Discuss with your local counsel the potential implications of such a clause. Then, in following the mantra of this article, push back! If a service provider seeks to do business in this state thereby generating revenues and profits from citizens thereof, they should similarly be welcome to resolve any disputes with its residents in its courts. Why should you, the dealers, be forced to litigate your disputes where these service providers wish? Given that nowadays there are numerous providers offering the same or similar services, there is an opportunity for dealers to shop around and to use the fact that the same services can be obtained elsewhere to negotiate these types of provisions in their favor. If enough dealers push back on these provisions in a given locale, service providers will have no choice other than to either concede such provisions or lose out on potential customers. The important thing to know is how to recognize which provisions could have serious negative consequences if they are to be followed and what power and rights you have as dealers to push back. CONCLUSION AND TAKEAWAYS As many have unfortunately learned as of late, the terms and conditions of even the most standard contracts can have staggering impacts on a party’s rights and options should things go awry. It is for that reason that dealers must be acutely aware of the following considerations when entering into all contracts: • Have we or our counsel reviewed the contract to determine if there are any provisions that could interfere with your ability to pursue the other party to the contract or to get out of the contract should the other party not be able to perform? • Have we considered the full financial impact that the various provisions of a contract or a dispute with the other party to the contract could have on our business, and is that a risk that we are willing to take? • Are we permitted under local laws to even agree to what is being proposed in a given contract? • Have we attempted to negotiate more favorable terms in the contract or seek other service providers with more favorable terms? While many businesses feel that they are hamstrung when presented with a contract for services or otherwise by a vendor, they must remember that they, too, can push back and fight for more favorable terms. This is particularly true in situations where a vendor or service provider focuses on a particular industry. So, I say again, always think, “Should you sign that contract?” Footnotes 1. Mentis Sciences Inc. v. Pittsburgh Networks LLC, 173 N.H. 584, 591 (2020). 2. Rizzo v. Allstate Insurance Company, 170 N.H. 708, 713 (2018), quoting Harper v. Healthsource New Hampshire, 140 N.H. 770, 775 (1996). 3. See Colonial Life Ins. Co. of America v. Electronic Data Systems Corp., 817 F. Supp. 235, 239-240 (D. N.H. 1993) (holding that limitations of damages clauses between two commercial entities are normally enforced, limiting damages in this case to “the compensation payable … for the two months preceding the event giving rise to said liability”). 4. Given the ever-changing landscape as it relates to data privacy/security and the laws surrounding same, we recommend that when presented with data sharing agreements, you always speak to local counsel before signing same. 5. The FTC’s Privacy Rule and Auto Dealers FAQs can be found at https://www.ftc.gov/business-guidance/resources/ ftcs-privacy-rule-auto-dealers-faqs. 6. See Strike Four LLC v. Nissan N. Am. Inc., 164 N.H. 729, 742 (2013) (holding that a dealer did not waive its right to protest termination despite the dealer expressly waiving such right in a prior settlement agreement with the manufacturer). 7. Pursuant to R.S.A. 508-A:3 — Action in Another Place by Agreement: If the parties have agreed in writing that an action on a controversy shall be brought only in another state and it is brought in a court of this state, the court will dismiss or stay the action, as appropriate, unless: I. The court is required by statute to entertain the action; II. The plaintiff cannot secure effective relief in the other state, for reasons other than delay in bringing the action; III. The other state would be a substantially less convenient place for the trial of the action than in this state; IV. The agreement as to the place of the action was obtained by misrepresentation, duress, the abuse of economic power, or other unconscionable means; or V. It would, for some other reason, be unfair or unreasonable to enforce the agreement. 8. Stafford Technology Inc. v. CamcarDiv. Of Textron Inc., 147 N.H. 174 (2001) (holding that a forum selection clause that provided that “any controversy arising under this [contract] shall be determined by the court of [Illinois] …” was enforceable and conferred exclusive jurisdiction for all claims on the courts of Illinois, resulting in dismissal of the lawsuit brought in New Hampshire). 9. Note that manufacturers are prohibited from imposing forum selection clauses that mandate resolution of disputes outside of New Hampshire or the Courts unless certain specific conditions are met. R.S.A. 357-C:3 III(p) (2)-(3), making it an unfair method of competition and unfair and deceptive practice for any: Manufacturer; distributor; distributor branch or division; factory branch or division; or any agent thereof to: (p) Require a motor vehicle franchisee to agree to a term or condition in a franchise, or any lease related to the operation of the franchise or agreement ancillary or collateral to a franchise, as a condition to the offer, grant or renewal of the franchise, lease or agreement, which: (2) Specifies the jurisdictions, venues or tribunals in which disputes arising with respect to the franchise, lease or agreement shall or shall not be submitted for resolution or otherwise prohibits a motor vehicle franchisee from bringing an action in a particular forum otherwise available under the law of this state; (3) Requires that disputes between the motor vehicle franchisor and motor vehicle franchisee be submitted to arbitration or to any other binding alternative dispute resolution procedure; [unless] … the motor vehicle franchisor and motor vehicle franchisee voluntarily agree to submit the dispute to arbitration or binding dispute resolution at the time the dispute arises … 29
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