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§4085. Definitions


Published: 2015

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The Vermont Statutes Online



Title

09

:
Commerce and Trade






Chapter

108

:
MOTOR VEHICLE MANUFACTURERS, DISTRIBUTORS, AND DEALERS FRANCHISING











 

§

4085. Definitions

The following

words, terms, and phrases when used in this chapter shall have the meanings

respectively ascribed to them in this section, except where the context clearly

indicates a different meaning:

(1)

"Board" means the Transportation Board as established in 19 V.S.A. §

3.

(2)

"Coerce" means the failure to act in a fair and equitable manner in

performing or complying with any terms or provisions of a franchise or

agreement; provided, however, that recommendation, persuasion, urging, or

argument shall not be synonymous with coerce or lack of good faith.

(3)

"Dealership facilities" means the real estate, buildings, fixtures,

and improvements which have been devoted to the conduct of business under the

franchise by the new motor vehicle dealer.

(4)

"Designated family member" means the spouse, child, grandchild,

parent, brother, or sister of the owner of a new motor vehicle dealer who, in

the case of the owner's death, is entitled to inherit the ownership interest in

the new motor vehicle dealer under the terms of the owner's will, or who has

been nominated in any other written instrument, or who, in the case of an

incapacitated owner of a new motor vehicle dealer, has been appointed by a

court as the legal representative of the new motor vehicle dealer's property.

(5)

"Established place of business" means a permanent, commercial

building located within this State easily accessible and open to the public at

all reasonable times and at which the business of a new motor vehicle dealer,

including the display and repair of vehicles, may be lawfully carried on in

accordance with the terms of all applicable building codes, zoning, and other

land-use regulatory ordinances.

(6)

"Franchise" means all agreements and contracts between any new motor

vehicle manufacturer, written or otherwise, and any new motor vehicle dealer

which relate to the operation of the franchise and purport to fix the legal

rights and liabilities of the parties to such agreements or contracts,

including agreements pursuant to which the dealer purchases and resells the

franchise product, performs warranty and other service on the manufacturer's

products, leases or rents the dealership premises or agreements concerning the

dealership premises, or construction or renovation of the dealership premises.

(A)

"Franchisee" means a new motor vehicle dealer who enters into or is

currently a party to a franchise with a franchisor.

(B)

"Franchisor" means any manufacturer, distributor, distributor branch

or factory branch, importer, or other person, partnership, corporation,

association, or entity, whether resident or nonresident, which enters into or

is currently a party to a franchise with a new motor vehicle dealer.

(7)

"Fraud" means, in addition to its common law connotation, the

misrepresentation, in any manner, of a material fact; a promise or

representation not made honestly and in good faith,; and the intentional

failure to disclose a material fact.

(8) "Good

faith" means honesty in fact and the observation of reasonable commercial

standards of fair dealing in the trade as defined and interpreted in 9A V.S.A. §

2-103(1)(b) of the Uniform Commercial Code.

(9)

"Line-make" means motor vehicles that are offered for sale, lease, or

distribution under a common name, trademark, service mark, or brand name of the

franchisor or manufacturer of the motor vehicle.

(10)(A)

"Manufacturer" means any person, resident, or nonresident who

manufactures or assembles new motor vehicles, or imports for distribution

through distributors of motor vehicles, or any partnership, firm, association,

joint venture, corporation, or trust, resident or nonresident, which is

controlled by the manufacturer.

(B)

Additionally, the term manufacturer shall include the following terms:

(i)

"Distributor" means any person, resident or nonresident, who in whole

or in part offers for sale, sells, or distributes any new motor vehicle to new

motor vehicle dealers or who maintains factory representatives or who controls

any person, firm, association, corporation, or trust, resident or nonresident,

who in whole or in part offers for sale, sells, or distributes any new motor

vehicle to new motor vehicle dealers; and

(ii)

"Factory branch" means a branch office maintained by a manufacturer

for the purpose of selling, or offering for sale, vehicles to a distributor or

new motor vehicle dealer, or for directing or supervising in whole or in part

factory or distributor representatives.

(11) "Motor

vehicle" means every vehicle intended primarily for use and operation on

the public highways which is self-propelled, not including farm tractors and

other machines and tools used in the production, harvesting, and care of farm

products.

(12) "New

motor vehicle" means a vehicle which has been sold to a new motor vehicle

dealer and which has not been used for other than demonstration purposes and on

which the original title has not been issued from the new motor vehicle dealer.

(13) "New

motor vehicle dealer" means any person engaged in the business of selling,

offering to sell, soliciting, or advertising the sale of new motor vehicles and

who holds, or held at the time a cause of action under this chapter accrued, a

valid sales and service agreement, franchise, or contract, granted by the

manufacturer or distributor for the retail sale of said manufacturer's or

distributor's new motor vehicles.

(14)

"Owner" means any person holding an ownership interest in the

business entity operating as a new motor vehicle dealer or under a franchise as

defined in this chapter either as a corporation, partnership, sole

proprietorship, or other legal entity. To the extent that the rights of any

owner under this chapter conflict with the rights of any other owner, such

rights shall accrue in priority order based on the percentage of ownership

interest held by each owner; with the owner having the greatest ownership

interest having first priority and succeeding priority accruing to other owners

in the descending order of percentage of ownership interest.

(15)

"Person" means every natural person, partnership, corporation,

association, trust, estate, or any other legal entity.

(16)

"Relevant market area" means the area within a radius of 25 miles

around an existing dealer or the area of responsibility defined in the

franchise, whichever is greater; except that, where a manufacturer is seeking

to establish an additional new motor vehicle dealer and there are one or more

existing new motor vehicle dealers of the same line-make within a 10-mile

radius of the proposed dealer site, the "relevant market area" shall

in all instances be the area within a radius of 10 miles around an existing

dealer.

(17) "Motor

home" means a motor vehicle that is primarily designed to provide

temporary living quarters, built into as an integral part of, or permanently

attached to, a self-propelled motor vehicle chassis or van. The vehicle must

contain at least four of the following facilities: cooking, refrigeration or

ice box, self-contained toilet, heating or air conditioning or both, a potable

water supply system, including a sink and faucet, separate 110-125 volt

electrical power supply, or an LP gas supply or both. (Added 1981, No. 157

(Adj. Sess.), § 1, eff. April 14, 1982; amended 2009, No. 57, § 1, eff. June 1,

2009.)