State Codes and Statutes

Statutes > Wyoming > Title40 > Chapter20

CHAPTER 20 - WYOMING FAIR PRACTICES OF EQUIPMENTMANUFACTURERS, DISTRIBUTORS, WHOLESALERS AND DEALERS ACT

40-20-101. Short title.

This chapter shall be known and may becited as the "Wyoming Fair Practices of Equipment Manufacturers, Distributors,Wholesalers and Dealers Act".

40-20-102. Repealed By Laws 2006, Chapter 107, 2.

40-20-103. Repealed By Laws 2006, Chapter 107, 2.

40-20-104. Repealed By Laws 2006, Chapter 107, 2.

40-20-105. Surplus parts inventory; credits.

(a) Unless this section is specifically waived in writing bythe dealer, a supplier shall allow a dealer to periodically, but no less thanonce every twelve (12) months, return a portion of the dealer's surplus partsinventory for credit.

(b) The supplier shall notify the dealer of a time periodduring which a dealer may submit the dealer's surplus parts list and returninventory. A supplier may stagger return periods for its dealers.

(c) If a supplier has not notified its dealer of a specifictime period for returning surplus parts within the preceding twelve (12) monthperiod, it shall allow the dealer to return surplus parts within sixty (60)days of receiving the dealer's request to make such return.

(d) A supplier shall allow surplus parts return on a dollarvalue of parts equal to ten percent (10%) of the total dollar value of allparts purchased by the dealer from the supplier during either the twelve (12)month period immediately preceding the supplier's notification to the dealer ofthe supplier's return program or, if subsection (c) of this section applies,the month the dealer makes a return request.

(e) The dealer may elect to return a dollar value of thesurplus parts equal to less than ten percent (10%) of the total dollar value ofthe parts the dealer purchased during the preceding twelve (12) months.

(f) A dealer may not return obsolete parts. However, a dealermay return a part for credit if such part is found in the supplier's currentparts list or any superseded part that is not the subject of the supplier'sparts return program as of the date of termination.

(g) A dealer shall return only new and unused parts to thesupplier of the parts.

(h) The minimum credit allowed for returned parts shall beninety-five percent (95%) of the net price as listed in the supplier's currentparts list as of the date that the supplier provides notice of its returnprogram or, if subsection (c) of this section applies, the date that the dealersubmits a request for return.

(j) A supplier shall issue credit within ninety (90) days afterreceiving a return part.

(k) Nothing in this section shall be construed to prevent asupplier from charging back to the dealer's account amounts previously paid orcredited as a discounted incident to the dealer's purchase of equipment.

40-20-106. Repealed By Laws 2006, Chapter 107, 2.

40-20-107. Repealed By Laws 2006, Chapter 107, 2.

40-20-108. Repealed By Laws 2006, Chapter 107, 2.

40-20-109. Repealed By Laws 2006, Chapter 107, 2.

40-20-110. Current agreements; effect of law; void provisions.

(a) Effective July 1, 2006, this chapter shall apply to alldealer agreements now in effect which have no expiration date and are acontinuing contract and all other dealer agreements entered into, renewed,extended, revised, modified or changed in any manner on or after July 1, 2006.

(b) A provision in any contract or agreement with respect to asupplier that requires jurisdiction or venue outside of this state or requiresthe application of the laws of another state or country is void with respect toa claim otherwise enforceable under this chapter. Except as provided in W.S.40-20-105(a), any attempt to waive a provision of this chapter or applicationof this chapter shall be void. Any provision in a dealer agreement thatrequires a dealer to pay attorney fees incurred by a supplier shall be void.

40-20-111. Repealed By Laws 2006, Chapter 107, 2.

40-20-112. Repealed By Laws 2006, Chapter 107, 2.

40-20-113. Definitions.

(a) As used in this chapter:

(i) "Current net parts price" means:

(A) For current parts, the price for repair parts listed in thesupplier's price list or catalogue in effect at the time the dealer agreementis cancelled or discontinued, or for purposes of W.S. 40-20-119, the price listor catalogue in effect at the time the repair parts were ordered;

(B) For superseded repair parts, the price listed in thesupplier's price list or catalogue in effect at the time the dealer agreementis cancelled or discontinued for the part that performs the same function andpurpose as the superseded part, but is listed under a different part number.

(ii) "Current net parts cost" means the current netparts price less any trade or cash discounts typically given to the dealer withrespect to the dealer's normal, ordinary course orders of repair parts;

(iii) "Dealer" means any person, not including massretailers, engaged in the business of:

(A) Selling or leasing equipment or repair parts to theconsumer; and

(B) Repairing or servicing equipment.

(iv) "Dealer agreement" means either an oral orwritten agreement or an agreement between a dealer and a supplier that providesfor the rights and obligations of the parties with respect to the purchase orsale of equipment or repair parts. If a dealer has more than one (1) businesslocation covered by the same dealer agreement, the requirements of this chaptershall be applied to the repurchase of a dealer's inventory at a particularlocation upon the closing of that location;

(v) "Dealership" means the retail sale businessengaged in by a dealer under a dealer agreement;

(vi) "Demonstrator" means equipment in a dealer'sinventory that has never been sold at retail, but has had its usagedemonstrated to potential customers, either without charge or pursuant to ashort term rental agreement, with the intent of encouraging the person topurchase the equipment;

(vii) "Equipment" means:

(A) All-terrain vehicles regardless of how used; and

(B) Other machinery, equipment, implements or attachments usedfor or in connection with one (1) or more of the following purposes:

(I) Lawn, garden, golf course, landscaping or groundsmaintenance;

(II) Planting, cultivating, irrigating, grazing, harvesting andproducing of agricultural products;

(III) Raising, feeding, tending to or harvesting products from,livestock or any related activity;

(IV) Industrial, construction, maintenance, or utilityactivities or applications;

(V) "Equipment" does not include self-propelledvehicles designed primarily for the transportation of persons or property on astreet or highway.

(viii) "Family member" means a spouse, child, parent,sibling, stepchild, son-in-law, daughter-in-law or lineal descendant;

(ix) "Good cause" has the meaning set forth in W.S.40-20-115 or 40-20-116, as applicable;

(x) "Index" means the United States bureau of laborstatistics producer price index or industry data, for construction machinery,series identification number pcu333120333120 or any successor index measuringsubstantially similar information;

(xi) "Inventory" means new equipment, repair parts,data processing hardware or software, and specialized service or repair tools;

(xii) "Net equipment cost" means the price the dealeractually paid to the supplier for equipment, plus:

(A) Freight, at truckload rates in effect as of the effectivedate of the termination of a dealer agreement, if freight was paid by thedealer from the supplier's location to the dealer's location; and

(B) Reimbursement for labor incurred in preparing the equipmentfor retail sale or rental, or set up costs, which labor shall be reimbursed atthe dealer's standard labor rate charged by the dealer to its customers fornonwarranty repair work. If a supplier has established a reasonable set uptime, the labor shall be reimbursed at an amount equal to the reasonable set uptime in effect as of the date of delivery multiplied by the dealer's standardlabor rate.

(xiii) "New equipment" means, for purposes ofdetermining whether a dealer is a single line dealer, any equipment that couldbe returned to the supplier upon a termination of a dealer agreement pursuantto W.S. 40-20-120 and 40-20-121;

(xiv) "Person" means a natural person, corporation,partnership, limited liability company, company, trust, or any other form ofbusiness enterprise, including any other entity in which the "person"has a majority interest or of which the "person" has control, as wellas the individual officers, directors and other persons in active control ofthe activities of each entity;

(xv) "Repair parts" means all parts related to therepair of equipment, including superseded parts;

(xvi) "Single line dealer" means a dealer that has:

(A) Purchased construction or industrial equipment from asingle supplier constituting seventy-five percent (75%) of the dealer's newequipment, calculated on the basis of net cost; and

(B) A total annual average sales volume in excess of twentymillion dollars ($20,000,000.00) for the three (3) calendar years immediatelypreceding the applicable determination date. The twenty million dollar($20,000,000.00) threshold shall be increased each year by an amount equal tothe then current threshold multiplied by the percentage increase in the indexfrom January of the immediately preceding year to January of the current year.

(xvii) "Single line supplier" means the supplier that isselling the single line dealer construction and industrial equipmentconstituting seventy-five percent (75%) of the dealer's new equipment;

(xviii) "Supplier" means any person engaged in thebusiness of manufacturing, assembly or wholesale distribution of equipment orrepair parts. The term "supplier" and the provisions of this chaptershall be interpreted liberally and shall not be limited to traditionaldoctrines of corporate successor liability or take into account whether:

(A) A successor expressly assumed the liabilities of thesupplier; or

(B) There has been one (1) or more intermediate successors tothe initial supplier. The obligations of a supplier hereunder shallconsequently apply to any actual or effective successor in interest to asupplier, including but not limited to, a purchaser of all or substantially allof the assets of a supplier or all or substantially all of the assets of anydivision or product line of a supplier, any receiver, trustee, liquidator orassignee of the supplier or any surviving corporation resulting from a merger,liquidation or reorganization of the original or any intermediate successorsupplier. Purchasers of all or substantially all of the inventory of a supplieror a supplier's division or product line shall constitute a purchaser of all orsubstantially all of the supplier's assets.

(xix) "Terminate" means to terminate, cancel, fail torenew or substantially change the competitive circumstances of a dealer agreement.

40-20-114. Violations of chapter.

(a) It shall be a violation of this chapter for a supplier totake any one (1) or more of the following actions:

(i) To coerce, compel or require any dealer to accept deliveryof any equipment or repair parts which the dealer has not voluntarily ordered,except as required by any applicable law or unless the equipment or repairparts are safety features required by a supplier;

(ii) To require any dealer to purchase goods or services as acondition to the sale by the supplier to the dealer of any equipment, repairparts or other goods or services, except that nothing herein shall prohibit asupplier from requiring the dealer to purchase all repair parts, special toolsand training reasonably necessary to maintain the safe operation or quality ofoperation in the field of any equipment offered for sale by the dealer;

(iii) To coerce any dealer into a refusal to purchase equipmentmanufactured by another supplier. However, it shall not be a violation of thissection to require separate facilities, financial statements, or sales stafffor major competing lines so long as the dealer is given at least three (3)years notice of such requirement;

(iv) To refuse to deliver in reasonable quantities and within areasonable time, after receipt of the dealer's order, to any dealer having adealer agreement for the retail sale of new equipment sold or distributed bythe supplier, equipment covered by the dealer agreement specifically advertisedor represented by the supplier to be available for immediate delivery. Thefailure to deliver the equipment shall not be considered a violation of thischapter if the failure is due to prudent and reasonable restrictions onextensions of credit by the supplier to the dealer, an act of God, workstoppage or delay due to a strike or labor difficulty, a bona fide shortage ofmaterials, freight embargo, or other cause over which the supplier has nocontrol or a business decision by the supplier to limit the production volumeof the equipment;

(v) To discriminate, directly or indirectly, in filling anorder placed by a dealer for retail sale or lease of new equipment under adealer agreement as between dealers of the same product line;

(vi) To discriminate, directly or indirectly, in price betweendifferent dealers with respect to purchases of equipment or repair parts oflike grade and quality and identical brand, where the effect of the discriminationmay be to substantially lessen competition, tend to create a monopoly in anyline of commerce or injure, destroy or prevent competition with any dealer whoeither grants or knowingly receives the benefit of the discrimination. Different prices may be charged if:

(A) The differences are due to differences in the cost ofmanufacture, sale or delivery of the equipment or repair parts;

(B) The supplier can show that the lower price was made in goodfaith to meet an equally low price of a competitor; or

(vii) To prevent by contract or otherwise, any dealer, fromchanging its capital structure, ownership or the means by or through which thedealer finances its operations, so long as the dealer gives prior notice to thesupplier and provided the dealer at all times meets any reasonable capitalstandards agreed to between the dealer and the supplier and imposed onsimilarly situated dealers and provided the change by the dealer does notresult in a change in the person with actual or effective control of a majorityof the voting interests of the dealer;

(viii) To require a dealer to assent to a release, assignment,novation, waiver or estoppel which would relieve any person from liabilityimposed by this chapter;

(ix) Require as a condition of renewal or extension of a dealeragreement that the dealer complete substantial renovation to the dealer's placeof business or to acquire new or additional space to serve as the dealer'splace of business unless the supplier provides:

(A) At least one (1) year written notice of the condition;

(B) All the grounds supporting the condition; and

(C) A reasonable period of time in which to complete therenovation or acquisition after the one (1) year notice period expires.

40-20-115. Termination of dealer agreements.

(a) A dealer may terminate a dealer agreement without cause. The dealer shall give the supplier at least thirty (30) days prior writtennotice of termination. No supplier may terminate a dealer agreement withoutgood cause. Notice from the supplier to the dealer shall be as provided inW.S. 40-20-116 and 40-20-117. Except as otherwise specifically provided inthis chapter, good cause means the failure by a dealer to substantially complywith essential and reasonable requirements imposed upon the dealer by thedealer agreement, provided the requirements are not different from those requirementsimposed on other similarly situated dealers either by their terms or in themanner of their enforcement. In addition, good cause shall exist whenever:

(i) The dealer or dealership has transferred a controllingownership interest in its business without the supplier's consent;

(ii) The dealer has filed a voluntary petition in bankruptcy orhas had an involuntary petition in bankruptcy filed against it which has notbeen discharged within thirty (30) days after the filing, there has been a closeoutor sale of a substantial part of the dealer's assets related to the business orthere has been a commencement of dissolution or liquidation of the dealer;

(iii) There has been a deletion, addition or change in dealer ordealership locations without the prior written approval of the supplier;

(iv) The dealer has defaulted under any chattel mortgage orother security agreement between the dealer and the supplier or there has beena revocation of any guarantee of the dealer's present or future obligations tothe supplier. Good cause shall not exist if a person revokes any guarantee inconnection with or following the transfer of the person's entire ownershipinterest in the dealer unless the supplier requires the new person to execute anew guarantee of the dealer's present or future obligations in connection withthe transfer of ownership interest;

(v) The dealer has failed to operate in the normal course ofbusiness for seven (7) consecutive days or has otherwise abandoned itsbusiness;

(vi) The dealer has pleaded guilty to or has been convicted of afelony affecting the relationship between the dealer and supplier;

(vii) The dealer has engaged in conduct which is injurious ordetrimental to the dealer's customers or to the public welfare or therepresentation or reputation of the supplier's product;

(viii) The dealer has consistently failed to meet and maintain thesupplier's requirements for reasonable standards and performance objectives, solong as the supplier has given the dealer reasonable standards and performanceobjectives that are based on the manufacturer's experience in other comparablemarket areas.

(b) The provisions of this section shall not apply to thedealer agreements between a single line dealer and the single line supplier.

40-20-116. Termination of dealer agreements; single line dealers.

(a) This section shall only apply to the dealer agreementsbetween a single line dealer and a single line supplier.

(b) No supplier may terminate a dealer agreement without goodcause. For purposes of this section and W.S. 40-20-118 only, good cause meansfailure by a dealer to comply with requirements imposed upon the dealer by thedealer agreement if the requirements are not different from those imposed onother similarly situated dealers. In addition, good cause exists when:

(i) There has been a closeout or sale of a substantial part ofthe dealer's assets related to the equipment business or there has been acommencement of a dissolution or liquidation of the dealer;

(ii) The dealer has changed its principal place of business oradded additional locations without prior approval of the supplier, which shallnot be unreasonably withheld;

(iii) The dealer has substantially defaulted under a chattelmortgage or other security agreement between the dealer and the supplier orthere has been a revocation or discontinuance of a guarantee of a present orfuture obligation of the dealer to the supplier;

(iv) The dealer has failed to operate in the normal course ofbusiness for seven (7) consecutive days or has otherwise abandoned itsbusiness;

(v) The dealer has pleaded guilty to or has been convicted of afelony affecting the relationship between the dealer and the supplier; or

(vi) The dealer transfers an interest in the dealership, or aperson with a substantial interest in the ownership or control of thedealership, including an individual proprietor, partner or major shareholderwithdraws from the dealership, dies or a substantial reduction occurs in theinterest of a partner or major shareholder in the dealership. Good cause doesnot exist if the supplier consents to an action described in this paragraph.

(c) Except as otherwise provided in this subsection, a suppliershall provide a dealer with at least ninety (90) days written notice oftermination. The notice shall state all reasons constituting good cause forthe termination and shall state the dealer has sixty (60) days in which to cureany claimed deficiency. If the deficiency is cured within sixty (60) days, thenotice shall be void. Notwithstanding the foregoing, if the good cause fortermination is due to the dealer's failure to meet or maintain the supplier'srequirements for market penetration, a reasonable period of time shall haveexisted where the supplier has worked with the dealer to gain the desiredmarket share. The notice and right to cure provisions under this subsectionshall not apply if the reason for termination is for any reason set forth inparagraphs (b)(i) through (vi) of this section.

40-20-117. Notice of termination of dealer agreement; cure ofdeficiency; approval of dealer ownership transfer; death of dealer.

(a) Except as otherwise provided in this section, a suppliershall provide a dealer at least one hundred eighty (180) days prior writtennotice of termination of a dealer agreement. The notice shall state allreasons constituting good cause for the termination and shall state the dealerhas sixty (60) days in which to cure any claimed deficiency. If the deficiencyis cured within sixty (60) days, the notice shall be void. A supplier may notterminate a dealer agreement for the reason set forth in W.S.40-20-115(a)(viii) unless the supplier gives the dealer notice of the action atleast two (2) years before the effective date of the action. If the dealerachieves the supplier's requirements for reasonable standards or performanceobjectives before the expiration of the two (2) year notice period, the noticeshall be void and the dealer agreement shall continue in full force andeffect. The notice and right to cure provisions under this section shall notapply if the reason for termination is for any reason set forth in W.S.40-20-115(a)(i) through (vii).

(b) If a supplier has contractual authority to approve or denya request for a sale or transfer of a dealer's business or an equity ownershipinterest, the supplier shall approve or deny the request within sixty (60) daysafter receiving a written request from the dealer. If the supplier has neitherapproved nor denied the request within the sixty (60) day period, the requestshall be deemed approved. The dealer's request shall include reasonablefinancial, personal background, character references and work historyinformation for the acquiring persons. If a supplier denies a request madepursuant to this subsection, the supplier shall provide the dealer with awritten notice of the denial that states the reasons for the denial. Asupplier may only deny a request based on the failure of the proposedtransferee to meet the reasonable requirements consistently imposed by thesupplier in determining approval of the transfer or approval of a new dealer.

(c) If a dealer dies and the supplier has contractual authorityto approve or deny a request for a sale or transfer of the dealer's business orhis equity ownership interest, the dealer's estate or other person withauthority to transfer assets of the dealer, shall have one hundred eighty (180)days to submit to the supplier a written request for a sale or transfer of thebusiness or equity ownership interest. If the request is timely submitted, thesupplier shall approve or deny the request in accordance with subsection (b) ofthis section. Notwithstanding anything to the contrary contained in thischapter, any attempt by the supplier to terminate the dealer or the dealershipas a result of the death of a dealer shall be delayed until there has beencompliance with the terms of this subsection or the one hundred eighty (180)day period has expired, as applicable.

(d) If a supplier and dealer have executed an agreementconcerning succession rights before the dealer's death and that agreement hasnot been revoked or otherwise terminated by either party, the agreement shallcontrol the terms of succession even if it designates someone other than thesurviving spouse or heirs of the decedent as the successor.

(e) The provisions of this section shall not apply to thedealer agreements between a single line dealer and the single line supplier.

40-20-118. Death of single line dealer.

(a) This section shall only apply to the dealer agreementsbetween a single line dealer and a single line supplier.

(b) If a dealer dies, a supplier shall have ninety (90) days inwhich to consider and make a determination on a request by a family member toenter into a new dealer agreement to operate the dealership. If the supplierdetermines that the requesting family member is not acceptable, the suppliershall provide the family member with a written notice of its determination withthe stated reasons for nonacceptance. This subsection does not entitle anheir, personal representative or family member to operate a dealership withoutthe specific written consent of the supplier.

(c) If a supplier and dealer have executed an agreement concerningsuccession rights prior to the dealer's death and that agreement is still ineffect, the agreement shall control the terms of succession even if itdesignates someone other than the surviving spouse or heirs of the decedent asthe successor.

40-20-119. Reimbursement for warranty work.

(a) If a dealer submits a warranty claim to a supplier whilethe dealer agreement is in effect or within sixty (60) days after thetermination of the dealer agreement and if the claim is for work performedbefore the termination or expiration of the dealer agreement, the suppliershall accept or reject the warranty claim by written notice to the dealerwithin thirty (30) days after the supplier's receipt of the claim. If thesupplier does not reject the warranty claim in the time period specified above,the claim shall be deemed accepted. If the supplier accepts the warrantyclaim, the supplier shall pay or credit to the dealer's account all amountsowed with respect to the claim to the dealer within thirty (30) days after itis accepted. If the supplier rejects a warranty claim, the supplier shall givethe dealer written or electronic notice of the grounds for rejection, whichreasons shall be consistent with the supplier's reasons for rejecting warrantyclaims of other dealers, both in their terms and manner of enforcement. If nogrounds for rejection are given, the claim shall be deemed accepted.

(b) Any claim which is disapproved by the supplier based uponthe dealer's failure to properly follow the procedural or technicalrequirements for submission of warranty claims may be resubmitted in properform by the dealer within thirty (30) days of receipt by the dealer of thesupplier's notification of the disapproval.

(c) Warranty work performed by the dealer shall be compensatedin accordance with the reasonable and customary amount of time required tocomplete the work, expressed in hours and fractions multiplied by the dealer'sestablished customer hourly retail labor rate, which shall have previously beenmade known to the supplier. Parts used in warranty repair work shall bereimbursed at the current net price plus fifteen percent (15%).

(d) For purposes of this chapter, any repair work orinstallation of replacement parts performed with respect to the dealer'sequipment in inventory or equipment of the dealer's customers at the request ofthe supplier, including work performed pursuant to a product improvementprogram, shall be deemed to create a warranty claim for which the dealer shallbe paid pursuant to this section.

(e) A supplier may audit warranty claims submitted by itsdealers for a period of up to one (1) year following payment of the claims, andmay charge back to its dealers any amounts paid based upon claims shown by theaudit to be misrepresented. If a warranty claim is misrepresented, thenwarranty claims submitted within the three (3) year period ending with the datea claim is shown by the audit to be misrepresented may be audited.

(f) The requirements of subsections (a) through (c) of thissection apply to all warranty claims submitted by a dealer to a supplier inwhich the dealer has complied with the supplier's reasonable policies andprocedures for warranty reimbursement. A supplier's warranty reimbursementpolicies and procedures shall be deemed unreasonable to the extent theyconflict with any of the provisions of this section.

(g) A dealer may choose to accept alternate reimbursement termsand conditions in lieu of the requirements of subsections (a) through (c) ofthis section if there is a written dealer agreement between the supplier andthe dealer that requires the supplier to compensate the dealer for warrantylabor costs either as:

(i) A discount in the pricing of the equipment to the dealer;or

(ii) A lump sum payment to the dealer that is made to the dealerwithin ninety (90) days of the sale of the supplier's new equipment.

(h) The discount or lump sum described in subsection (g) ofthis section shall be no less than five percent (5%) of the suggested retailprice of the equipment. If the requirements of subsections (g) and (h) of thissection are met and alternate terms and conditions are in place, subsections(a) through (c) of this section do not apply and the alternate terms andconditions are enforceable. Nothing contained in this subsection or subsection(g) of this section shall be deemed to effect the supplier's obligation toreimburse the dealer for parts in accordance with subsection (c) of thissection.

40-20-120. Repurchase obligations of supplier on cancellation ordiscontinuance of dealer agreement.

(a) Whenever any dealer enters into a dealer agreement with asupplier and either the supplier or the dealer desires to cancel, not renew orotherwise discontinue the dealer agreement, the supplier shall pay to thedealer or credit to the dealer's account, if the dealer has outstanding anysums owing the supplier, unless the dealer should desire to keep the equipmentor repair parts:

(i) A sum equal to one hundred percent (100%) of the netequipment cost of all new, unsold, undamaged equipment, one hundred percent(100%) of the net equipment cost of all unsold, undamaged demonstrators, less adownward adjustment to reflect a reasonable allowance for depreciation due tousage of the demonstrators, which adjustment shall be based on publishedindustry rental rates to the extent such rates are available and ninety-fivepercent (95%) of the current net parts prices on new, unsold, undamaged repairparts that had previously been purchased from the supplier and held by thedealer on the date the dealer agreement terminates or expires. Demonstratorswith less than fifty (50) hours of use for machines with hour meters, shall beconsidered new, unsold or undamaged equipment subject to repurchase under thisparagraph;

(ii) A sum equal to five percent (5%) of the current net partsprice of all repair parts returned to compensate the dealer for the handling,packing and loading of the repair parts for return to the supplier. The fivepercent (5%) shall not be paid or credited to the dealer if the supplier electsto perform the handling, packing and loading of the repair parts;

(iii) The fair market value of any specific data processinghardware or software the supplier required the dealer to acquire or purchase tosatisfy the requirements of the supplier, including computer equipment requiredand approved by the supplier to communicate with the supplier. Fair marketvalue of property subject to repurchase pursuant to this paragraph shall be deemedto be the acquisition cost, including any shipping, handling and setup fees,less straight line depreciation of the acquisition cost over three (3) years. If the dealer purchased data processing hardware or software that exceeded thesupplier's minimum requirements, the acquisition cost of the data processinghardware or software shall be deemed to be the acquisition cost of hardware orsoftware of similar quality that did not exceed the minimum requirements of thesupplier;

(iv) A supplier shall repurchase specialized repair tools at aprice equal to seventy-five percent (75%) of the total invoice amount chargedby the supplier to the dealer.

(b) Upon the payment or allowance of credit to the dealer'saccount of the sums required by this section, the title to all inventorypurchased hereunder shall pass to the supplier making the payment and thesupplier shall be entitled to the possession of the inventory. All payments orallowances of credit due dealers shall be paid or credited within ninety (90)days after receipt by the supplier of property required to be repurchased. Anypayments or allowances of credit due dealers that are not paid within theninety (90) day period shall accrue interest at the maximum rate allowed bylaw. The supplier may withhold payments due under this subsection during theperiod of time in which the dealer fails to comply with its contractualobligations to remove any signage indicating the dealer is an authorized dealerof the supplier.

(c) If any supplier refuses to repurchase any inventory coveredunder the provisions of this chapter after cancellation, nonrenewal ordiscontinuance of the dealer agreement, the supplier shall be civilly liable tothe dealer for one hundred ten percent (110%) of the amount that would havebeen due for the inventory if the supplier had timely complied with thischapter, any freight charges paid by the dealer, interest accrued and thedealer's actual costs of any court or arbitration proceeding, including costsfor attorney fees and costs of arbitrators.

(d) The supplier and dealer shall each pay fifty percent (50%)of the costs of freight, at truckload rates, to ship any equipment or repairparts returned to the supplier pursuant to this chapter.

(e) Notwithstanding any provision to the contrary in theuniform commercial code adopted by this state, the dealer shall retain a firstand prior lien against all inventory returned by the dealer to the supplierunder the provisions of this chapter until the dealer is paid all amounts owedby the supplier for the repurchase of the inventory required under theprovisions of this chapter. The dealer's lien under this subsection shallconstitute a perfected security interest for a period of six (6) years withoutthe filing of a financing statement.

(f) The provisions of this section shall not be construed toaffect in any way any security interest which the supplier may have in theinventory of the dealer, and any repurchase hereunder shall not be subject tothe provisions of the bulk sales law or to the claims of any secured orunsecured creditors of the supplier or any assignee of the supplier until thetime the dealer has received full payment or credit, as applicable.

40-20-121. Repurchase not required.

(a) The provisions of this chapter shall not require therepurchase from a dealer of:

(i) Any repair part in a broken or damaged package. Thesupplier shall be required to repurchase a repair part in a broken or damagedpackage, for a repurchase price that is equal to eighty-five percent (85%) ofthe current net price for the repair part, if the aggregate current net pricefor the entire package of repair parts is seventy-five dollars ($75.00) orhigher;

(ii) Any repair part which because of its condition is notresalable as a new part without repackaging or reconditioning;

(iii) Any inventory the dealer is unable to furnish evidence,satisfactory to the supplier, of clear title, free and clear of all claims,liens and encumbrances;

(iv) Any inventory the dealer desires to keep, provided thedealer has a contractual right to do so;

(v) Any equipment or repair parts not in new, unsold, undamagedor complete condition, subject to the provisions of this chapter relating todemonstrators;

(vi) Any equipment delivered to the dealer prior to thebeginning of the thirty-six (36) month period immediately preceding the date ofnotification of termination;

(vii) Any equipment or repair parts ordered by the dealer on orafter the date of notification of termination;

(viii) Any equipment or repair parts acquired by the dealer fromany source other than the supplier unless the equipment or repair parts wereordered from or invoiced to the dealer by the supplier; or

(ix) Any equipment or repair parts not returned to the supplierwithin ninety (90) days after the later of:

(A) The effective date of termination of a dealer agreement;and

(B) The date the dealer receives from the supplier allinformation, documents or supporting materials required by the supplier tocomply with the supplier's return policy. This subparagraph shall not beapplicable to a dealer if the supplier did not give the dealer notice of theninety (90) day deadline at the time the applicable notice of termination wassent to the dealer.

40-20-122. Remedies and enforcement.

If the supplier violates any provision ofthis chapter, the dealer may bring an action against the supplier in a court ofcompetent jurisdiction for damages sustained by the dealer as a consequence ofthe supplier's violation, including, but not limited to, damages for lostprofits, together with the actual costs of the action, including the attorneyfees and costs of arbitrators. The dealer may also be granted injunctiverelief against unlawful termination. The remedies set forth in this sectionshall not be deemed exclusive and shall be in addition to any other remediespermitted by law.

40-20-123. Choice of remedies; exemption from tax.

(a) The provisions of this chapter shall be supplemental to anydealer agreement between the dealer and the supplier which provides the dealerwith greater protection. The dealer can elect to pursue its contract remedy orthe remedy provided by state law, or both. An election by the dealer to pursuethese remedies shall not bar its right to exercise any other remedies that maybe granted at law or in equity.

(b) Any repurchase under this chapter is not subject to salesor use tax.