AGRICULTURAL EQUIPMENT SALES & SERVICE AGREEMENT
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AGRICULTURAL EQUIPMENT SALES & SERVICE AGREEMENT
This Case IH Agricultural Equipment Sales and Service Agreement (the “Agreement”) is between CNH Industrial America LLC, a Delaware limited liability company with a principal place of business at 000 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxx, 00000 (“Case IH”), and a (corporation/limited liability company) with its address as listed on Schedule A (“Dealer”) (hereinafter “Parties” when referring to Dealer and Case IH jointly). The “Effective Date” of this Agreement is the date of acceptance by Case IH as indicated by its authorized signature. Unless sooner terminated in accordance with its provisions, this Agreement will expire on December 31, 2027 (expires).
1.1 | The purpose of this Agreement is to describe the respective functions, obligations and responsibilities of the Parties, so that each fully understands the nature of their required commitments of time, effort and capital. This Agreement establishes Dealer as an independent contractor for the promotion, retail sale and after-sale service and support of Products to Customers in Dealer’s local market. |
2.1 | Affiliate: as to Case IH, any entity that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with Case IH. For this definition, the term “control” means the power to direct the management and policies of an entity through the ownership of more than 50% of the voting securities, rights or other similar interests of that entity. |
Branch Location(s): Dealer’s additional place(s) of business listed in Schedule D for the sale, rental, lease and service of Products, separate from Dealer’s Primary Location. |
2.3 | Case IH IP: any and all intellectual property including but not limited to patents, Trademarks (including the Licensed Trademarks), designs, copyrights, trade secrets, computer software (whether imbedded in Products or otherwise) and other proprietary technology and information, whether technical or business related, including registrations for and applications to register any of the foregoing, which are incorporated or used in or with Products or which are owned or licensed by Case IH for use with Products. |
Case IH Regional Market Share: a percentage figure calculated by taking the number of units of new Case IH brand equipment for a given Product Line or Product Line grouping, sold by Case IH dealers in a regional sales area (a multi- state area determined by Case IH in its sole discretion) during a designated time period determined by Case IH, divided by the total industry volume of all comparable new units of equipment (including Case IH and competitive units) sold in that same regional sales area during that same time period. Total industry volume of new equipment sales shall be as reported by the Association of Equipment Manufacturers (or other replacement organization selected by Case IH, hereinafter “AEM”). |
Case IH State Market Share: a percentage figure calculated by taking the number of units of new Case IH brand equipment for a given Product Line or Product Line grouping, sold by Case IH dealers in a state during a designated time period determined by Case IH, divided by the total industry volume of all comparable new units of equipment (including Case IH and competitive units) sold in that same state during that same time period. Total industry volume of new equipment sales shall be as reported by AEM. |
2.6 | Customer(s): an end-user that purchases, leases or rents Products from an authorized dealer or Case IH for its own use and not for resale. |
Dealer Market Share: a percentage figure for measuring Dealer’s sales performance calculated by taking the number of units of new Equipment, by Product Line or Product Line grouping, sold by Dealer to Customers located within Dealer’s |
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Sales and Service Market (“SSM”) during a given time period as determined by Case IH, divided by the total industry volume of all new units of equipment of that same Product Line or Product Line grouping (including Case IH and competitive units) sold within Dealer's SSM during that same period, as determined and reported by AEM. For market share purposes, Dealer will only be measured against the industry sales in a given county of Dealer’s SSM to the extent of the percentage of that county assigned to Dealer.
2.10 | DOG: refers to both the Dealer Operating Guide and Parts Policy Manual or any equivalent or successor documents and amendments thereto issued by Case IH setting forth for all dealers the various policies, procedures and operating standards for doing business with Case IH. |
2.12 | Equipment: whole good machinery and any related attachments designated on Schedule B by Product Line and Licensed Trademark. |
Parts: proprietary replacement parts sold by Case IH for Equipment listed on Schedule B (specifically not including replacement parts for Case IH equipment not listed on Schedule B), together with all other common service or maintenance items (for example, including but not limited to filters, hoses, lubricants, etc.) and accessories which are offered for sale by Case IH to Dealer (either directly from Case IH or from an authorized source of supply), which Case IH has authorized to be identified with the Licensed Trademarks. Parts do not include ‘merchandise’ items such as clothing, toys, binders, gloves, etc. |
2.17 | Primary Location: the primary Dealer facility location specified in Schedule D. |
2.18 | Product(s): Equipment and related Parts that Dealer is authorized to represent under this Agreement. |
2.19 | Product Line: the categories of Products set forth in Schedule B. |
Sales and Service Market (“SSM”): a market comprised of the total industry sales of all new Equipment (as reported by AEM), including Case IH and competitive equipment, sold (including first rentals or leases) within the geographic area designated in Schedule C. |
Strategic Accounts: customer accounts typically referred to as “national accounts,” “corporate accounts,” national or regional equipment rental companies, or any customer designated by Case IH as such an account. |
Trademarks: all words, slogans, designs, pictures, logotypes or other symbols, including trademarks, service marks, trade dress, and trade names, regardless of whether registration has been sought or obtained therefor, used to (a) identify, distinguish or advertise the Products and services of Case IH or its Affiliates, (b) identify Case IH as the source or licensor of Products and services, or (c) identify the business of Case IH and its authorized dealers. |
Will Call: a program whereby Case IH, in its sole discretion, may permit Dealer to take delivery and possession of Products directly from a Will Call Provider or Case IH, in lieu of such Products being transported to Dealer at Dealer Location(s). The procedures for the Will Call program will be as set forth in the DOG. |
Will Call Provider: a third-party engaged by Case IH to facilitate Dealer's pick-up of Products at Case IH plant locations or port facilities under the terms of the Will Call program. |
Incorporation of DOG. The DOG includes the standards of quality and performance that Case IH seeks to have associated with its Trademarks and is hereby incorporated by reference into this Agreement. It is expressly understood |
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and agreed that Case IH reserves the right to modify the DOG unilaterally to reflect reasonable standards of quality and performance so long as such standards do not conflict with the terms of this Agreement.
Changes in Dealer Form and Control. Except as otherwise stated in Section 4.4, Dealer shall provide Case IH with sixty |
(60) days’ prior written notice of Dealer’s intention to change its: (a) legal form or entity; or (b) control, ownership or management. Prior to consummating any such change, Dealer must obtain Case IH’s written consent, which shall be in Case IH’s sole discretion. A “change in control, ownership or management” shall mean one or more of the following events: (i) if Dealer is an individual proprietor, withdrawal of that individual proprietor from the operation or control of Dealer; (ii) if Dealer is a partnership or limited liability company, any addition to or subtraction from the partners or members involved; (iii) if Dealer is a corporation, any change in the beneficial ownership of any of Dealer’s shares or the voting rights associated therewith; (iv) any sale of all or substantially all of Dealer’s assets; (v) any change in the composition of Dealer’s management as set forth on Schedule A; or (vi) any event, including entering into an agreement, that substantially affects, directly or indirectly, the operation or control of Dealer’s business.
Succession Plan. Upon request, Dealer shall provide a succession plan to Case IH in the format approved by Case IH. The submission of such succession plan shall not imply that Case IH has automatically accepted such plan. Case IH retains sole discretion whether to approve Dealer’s proposed succession plan. |
Ancillary Documents. Dealer will execute such agreements or other documents as Case IH in its sole discretion may deem necessary to preserve Case IH's rights under this Agreement in response to (a) any change or proposed change in Dealer's legal form or entity, (b) any change in Dealer’s control, ownership, or management, or (c) death or incapacity of any Dealer Principal. |
Authorized Products. |
(a) The Products which Dealer is authorized to purchase from Case IH for retail sale, lease or rental are those Product Lines listed on Schedule B that Case IH has authorized to be identified with the Licensed Trademarks listed on Schedule B.
(b) Upon sixty (60) days’ written notice to Dealer, Case IH in its sole discretion may amend Schedule B to i) add a Product Line(s), ii) remove a Product Line if Case IH is withdrawing such Product Line from the Domestic market, or
iii) add or remove any Licensed Trademark(s).
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(c) In the event Dealer is not meeting its obligations under this Agreement with respect to a particular Product Line or specific Equipment in a Product Line, Case IH in its sole discretion may remove such Product Line or Equipment from Schedule B with sixty (60) days’ written notice to Dealer. Dealer thereafter will no longer be authorized to sell or perform Warranty Service for such Products, and Case IH will repurchase such new Equipment from Dealer as provided in Section 29.1(a).
(d) This Agreement does not give Dealer the right to, and under the terms of this Agreement Dealer may not, purchase, market, promote, sell, lease or rent any other new (i.e. not previously sold) CNH Industrial America LLC products that are not listed on Schedule B or are not authorized to be identified with the Licensed Trademarks listed on Schedule B.
Assignment of SSM. The SSM assigned to Dealer is set forth in Schedule C. The Dealer’s SSM may vary by Equipment or Product Line. Case IH’s assignment to Dealer of an SSM is for the purpose of: (a) focusing Dealer’s sales, marketing and product support efforts; (b) measuring Dealer Market Share performance; and (c) maximizing the goodwill associated with Products and Licensed Trademarks. Dealer Market Share shall be measured only within Dealer’s SSM. Upon sixty |
(60) days’ written notice to Dealer, Case IH in its sole discretion may amend Schedule C to add to, subtract from, or otherwise modify Dealer’s SSM.
No Obligation to Support Sales Outside SSM. To the extent Case IH decides to offer marketing programs, retail sales incentives, or other promotions, it shall have no obligation to do so for Dealer’s sales or marketing activities outside of Dealer’s SSM. |
Sales & Service Fee. Case IH may assess Dealer a sales and service fee for sales of new Equipment by Dealer that are registered in a county outside of Dealer’s SSM. The amount of such fee, the operative regulations and policies, and the Equipment to which it applies are published in the DOG, and may be amended by Case IH in its sole discretion. Case IH reserves the right not to assess a sales and service fee against other dealers for their sales to Customers within Dealer’s SSM, if Dealer is failing to meet the market share obligations contained in Section 9.1(a). |
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reduced by twenty percent (20%) or more and such reduction is not for valid business reasons, said line of credit shall be deemed unacceptable to Case IH.
Adjusted Debt to Tangible Net Worth Ratio. Dealer hereby covenants and agrees that it will maintain an Adjusted Debt to Tangible Net Worth Ratio of not more than four to one (4.0:1.0). Unless specifically approved in advance in writing by Case IH, Dealer will not make any acquisitions or initiate new business activities if Dealer’s Adjusted Debt to Tangible Net Worth Ratio exceeds four to one (4.0:1.0) or if such ratio would increase beyond four to one (4.0:1.0) as a result of such actions. This ratio shall be calculated using the consolidated balance sheets and income statements of Dealer (and of Dealer’s related entities and affiliates, if Case IH so elects). All such balance sheets and income statements must be prepared in accordance with Generally Accepted Accounting Principles (“GAAP”). For purposes of calculating this ratio, the following definitions will apply: |
(a) “Adjusted Debt to Tangible Net Worth Ratio” means the ratio of Debt minus Subordinated Debt to Tangible Net Worth plus Subordinated Debt.
(b) “Debt” shall mean the aggregate amount of the Dealer’s items properly shown as liabilities on its balance sheet, determined in accordance with GAAP;
(c) “Subordinated Debt” shall mean Debt that is expressly subordinated to CNH Industrial Capital America LLC in writing acceptable to CNH Industrial Capital America LLC;
(d) “Net Worth” shall mean the aggregate amount of the items properly shown as assets on Dealer’s balance sheet minus the aggregate amount of the items properly shown as liabilities on Dealer’s balance sheet, determined in accordance with GAAP;
(e) “Tangible Net Worth” shall mean Net Worth, plus an amount equal to seventy percent (70%) of the amount reflected on Dealer’s balance sheet as a LIFO reserve, minus the aggregate amount of the items properly shown as the following types of assets on Dealer’s balance sheet determined in accordance with GAAP:
(i) goodwill, patents, non-competes, copyrights, mailing lists, trade names, trademarks, servicing rights, organizational costs, and other like assets properly classified as intangibles; and
(ii) receivables, loans and other amount due from any shareholder, director or officer of the Dealer, and receivables, loans and other amounts due from any other related or affiliated party of the Dealer.
Licensed Trademark Use. At any Dealer Location and in all advertising for such Dealer Locations, Dealer shall not use or display the Licensed Trademarks in any way that might cause confusion with, or dilute the distinctive quality of, the Licensed Trademarks, or in any way that violates any Case IH trademark guidelines. In furtherance of this provision, if Dealer represents non-Case IH products, Dealer shall at any such location: (a) maintain internal and external display areas for new Products separate from non-Case IH products; (b) display new Products in the most visible and desirable position and in an area of greater size or space than the area used to display non-Case IH products. |
Sales Responsibilities. Dealer is solely responsible for developing its own plan for marketing and selling Products, and shall fulfill its sales obligations in several ways, including but not limited to the following: |
Equipment Market Share. Dealer shall aggressively promote and sell new Equipment to attain within Dealer’s SSM for all Equipment designated on Schedule B, a Dealer Market Share that is equal to at least 90% of either, in Case IH’s sole discretion, the Case IH State Market Share or the Case IH Regional Market Share. In evaluating Dealer’s market share performance, Case IH, in its sole discretion, may (i) group Product Lines and/or (ii) evaluate Dealer’s performance on a per Dealer Location basis. |
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Sales Staff. Dealer shall employ a sufficient number of properly trained Product-dedicated sales personnel based on the industry potential in Dealer’s SSM and as required by Case IH to call on all potential customers within the SSM. Such sales personnel shall attend Case IH’s sales training sessions as required in the DOG. |
Extended Service Plans. Dealer shall promote and sell extended service and maintenance plans. |
Customer Surveys. Case IH from time to time may conduct surveys (by use of questionnaires or otherwise) of Dealer’s Customers to determine the satisfaction of those Customers with the sales, leasing, rental and service efforts of Dealer. Case IH may use the results of these surveys in assessing Dealer's performance under this Agreement. |
Sales Reporting. Dealer shall report all new Equipment retail sales to Case IH, and shall provide true and accurate information on such sales as required by Case IH, including but not limited to registering the location of such Equipment sales and the end-use designation in compliance with Case IH guidelines. |
Service Standards. Dealer shall perform Warranty Service and/or Other Required Service in a timely manner and in strict compliance with the DOG and any service bulletins or other instructions issued by Case IH. Dealer shall give priority to performing such Warranty Service or Other Required Service before general maintenance if a Customer’s Product is not operable. |
Use of Case IH-Sourced Parts. Except as otherwise instructed by Case IH in writing, Dealer shall use only Parts obtained from Case IH or Case IH’s authorized sources of supply in performing Warranty Service or Other Required Service. |
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Product Setup. To ensure the proper operation of Products, before delivery of Products to a Customer Dealer shall perform the inspections, adjustments, conditioning, installations or servicing of such Products in accordance with instructions and procedures provided by Case IH. |
Customer Instruction. At the time of delivery, Dealer shall instruct each Customer of a Product in the safe use, proper operation and required maintenance of that Product. Such instruction shall include, at a minimum: (a) reference to the operators manual and decals identifying hazards and how to avoid them, (b) identification of the safety features and functions of the Equipment, and (c) demonstration of such features and functions. |
Facility Requirements. Dealer shall establish and maintain at each authorized Dealer Location listed on Schedule D a facility to sell, service, display and store Products in accordance with facility standards contained in the DOG. |
(a) | Equipment inventory stocking and sales objectives to maximize Dealer’s Equipment sales in its SSM, but at a minimum to obtain Dealer Market Share requirements stated in Section 9.1(a), including action plans for obtaining such objectives; |
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(b) | Parts inventory stocking plan and sales objectives to maximize Dealer’s Parts sales; |
(c) | training plans for Dealer sales and service personnel, including Case IH provided training; |
(d) | advertising, promotional and marketing plans and budgets; |
(e) | action plans for Dealer’s possible expansion or upgrading of its current facilities, or for the proposed addition of new facilities; and |
(f) | any additional information required by Case IH as set forth in the DOG. |
Payment of Taxes. Dealer shall pay all license fees, sales, use, personal property, and excise taxes, duties, and any other fees, assessments or taxes which may be assessed or levied by any governmental authority against any Products which are shipped to, or are in the possession of, Dealer. |
Dealer Obligations Upon Sale. At the time of any retail sale of Products pursuant to this Agreement, Dealer shall (a) deliver to and review with the Customer Case IH’s Limited Warranty for such Products in force at the time of such sale, |
(b) have the Customer complete the operator’s manual/warranty receipt verification section of the Limited Warranty, (c) obtain the Customer’s signature on the Limited Warranty and (d) submit the signed Limited Warranty to Case IH within ten (10) days of the sales transaction. Case IH reserves the right not to reimburse Dealer for Warranty Service claims should Dealer fail to timely submit to Case IH the signed Limited Warranty.
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or its Affiliates in conjunction with the sale of Equipment, Dealer will disclose to Customer the identity of the service contract provider and will further advise that Case IH has no responsibility to fulfill the obligations of such service contract.
Actions Voiding Limited Warranty. Dealer acknowledges and agrees that any breach of Sections 5.4 or 5.5 may result in Case IH voiding the Limited Warranty for Products in its sole discretion, and Dealer must so advise its Customer in writing to whom such Product has been sold. In such a case where Case IH elects to void the Limited Warranty, as between Dealer and Case IH, Dealer shall be solely responsible for any warranty service claims relating to such Product. |
Use of Unauthorized Parts. In the event Dealer breaches Section 10.1(d), Case IH in its sole discretion may (a) refuse to reimburse Dealer for such Warranty Service and/or Other Required Service, (b) void Case IH’s Limited Warranty for such Products, and/or (c) hold Dealer solely responsible for all Warranty Service relating to such Products. |
Financial Statements. Dealer shall submit to Case IH, within ninety (90) days after the end of Dealer’s fiscal year, audited (or where audited are not available then certified) balance sheets and financial statements for that year. |
Case IH Applications. Dealer shall subscribe to, install and maintain required software applications as communicated to Dealer by Case IH or as set forth in the DOG, including (but not limited to) the Electronic Parts Catalog applications. |
Operating Costs. Dealer shall pay all costs, including taxes, for the DMS, the Dealer-to-Case IH network connection, and any monthly access charges for use of the System. |
Disclaimer of Liability. Case IH shall not be responsible or liable for any defects, problems or resulting damages incurred by Dealer from the operation and use of the DMS, the Dealer-to-Case IH network connection, or the System. |
18. Marketing & Promotional Support
18.1 | Marketing Assistance. To assist Dealer in its marketing and promotional efforts, Case IH will develop the following marketing and promotional materials: (a) training and videos of Product features, operations, demonstrations and competitive comparisons; (b) Product sales literature and brochures; (c) Product and promotional posters, banners and |
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point of sale materials; (d) print and media copy for advertisements in newspapers, magazines, and trade publications; and (e) radio and television advertising scripts. Case IH may also make cooperative advertising funds available to Dealers, in its sole discretion.
18.2 | Communications to Dealer. Dealer expressly consents to the receipt of unsolicited commercial faxes, emails, text messages, instant messages or other form of electronic communication, from Case IH, its Affiliates, or other Case IH- designated sender. |
18.3 | Products and Services Provided by Case IH. From time to time, Case IH will provide Dealer with certain products and services necessary for Dealer to market, sell and service Products. Dealer agrees that Case IH, in its discretion, may charge Dealer for any such products or services so provided. |
18.4 | Dealer Knowledge of SSM. Case IH expects Dealer to know and understand its market area and the promotional activities that would best be used to market Products within Dealer’s SSM. As such, it is Dealer’s responsibility to determine which marketing and promotional materials to use in its marketing efforts to meet its sales responsibilities under this Agreement. |
Delivery Dates. Case IH shall endeavor to meet the delivery date specified in the System, but shall have no liability for failing to timely fill or deliver any order. |
Product Shipment. Case IH shall arrange delivery of Products to Dealer and reserves the right to determine the method and routing for such delivery. Case IH shall not be responsible for guaranteeing shipping rates or for delays in shipment. Case IH, in its discretion, may permit Dealer to designate orders for Will Call delivery pursuant to the terms of the DOG. |
Risk of Loss / Passage of Title. Case IH’s release of Products to any carrier for transportation to Dealer shall constitute delivery to Dealer for purposes of passage of title, and Dealer shall bear all risk of loss or damage to Products thereafter. For Will Call orders, risk of loss and passage of title shall be as set forth in the DOG. |
Equipment Transfer. The transfer of Equipment from Dealer to other authorized dealers of Products shall be in accordance with Case IH’s transfer program described in the DOG. Case IH shall have no liability as a result of any such transfer. |
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pay, on Dealer’s behalf, the wholesale finance interest charges associated with that specific Equipment, and may decline to make available to Dealer any retail sales programs for such Equipment.
Domestic Sales Only. Without Case IH’s prior written approval, Dealer shall not sell, lease or rent Products outside of the Domestic United States. |
Retail Sales Only. Dealer shall sell Products only to retail Customers or to other authorized dealers of Products. As such, except for sales to authorized Case IH dealers, Dealer may not sell any Products at wholesale, including but not limited to sales to jobbers, jockeys, or other unauthorized dealers. |
No Deceptive or Unethical Practices. Dealer shall conduct business in a manner that will reflect favorably at all times on Dealer, Case IH, Products, Licensed Trademarks and other authorized dealers of Products. Dealer shall refrain from business practices, advertisements, promotions and conduct that are unethical, deceptive, misleading, fraudulent, confusing or would likely contravene any voluntary or involuntary advertising standard or any law. Dealer shall not make, directly or indirectly, any false or misleading statement or representation concerning any Product, its source, condition, capabilities, price, or charges for the Product’s distribution, delivery, taxes or other items. |
Compliance with Federal, State and Local Laws. Dealer shall comply with all applicable federal, state, and local laws and regulations governing Dealer’s operations and its ordering, sales and service of Products, including without limitation those laws or regulations concerning safety, emissions control and customer service. Dealer shall obtain all governmental approvals, permits or licenses required to do business in its SSM. |
Compliance With Export Laws. Certain Products purchased by Dealer from Case IH may be subject to United States export control laws. Dealer agrees that it is responsible for knowing and complying with such laws. Diversion contrary to United States law is prohibited. |
(a) | Dealer and its Dealer Principals represent that they have not been convicted of, or pleaded guilty to, an offense involving fraud or corruption and that they are not now listed by any government agency as debarred, suspended, or proposed for suspension or debarment, or otherwise ineligible for any government bid or procurement programs. Dealer agrees to promptly inform Case IH of any change in this representation. |
(b) | Dealer shall become familiar with and strictly comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption, including but not limited to the United States Foreign Corrupt Practices Act and similar anti-corruption or anti-bribery laws. Dealer shall promptly report to Case IH any request or demand for any undue financial or other advantage of any kind received by Dealer in connection with the performance of this Agreement. Dealer warrants that it has no foreign public officials as direct or indirect owners, officers or employees at the date of this Agreement, and shall immediately notify Case IH in writing if a foreign public official becomes an officer or employee of Dealer or acquires a direct or indirect interest in Dealer. |
Product Changes and Improvements. Case IH may make changes or improvements at any time in the specifications, construction, color and design of Products without incurring any obligation to Dealer or Dealer’s Customers. |
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23.1 Direct Sales in Dealer’s SSM. Within Dealer’s SSM or elsewhere, Case IH reserves the unrestricted right, without liability to Dealer, to directly sell, rent or lease Products to any Customer, person or entity, including both at wholesale or retail, and permit such Customer, person or entity to service Products, including but not limited to the following: (a) governmental entities, agencies, institutions or subdivisions thereof; (b) educational and charitable institutions; (c) rental companies; and (d) accounts classified by Case IH as Strategic Accounts or other similar designation.
Permitted Uses. Dealer shall and is permitted to: (a) use the Licensed Trademarks to identify and advertise its business at Dealer Locations in connection with the marketing, sale, distribution and service of Products under the Licensed Trademarks; (b) use the Licensed Trademarks only in connection with the marketing, sale, distribution and service of the Products for which Case IH has authorized them to be used; (c) identify itself (and not Case IH) as the owner of Dealer’s business in conjunction with any use of the Licensed Trademarks, including the use thereof on leases, invoices, order forms, receipts, and business stationery, as well as at such other locations and in the manner as Case IH may designate in the DOG; and (d) use the Licensed Trademarks to identify itself as an authorized dealer of Products. |
Prohibited Uses. Dealer shall not: (a) use the Licensed Trademarks (or any other Trademarks owned or licensed by Case IH or its Affiliates) as part of its corporate or other legal name without the prior written consent of Case IH; (b) sublicense or assign its right to use the Licensed Trademarks to any other person or entity; (c) use the Licensed Trademarks to incur any obligation or indebtedness on behalf of Case IH; (d) manufacture or purchase objects bearing Licensed Trademarks or Trademarks from unlicensed sources or apply, or have applied, Licensed Trademarks or Trademarks to objects that will be offered for sale or provided as promotional items by Dealer or any third party, specifically including but not limited to any clothing item (such as shirts, hats or other apparel), giftware, toys or other sundry items; and (e) register, attempt to register, obtain any ownership in, or otherwise use any Internet Registration (defined as any website, domain name, URL, internet/World Wide Web presence or feature, social media account designations, or other electronic communications portal) whose domain name, URL or other electronic communications portal contains, incorporates, or consists of the Licensed Trademarks or Trademarks without Case IH’s express written consent, which may be withheld for any or no reason. |
Unauthorized Internet Registrations. In the event that Dealer registers, attempts to register, obtains any ownership in, or otherwise uses any Internet Registration in violation of this Agreement, in addition to any rights Case IH may have under this Agreement, Dealer hereby acknowledges and agrees that any such Internet Registration, including any copyrights therein, shall be deemed to be the property of Case IH. Dealer will assign, transfer or assist in the perfection of any rights necessary to transfer said registration to Case IH with no compensation to Dealer and at no additional cost to Case IH. In the event that a court of competent jurisdiction determines that any ownership rights to any Internet Registration are not automatically transferred to Case IH pursuant to this Agreement, Dealer agrees to execute any documents deemed necessary by Case IH to give effect to this provision. Case IH may condition approval of Dealer’s use of any such Internet Registration on the transfer to Case IH of any and all ownership rights therein, including any copyrights. In the event that this Agreement expires or is terminated, Dealer shall not use or register a domain name that includes, or in Case IH's sole discretion is confusingly similar to, a Licensed Trademark or any other Trademark. |
Validity of Licensed Trademarks. Dealer expressly understands and acknowledges that the Licensed Trademarks are valid and serve to identify Products and those authorized by Case IH to market, sell, distribute, and service Products. Dealer shall not directly or indirectly contest, attack, oppose, attempt to cancel or otherwise challenge in any manner or |
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in any forum, the validity of the Licensed Trademarks or Case IH’s ownership of, or Case IH’s right to use or license others to use, the Licensed Trademarks, either during or after the term of this Agreement.
Ownership of Licensed Trademarks and Goodwill. Dealer acknowledges the Licensed Trademarks are exclusively owned by Case IH. Dealer’s use of the Licensed Trademarks pursuant to this Agreement does not give Dealer any ownership interest or other interest in or to the Licensed Trademarks. Dealer shall execute any documents deemed necessary or useful by Case IH to obtain protection for the Licensed Trademarks or to maintain their validity and enforceability. Any and all goodwill arising from Dealer’s use of the Licensed Trademarks shall inure solely and exclusively to the benefit of Case IH. Upon expiration or termination of this Agreement, no monetary amount shall be attributable to any goodwill associated with Dealer’s use of the Licensed Trademarks or the sale and service of Products. |
(a) removal of Authorized Software from the Product for which it was obtained or authorized, (b) service by any unauthorized person, (c) use of Authorized Software on any product other than that for which it was obtained or authorized, or (d) any breach of this Software License by Dealer.
26. Company Information and Case IH IP
26.1 | Company Information. Periodically, Case IH will provide Dealer with proprietary, confidential information, technical knowledge and/or assistance, and other materials that derive value from not being generally known in the industry (“Company Information”) that are reasonably necessary for the distribution, sale, promotion and service of Products. Case IH has sole discretion to determine what information it provides to Dealer is Company Information. Dealer agrees that Company Information remains the property of Case IH. Dealer must take commercially reasonable measures, but in any event no less strict than the measures Dealer uses with its own confidential information, to maintain the confidentiality of Company Information and to ensure that all Company Information is used only to sell and service Products in accordance with this Agreement. Dealer may disclose Company Information only to those of its employees who will need it and must take all necessary measures to ensure that those persons do not reveal Company Information to any third parties without the prior written authorization of Case IH. Dealer shall be responsible and liable to Case IH for any breach of this provision by its employees, agents or representatives. |
26.2 | Return of Company Information. Dealer acknowledges that Case IH provides Company Information to Dealer for use by Dealer pursuant to this Agreement. Therefore, upon expiration or termination of this Agreement for any reason, Dealer shall immediately return to Case IH all Company Information in any form. |
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26.3 | No Reverse Engineering. Dealer shall not engage in, cause to be engaged in, or permit any reverse engineering of Authorized Software, Products, or component parts thereof. “Reverse engineering” is defined as attempting through analysis of Products or component parts thereof to determine their functionality and thereby gain the ability to alter or reproduce that functionality. |
26.4 | Right to Use Case IH IP. Dealer shall use Case IH IP only in accordance with the provisions of and for the purposes contemplated by this Agreement and in accordance with any procedures that Case IH may establish for use of Case IH IP. |
(a) | Except where termination of the Agreement due to Dealer’s breach is allowed immediately pursuant to Section 27.4, and except as stated in Sections 27.3(b) and (c), in the event that either Dealer or Case IH fails to fulfill any of their responsibilities under this Agreement, the other party may terminate this Agreement by providing ninety (90) days’ written notice listing the reasons for termination, within which period the other party will have sixty (60) days to rectify the identified breach and avoid termination. |
(b) | If Dealer breaches Section 7.2, Case IH may, in its sole discretion, terminate the Agreement upon ninety (90) days’ advance written notice to Dealer. However, during this ninety (90)-day period, Dealer may cure its breach of Section 7.2 by providing Case IH, within sixty (60) days of Case IH’s notice to Dealer, a written plan to return to compliance with Section 7.2 within twelve (12) months from the date of Case IH’s notice. Thereafter, if Dealer fails to perform such submitted plan, Case IH may terminate the Agreement with thirty |
(30) days’ written notice.
(c) | If Dealer is in breach of Section 9.1(a), Case IH may terminate Dealer for such default only after providing Dealer with written notice and a twelve (12)-month period within which Dealer may cure such default to Case IH’s sole satisfaction. |
(d) | A breach by Dealer of any other written agreements between Dealer and Case IH or its Affiliates that is due to fraud committed by Dealer, shall also be considered a breach under this Agreement allowing Case IH to immediately terminate the Agreement. |
(e) | As an additional or alternative remedy for any breach by Dealer of the Agreement, Case IH, in its sole discretion and after providing Dealer with an opportunity to cure said breach as provided in Sections 27.3(a), |
(b) or (c), may amend Schedule D to remove authorization for the Dealer Location at which such breach occurred. In such event, Dealer shall cease all activities related to the display, stocking, sales and service of Products at such Dealer Location, including the use of Licensed Trademarks, and Case IH will repurchase new Parts and Signs located only at such Dealer Location as provided in Sections 29.1(b) and (c).
Loss of Wholesale Credit Line: the termination (or suspension where such suspension continues for more than sixty (60) calendar days), of any of Dealer’s significant wholesale lines of credit for the purchase of new Products; |
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Change in Dealer Entity, Control, Ownership or Management: without the prior written consent of Case IH: (i) any change in Dealer’s legal form or entity; (ii) any change in Dealer’s control, ownership or management (as defined in Section 4.3) listed in Schedule A; or (iii) any assignment or attempted assignment by Dealer of this Agreement; |
Misrepresented or False Information: Dealer or anyone acting on its behalf has: (i) submitted false records, contracts, statements, reports or documents to Case IH or any of its Affiliates, including CNH Capital; (ii) submitted any false or fraudulent documents for Dealer Claims or in support thereof; (iii) knowingly accepted any payment from Case IH for any work not performed by Dealer in accordance with the provisions of this Agreement or the DOG; or (iv) submitted false information in applying for appointment as an authorized dealer of Products; |
Failure to Operate: failure to operate any Dealer Location in the normal course of business for seven (7) consecutive calendar days; |
Dealer Closure/Loss of License: (i) a permanent closure of any Dealer Location without the prior written consent of Case IH; or (ii) the revocation, suspension or other invalidation of any Dealer license, permit or authorization necessary to conduct business pursuant to this Agreement; |
Detrimental Conduct: any conduct by Dealer or any Dealer Principal which in the sole discretion of Case IH: |
(i) is injurious or detrimental to Dealer’s Customers, the public welfare, other authorized dealers of Products, or the reputation of Case IH, Products and the Licensed Trademarks; (ii) is unbecoming of a reputable business person; (iii) is abusive or threatening to any Case IH employee; or (iv) evidences a disagreement between any Dealer Principals that in Case IH’s opinion adversely affects the operation of Dealer or the good name, goodwill or reputation of Case IH, Products, Licensed Trademarks, or Dealer;
(p) | Unauthorized Location: any breach of Section 12.2 of the Agreement. |
Termination At Will. This Agreement may be terminated at any time at will, without cause, upon sixty (60) days’ written notice by Dealer to Case IH, or as mutually agreed upon in writing by both Parties. |
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and any promotion or advertising that associates Dealer with Products, the Licensed Trademarks, or Case IH; and (c) at Case IH’s request, provide to Case IH all sales records, mailing lists, customer lists, service history records, microfiche, catalogs, registrations and any other material of any kind relating to the promotion, marketing, sale, operation or servicing of Products covered by this Agreement. If Dealer fails to promptly comply with any of its obligations upon the termination or expiration of this Agreement, including but not limited to Dealer’s obligations under this section, Case IH may take steps, as it deems necessary in its sole discretion, to effect Dealer’s compliance with such obligations or the same result as would be realized by Dealer’s compliance, and Dealer shall reimburse Case IH for all costs and expenses, including attorney's fees, incurred by Case IH in effecting or enforcing such compliance.
Financial Obligations. Upon the termination or expiration of this Agreement, all indebtedness of Dealer shall become immediately due and payable to Case IH, and Dealer shall promptly pay Case IH all sums owed by Dealer. Final settlement of Dealer’s account with Case IH shall not be made until Dealer complies with all requirements of this Agreement. |
Equipment Eligible for Repurchase. New, undamaged, salable, current, complete and unused Equipment, including attachments, purchased from Case IH and delivered to Dealer within twenty- four (24) months of the date this Agreement terminates or expires (“Repurchasable Equipment”). For purposes of this Section, “current” means the model or series of Equipment listed in Case IH’s price book or price list at the date of termination or expiration of the Agreement. Case IH will only repurchase separate attachments that were not previously installed on Equipment and which were invoiced separately to Dealer. |
Equipment Repurchase Price. Repurchasable Equipment shall be repurchased at the price paid by Dealer (A) not including transportation costs actually paid or incurred by Dealer for initial delivery, |
(B) less any discounts which may have been allowed or paid thereon by Case IH, (C) adjusted where appropriate to account for any damage or weathering. Case IH shall not be obligated to reimburse Dealer’s initial costs for unloading, set up, or preparation of Repurchasable Equipment.
(E) are not in correct order multiples; (F) are coded non-returnable in the current parts Price List; or
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(G) are common service or ‘maintenance’ items, rather than repair parts, such as oil, filters, fluids, lubricants, tires, batteries, tracks, bucket edges and teeth.
Parts Repurchase Price. Repurchasable Parts shall be repurchased at the then current dealer price (less discounts and freight), less a restocking charge as set forth in the Parts Return Policy. |
Merchandise Items. ‘Merchandise’ items such as clothing, toys, binders, gloves, etc., are not eligible for repurchase. |
Signs. |
Sign Repurchase Price. Repurchasable Signs shall be repurchased at the amount paid by Dealer, less an annual depreciation of twenty-five percent (25%). |
Conditions Precedent to Payment. Any costs incurred by Case IH in discharging all or any part of Dealer’s obligations under this Agreement, including but not limited to Dealer’s obligations to cease all use of the Licensed Trademarks or to pack, load and ship Parts to Case IH, shall be deducted from any amount owed by Case IH to Dealer. Dealer shall not be entitled to payment or credit for returned items until Dealer has complied with all applicable laws, rules, regulations and other legal requirements governing the bulk transfer of inventory or similar protection of creditors. Case IH shall have the right to withhold from the price of any items repurchased pursuant to this section a sum sufficient to discharge any liens or encumbrances against such items and to discharge such liens or encumbrances. Dealer shall execute such documents and take any additional action requested by Case IH to transfer ownership of returned items, free and clear of any claims, liens or encumbrances. |
Other Return Items. Upon expiration or termination of this Agreement, Dealer shall return to Case IH any materials (such as sales promotion, advertising and training materials, tools and signs) provided without charge to Dealer by Case IH or any predecessor. |
Disclaimer of Consequential Damages. The Parties both understand and agree that this Agreement is of a limited duration, and therefore, except as provided herein, neither party shall be liable to the other for any damages caused by the termination or expiration of this Agreement, whether based upon loss of anticipated sales or prospective profits, expenditures, investments, leases, property improvements or other matters related to the business of the Parties. The damages to which either party may be entitled for breach of this Agreement are limited to actual out-of-pocket expenses incurred as a direct result of the breach. |
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Case IH and Dealer. Neither of the Parties shall attempt to consolidate or otherwise combine in any manner a dispute resolution proceeding involving Case IH or Dealer with another dispute resolution proceeding of any kind.
Limitations Period. All claims for any breach of this Agreement, and all claims arising out of the relationship between the Parties established by this Agreement, shall be made within two (2) years from the date such claim accrued. |
Case IH IP. Except as otherwise provided in this Section with respect to Authorized Software and Licensed Trademarks, Case IH will indemnify, defend and hold harmless Dealer from all loss, cost, liability, and expense arising out of any claim based on an allegation that any Product infringes a valid patent, copyright, or trademark or misappropriates any protectable and enforceable trade secret. Case IH shall have no obligations under this provision for any Product that has been the subject of unauthorized modifications by Dealer or any third party or for infringement that results from the use of intellectual property other than Case IH IP in conjunction with Case IH IP that would otherwise not be infringing. If any Product becomes, or in Case IH’s opinion is likely to become, subject to such a claim of infringement, Case IH will, at its expense and at its option, either procure the right for Dealer and Dealer’s Customers to continue using the infringing Product(s) or replace or modify the Case IH Product(s) so that they are no longer infringing. Upon failure of the foregoing provisions, Case IH may, at its option, refund the purchase price for the infringing Product(s) less a reasonable allowance for use. This section states the entire liability of Case IH for infringement by any Product. |
Dealer Cooperation. In the event of any litigation relating to Dealer’s use of the Licensed Trademarks, Authorized Software, or Case IH IP, Dealer shall promptly notify Case IH of such litigation and shall execute any and all documents and undertake such acts as may, in the opinion of Case IH, be necessary or useful to carry out such defense or prosecution, including becoming a nominal party to any legal action. Except to the extent that such litigation is the result of Dealer’s use of the Licensed Trademarks, Authorized Software, or Case IH IP in a manner inconsistent with the terms and conditions of this Agreement, Case IH agrees to reimburse Dealer for its out-of-pocket costs in undertaking such acts. |
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negligent or improper, or alleged negligent or improper, repair or servicing of Products, whether such actions occur during or after the Term of this Agreement.
Governing Law. This Agreement shall be governed by and interpreted according to the laws of the state of Dealer’s Primary Location, without regard to such state’s conflicts of laws rules and except to the extent governed by the United States Trademark Act of 0000 (Xxxxxx Xxx), the Copyright Act, and the Patent Act. |
Consent to Jurisdiction and Venue. Dealer irrevocably submits itself to the exclusive jurisdiction of the federal court of the Milwaukee Division of the Eastern District of Wisconsin for the purpose of any suit, action, or other proceeding arising out of or relating to this Agreement, or of any of the transactions contemplated thereby, and irrevocably agrees that all claims in respect of such suit, action or proceeding may be heard and determined in such federal court, provided that Case IH may apply to any court of competent jurisdiction for interim protection or equitable relief such as an interlocutory or interim injunction. If the federal court of the Eastern District of Wisconsin lacks jurisdiction for any reason to hear such claims, Dealer irrevocably submits itself to the exclusive jurisdiction of the Circuit Court of Racine County, Wisconsin. By execution and delivery of this Agreement, Dealer irrevocably waives, to the fullest extent it may effectively do so, and agrees not to assert, by way of motion, as a defense, or otherwise, in any such suit, action, or proceeding, any claim that it is not personally subject to the jurisdiction of the above-named courts for any reason whatsoever. The Parties agree that a final judgment (as to which all appeals have been exhausted or the time within which such appeals may be made has expired) in any such suit, action or proceeding shall be conclusive and may be enforced in any other jurisdiction by suit on the judgment or in any other manner provided by law. |
Compliance With Local Laws. The rights and obligations of the Parties to this Agreement may be subject to certain laws, orders, regulations, directions, restrictions, and limitations of governments and governmental agencies having jurisdiction over the Parties. If a change in any such law, order, regulation, direction, or restriction (including any limitation, appropriation, seizure, or interpretation thereof) shall, in the judgment of either party, substantially alter the relationship between the Parties, this Agreement, or the advantages derived from the Parties’ relationship, either party may request the other party to modify this Agreement. If, within thirty (30) days after such a request has been made, the Parties are unable to agree upon a mutually satisfactory modification of this Agreement, then the adversely affected party may terminate this Agreement on fifteen (15) days’ notice given to the other party. |
Dealer Relationship to Case IH. The Parties are independent businesses and neither has any fiduciary obligation to the other, and Dealer is an independent retailer which purchases Products for resale for Dealer’s principal benefit. Nothing in this Agreement shall be construed as constituting Dealer to be an employee, franchisee, agent or legal representative of Case IH for any purpose whatsoever. Dealer has no right or authority, express or implied, to assume or create any obligation or responsibility on behalf of or in the name of Case IH, or to bind Case IH in any manner. |
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By Case IH. Upon written notice to Dealer, Case IH may assign this Agreement and any rights and obligations thereunder to any Affiliate of Case IH or to any entity that succeeds to the interests of Case IH. |
Review by Counsel. Dealer acknowledges that it has had an adequate opportunity to review this Agreement and consult with legal counsel of its own choosing regarding the content and meaning of this Agreement. |
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Dealer Dealer Name
By
Title (authorized owner, officer, partner, president)
Date
Signature of Other Partner(s) or Owner(s)
Case IH | CNH Industrial America LLC |
By
Director, Case IH Network Development Title
Date
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![caseihssatemplateimage3.jpg](https://www.sec.gov/Archives/edgar/data/1409171/000140917117000035/caseihssatemplateimage3.jpg)
Agricultural Equipment Sales and Service Agreement
CNH Industrial America LLC
DEALER LEGAL INFORMATION, OWNERSHIP AND MANAGEMENT
Business Structure Dealer Conducts Business Under: State of Organization:
Owners of Dealer (individual(s) having a financial interest in Dealer):
Name Percent of Ownership
Management (person(s) responsible for key aspects of day to day operations of Dealer):
PRODUCTS & LICENSED TRADEMARKS
Legal Entity Name: Trade (DBA) Name: Primary Location Address:
(Street, City, State and Zip Code)
AUTHORIZED PRODUCT LINE(S)
TOTAL AG | SPS | SSL | ||||||||||||||
LT | AG | FW | GH | HF | DT | SF | FT | AS | PT | TF | SC | CT | TS | SL | ||
Dealer City | Dealer State | 60 HP & Under Plus Case IH Scouts | 2WD Tractors above 60 HP | 4WD | Combine | H&F | Yield Till | Strip Till | Pull Fert. | Air Seed | Pull Spray | Floater | Sugar- cane | Cotton | SP Spray | Skid Steer |
Authorized Licensed Trademark(s): Case IH, Case Construction, CNH Industrial Parts
![caseihssatemplateimage5.jpg](https://www.sec.gov/Archives/edgar/data/1409171/000140917117000035/caseihssatemplateimage5.jpg)
Legal Entity Name: Trade (DBA) Name:
Primary Location Address:
SCHEDULE C
Agricultural Equipment Sales and Service Agreement SALES AND SERVICE MARKET OF RESPONSIBILITY
(Street, City, State and Zip Code)
CNH Industrial America LLC
EX: If the Dealer is assigned 50% of the industry sales volume in county "X" in which 100 units of a given product line is sold, then the Dealer's SSM for that Product Line is 50% of the 100 units, or 50 units.
Director, Network Development
The chart below identifies, by Product Line, the percentage portion of the market of industry unit sales within the geographic area for which the Dealer has sales and service responsibility.
Date
Dealer Code | Dealer City, State | County Assignment | ST | Total AG | SPS | SSL |
![caseihssatemplateimage6.jpg](https://www.sec.gov/Archives/edgar/data/1409171/000140917117000035/caseihssatemplateimage6.jpg)
Agricultural Equipment Sales and Service Agreement
CNH Industrial America LLC
DEALER LOCATIONS
Legal Entity Name: Trade (DBA) Name:
Type | Xxxxxx Xxxxxxx | Xxxx | XX | Xxx Code | Equipment, Parts & Service | Parts Only | Parts & Service Only | Set-up Facility | Corp Office | GSC | Dual Location |
Primary | |||||||||||
Branch | |||||||||||
Branch | |||||||||||
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Branch | |||||||||||
Branch | |||||||||||
Branch | |||||||||||
Branch | |||||||||||
Branch | |||||||||||
Branch | |||||||||||
Branch | |||||||||||
Branch | |||||||||||
Branch |