Common use of Appointment and Authority of Distributor Clause in Contracts

Appointment and Authority of Distributor. (a) Subject to the terms and conditions of this exclusive Agreement, Supplier hereby appoints Distributor as an exclusive distributor of Supplier’s Products in the Territory only to the Dealers during the Fixed Term. Distributor hereby accepts said exclusive appointment, and agrees to use its best efforts to maximize sales of the Products in its Territory and only in this Territory. Distributor hereby accepts responsibility for stocking, display, sale, lease, delivery, installation, follow-up and service of Products in the Territory. Except as provided in Section 2.1(b) during the period of the exclusive distributorship granted by this Agreement, the Supplier must not sell, rent, lease or otherwise convey Products within the Territory or appoint other distributors for the Products within the Territory or even reduce the size of the Territory. (b) In furtherance of paragraph (a) above, and not in limitation thereof. Supplier reserves the right, on an unsolicited or solicited basis, to sell Products directly to customers whom it considers national and/or strategic accounts, without incurring any liability or obligation to Distributor, whether for commission or otherwise. Without limiting the foregoing, the Supplier may directly communicate with, accept orders from and supply Products to such national and/or strategic accounts. A list of national and/or strategic accounts may be made available to Distributor from time to time upon written request therefore. The number and identity of national and/or strategic accounts may be changed or modified from time to time by Supplier, in its sole and absolute discretion. 2.2 Subject to the terms and conditions of this Agreement, Distributor may sell Products purchased from Supplier to the Dealers in such manner, at such prices and upon such terms as Distributor shall determine. Distributor is an independent contractor, not an agent or employee of Supplier. Distributor is prohibited from, and shall not enter into, any contract or commitment in the name or on behalf of Supplier or bind Supplier in any respect whatsoever. Distributor is not authorized to assume or create any obligation or responsibility, including but not limited to obligations based on warranties (other than as specifically provided in Section 7 hereof) or guarantees or other contractual obligations, on behalf or in the name of Supplier. Distributor shall not misrepresent its status or authority. 2.3 Effective as of the date hereof. Supplier hereby grants to Distributor a revocable, royalty-free, non-transferable, limited license to use the Supplier’s Trademarks to promote the sale and servicing of the Products within the Territory, solely in accordance with the following terms: (a) Upon the prior written approval of Supplier, Distributor may utilize the Trademarks in Distributor’s identifying materials (i.e., letterhead, business cards, signage), as well as in Distributor’s marketing and promotional materials for the Products, and agrees to submit final proofs of all such identifying and promotional materials to Suppler for written approval prior to use. (b) Notwithstanding such approval, Distributor agrees that all usage of the Trademarks shall strictly adhere to the usage guidelines established by Supplier from time to time. (c) Distributor shall not include all or any portion of the Trademarks in its legally registered corporate, company, domain or trade name. (d) Distributor shall at all times and in all printed materials clearly indicate that the Trademarks are registered trademarks of Supplier, and, to the extent practical, include the following attribution: “Terex is a registered trademark of Terex Corporation in the United States of America and many other countries, used with permission.” (e) Distributor agrees that it will utilize only materials which do not disparage or place in disrepute Supplier, its businesses or its business reputation, and do not adversely affect or detract from Supplier’s goodwill or the goodwill appurtenant to the Trademarks or the Products and will use the Trademarks in ways which will not adversely affect Supplier’s business reputation and goodwill. (f) The license granted hereunder will cease immediately upon the earlier of: (i) the termination of this Agreement; or (ii) the continued failure of Distributor to use the Trademarks in accordance with the terms hereof after ten (10) days written notice of same. (g) Upon the termination of the license granted hereunder, all signs, advertisements, identifying materials, promotional materials, and other literature and/or media containing Supplier’s trade name or Trademarks which are in the Distributor’s possession shall be immediately returned to Supplier or destroyed. (h) Distributor shall not (i) attack Supplier’s title or right in and to the Trademarks in any jurisdiction, (ii) attack the validity of this license or the Trademarks or (iii) contest the fact that Distributor’s rights under this Agreement cease upon termination of this Agreement. The provisions of this Section 2.3(h) shall survive the termination of this Agreement.