMITED PURCHASE OF WESTERBEKE STOCK. Distributor represents
that it does not, as of the date hereof, directly or indirectly, own, hold or
otherwise have a beneficial interest in more than 5% of the outstanding shares
of common stock of Westerbeke, and agrees that it will not, at any time,
directly or indirectly, purchase or otherwise acquire such shares if, after
such purchase or acquisition, Distributor would, directly or indirectly, own,
hold or otherwise have a beneficial interest in more than 5% of such shares,
without the prior written consent of Westerbeke.
17. NOTICES. All notices provided for in this Agreement shall be in
writing and sent by registered or certified mail, return receipt requested,
addressed, if to Distributor, to it at the address of Distributor stated in
the opening paragraph of this Agreement and, if to Westerbeke, to it at Xxxx
Xxxxxxxxxx Xxxx, Xxxx, Xxxxxxxxxxxxx 00000; provided, however, that by notice
as specified in this paragraph either party may specify a different address
for receiving notices under this Agreement.
18. WAIVER. No act, delay, or omission by either party shall be
deemed a waiver of any right, power, or remedy of such party unless such
waiver is in writing, and then only to the extent set forth therein. All
remedies either under this Agreement or by law or otherwise afforded to any
party shall be cumulative and not alternative. No waiver of any provision,
right, or remedy under this Agreement on any other occasion shall constitute a
waiver of any other provision, right or remedy on any other occasion.
19. ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding and agreement of and between the parties with respect to the
subject matter hereof and supersedes all prior representations and agreements.
It shall not be varied, amended, or modified by any oral agreement or
representation or otherwise than by an instrument in writing on a subsequent
date hereto duly executed by the parties.
20. TITLES. The titles used in this Agreement are intended for
convenience of reference only. They are not intended and shall not be
construed to be a substantive part of this Agreement or in any other way to
affect the validity, construction, or effect of any of the provisions of this
Agreement.
21. GOVERNING LAW; ARBITRATION. This Agreement is made in and will
be governed by and construed in all respects according to the laws of the
Commonwealth of Massachusetts. The parties agree that any legal action to
resolve any dispute regarding the provisions of or otherwise arising out of
this Agreement shall be referred to the American Arbitration Association to be
settled by arbitration in the City of Boston, Massachusetts in accordance with
the commercial arbitration rules of said Association. The fees and expenses
of the arbitrator shall be borne by that person or entity among the parties
whose last offer of settlement of the claim differed by a greater amount from
the arbitrator's award than did the last offer of settlement of the other
party. The determination of the arbitrator as to the amount, if any, of the
claim which is properly allowable shall be conclusive and binding upon the
parties hereto and judgment may be entered thereon in any court having
jurisdiction thereof. The provisions of this paragraph shall survive
indefinitely the termination of this Agreement.
22. SEVERABILITY. In the event that any one or more of the
provisions contained in this Agreement shall be held to be in violation of or
not enforceable because of any law, it is understood that such provision shall
be deemed modified to the extent necessary to comply with such law or, if such
modification would be impracticable, shall be deemed deleted and none of the
other rights or obligations herein shall be prejudiced or rendered
unenforceable by reason thereof.
23. SIGNATURE. This Agreement becomes valid on being signed by
Westerbeke and on being signed for Distributor by a duly authorized officer or
executive of Distributor if a corporation, or by one of the general partners
of Distributor if a partnership, or by Distributor if an individual.