FORD MOTOR COMPANY
FORD AUTHORIZED AGREEMENT
FOR THE QUALIFIED VEHICLE MODIFIERS (QVM) PROGRAM
THIS AGREEMENT, is made this 15th day of December, 1999, between Starcraft
Automotive Group, Inc., an Indiana corporation having its principal place of
business at 0000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxx 00000 ("Modifier"), and Ford
Motor Company, a Delaware corporation with its principal place of business at
the Xxxxxxxx Xxxx, Xxxxxxxx Xxxxxxxx 00000 ("Ford").
WHEREAS, Ford sells complete vehicles and incomplete vehicles; and
WHEREAS, Modifier completes or modifies vehicles; and
WHEREAS, Ford and Modifier desire to work more closely together to improve
customer satisfaction with the products of both parties;
WHEREAS, Ford has developed the Qualified Vehicle Modifiers Program ("QVM
Program") toward that goal;
NOW, THEREFORE, in consideration of the mutual promises contained herein, the
parties agree as follows:
1. QVM Program Requirements
To qualify for the QVM Program, Modifier shall:
a) Complete or modify vehicles in the United States, Canada or
Mexico.
b) Complete or modify the types of vehicles identified by Ford as
included in the Program.
c) Make facility, personnel and records available for inspection
and review by Ford for the purposes of rating Modifier's
engineering capability, design and build process controls, and
quality control procedures.
d) Achieve a QVM rating for each facility that manufactures the
types of vehicles identified by Ford as included in the
Program.
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e) Adopt and follow Ford guidelines and recommendations as from
time to time may be issued or updated.
f) Make facility, personnel and records available for periodic
reinspection.
g) Send a representative to a yearly meeting at a mutually agreed
time and place. The purpose of the meeting will be to improve
communication by reviewing future product changes, new
guidelines, and any requests from the qualified Modifiers.
h) Notify Ford of any change in ownership of the Modifier in the
facility, in its location, or of the addition of a new
manufacturing facility.
i) Maintain at all times a minimum limit of $5 Million per
occurrence of Commercial General Liability insurance including
products, completed operations and blanket contractual
liability (or contractual liability coverage specific to this
Agreement) with insurers rated at least A VI by A.M. Best
Company, or other underwriters agreeable to Ford. The Modifier
shall arrange to provide Ford with a certificate or insurance
showing the coverage specified in this paragraph. The
insurance policies providing the foregoing coverage shall
provide that the insurance company issuing such policy shall
give Ford at least 30 days prior written notice of any
material alterations, including: substantial reduction of
aggregate limits, if such limits apply; or any change or
cancellation.
2. Ford Support of the QVM Program
To support the QVM Program, Ford will:
a) Provide administration and coordination for the Program.
b) Visit and inspect Modifier's facility to determine a rating,
and review the results of that rating with Modifier.
c) Advertising and promote the QVM Program.
d) Provide communication to Modifiers on current production
engineering revisions and future product engineering
revisions, including communication support through the Body
Builder Advisory Service.
e) Provide limited technical support for Modifier designs that
interface with Ford systems (not to include Modifier system
design) and guidelines for modifications.
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3. Appeal of Denial of QVM Qualification
In the event that a Modifier does not achieve a rating sufficient to qualify for
the QVM Program, it may request a reconsideration of the rating. Upon written
request, a review by the QVM Program Manager will be made. If Modifier is not
satisfied with the decision of the QVM Program Manager, then a formal review by
the QVM Steering Committee will be performed if requested by Modifier in
writing. The parties to this agreement will be bound by the decision of the
Steering Committee.
4. Indemnification
Ford and Modifier (the "parties") recognize that the burden of defending against
product liability allegations, whether or not meritless or frivolous, should be
borne by the party whose alleged negligence, wrongdoing or defective product is
at issue, regardless of whether that company is a party to the particular
litigation. The parties also recognize that, under existing law, there are
circumstances where a claimant may xxx only one party even though the defect,
wrongdoing or negligence alleged is that principal responsibility of the other
party. The parties also recognize that this results in the named defendant
bearing more - sometimes far more - than its fair share of the cost of the
litigation. In order to avoid as much as possible controversy between the
parties as to who shall defend such litigation, or bear the cost of defending
such litigation, including the cost of settlements or verdicts, the parties
agree as follows:
a) INDEMNIFICATION BY FORD. With respect to any vehicle supplied
by any Ford authorized dealer to Modifier, Ford shall
indemnify, hold harmless and protect Modifier from any loss,
damage or expense, including, without limitation, settlements,
judgments, expert fees and attorney's fees resulting from or
related to lawsuits, complaints or claims against Modifier for
property damage or personal injury where Modifier's liability,
if any, arises solely because of a defect in manufacture,
assembly, materials or design for which Ford (or Ford's
supplier) alone is responsible.
b) FORD'S DUTY TO DEFEND. Modifier will promptly notify Ford of
any lawsuit, complaint or claim which Modifier has reason to
believe may be covered by this indemnity agreement. If the
claimant's sole allegation against Modifier is that Modifier
is strictly liable for a defect for which Ford (or Ford's
supplier) alone is responsible, and if Ford's investigation
discloses no basis for Modifier's liability other than the
allegations in the lawsuit, complaint, or claim, ford will
assume Modifier's defense upon Modifier's request. Modifier,
and/or its Product liability insurance carrier, shall
cooperate fully in the defense of the action as Ford, and/or
its Product liability insurance carrier may reasonably
require. Ford shall have the right to assume Modifier's
defense at any time, provided that Ford acknowledges
Modifier's right to indemnity under this agreement.
c) INDEMNIFICATION BY MODIFIER. With respect to any vehicle
supplied by any Ford authorized dealer to Modifier, modifier
shall indemnify, hold harmless and
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protect Ford from any loss, damage or expense, including,
without limitation, settlements, judgments, expert fees, and
attorney's fees, resulting from or related to lawsuits,
complaints or claims against Ford for property damage or
personal injury, where Ford's liability, if any, arises solely
from modifications or additions made by Modifier. Liability on
the part of Ford which arises, if at all, because Ford knew or
should have knows that the modification or additions made by
Modifier were negligent, improper or defective, or that Ford
expressly or impliedly approved the modifications or additions
made by Modifier, will be deemed to be liability which arises
"solely from modifications or additions made by modifier"
within the meaning of this paragraph. However, Modifier will
not be obligated to indemnify Ford if the modifications or
additions were made pursuant to express written instructions
provided by Ford, so long as the workmanship and materials for
the modification were not of a substandard quality.
d) MODIFIER'S DUTY TO DEFEND. Ford will promptly notify Modifier
of any lawsuit, complaint or claim which ford has reason to
believe may be covered by this indemnity agreement. If Ford's
alleged liability arises solely from modifications or
additions made by Modifier, and if Modifier's investigation
discloses no basis for Ford's liability other than the
allegations in the lawsuit, complaint, or claim, Modifier will
assume Ford's defense upon Ford's request. Ford and/or its
product liability carrier shall cooperate fully in the defense
of the action as modifier, or its product liability carrier,
may reasonably require. Modifier shall have the right to
assume Ford's defense at any time, provided the Modifier
acknowledges Ford's right to indemnity under this agreement.
e) Neither party will file cross-claims or third-party complaints
against the other without notifying the other in advance.
Where practicable, the notice should be given sufficiently in
advance to allow through discussion of alternatives to such
filing.
In the appropriate case the parties shall, where settlement is or may be
warranted, make a reasonable effort to agree upon the amount each party will
contribute to settlement, based upon the nature of the plaintiff's allegations.
For example, if the case involves an allegation that a modifier's component is
defective, a reasonable allocation would require the modifier to contribute all
or most of any settlement amount. If, however, the allegation concerns a
component supplied by Ford, a reasonable allocation would require Ford to
contribute all or most of any settlement amount. It is recognized that there
will be cases or multiple allegations with respect to each part and that
allocation of responsibility will be dependent on the circumstance of the case.
If the case, for any reason, does not settle, the parties will, in advance of
trial, make a reasonable attempt to agree upon the extent to which each company
will contribute to satisfy any adverse judgment or verdict that may be returned,
based upon the principles set forth in the preceding paragraph. Based on these
principles, the parties will likewise attempt to agree upon the extent to which
each will contribute to the cost of defending the litigation, including
attorney's fees.
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In cases where both parties are named defendants, neither party will
unilaterally enter into a settlement agreement without first notifying the other
party.
5. Advertisement, Promotion
Modifier may at its option, advertise or promote its qualification under the QVM
Program. Modifier shall comply with the QVM advertising guidelines and shall
avoid in every way any deceptive, misleading, confusing or illegal advertising
promotion.
6. Trademarks and Trade Names
Modifier may not use any trademark, trade name or logo used or claimed by Ford
or any of its subsidiaries except with Ford's prior written approval. If such
approval is given, Modifier may use such trademark, trade name or logo only in
connection with ford products and then only in a manner and form approved by
ford. If, after such approval, Ford should at any time so request, Modifier
shall promptly discontinue such use.
7. Termination
a) This agreement may be terminated at will by either party by
giving at least 10 days written notice to the other party.
b) Upon the occurrence of any of the following events, Ford may
terminate this agreement immediately upon giving written
notice to Modifier:
(i) Failure of Modifier to maintain a QVM status. If the
rating is under appeal, written notice will not be
given until the appeal process is completed.
(ii) Failure of Modifier to perform any other obligation
under this agreement within five days after receiving
written request for performance from Ford.
(iii) Failure of Modifier to function in the
ordinary course of business for more than 10
consecutive business days.
c) Upon termination of this agreement, Modifier shall, as
directed by Ford, immediately cease and desist:
(i) Advertising or promoting Modifier as being qualified
under the QVM Program.
(ii) At Modifier's expense, remove from all signs used or
owned by Modifier and from all forms, stationery and
other papers used by Modifier, any reference to the
QVM Program.
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(iii) Refrain from doing anything, whether or not specified
above, that would indicate Modifier has been
qualified and the QVM Program.
d) If Modifier does not comply with this section's requirements,
Modifier shall reimburse Ford for all costs and expenses,
including reasonable attorney's fees, incurred by Ford in
enforcing compliance with this section.
8. Notice, Demand and Consent
All notices, demands and consents allowed or required by this agreement shall be
in writing and shall be given by registered or certified mail, addressed to the
address listed below or by personal delivery, and shall be deemed given when so
mailed or delivered.
Ford: Modifier: \s\Xxxxxxx X. Xxxxxxxxxx
------------------------------ --------------------------------
Ford Motor Company Starcraft Automotive Group, Inc.
------------------------------ Xxxxxxx X. Xxxxxxxxxx
------------------------------ President
9. Assignment
Modifier may not assign this agreement or delegate performance of its
obligations without the prior written consent of Ford.
10. Agency
This agreement does not create the relationship or principal and agent or
partner or joint venture between Ford and Modifier for any purpose whatsoever.
11. Entire Agreement
This agreement constitutes the entire agreement between the parties and, except
as provided elsewhere in this agreement, may be amended only by a written
agreement executed by Ford and Modifier. No course of dealing, custom or usage
of trade shall modify or supplement the terms of this agreement.
12. Applicable Law
This agreement shall be governed by and construed in accordance with the laws of
the State of Michigan as if entirely made and performed in that state.
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13. Arbitration
If a dispute arises between the Modifier and Ford, relating to this Agreement,
the following procedure shall be implemented before either party pursues other
available remedies except that either party may seek injunctive relief from a
court where appropriate in order to maintain the status quo while this procedure
is being followed:
(1) The Modifier and Ford shall hold a meeting promptly, attended
by persons with decision-making authority regarding the
dispute, to attempt in good faith to negotiate a resolution of
the dispute, provided, however, that no such meeting shall be
deemed to vitiate or reduce the obligations and liabilities of
the parties hereunder or be deemed a waiver by a party thereto
of any remedies to which such party would otherwise be
entitled hereunder.
(2) If, within 30 days after such meeting, the Modifier and Ford
have not succeeded in negotiating a resolution of the dispute,
they agree to submit the dispute to mediation in accordance
with the then-current Model Procedure for Mediation of
Business Disputes of the Center for Public Resources and to
bear equally the costs of the mediation.
(3) The Modifier and Ford will jointly appoint a mutually
acceptable mediator, seeking assistance in such regard from
the Center for Public Resources if they have been unable to
agree upon such appointment within 20 days from the conclusion
of the negotiation period.
(4) The Modifier and Ford agree to participate in good faith in
the mediation and negotiations related thereto for a period of
30 days. If the parties are not successful in resolving the
dispute through mediation, then the parties agree to submit
the matter to binding arbitration in accordance with the
Center for Public Resources Rules for Non-Administered
Arbitration of Business Disputes, by a sole arbitrator.
(5) Mediation or arbitration shall take place in the City of
Dearborn unless otherwise agreed by the parties. The
substantive and procedural laws of the State of Michigan shall
apply to the proceedings. Equitable remedies shall be
available in any arbitration. Punitive damages shall not be
awarded. This paragraph (13) is subject to the Federal
Arbitration Act, 9. U.S.C.A. Section 1, et. seq. and judgment
upon the award rendered by the arbitrator, if any, may be
entered by any court having jurisdiction thereof.
By:
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FORD MOTOR COMPANY
By: \s\Xxxxxxx X. Xxxxxxxxxx
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MODIFIER
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