EXHIBIT
10.2.5.2
SUZUKI DEALER SALES AND SERVICE AGREEMENT
STANDARD PROVISIONS
TABLE OF CONTENTS
Page
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1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. PLACE OF BUSINESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.1 Location . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.2 Identification and Signs.. . . . . . . . . . . . . . . . . . . 3
2.3 Business Hours.. . . . . . . . . . . . . . . . . . . . . . . . 3
3. RETAIL SALES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.1 Suzuki Products and Tradenames.. . . . . . . . . . . . . . . . 4
3.2 Personnel. . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.3 Inventory Responsibility.. . . . . . . . . . . . . . . . . . . 4
3.4 Standard Accounting System.. . . . . . . . . . . . . . . . . . 4
3.5 Sales Records and Reports. . . . . . . . . . . . . . . . . . . 4
3.6 Retail Delivery Report.. . . . . . . . . . . . . . . . . . . . 5
3.7 Dealer Reports.. . . . . . . . . . . . . . . . . . . . . . . . 5
3.8 Electronic Data Processing Requirements. . . . . . . . . . . . 5
3.9 Dealer Directives. . . . . . . . . . . . . . . . . . . . . . . 5
3.10 Promotions.. . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.11 Suzuki Product Orders. . . . . . . . . . . . . . . . . . . . . 5
3.12 Distribution and Delivery. . . . . . . . . . . . . . . . . . . 6
3.13 Force Majeure. . . . . . . . . . . . . . . . . . . . . . . . . 6
3.14 Suggested Retail Prices. . . . . . . . . . . . . . . . . . . . 6
3.15 Title. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.16 Security Interest. . . . . . . . . . . . . . . . . . . . . . . 7
3.17 Termination. . . . . . . . . . . . . . . . . . . . . . . . . . 7
4. SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.1 Service Records. . . . . . . . . . . . . . . . . . . . . . . . 7
4.2 Recommended Service Procedures . . . . . . . . . . . . . . . . 7
4.3 Records and Manuals. . . . . . . . . . . . . . . . . . . . . . 7
4.4 Service Schools. . . . . . . . . . . . . . . . . . . . . . . . 7
4.5 Service Personnel. . . . . . . . . . . . . . . . . . . . . . . 7
4.6 Recall Procedures. . . . . . . . . . . . . . . . . . . . . . . 8
4.7 Dealer Distributed Literature. . . . . . . . . . . . . . . . . 8
4.8 Notice of Complaints.. . . . . . . . . . . . . . . . . . . . . 8
5. CAPITALIZATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.1 Net Working Capital. . . . . . . . . . . . . . . . . . . . . . 8
5.2 Flooring and Lines of Credit . . . . . . . . . . . . . . . . . 8
6. CREDIT, FINANCE AND PAYMENTS. . . . . . . . . . . . . . . . . . . . . . . . 9
6.1 Sales. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
6.2 Payment for Suzuki Vehicles. . . . . . . . . . . . . . . . . . 9
6.3 Open Account.. . . . . . . . . . . . . . . . . . . . . . . . . 9
6.4 Security Interest. . . . . . . . . . . . . . . . . . . . . . . 9
6.5 Title. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
6.6 Costs of Return. . . . . . . . . . . . . . . . . . . . . . . . 9
6.7 Effect of Termination. . . . . . . . . . . . . . . . . . . . . 9
7. ADVERTISING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
7.1 Advertising Standards. . . . . . . . . . . . . . . . . . . . .10
7.2 Participation. . . . . . . . . . . . . . . . . . . . . . . . .10
7.3 Voluntary Dealer Cooperative Advertising Association.. . . . .10
8. TRANSPORTATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
8.1 Delivery.. . . . . . . . . . . . . . . . . . . . . . . . . . .10
8.2 Refusal of Delivery. . . . . . . . . . . . . . . . . . . . . .11
8.3 Force Majeure. . . . . . . . . . . . . . . . . . . . . . . . .11
8.4 Risk of Loss.. . . . . . . . . . . . . . . . . . . . . . . . .11
8.5 Product Return.. . . . . . . . . . . . . . . . . . . . . . . .11
9. PRODUCT WARRANTY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
9.1 Warranty Records.. . . . . . . . . . . . . . . . . . . . . . .11
9.2 Warranty Responsibility. . . . . . . . . . . . . . . . . . . .12
9.3 Dealer Obligation. . . . . . . . . . . . . . . . . . . . . . .12
9.4 Warranty Service and Credit. . . . . . . . . . . . . . . . . .12
9.5 No Other Warranties. . . . . . . . . . . . . . . . . . . . . .12
10. PARTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
10.1 Inventory. . . . . . . . . . . . . . . . . . . . . . . . . . .12
10.2 Genuine Suzuki Replacement Parts . . . . . . . . . . . . . . .12
10.3 Shipment Acceptance. . . . . . . . . . . . . . . . . . . . . .12
11. TERMINATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
11.1 Termination by DEALER. . . . . . . . . . . . . . . . . . . . .13
11.2 Termination by SUZUKI. . . . . . . . . . . . . . . . . . . . .13
11.3 Sixty (60) Days' Notice. . . . . . . . . . . . . . . . . . . .13
11.4 Fifteen (15) Days' Notice. . . . . . . . . . . . . . . . . . .14
11.5 Operation of the Law.. . . . . . . . . . . . . . . . . . . . .15
11.6 Termination Liability. . . . . . . . . . . . . . . . . . . . .15
11.7 SUZUKI Option to Repurchase. . . . . . . . . . . . . . . . . .16
11.8 Application of Credit. . . . . . . . . . . . . . . . . . . . .17
12. INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
12.1 Indemnification by SUZUKI. . . . . . . . . . . . . . . . . . .17
12.2 Indemnification by DEALER. . . . . . . . . . . . . . . . . . .18
13. MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . .18
13.1 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . .18
13.2 Expenses.. . . . . . . . . . . . . . . . . . . . . . . . . . .19
13.3 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
13.4 Set Off. . . . . . . . . . . . . . . . . . . . . . . . . . . .19
13.5 No Assignment. . . . . . . . . . . . . . . . . . . . . . . . .19
13.6 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
13.7 Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
13.8 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . .19
13.9 Modification . . . . . . . . . . . . . . . . . . . . . . . . .20
13.10 Arbitration. . . . . . . . . . . . . . . . . . . . . . . . . .20
13.11 Partial Invalidity.. . . . . . . . . . . . . . . . . . . . . .20
13.12 Attorneys' Fees. . . . . . . . . . . . . . . . . . . . . . . .20
Suzuki Dealer Sales and Service Agreement
STANDARD PROVISIONS
The following Standard Provisions have been made a part of, and are incorporated
by reference, in the American Suzuki Motor Corporation Dealer Sales and Service
Agreement and shall apply to and govern the transactions, dealings, and
relations between SUZUKI and DEALER.
1. DEFINITIONS
For the purpose of this Agreement the following terms set forth below shall
be defined as indicated:
(a) "Accessories": All accessories for Suzuki Vehicles as defined
in (o) herein below, distributed in the United States by
SUZUKI.
(b) "Agreement": This Agreement and the Dealer Application,
Facility Standards Addendum, Dealer Minimum Standards Addendum
and Dealer Updates as may be issued from time to time.
(c) "Dealership": The business of the DEALER located at the
designated Dealer Premises.
(d) "Dealer Application": The signed application of the DEALER
presented to SUZUKI which will become part of this Agreement
when approved by SUZUKI.
(e) "Dealer Minimum Standards Addendum": The written requirements
executed by DEALER and SUZUKI, as amended from time to time by
SUZUKI, setting forth the minimum qualifications required by
SUZUKI for appointment as a Suzuki Dealer and DEALER's
representations as to its fulfillment of those qualifications
relied upon SUZUKI for DEALER's appointment as an authorized
Suzuki Dealer. In conjunction with the Facility Standards
Addendum, it constitutes the criteria by which SUZUKI shall
evaluate DEALER's performance to determine whether DEALER
qualifies for renewal(s) of its Suzuki Dealership. The Dealer
Minimum Standards Addendum has been incorporated by reference
and is part of this Agreement as though set forth in full
herein.
(f) "Dealer Premises": The specific premises approved for the
Dealership by SUZUKI.
(g) "Dealer Prices": The prices in effect at the time of delivery
of Suzuki Products as set forth in the Dealer Price Lists that
will be charged by SUZUKI to the DEALER exclusive of any
charges for transportation, taxes or any other charges.
(h) "Dealer Price Lists": The price lists issued by SUZUKI for
Suzuki Products as defined in (n) herein below, as amended from
time to time by SUZUKI.
(i) "Dealer Updates": Addendums to the Agreement pursuant to the
terms of this Agreement, issued from time to time by SUZUKI to
clarify and explain procedures and programs to be followed by
the DEALER in the operation of the Suzuki Dealership. The
Updates shall be incorporated as part of this Agreement as they
are issued.
(j) "Facility Standards Addendum": The written standards for
facilities, as amended from time to time by SUZUKI, setting
forth the criteria with respect to the physical facilities
which DEALER is required to establish and maintain and which
was relied upon by SUZUKI in its appointment of DEALER as an
authorized Suzuki Dealer. The Facility Standards Addendum, in
conjunction with the Dealer Minimum Standards Addendum
constitutes the criteria by which SUZUKI shall evaluate
DEALER's performance to determine whether DEALER qualifies for
renewal(s) of its Suzuki Dealership. Said Facility Standards
Addendum shall become part of this Agreement upon execution of
the Agreement by SUZUKI.
(k) "Manufacturer's Suggested Retail Price": Any suggested retail
price for any Suzuki Product as issued by SUZUKI from time to
time.
(l) "Owner(s)": The beneficial owner(s) of the Dealership, listed
in this Agreement.
(m) "Parts": All parts for the Four Wheel Vehicles, which are the
subject of this Agreement, and/or accessories therefor
distributed in the United States by SUZUKI.
(n) "Suzuki Products": Suzuki Four Wheel Vehicles manufactured for
highway use by Suzuki Motor Co., Ltd. including automobiles,
trucks, vans, and four wheel drive vehicles and their
successors and the parts and accessories therefor distributed
in the United States
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(except Hawaii) by SUZUKI. Whenever the term "Suzuki Products"
is used in this Agreement, it shall be construed as defined
herein.
(o) "Suzuki Vehicles": All Suzuki automobiles, trucks, vans and
four wheel drive vehicles for highway use and their successors
manufactured by Suzuki Motor Co., Ltd. and distributed in the
United States (except Hawaii) by SUZUKI. This term
specifically excludes all ATV recreational vehicles
manufactured and distributed by SUZUKI. Whenever the term
"Suzuki Vehicles" is used in this Agreement, it shall be
construed as defined herein.
(p) "Suzuki Warranty": The warranty issued from time to time by
SUZUKI with respect to Suzuki Products and any revisions or
supplements thereto.
2. PLACE OF BUSINESS
2.1 LOCATION. The DEALER shall be responsible for selling, leasing and
servicing at retail the Suzuki Products, but only at the Dealer
Premises described in this Agreement by the Facility Standards
Addendum and the Dealer Minimum Standards Addendum. If the DEALER
desires to change the location of the Dealership, or any part of its
operation, prior written approval from SUZUKI must be obtained.
Failure to obtain such prior approval shall be a material breach of
this Agreement and shall constitute grounds for its termination.
2.2 IDENTIFICATION AND SIGNS. Subject to applicable government
statutes, ordinances, rules and regulations, DEALER shall buy from
SUZUKI, or from sources designated by SUZUKI, and erect and maintain
in good working order on the Dealership Premises, entirely at
DEALER's expense, authorized sales and service signs conforming to
the requirements established and approved by SUZUKI. DEALER shall
obtain and maintain any licenses or permits necessary to erect and
maintain such signs. Failure to obtain, erect, maintain, repair,
illuminate and prominently display such signs in a manner approved
by SUZUKI shall constitute grounds for termination of this
Agreement.
2.3 BUSINESS HOURS. The DEALER shall operate the Dealership in an
efficient and businesslike manner during the retail and service
hours customary for the DEALER's trade and the area in which the
Dealership is located.
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3. RETAIL SALES
3.1 SUZUKI PRODUCTS AND TRADENAMES. Subject to and in accordance with
the terms and conditions of this Agreement, the DEALER shall have
the nonexclusive right to:
(a) Purchase from SUZUKI, for sale at retail only, Suzuki Products;
and
(b) Identify itself as an authorized Suzuki Dealer by displaying
the various tradenames, trademarks and service marks and any
other word or design marks that SUZUKI uses in connection with
or with respect to the Suzuki Products.
3.2 PERSONNEL. The DEALER shall at all times employ competent and
adequate personnel to sell and service the Suzuki Products in a
manner satisfactory to SUZUKI. Upon request to do so by SUZUKI, the
DEALER, at its own expense, shall send its personnel to any training
seminars organized and carried out by SUZUKI.
3.3 INVENTORY RESPONSIBILITY. The DEALER shall maintain at all times an
adequate stock of new, undamaged, and marketable Suzuki Products for
display, demonstration, sale and servicing. Further, the DEALER
shall maintain an adequate supply of tools for servicing the Suzuki
Products.
3.4 STANDARD ACCOUNTING SYSTEM. It is mutually beneficial to DEALER and
SUZUKI that DEALER keep and maintain standard accounting systems and
practices. Therefore, DEALER agrees to maintain its records based
upon commonly accepted accounting principles and to establish and
maintain a standard accounting system and practices in accordance
with the Suzuki Automotive Standard Accounting System established
and designated by SUZUKI for use by all Suzuki Dealers, as the same
may from time to time be amended, revised or supplemented. DEALER
further agrees to provide to SUZUKI by the tenth (10th) day of each
month, in the manner and form prescribed by SUZUKI, complete and
accurate financial and operating statements covering the preceding
month and showing calendar year-to-date operations of the Suzuki
Dealership.
3.5 SALES RECORDS AND REPORTS. DEALER shall keep an accurate record of
its sales of Suzuki Products, in conformity with any statutory and
regulatory requirements.
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3.6 RETAIL DELIVERY REPORT. DEALER shall immediately upon delivery of a
Suzuki Vehicle to a retail purchaser complete and transmit to SUZUKI
a report of the retail sale called the "Retail Delivery Report" and
furnish SUZUKI with other reports or records as may be reasonably
required by SUZUKI in its sole discretion.
3.7 DEALER REPORTS. DEALER shall furnish reports of its sales and
inventory at intervals no greater than ten (10) days each for each
calendar month on the forms provided by SUZUKI. DEALER shall also
furnish such reports concerning its financial condition as SUZUKI
may reasonably request, including monthly financial statements,
accurately reflecting Suzuki Dealership operations.
3.8 ELECTRONIC DATA PROCESSING REQUIREMENTS. In order to promote prompt
and accurate reporting of relevant Dealership operational and
financial information as SUZUKI may require hereunder, DEALER agrees
to install and maintain electronic data processing equipment which
is compatible with SUZUKI's computer network as it may from time to
time be modified, updated or supplemented.
3.9 DEALER DIRECTIVES. DEALER shall faithfully comply with SUZUKI's
existing and future directives, bulletins and manuals pertaining to
the sale and servicing of Suzuki Products.
3.10 PROMOTIONS. To further expose and popularize the name "Suzuki" and
the "Suzuki" Vehicles, SUZUKI may from time to time sell Suzuki
Products directly to non-dealers for use in promotions of unrelated
merchandise through "give away", "premium", and other forms of
promotional programs or in payment for media advertising. DEALER
shall cooperate by rendering pre-delivery inspections, delivery and
warranty services in connection with such sales, for which DEALER
will be compensated at the rates established therefor by SUZUKI.
3.11 SUZUKI PRODUCT ORDERS. All orders for Suzuki Products shall be
submitted in writing by the DEALER to SUZUKI in accordance with
Suzuki directives and on the forms that SUZUKI shall supply. All
orders are subject to acceptance by SUZUKI's home office in whole or
in part. All orders submitted by DEALER shall be binding upon
DEALER unless and until they are rejected in writing by SUZUKI;
provided, however, that in the event of a partial acceptance by
SUZUKI, it is understood that DEALER shall no longer be bound in
respect to the part of the order not accepted.
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SUZUKI will attempt to fill all pre-sold retail orders but cannot be
held responsible for its failure to do so, nor for any lost profits
or loss of business experienced by DEALER from SUZUKI's inability to
supply any pre-sold order.
3.12 DISTRIBUTION AND DELIVERY. SUZUKI shall endeavor, to the extent
practicable, to deliver the new Suzuki Products ordered by DEALER
and required in the fulfillment of DEALER's responsibilities under
this Agreement. DEALER acknowledges that SUZUKI also has an
obligation to endeavor to deliver Suzuki Products to other Suzuki
Dealers who are also required by SUZUKI to fulfill their
responsibilities under their Dealer Agreements with SUZUKI. Because
of numerous factors that affect the distribution of the Suzuki
Products and the relevance of such factors at any given time, SUZUKI
does hereby reserve to itself discretion in applying such factors
and in processing orders for Suzuki Products from its authorized
Dealers. The judgment and decisions of SUZUKI, therefore, shall be
final in all matters relating to the distribution and delivery of
Suzuki Products to DEALER.
3.13 FORCE MAJEURE. SUZUKI shall not be liable for failure to process or
for any delay in processing orders for any Suzuki Products where
such failure or delay is due, in whole or in part, to any of the
following: 1) labor, material, transportation or utility shortage
or curtailment; 2) Japanese or United States governmental
regulation; 3) any import or export restriction; 4) discontinuance
of sale by SUZUKI of the Suzuki Products ordered; 5) any labor
trouble in the plants of Suzuki Motor Co., Ltd., or its suppliers or
the transportation and distribution system used by SUZUKI; 6) any
curtailment of production due to economic or trade conditions; or 7)
any cause beyond the control of, or without the fault or negligence
of, SUZUKI.
3.14 SUGGESTED RETAIL PRICES. SUZUKI's Dealer Price Lists will set forth
Suggested Retail Prices for the Suzuki Products. The DEALER is
under no obligation to accept these Suggested Retail Prices and may
sell for a different retail price. If DEALER sells at prices less
than, or more than, those suggested, those sales will not affect its
business relations with SUZUKI or any other person over whom SUZUKI
has control or influence.
3.15 TITLE. Title to Suzuki Products shall pass to the DEALER from
SUZUKI only upon payment in full for the Suzuki Products shipped to
DEALER. Until payment in
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full for Suzuki Products is made. SUZUKI retains all right, title,
and a security interest in the Suzuki Products.
3.16 SECURITY INTEREST. DEALER grants to SUZUKI a security interest in
all Suzuki Products delivered to DEALER to secure repayment of any
indebtedness owing from DEALER to SUZUKI. SUZUKI shall have all the
rights of a secured creditor under the Uniform Commercial Code,
including the right to take possession of Suzuki Products, without
the necessity of legal process, to satisfy outstanding indebtedness.
DEALER shall execute all documents and notices as may be required to
perfect the security interest of SUZUKI under applicable laws.
3.17 TERMINATION. Upon termination of this Agreement, SUZUKI may cancel
any or all pending orders of DEALER for Suzuki Products, whether or
not previously accepted by SUZUKI.
4. SERVICE
4.1 SERVICE RECORDS. DEALER shall keep an accurate record of its
servicing, in conformity with any requirements in the Suzuki
Warranty Manual, Dealer Updates and any statutory and regulatory
requirements.
4.2 RECOMMENDED SERVICE PROCEDURES. DEALER shall faithfully comply with
SUZUKI's existing and future directives, bulletins and manuals
pertaining to the sale and servicing of Suzuki Products.
4.3 RECORDS AND MANUALS. DEALER shall maintain and keep updated all
manuals, bulletins and records received from SUZUKI. DEALER and its
service personnel will have available and be familiar with all
service and maintenance manuals provided by SUZUKI.
4.4 SERVICE SCHOOLS. DEALER will send Dealer personnel to and
participate in, service training classes, service schools, seminars
and other dealer employee training courses as provided by SUZUKI
from time to time. DEALER acknowledges the need for such school and
training to keep current on all Suzuki Products for the protection
of DEALER's customers.
4.5 SERVICE PERSONNEL. Service personnel in the Dealership will be
competent and adequate to handle all service work of the DEALER's
customers. DEALER accepts the responsibility to provide fast,
efficient and accurate service work to its customers. From time to
time, SUZUKI will make suggestions regarding
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the improvement and upgrading of DEALER's Service Department and
personnel; however, DEALER is solely responsible for all work
performed in its Service Department by its service personnel.
4.6 RECALL PROCEDURES. If at any time DEALER receives from SUZUKI a
notification of certain procedures that DEALER is to follow
concerning a recall of any Suzuki Product in conformance with the
requirements of the National Highway Traffic Safety Act or Consumer
Product Safety Commission or any other governmental agency, DEALER
shall comply with it. If for any reason DEALER fails or refuses to
comply with the procedures outlined in any Suzuki recall notice,
DEALER shall be in violation of this Agreement. DEALER acknowledges
the necessity of complying with recall notices to insure the
protection of the consumer and to comply with government laws, rules
and regulations.
4.7 DEALER DISTRIBUTED LITERATURE. If the state in which the DEALER is
franchised institutes programs which require distribution of
material such as Lemon Law disclosures, Consumer Rights brochures or
general notices, the DEALER shall in accordance with SUZUKI
instructions complete, execute and deliver said material.
4.8 NOTICE OF COMPLAINTS. If at any time the DEALER receives any
customer complaints which apply to any consumer protection laws,
rules or regulations, the DEALER agrees to provide prompt notice to
SUZUKI of such complaints and take steps that SUZUKI may reasonably
require. The DEALER agrees to perform in a manner that will not
adversely affect SUZUKI's rights under such laws, rules and
regulations.
5. CAPITALIZATION
5.1 NET WORKING CAPITAL. Dealer agrees to establish and maintain actual
net working capital which in SUZUKI's judgment is sufficient to
allow the DEALER to effectively perform his obligations under the
Agreement.
5.2 FLOORING AND LINES OF CREDIT. At all times during the term of this
Agreement, it is DEALER's sole responsibility, which DEALER hereby
accepts and to which he agrees, to obtain and maintain adequate
flooring arrangements and lines of credit with a reputable financial
institution acceptable to SUZUKI to ensure the availability of
sufficient funds to meet DEALER's needs for payment of Suzuki
Products ordered by DEALER from SUZUKI.
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6. CREDIT, FINANCE AND PAYMENTS.
6.1 SALES. All sales to DEALER will be at Dealer Prices published by
SUZUKI in the Dealer Price Lists.
6.2 PAYMENT FOR SUZUKI VEHICLES. Unless financing is arranged with
respect to a particular shipment in advance, all payments for Suzuki
vehicles shall be made in full at the time of shipment.
6.3 OPEN ACCOUNT. DEALER may order Suzuki Products, promotional and
miscellaneous items, other than Suzuki Vehicles, on open account, so
long as SUZUKI determines DEALER is credit qualified. DEALER agrees
to pay for all items billed to its open account per monthly itemized
statements. DEALER agrees to pay all late charges, interest,
attorneys' fees, court costs and expenses that may be incurred as a
result of default on DEALER's open account obligations. Upon
default, SUZUKI may suspend or terminate DEALER's open account.
SUZUKI may offset any credits due DEALER against debits for sums due
SUZUKI.
6.4 SECURITY INTEREST. DEALER grants to SUZUKI a security interest in
all Suzuki Products delivered to DEALER to secure repayment of any
indebtedness owing from DEALER to SUZUKI. SUZUKI shall have all the
rights of a secured creditor under the Uniform Commercial Code,
including the right to take possession of Suzuki Products, without
the necessity of legal process, to satisfy outstanding indebtedness.
DEALER shall execute all documents and notices as may be required to
perfect the security interest of SUZUKI under applicable laws.
6.5 TITLE. Title to Suzuki Products passes to DEALER from SUZUKI only
upon payment in full for the Suzuki Products shipped to DEALER.
6.6 COSTS OF RETURN. In the event DEALER's inventory of Suzuki Products
is repossessed or returned to SUZUKI or to a financial institution
for repurchase by SUZUKI, DEALER agrees to pay reasonable handling
costs incurred by SUZUKI according to SUZUKI policy in effect at the
time of the return.
6.7 EFFECT OF TERMINATION. Termination of this Agreement, in whatever
manner, shall not release DEALER from any obligations or
indebtedness owing to SUZUKI.
7. ADVERTISING
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7.1 ADVERTISING STANDARDS. SUZUKI and DEALER recognize the need to
maintain at all times the highest ethical standards in advertising
and which evoke an image consistent with the quality and reputation
that SUZUKI and Suzuki Products enjoy in order to maintain public
confidence in, and respect for, DEALER, SUZUKI and Suzuki Products.
Accordingly, DEALER shall not publish, nor cause or permit to be
published, advertising relating to Suzuki Products which is not in
compliance with all federal, state and local laws, ordinances, rules
and regulations or that is likely to mislead or deceive the public
or impair the goodwill, good name and reputation of SUZUKI, Suzuki
Motor Co., Ltd. or Suzuki Products. If SUZUKI, in its sole
judgment, determines that any of DEALER's advertising is
inappropriate or which may be injurious to SUZUKI's reputation or to
the business of SUZUKI or DEALER, it shall so advise DEALER. Upon
receipt of such notice, DEALER agrees to immediately discontinue all
such inappropriate advertising.
7.2 PARTICIPATION. DEALER shall participate in any existing or future
cooperative advertising program with SUZUKI. DEALER shall use its
best efforts to promote and sell Suzuki Products. In that regard,
DEALER shall also maintain an effective advertising program aimed at
enhancing the sale of Suzuki Products.
7.3 VOLUNTARY DEALER COOPERATIVE ADVERTISING ASSOCIATION. SUZUKI and
DEALER recognize the benefits which may be derived from a
comprehensive, joint advertising effort by Suzuki dealers.
Accordingly, DEALER may, if DEALER elects to do so on a completely
voluntary basis, participate in the formation and effective
operation of a voluntary cooperative dealer advertising association.
Each Suzuki Dealer Advertising association will finance its
advertising programs through the voluntary assessment of a fixed
charge of no less than 2% or $150.00 of the total dealer price per
vehicle, excluding freight, for each new Suzuki vehicle purchased by
Suzuki Dealers who voluntarily choose to participate as members of
an advertising association. As a service to the dealer association,
SUZUKI will collect the agreed upon charge, provided that the dealer
association maintains control over both the amount of the assessment
and manner in which such funds will be expended.
8. TRANSPORTATION
8.1 DELIVERY. SUZUKI shall select the distribution points, carriers and
methods of transportation in
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effecting delivery of Suzuki Products to DEALER. DEALER agrees to
reimburse SUZUKI for any delivery, freight handling and other
charges which appear on SUZUKI's invoice to DEALER.
8.2 REFUSAL OF DELIVERY. If SUZUKI is required to divert any Suzuki
Products ordered by DEALER because of DEALER's failure or refusal to
accept such product, DEALER assumes responsibility for, and will pay
charges incurred by SUZUKI as a result of such diversion. In
addition, DEALER shall pay all charges for storage and other charges
related to such diversion.
8.3 FORCE MAJEURE. Although SUZUKI will use due diligence to promptly
ship orders accepted by it, SUZUKI shall not be liable for any delay
in shipment caused by a shortage of supply, riot, war, government
regulation, willful acts of a third party, labor problems, import or
export restriction, acts of God, or any other cause beyond SUZUKI's
control. It is understood and agreed that SUZUKI will attempt to
fill all orders accepted by it, but SUZUKI takes no responsibility
for failure to fill any of DEALER's orders.
8.4 RISK OF LOSS. Notwithstanding the reservation of title in SUZUKI as
provided in Paragraphs 3.15, 6.04 and 6.05, all risks with respect
to the Suzuki Products shall pass to and be assumed by DEALER at the
time of delivery to the DEALER, or its agents, or to the carrier of
the Suzuki Products. DEALER shall insure Suzuki Products upon
delivery to DEALER against all risks and perils at DEALER's own
expense.
8.5 PRODUCT RETURN. SUZUKI will not accept the return of Suzuki
Products except in cases where SUZUKI has agreed in writing to do so
where required by State law. Upon receipt of such written
authorization from SUZUKI, DEALER may return Suzuki Products under
the following conditions:
(a) DEALER shall pay all transportation and handling charges; and
(b) DEALER shall pay to SUZUKI a restocking charge in accordance
with the terms and conditions of SUZUKI policy in effect at the
time of return.
9. PRODUCT WARRANTY
9.1 WARRANTY RECORDS. DEALER shall keep an accurate record of its
warranty servicing of Suzuki Products, in conformity with any
requirement in the Dealer
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Updates, Warranty Manual and any statutory and regulatory
requirements.
9.2 WARRANTY RESPONSIBILITY. DEALER shall diligently perform all
warranty and servicing obligations in accordance with the scale of
remuneration established by SUZUKI from time to time, whether or not
the DEALER sold the Suzuki Products to the customer requiring such
servicing.
9.3 DEALER OBLIGATION. DEALER acknowledges its obligation to, and shall
provide all warranty service, consistent with the Suzuki Limited
Warranty applicable to each Suzuki Product, regardless of the origin
of purchase of said Suzuki Product.
9.4 WARRANTY SERVICE AND CREDIT. DEALER will install any replacement
parts and make certifications or verifications, perform maintenance
and service, and do all other things that may be required under the
terms of the Suzuki Limited Warranty, or inspection, correctional,
or recall campaigns. SUZUKI will credit DEALER's account for
warranty service and inspection, corrections or recalls DEALER
performs at the request of SUZUKI.
9.5 NO OTHER WARRANTIES. DEALER acknowledges that the Suzuki Limited
Warranty is the only warranty made or deemed to have been made by
SUZUKI or Suzuki Motor Co., Ltd. and that neither DEALER, nor its
agents or employees, are authorized to extend or enlarge upon the
Suzuki Limited Warranty by any oral or written means. DEALER
further acknowledges that SUZUKI will not assume nor authorize any
person to assume on its behalf, any other obligation of liability in
regard to the Suzuki Products.
10. PARTS
10.1 INVENTORY. DEALER agrees to maintain an adequate inventory of
Suzuki Parts to fulfill customer service and warranty requirements.
If, in the sole judgment of SUZUKI, DEALER fails to maintain an
adequate inventory of Suzuki Parts to satisfy customer needs, such
failure will constitute a violation of this Agreement.
10.2 GENUINE SUZUKI REPLACEMENT PARTS. DEALER will not sell any part to
a customer as a Suzuki Part, unless it is a genuine Suzuki Part. If
DEALER does so, it shall be a violation of this Agreement.
10.3 SHIPMENT ACCEPTANCE. DEALER will accept all shipments of Suzuki
Parts ordered by it. In the
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event of an error in a shipment by SUZUKI, the DEALER must submit a
parts discrepancy report and receive prior written approval of
SUZUKI before returning the parts.
11. TERMINATION
11.1 TERMINATION BY DEALER. DEALER may terminate this Agreement by
serving thirty (30) days' written notice of termination on SUZUKI.
11.2 TERMINATION BY SUZUKI. In the event that DEALER breaches or
violates any of the duties, obligations or responsibilities set
forth herein or any of the terms, conditions or undertakings in the
Dealer Application, Dealer Updates, the Facility Standards Addendum
or the Dealer Minimum Standards Addendum, SUZUKI may terminate this
Agreement by giving the DEALER written notice as provided below.
SUZUKI need not state all grounds on which it relies for its
termination of DEALER. SUZUKI's failure to refer to additional
grounds for termination shall not constitute a waiver of its right
to rely on such grounds.
11.3 SIXTY (60) DAYS' NOTICE. SUZUKI may terminate this Agreement with
sixty (60) days' notice after the occurrence of any of the following
events:
(a) A disagreement or personal difficulty between or among the
owners, partners, shareholders, officers or managers of DEALER
that, in the opinion of SUZUKI, may adversely affect the
ownership, operation, management or business of DEALER, or the
presence in the management of DEALER of any person who, in the
opinion of SUZUKI, does not have or no longer has the requisite
qualifications for his position;
(b) Any change in the legal or beneficial ownership or control of
DEALER without the prior written consent of SUZUKI to such
changes, or any misrepresentation thereof;
(c) The death, incapacity, removal, resignation, withdrawal,
elimination or disassociation from DEALER of any owner,
partner, shareholder, officer or manager identified herein;
(d) Failure of DEALER to properly obtain, erect, maintain, repair
and illuminate signs and other displays in a manner approved by
SUZUKI as required under the provisions of this Agreement;
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(e) DEALER's failure to honor any commitment made to SUZUKI
including, but not limited to, those made in the Facility
Standards Addendum, Dealer Minimum Standards Addendum, Dealer
Updates or any other document incorporated by reference herein;
(f) DEALER's failure to submit any reports, financial or otherwise,
required by SUZUKI hereunder, or in any Update;
(g) DEALER's financial condition becoming such that, in the opinion
of SUZUKI, DEALER is unable to carry out his obligations
hereunder satisfactorily;
(h) The failure on the part of DEALER to pay any account, including
any monies for Suzuki Satisfaction System Contracts sold, owing
to SUZUKI when due;
(i) (Any agreement, understanding or contract entered into by
DEALER, oral or written, with any other Dealer or Dealers for
the purpose of fixing retail prices of Suzuki Products;
(j) (The imposition of a levy against DEALER under attachment,
garnishment, execution or other similar process, except those
garnishments or executions pertaining to obligations of
DEALER's employees; or
(k) Any assignment or attempted assignment of this Agreement or any
part thereof without the prior written consent of SUZUKI.
11.4 FIFTEEN (15) DAYS' NOTICE. SUZUKI may terminate this Agreement with
fifteen (15) days' written notice after the occurrence of any of the
following events:
(a) DEALER or any of its owners, partners, shareholders, officers
or managers engaging in any practice or conduct or being
convicted of any felony or the violation of any law that, in
the opinion of SUZUKI, may adversely affect the operation or
business of the DEALER or be injurious to the goodwill or
reputation of SUZUKI, Suzuki Products or other Suzuki Dealers;
(b) The closure of the Dealership for any reason for a period in
excess of ten (10) days;
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(c) Any change in the location of the Dealer Premises or any
portion of its operation without the prior written consent of
SUZUKI;
(d) Any submission by DEALER of a false or fraudulent application,
and/or any supporting claim or statement of SUZUKI, for payment
by SUZUKI related to warranty repairs, special or recall
adjustments performed by the DEALER, or for any other discount,
allowance, refund, or credit under any plan, provision or
program offered by SUZUKI to the DEALER whether or not the
DEALER offers or makes to SUZUKI or SUZUKI seeks or obtains
from the DEALER restitution of any payment made to the DEALER
on the basis of any false or fraudulent applications, claims or
statements;
(e) Any sale or attempted sale of Dealership by DEALER without the
prior written approval of SUZUKI;
(f) The insolvency of the DEALER, the filing of a voluntary
petition in bankruptcy by the DEALER, the filing of an
involuntary petition to have DEALER declared bankrupt, the
appointment of receiver or trustee for the DEALER, or the
execution by DEALER of any assignment for the benefit of
creditors;
(g) Any bulk sale or the attempted sale of the Dealership assets;
or
(h) The dissolution of the Dealership if the Dealership is a
corporation or a partnership.
11.5 OPERATION OF THE LAW. Notwithstanding the provisions above, the
Agreement will terminate automatically and without notice from
either party in the event of the occurrence of any of the following:
(a) The failure of DEALER to obtain any license required for the
operation of the Dealership in any jurisdiction where this
Agreement is performed; or
(b) The failure of DEALER to secure or maintain the license or
renewal thereof, or the suspension or revocation or the
license, irrespective of the cause or reason.
11.6 TERMINATION LIABILITY. Upon termination, DEALER shall cease to be
an authorized Suzuki Dealer and shall:
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(a) Pay forthwith to SUZUKI all sums then outstanding and owing by
DEALER to SUZUKI;
(b) Allow SUZUKI to audit DEALER's records with regard to its sales
of the Suzuki Satisfaction System contracts and pay forthwith
to SUZUKI all sums due and owing for any and all Suzuki
Satisfaction System contracts sold for which monies have not
been paid by DEALER. DEALER agrees that SUZUKI shall have the
right to debit DEALER's parts account for any such sums due and
owing on Suzuki Satisfaction System contracts sold by DEALER;
(c) Remove forthwith, at its own expense, all SUZUKI signs which
are displayed at Dealer's Premises;
(d) Refrain from all further use whatsoever of any tradename,
trademark, logo, service mark, or any word or design that
SUZUKI has used or uses in connection with or with respect to
Suzuki Products, including in its stationery and other printed
material and, if necessary, including changing its corporate or
business name;
(e) Cease representing itself as an authorized Suzuki Dealer for
Suzuki Products; and
(f) Return to SUZUKI all technical and/or service literature,
advertising and other printed material in DEALER's possession
which relate to Suzuki Products.
11.7 SUZUKI OPTION TO REPURCHASE. Upon the termination of this
Agreement, SUZUKI shall have the option to purchase from DEALER,
free and clear of all liens, charges and encumbrances, any of the
following:
(a) New, unused, unaltered, undamaged, unlicensed and marketable
current model Suzuki Vehicles, with mileage of 100 miles or
less, which were purchased by DEALER from SUZUKI, and are in
DEALER's inventory, at DEALER's vehicle price less destination
charges and any voluntary advertising associated assessments
made on behalf of a Suzuki Advertising Association. SUZUKI
shall pick up said Suzuki Vehicles and pay all transportation
charges for return of said vehicles; and
(b) The new, current model Suzuki Parts and Accessories at SUZUKI's
invoice price to DEALER, less SUZUKI's prevailing restocking
charge, but only if delivered by DEALER at DEALER's expense,
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to SUZUKI's Parts Warehouse located nearest DEALER provided
however, that these Suzuki Parts and Accessories must be in a
new, unused, undamaged and saleable condition and in the
original package and original package quantity; provided
further, that SUZUKI will not purchase any Suzuki Parts or
Accessories which SUZUKI deems to be obsolete.
11.8 APPLICATION OF CREDIT. If SUZUKI exercises its option to
repurchase, any indebtedness owed by DEALER to SUZUKI may be applied
against the purchase price and the balance if any, owing to DEALER
shall be paid to DEALER only after verification by SUZUKI of the
inventory of purchased Suzuki Products.
12. INDEMNIFICATION
12.1 INDEMNIFICATION BY SUZUKI. SUZUKI agrees to assume the defense of
DEALER and to indemnify and hold DEALER harmless in any lawsuit
naming DEALER as a defendant and involving any Suzuki Product when
the lawsuit involves allegation of:
(a) Breach of Suzuki warranty, or bodily injury or property damage
arising out of any occurrence allegedly caused solely by a
defect in design, manufacture or assembly of a Suzuki Product
(except for tires), provided that the defect could not
reasonably have been discovered by DEALER during the required
pre-delivery service of the Suzuki Product;
Provided:
(b) The DEALER delivers to SUZUKI, within ten (10) days of the
service of any summons or complaint, copies of such documents,
and requests in writing a defense and/or indemnification;
(c) That the complaint does not involve allegations of DEALER
misconduct, including but not limited to, improper or
unsatisfactory service or repair, misrepresentation, or any
claim of DEALER's unfair or deceptive trade practice;
(d) That the Suzuki Product which is the subject of the lawsuit was
not altered by or for DEALER;
(e) The DEALER agrees to cooperate fully in the defense of such
action as SUZUKI may reasonably required; and
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(f) The DEALER agrees that SUZUKI may offset any recovery on
DEALER's behalf against any indemnification that may be
required hereunder.
12.2 INDEMNIFICATION BY DEALER. DEALER agrees to assume the defense of
SUZUKI and to indemnify and hold it harmless in any lawsuit naming
SUZUKI as a defendant when the lawsuit involves allegations of:
(a) DEALER's alleged failure to comply, in whole or in part, with
any obligation assumed by DEALER pursuant to this Agreement;
(b) DEALER's alleged negligent or improper repair or servicing of a
new or used Suzuki Vehicle or equipment, or such other motor
vehicles or equipment as may be sold or serviced by DEALER;
(c) DEALER's alleged breach of any contract or warranty other than
that provided by SUZUKI;
(d) DEALER's alleged misleading statements, misrepresentations, or
deceptive or unfair trade practices; and
(e) Any modification or alteration made by or on behalf of DEALER
to Suzuki Product, except those made pursuant to the express
instruction or with the express approval of SUZUKI.
Provided:
(f) That SUZUKI delivers to DEALER, within ten (10) days of the
proper service of any summons or complaint, copies of such
documents, and requests in writing a defense and/or
indemnification;
(g) That SUZUKI agrees to cooperate fully in the defense of such
action as DEALER may reasonably require; and
(h) That the complaint does not involve allegations of liability
premised upon separate SUZUKI conduct or omissions.
13. MISCELLANEOUS PROVISIONS
13.1 INSURANCE. DEALER shall maintain at its own expense adequate
insurance against all types of risk and liability, including without
limitation, personal liability insurance. Such insurance shall be
with an accredited and reputable company. DEALER shall annually
furnish SUZUKI with certification for such
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insurance with evidence showing that premiums have been paid in
full.
13.2 EXPENSES. Except as set forth herein, SUZUKI shall not be under any
liability whatsoever for any expenditure made or expense incurred by
DEALER with respect to DEALER's performance of its obligations
pursuant to this Agreement.
13.3 TAXES. DEALER agrees that it shall be responsible for and shall pay
any and all sales taxes, use taxes, excise taxes, and other
governmental charges whenever imposed, levied or based upon the sale
of Suzuki Products by SUZUKI to DEALER and DEALER shall keep
accurate and current records of the foregoing for reporting
purposes.
13.4 SET OFF. In addition to any other specific rights of set off
otherwise provided in documents affecting DEALER and SUZUKI, SUZUKI
shall have the right to set off any sums or accounts due or to
become due from DEALER to SUZUKI against any sums or accounts due or
to become due from SUZUKI to DEALER.
13.5 NO ASSIGNMENT. This Agreement, based on mutual trust between DEALER
and SUZUKI, may not be assigned or transferred by DEALER without the
prior written consent of SUZUKI. Any purported assignment without
the prior written consent of SUZUKI is null and void.
13.6 WAIVER. The waiver by either party of any breach or violation or
any provision of this Agreement shall not be deemed to be a waiver
by that party of any subsequent breach or violation of any other
provision herein.
13.7 NOTICE. Whenever a notice, demand or other document is required or
permitted to be given by the terms of the Agreement, or any document
incorporated by reference, it shall be deemed sufficiently given if
delivered personally or by prepaid ordinary mail at the addresses
set forth for SUZUKI and DEALER on page one (1) of this Agreement.
The addresses set forth may be changed from time to time by notice
in writing. Any notice or other document, if sent by mail, shall be
deemed to have been given to, and received by the party to whom it
was sent as of the date of mailing.
13.8 SURVIVAL. The obligations of DEALER upon termination as set forth
in Section 11.00 of this Agreement shall survive the termination of
this Agreement. Any termination of this Agreement shall be without
prejudice to rights accruing hereunder, provided
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however, that DEALER agrees that SUZUKI shall not by reason of any
termination, be liable to DEALER for any compensation,
reimbursement, damages or expenses arising from such termination.
13.9 MODIFICATION. Any modification or amendment to this Agreement,
other than by amendments to the Facility Standards Addendum, the
Dealer Minimum Standards Addendum and Dealer Updates and
transactions under which credit is extended by SUZUKI to DEALER,
must be executed in the same manner as the Agreement itself.
13.10 ARBITRATION. All disputes between the parties arising out of or in
any way related to this Agreement or the business relationship
between the parties shall be subject to and resolved by binding
arbitration according to the rules and under the administration of
the American Arbitration Association. The site of the arbitration
shall be in any federal judicial district where venue would be
appropriate under federal law, without regard to the amount
allegedly in controversy.
The law of the State of California shall apply; however, the
arbitrator shall not have the power to award exemplary or punitive
damages. Nothing in this Agreement to arbitrate shall be construed
to prevent either party's use of a court forum for receivership,
injunction, repossession, replevin, sequestration, seizure,
attachment or other provisional remedies allowed in law or equity.
Any award shall be enforceable in any state or federal court having
jurisdiction thereof.
13.11 PARTIAL INVALIDITY. If any provision of this Agreement is invalid
under or in conflict with the laws of any jurisdiction where this
Agreement is to be performed, such provision shall be deemed to be
deleted and the remaining provisions of this Agreement shall remain
valid and binding.
13.12 ATTORNEYS' FEES. If SUZUKI is required to retain an attorney to
enforce its rights under the terms of this Agreement, SUZUKI shall
be entitled to reasonable attorneys' fees.
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