CNH AMERICA LLC
THIS AGREEMENT between CNH America LLC, a Delaware Limited Liability Corporation, having a place of business at 500 Diller Avenue, New Holland, Pennsylvania 17557 (“Company”), and
Titan Machinery, Inc.,
a Corporation incorporated in the state of North Dakota
doing business as Titan Machinery, Inc. and with its principal place of business at:
1620 8th Ave SW, Jamestown, ND 58401 (“Dealer”)
will be effective April 1, 2006
BY THIS AGREEMENT, Dealer is authorized at the DEALER LOCATION and BRANCH LOCATIONS(S) listed in Schedule C to sell, rent and lease at retail and to service selected new PRODUCTS manufactured or distributed by the Company.
Both parties recognize that the rights of Dealer and the Company under this Agreement are defined by the terms of this Agreement and applicable law.
IN CONSIDERATION of the representations and promises contained in this Agreement, the Company and Dealer agree as follows:
The following definitions shall apply throughout this Agreement:
a. BRANCH LOCATION(S) shall mean the secondary place or places of business of Dealer designated in Schedule C for the sales, renting, leasing-and/or servicing of PRODUCTS under this Agreement separate from the Dealer’s principal place of business.
b. DEALER LOCATION shall mean the place or places of business of the Dealer designated in Schedule C for sale, rent, lease and service of PRODUCTS, including any BRANCH LOCATION(S).
c. DEALER PRICE shall mean the price to the Dealer for PRODUCTS established by the Company from time to time excluding any holdback, deposit or charge by the Company for taxes, handling, delivery, transportation or special items or services.
d. DOMESTIC shall mean within the 50 state of the United States of America.
e. EQUIPMENT shall mean those models of new equipment and any related attachments that are designated by PRODUCT LINE and listed in Schedule B. The Company reserves the absolute and sole right to determine what EQUIPMENT it will offer Dealer for retail sale.
f. GENUINE PARTS shall mean new Company-sourced assemblies, subassemblies, components and accessories (and any part thereof) for only that EQUIPMENT which Dealer is authorized to sell on Schedule B, unless otherwise authorized by the Company.
g. MANUAL shall mean the Service/Warranty Chapter of the Dealer Policy Manual (or the equivalent document or documents) and amendments thereto, as may be made from time to time by the Company and provided to Dealer, setting forth the policies and procedures of various warranty and protection plans, which document is made part of this Agreement.
h. MARKET SHARE shall mean the percentage of Company PRODUCTS RETAILED by Dealer within the PMR designated in Schedule C as a portion of the total industry volume (as reported by the Association of Equipment Manufacturers or other organization identified by the Company) of all comparable products, including PRODUCTS and competitive non-Company products, RETAILED in Dealer’s designated PMR. MARKET SHARE shall be computed by dividing Dealer’s sales of a given PRODUCT or PRODUCT LINE within the Dealers designated PMR by the total industry volume of that PRODUCT or PRODUCT LINE sold within the designated PMR.
i. NON-EXCLUSIVE shall mean that Dealer may market and sell PRODUCT in markets other than the PMR designated in Schedule C, that other dealers may sell Company PRODUCTS to customers within the Dealer’s designated PMR, and that Dealer has no actual or implied right, contractual or otherwise, to be the only Company dealer located in the designated PMR or any geographic area, or to maintain the only Company dealer selling locations in the designated PMR or any other market area. The Company has no actual or implied obligation, contractual or otherwise, to forgo placing a new Company dealer or dealer selling location in Dealers designated PMR or any given geographic area, and may in fact appoint such new Company dealers or locations at any time.