Distributor Responsibilities. 4.1. In support of its commitment to the common vision set out in Article 1.1 above and its appointment referenced in Article 2.1 above, the Distributor undertakes to conduct all its activities hereunder in strict accordance with the Xxxxxxx Standards. The Distributor will establish and maintain a senior management structure appropriate to ensuring professional management of its business. The Distributor will give Xxxxxxx reasonable prior notice of any material changes to either structure or personnel. Subject to the individual employee’s performance, the Distributor will take all reasonable steps to retain all those employees who have received Xxxxxxx related training and who are considered Important by the Parties to the Distributor’s Xxxxxxx related business. The Distributor will also have the following responsibilities during the term hereof: 4.1.1 the Distributor will establish, maintain and continually strengthen a dedicated sales and marketing team for the promotion, sale, service and warranty support of the Products in the Territory targeted at maximizing sales and winning new business and offering best in class customer support for the Parties’ mutual benefit. The Distributor will seek at all times to grow sales of the Products through pull through and follow up type business activities including but not limited to pursuing opportunities with fleets, airlines, rental yards, OEM dealers and end-users. In support of this, the Distributor will: (a) advertise and promote interest in the Products in the Territory. This shall include (but shall not be limited to) the use of local communications media, maintaining a detailed and professional Internet web site, and exhibition or display facilities. The Distributor may, with Xxxxxxx’ prior written consent, exhibit and be involved in exhibiting any of the Products at any exhibition or trade show and take part in, support or be involved in competitions, competitive trials or demonstrations of the Products. The Distributor shall upon Xxxxxxx’ reasonable request withdraw at its own expense any particular advertisements, catalogues, sales literature or other printed matter relating to the Products; (b) provide service training courses in line with appropriate Xxxxxxx guidelines in respect of the Products within the Territory; (c) hold and distribute a pre-agreed (with Xxxxxxx) level and range of technical, sales and service literature applicable to the Products throughout the Territory and to its Dealers; and (d) maintain Products in inventory in accordance with Article 4.1.6 and ensure that they are available for supply to customers. 4.1.2 The Distributor will establish, maintain and use its reasonable best efforts to strengthen an engineering team to provide engineering effort in the areas of production specification, product engineering, application engineering and focused technical service assistance to its Dealers and customers within the Territory. The Distributor will nominate one appropriately qualified and experienced employee to act as the focal point for application engineering for the Products. The Distributor will ensure that this person attends appropriate Xxxxxxx training courses at least once per year. In addition, the Distributor will ensure that it has the application related equipment and tooling as reasonably specified by Xxxxxxx at the Designated Premises. The Distributor will obtain any omitted items within three (3) months of Xxxxxxx’ written notice identifying the shortfall. The Distributor will be responsible for ensuring that all applications and installations Into which Engines are sold and fitted have been appraised by its staff In accordance with the relevant criteria. In particular all completed application appraisals must be registered with Xxxxxxx for sign off before the customer’s first production date. The Distributor acknowledges that Xxxxxxx has the right to refuse to sign off a particular application where it reasonably believes that it is non-compliant. In such cases and also in cases where no application appraisal has been registered, Xxxxxxx may refuse to supply the relevant Engines and the Distributor waives any rights that it may have to reclaim any loss thereby suffered by it or its customer(s). 4.1.3 The Distributor will establish, maintain and strengthen its Dealer network within the Territory. The Distributor acknowledges the importance of strict adherence to the Xxxxxxx Dealer Policy as communicated to it by Xxxxxxx from time to time. The Distributor also acknowledges that the annual performance appraisal by Xxxxxxx will include a review of its adherence to this policy. The Distributor acknowledges the importance of its Dealers to the success of the Xxxxxxx distributorship and that they will be promoted by Xxxxxxx in Its literature as an essential part of the Xxxxxxx network in the Territory. Therefore the Distributor will only appoint as Dealers entities that have been approved in writing by Xxxxxxx. For its part, Xxxxxxx undertakes not to unreasonably withhold or delay its approval. In the case of any rejections, it will provide to and discuss with the Distributor its justifications. The Distributor will provide to Xxxxxxx upon request copies of all agreements with such Dealers so far as they relate to the Products. Xxxxxxx will hold any such agreements confidential. The Distributor will ensure that its agreements with its Dealers fairly and reasonably reflect the key terms of this Agreement relating to the operation of the Xxxxxxx distributorship. In particular, the Distributor will establish the right of Xxxxxxx to review the Dealer’s performance, its premises and facilities for the purpose of Article 6 below. Notwithstanding anything else contained herein, the Distributor shall remain fully responsible for and be liable to Xxxxxxx for the performance of its Dealers. 4.1.4 The Distributor will nominate one of its employees as the trainer for Xxxxxxx Products who will become the in-house trainer for the Distributor’s employees and those of its Dealers involved with the Products. The Distributor will ensure that this employee will attend Xxxxxxx technical training courses at least once every twelve (12) months, such courses to include sales, application engineering, products, service and warranty. The Distributor will provide Product familiarization and training to both its staff and Dealers in accordance with Xxxxxxx Standards, especially with respect to any new Products as and when they are introduced into the Territory by Xxxxxxx. The Distributor will ensure that each Dealer will receive appropriate Product training from the Distributor covering those Products for which the Dealer has a responsibility, such training to take place at least annually. 4.1.5 The Distributor will ensure that its Dealers will establish, maintain and constantly improve their Product service capabilities and facilities for both current Products and any new Products as and when they are introduced Into the Territory by Xxxxxxx. 4.1.6 The Distributor will establish with Xxxxxxx the required minimum level of Product inventory to be purchased and held by it at pre-agreed locations within the Territory. This level will reflect .the forecasted activities of the Distributor. The agreed level will be subject to joint review at least annually. The Distributor will ensure that it and all its Dealers store all Products in an appropriate environment that accords to the Xxxxxxx Service Warranty Manual. As and when any Products require revalidation for warranty purposes, this will be carried out at the Distributor’s expense and in strict accord with the Xxxxxxx Service Warranty Manual. 4.1.7 The Distributor will appoint at least one suitably qualified and experienced employee as its Xxxxxxx Dealer Development and Aftermarket Marketing Manager. The key objectives for this employee will be to deliver measurable year on year improvements in Dealer coverage, sales and market share growth in relation to aftermarket Parts sales, service and aftermarket competitor knowledge. This employee will also be responsible for developing suitable marketing and incentives programs for and with the Dealer network and Engine reconditioners. These programs may qualify for appropriate Special Sales Allowance under the relevant Xxxxxxx scheme as published by Xxxxxxx from time to time. 4.1.8 Every year the Distributor will develop and issue to Xxxxxxx a copy of its proposed annual business plan for its and its Dealers activities in the Territory. The Distributor’s business plan must address marketing objectives with sales forecast, resources requirements, facility descriptions and projected financial statements and all other issues detailed in the Xxxxxxx format. The business plan and all data required by Xxxxxxx will be submitted in accordance with the Xxxxxxx guidelines and standards provided in advance to the Distributor. Xxxxxxx will notify the Distributor of the required receipt date at least six (6) weeks in advance. This plan will be reviewed in good faith with Xxxxxxx and any mutually agreed adjustments incorporated. Once finalized with Xxxxxxx, the Distributor will use all reasonable best efforts to achieve the targets set out in the plan. The Distributor will also develop and issue to Xxxxxxx every year a copy of a three (3) year forecast of the Xxxxxxx business in the Territory. The Distributor will at least annually evaluate with Xxxxxxx the performance achieved against the plan and the forecast. The Distributor will provide supporting data about volumes, margins and revenue by specification achieved with the Dealers and customers. Every year the Distributor will issue to Xxxxxxx a twelve (12) month forecast of Product requirements, and this forecast will be updated monthly. With respect to Engines only, the forecast will also show a provisional three (3) month firm program. The Distributor shall maintain such financial, inventory, sales, service and other records including details of key potential customers, all as mutually agreed with Xxxxxxx. These records shall be made available to Xxxxxxx during normal business hours upon request by Xxxxxxx. 4.1.9 The Distributor shall not, directly or indirectly, solicit, outside the Territory customers for any of the Products, nor for the purpose of delivery of the same establish branches or warehouses outside the Territory, nor advertise any of the Products outside the Territory. This shall not prevent the Distributor from advertising in a publication in circulation both within and outside the Territory. Distributor shall require Its Dealers to abide by this Section 4.1.9 in any agreements between Distributor and its Dealers, Distributor shall be responsible for enforcing this Section against its Dealers. 4.1.10 The Distributor shall ensure so far as is reasonably practicable that: (a) all Engines sold by it conform to any applicable legislation in force in those countries and the ,Territory where the Distributor’s customer may operate the Engine or to which it may sell the Engine; (b) the Engines supplied by it or Its approved Dealers are installed and applied by customers in accordance with the limitations and product specifications established by Xxxxxxx; (c) all required safety and operating instructions and warranty terms are supplied to purchasers of Engines, including but not limited to their Dealers and that such entitles are fully aware of and properly instructed in all aspects of the operation and maintenance thereof; and (d) it shall make available to a prospective purchaser all brochures, booklets, manuals and other literature and information provided by Xxxxxxx and which Xxxxxxx designates as intended for such users. 4.1.11 The Distributor will appoint one suitably qualified and experienced employee as its prime contact point and administrator for warranty issues within the Territory. The Distributor acknowledges the absolute priority of ensuring that all warranty related requests within its Territory from customers must be attended to within twelve (12) hours of their notification where so required. To this end, the Distributor will always consider the use by it of Engines within its inventory as warranty replacements where the customer’s operational requirements so demand. in addition where Xxxxxxx so requests, the Distributor and its Dealers will carry out pro-service warranty work at a customer’s premises within the Territory in accordance with the Xxxxxxx Service Warranty Manual procedures. The Distributor will directly and through its Dealers provide a repair, service and warranty service to purchasers of Products (including those items specifically referenced in Article 2.2.1 above) in the Territory. In relation to all warranty related activity hereunder, the Distributor and its Dealers will operate in accordance with the Xxxxxxx Service Warranty Manual procedures as notified to the Distributor by Xxxxxxx. Notwithstanding the terms of such procedures, Xxxxxxx will use its reasonable best efforts to process and pay all accepted claims within twenty-eight (28) days of their receipt provided those claims have been compiled in accordance with the Xxxxxxx Service Warranty Manual and submitted to Xxxxxxx within sixty (60) days of the Engine failure. In relation to Product service issues, the Distributor will appoint an appropriately qualified and experienced employee as its Xxxxxxx service manager for the Territory. The Distributor will ensure that the employee attends at least on an annual basis relevant Xxxxxxx product and service training courses. 4.1.12 In addition to the above, the Distributor will provide to Xxxxxxx against an agreed program sales and Inventory data for itself and its Dealers activities hereunder and financial and operating statements that may reasonably be requested. The Distributor shall provide within 120 days of the end of its fiscal year financial statements certified by an Independent firm of public or chartered accountants In a form acceptable to Xxxxxxx. In addition and at the same time, the Distributor will confirm the ownership and management control details of its business to the extent it relates to its appointment hereunder.
Appears in 2 contracts
Samples: Distribution Agreement (Power Solutions International, Inc.), Distribution Agreement (Power Solutions International, Inc.)
Distributor Responsibilities. 4.12.1 Both parties acknowledge that open communications and the sharing of information are important to fully develop the market, gain insight into the market’s needs and develop appropriate market strategies. It is a further desire of OxySure® to facilitate an open and direct communication between the end-user customer (“Customer”) and OxySure®. To this end, the parties agree to cooperate and openly communicate with each other in furtherance of these objectives, and Distributor further agrees to use its best efforts to facilitate such communication and contact between Customers and OxySure®.
2.2 Distributor will use its best efforts to develop the Territory and Channel market and promote the sales of Products within the Territory and Channel. Distributor will not, without OxySure’s prior written consent, which consent shall not be unreasonably withheld, (a) either advertise the Products for sale or sell the Products outside the Territory or Channel, or (b) advertise the Products for sale inside the Territory or Channel if the Products are ultimately destined for delivery outside the Territory or Channel or to someone whom Distributor has reason to believe will use the Products or resell them outside the Territory or Channel.
2.3 Distributor will maintain sufficient inventory of Products to enable the prompt delivery of Products to its Customers. In support of its commitment to the common vision set out in Article 1.1 above and its appointment referenced in Article 2.1 aboveaddition, the Distributor undertakes to conduct all its activities hereunder in strict accordance must comply, at a minimum, with the Xxxxxxx Standards. The Minimum Net Purchases requirement set forth in Section 4.
2.4 Distributor will establish maintain an adequately trained sales organization and/or a network of sub-distributors and resellers, which will include at least one OxySure® Product specialist, to enable Distributor to fulfill its obligations under Section 2.2 of this Agreement. Distributor will further maintain an organized and well stocked collection of technical and marketing information and materials for distribution to prospective Customers. Distributor shall cover the Territory and Channel with diligent, adequate and reasonable sales activities, including advertising, distribution of technical and sales materials, exhibitions, demonstrations and other methods of promoting sales of the Products. Distributor will bear all expenses incurred in connection with these activities.
2.5 Distributor will employ and maintain a senior management structure appropriate sufficiently trained personnel to ensuring professional management of its business. The Distributor will give Xxxxxxx reasonable prior notice of any material changes to either structure or personnel. Subject to the individual employee’s performance, the Distributor will take all reasonable steps to retain all those employees who have received Xxxxxxx related training and who are considered Important by the Parties to the Distributor’s Xxxxxxx related business. The Distributor will also have the following responsibilities during the term hereof:
4.1.1 the Distributor will establish, maintain and continually strengthen a dedicated sales and marketing team for the promotion, sale, service and warranty support of the Products in the Territory targeted at maximizing sales and winning new business and offering best in class customer provide technical support for the Parties’ mutual benefitProducts, such support including, but not being limited to, the use and limited maintenance of the Products. The Distributor and OxySure® will cooperate to ensure such personnel become and remain adequately trained and qualified pursuant to Section 3.2.
2.6 Distributor will seek at maintain a reasonable number of demonstration Products for demonstration to prospective and existing Customers. Distributors will obtain prior approval by OxySure® before any demonstration Product is sold or transferred to a Customer.
2.7 OxySure® does not authorize Distributor to make, and will not Distributor make, any guaranty or warranty with respect to any Product. OxySure® will provide all times Product warranties, if any, directly and in writing to grow sales the Customer. Distributor will make no representations as to Product quality, performance, capabilities and the like except as OxySure expressly authorizes in writing, such as through published, product specifications.
2.8 Distributor agrees to avoid all activities that might place Distributor in a position of the Products through pull through and follow up type business activities including but not limited adverse interest or divided loyalty with OxySure® or Distributor’s obligations as defined herein.
2.9 In addition to pursuing opportunities with fleetsSection 8, airlinesDistributor will provide to OxySure® upon discovery by Distributor and, rental yardson OxySure’s request, OEM dealers and end-users. In support of this, the Distributor willany information regarding:
(a) advertise and promote interest the infringement, perceived infringement, unauthorized manufacture, use or marketing or misuse of OxySure’s intellectual property, Proprietary Information (as defined in the Products in the Territory. This shall include (but shall not be limited to) the use of local communications mediaSection 10 below), maintaining a detailed and professional Internet web site, and exhibition or display facilities. The Distributor may, with Xxxxxxx’ prior written consent, exhibit and be involved in exhibiting any of the Products at any exhibition or trade show and take part in, support or be involved in competitions, competitive trials or demonstrations of the Products. The Distributor shall upon Xxxxxxx’ reasonable request withdraw at its own expense any particular advertisements, catalogues, sales literature or other printed matter relating to the and/or Products;
(b) provide service training courses in line with appropriate Xxxxxxx guidelines in respect activities within the Territory or Channel marketplace that affect the sales of the Products within the TerritoryProducts;
(c) hold and distribute a pre-agreed (with Xxxxxxx) level and range any inquiries or orders for any of technical, sales and service literature applicable to the Products throughout to be delivered outside the Territory and to its Dealersor Channel or for delivery in the Territory or Channel for ultimate use outside the Territory or Channel;
(d) any observations concerning recurrent issues with the Products;
(e) any changes in the management or ownership of Distributor; and
(df) maintain Products in inventory in accordance with Article 4.1.6 and ensure that they are available for supply to customers.
4.1.2 The Distributor will establish, maintain and use its reasonable best efforts to strengthen an engineering team to provide engineering effort in the areas event Distributor learns of production specification, product engineering, application engineering and focused technical service assistance to its Dealers and customers within the Territory. The Distributor will nominate one appropriately qualified and experienced employee to act as the focal point for application engineering for the Products. The Distributor will ensure that this person attends appropriate Xxxxxxx training courses at least once per year. In addition, the Distributor will ensure that it has the application related equipment and tooling as reasonably specified by Xxxxxxx at the Designated Premises. The Distributor will obtain any omitted items within three (3) months of Xxxxxxx’ written notice identifying the shortfall. The Distributor will be responsible for ensuring that all applications and installations Into which Engines are sold and fitted have been appraised by its staff In accordance with the relevant criteria. In particular all completed application appraisals must be registered with Xxxxxxx for sign off before the customer’s first production date. The Distributor acknowledges that Xxxxxxx has the right to refuse to sign off a particular application where it reasonably believes that it is non-compliant. In such cases and also in cases where no application appraisal has been registered, Xxxxxxx may refuse to supply the relevant Engines and the Distributor waives any rights that it may have to reclaim any loss thereby suffered by it or its customer(s).
4.1.3 The Distributor will establish, maintain and strengthen its Dealer network within the Territory. The Distributor acknowledges the importance of strict adherence to the Xxxxxxx Dealer Policy as communicated to it by Xxxxxxx from time to time. The Distributor also acknowledges that the annual performance appraisal by Xxxxxxx will include a review of its adherence to this policy. The Distributor acknowledges the importance of its Dealers to the success of the Xxxxxxx distributorship and that they will be promoted by Xxxxxxx in Its literature as an essential part of the Xxxxxxx network in the Territory. Therefore the Distributor will only appoint as Dealers entities that have been approved in writing by Xxxxxxx. For its part, Xxxxxxx undertakes not to unreasonably withhold or delay its approval. In the case of any rejections, it will provide to and discuss with the Distributor its justifications. The Distributor will provide to Xxxxxxx upon request copies of all agreements with such Dealers so far as they relate to the Products. Xxxxxxx will hold any such agreements confidential. The Distributor will ensure that its agreements with its Dealers fairly and reasonably reflect the key terms of this Agreement information relating to the operation an alleged malfunction of the Xxxxxxx distributorship. In particular, the Distributor will establish the right or an infliction of Xxxxxxx to review the Dealer’s performance, its premises and facilities for the purpose of Article 6 below. Notwithstanding anything else contained herein, the Distributor shall remain fully responsible for and be liable to Xxxxxxx for the performance of its Dealers.
4.1.4 The Distributor will nominate one of its employees as the trainer for Xxxxxxx Products who will become the in-house trainer for the Distributor’s employees and those of its Dealers involved with the Products. The Distributor will ensure that this employee will attend Xxxxxxx technical training courses at least once every twelve (12) months, such courses to include sales, application engineering, products, service and warranty. The Distributor will provide Product familiarization and training to both its staff and Dealers in accordance with Xxxxxxx Standards, especially with respect to any new Products as and when they are introduced into the Territory an injury by Xxxxxxx. The Distributor will ensure that each Dealer will receive appropriate Product training from the Distributor covering those Products for which the Dealer has a responsibility, such training to take place at least annually.
4.1.5 The Distributor will ensure that its Dealers will establish, maintain and constantly improve their Product service capabilities and facilities for both current Products and any new Products as and when they are introduced Into the Territory by Xxxxxxx.
4.1.6 The Distributor will establish with Xxxxxxx the required minimum level of Product inventory to be purchased and held by it at pre-agreed locations within the Territory. This level will reflect .the forecasted activities of the Distributor. The agreed level will be subject to joint review at least annually. The Distributor will ensure that it and all its Dealers store all Products in an appropriate environment that accords to the Xxxxxxx Service Warranty Manual. As and when any Products require revalidation for warranty purposes, this will be carried out at the Distributor’s expense and in strict accord with the Xxxxxxx Service Warranty Manual.
4.1.7 The Distributor will appoint at least one suitably qualified and experienced employee as its Xxxxxxx Dealer Development and Aftermarket Marketing Manager. The key objectives for this employee will be to deliver measurable year on year improvements in Dealer coverage, sales and market share growth in relation to aftermarket Parts sales, service and aftermarket competitor knowledge. This employee will also be responsible for developing suitable marketing and incentives programs for and with the Dealer network and Engine reconditioners. These programs may qualify for appropriate Special Sales Allowance under the relevant Xxxxxxx scheme as published by Xxxxxxx from time to time.
4.1.8 Every year the Distributor will develop and issue to Xxxxxxx a copy of its proposed annual business plan for its and its Dealers activities in the Territory. The Distributor’s business plan must address marketing objectives with sales forecast, resources requirements, facility descriptions and projected financial statements and all other issues detailed in the Xxxxxxx format. The business plan and all data required by Xxxxxxx will be submitted in accordance with the Xxxxxxx guidelines and standards provided in advance to the Distributor. Xxxxxxx will notify the Distributor of the required receipt date at least six (6) weeks in advance. This plan will be reviewed in good faith with Xxxxxxx and any mutually agreed adjustments incorporated. Once finalized with Xxxxxxx, the Distributor will use all reasonable best efforts to achieve the targets set out in the plan. The Distributor will also develop and issue to Xxxxxxx every year a copy of a three (3) year forecast of the Xxxxxxx business in the Territory. The Distributor will at least annually evaluate with Xxxxxxx the performance achieved against the plan and the forecast. The Distributor will provide supporting data about volumes, margins and revenue by specification achieved with the Dealers and customers. Every year the Distributor will issue to Xxxxxxx a twelve (12) month forecast of Product requirements, and this forecast will be updated monthly. With respect to Engines only, the forecast will also show a provisional three (3) month firm program. The Distributor shall maintain such financial, inventory, sales, service and other records including details of key potential customers, all as mutually agreed with Xxxxxxx. These records shall be made available to Xxxxxxx during normal business hours upon request by Xxxxxxx.
4.1.9 The Distributor shall not, directly or indirectly, solicit, outside the Territory customers for any of the Products, nor for the purpose of delivery of the same establish branches or warehouses outside the Territory, nor advertise any of the Products outside the Territory. This shall not prevent the Distributor from advertising in a publication in circulation both within and outside the Territory. Distributor shall require Its Dealers to abide by this Section 4.1.9 in any agreements between Distributor and its DealersProduct, Distributor shall be responsible for enforcing this Section against its Dealerspromptly notify OxySure® and provide all known information as well as assist OxySure® in any reasonable investigation concerning such allegations. Distributor will abide by all Distributor-specific governmental reporting requirements as imposed by the United States Food and Drug Administration or any other relevant local, state or federal governmental body.
4.1.10 The 2.10 Distributor shall ensure so far as is reasonably practicable that:
will maintain information regarding the sale of each Product, including, but not limited to: Customer names and addresses, product identification information (a) all Engines sold by it conform to any applicable legislation in force in those countries and the ,Territory where the Distributor’s customer may operate the Engine or to which it may sell the Engine;
(b) the Engines supplied by it or Its approved Dealers are installed and applied by customers in accordance with the limitations and product specifications established by Xxxxxxx;
(c) all required safety and operating instructions and warranty terms are supplied to purchasers of Engines, including but not limited to their Dealers lot numbers, batch numbers, SKU numbers, and that such entitles are fully aware of expiration dates) and properly instructed in all aspects a description of the operation products provided. Distributor will also maintain all books of accounts, documents, correspondence, records, or the like, relating to any transaction involving the Products. In the event OxySure® desires to communicate regulatory or other information to Customers, or otherwise notify Customers for any reason, Distributor will use the Customer information that it maintains to send such notice or communication on behalf of OxySure® in a timely manner. Further, Distributor will make such Customer information available to OxySure® to the extent necessary for OxySure® to comply with relevant laws, rules, regulations, and maintenance thereof; andjudicial or administrative orders.
(d) 2.11 Distributor shall furnish to OxySure® copies of all proposed advertising, technical, sales, and other materials relating to the Products and refrain from using and/or discontinue the use of any such materials which in the sole opinion of OxySure® are false or misleading or may subject OxySure® to liability.
2.12 Distributor agrees to carry out all of its obligations to OxySure® promptly and in good faith. Time is of the essence in this Agreement.
2.13 Distributor shall not take any action that may result in denigrating, tarnishing or otherwise adversely affecting the reputation or goodwill of OxySure®. Without limiting the foregoing, Distributor agrees that it shall not (a) explicitly or implicitly misrepresent any feature or function of the Product, (b) make available unauthorized claims or statements related to a prospective purchaser all brochuresthe Products, booklets, manuals and other literature and information provided by Xxxxxxx and which Xxxxxxx designates as intended for such usersor (c) make any false statements related to the Product or OxySure®.
4.1.11 The Distributor will appoint one suitably qualified and experienced employee as 2.14 In performing its prime contact point and administrator for warranty issues within the Territory. The Distributor acknowledges the absolute priority of ensuring that all warranty related requests within its Territory from customers must be attended to within twelve (12) hours of their notification where so required. To this end, the Distributor will always consider the use by it of Engines within its inventory as warranty replacements where the customer’s operational requirements so demand. in addition where Xxxxxxx so requests, the Distributor and its Dealers will carry out pro-service warranty work at a customer’s premises within the Territory in accordance with the Xxxxxxx Service Warranty Manual procedures. The Distributor will directly and through its Dealers provide a repair, service and warranty service to purchasers of Products (including those items specifically referenced in Article 2.2.1 above) in the Territory. In relation to all warranty related activity obligations hereunder, the Distributor shall comply with any and its Dealers will operate in accordance with the Xxxxxxx Service Warranty Manual procedures as notified all relevant laws, rules, regulations, and restrictions, including, but not limited to, any that may be specifically applicable to the Products and the sale thereof.
2.15 Distributor by Xxxxxxxmay not market, promote, distribute, advertise, offer, sell or otherwise provide any Product through a Web site, email communications, or other electronic method or medium unless each of the parties have executed the “Internet Distribution Attachment” attached to this Agreement. Notwithstanding the terms foregoing, Distributor may provide Product materials, pricing and invoices via email to a Customer, provided that such email communications are in response to direct Customer inquiries and are not part of such procedures, Xxxxxxx will use its reasonable best efforts to process and pay all accepted claims within twenty-eight (28) days of their receipt provided those claims have been compiled in accordance with the Xxxxxxx Service Warranty Manual and submitted to Xxxxxxx within sixty (60) days of the Engine failure. In relation to Product service issues, the Distributor will appoint an appropriately qualified and experienced employee as its Xxxxxxx service manager for the Territory. The Distributor will ensure that the employee attends at least on an annual basis relevant Xxxxxxx product and service training coursesa marketing or other promotional campaign or effort.
4.1.12 In addition to the above, the Distributor will provide to Xxxxxxx against an agreed program sales and Inventory data for itself and its Dealers activities hereunder and financial and operating statements that may reasonably be requested. The Distributor shall provide within 120 days of the end of its fiscal year financial statements certified by an Independent firm of public or chartered accountants In a form acceptable to Xxxxxxx. In addition and at the same time, the Distributor will confirm the ownership and management control details of its business to the extent it relates to its appointment hereunder.
Appears in 1 contract
Distributor Responsibilities. 4.12.1 Both parties acknowledge that open communications and the sharing of information are important to fully develop the market, gain insight into the market’s needs and develop appropriate market strategies. In support of its commitment to the common vision set out in Article 1.1 above and its appointment referenced in Article 2.1 aboveTo this end, the Distributor undertakes parties agree to conduct all its activities hereunder cooperate and openly communicate with each other in strict accordance with the Xxxxxxx Standards. The furtherance of these objectives.
2.2 Distributor will establish use its best efforts to develop the Territory and maintain a senior management structure appropriate to ensuring professional management Channel market and promote the sales of its businessProducts within the Territory and Channel. The Distributor will give Xxxxxxx reasonable not, without OxySure’s prior notice of any material changes written consent, (a) either advertise the Products for sale or sell the Products outside the Territory or Channel, or (b) advertise the Products for sale inside the Territory or Channel if the Products are ultimately destined for delivery outside the Territory or Channel or to either structure someone whom Distributor has reason to believe will use the Products or personnel. Subject to resell them outside the individual employee’s performance, the Territory or Channel.
2.3 Distributor will take all maintain sufficient inventory of Products to enable the prompt delivery of Products to its Customers. On or before the fifth day of each month, Distributor shall provide OxySure with a six-month rolling forecast providing a reasonable steps to retain all those employees who have received Xxxxxxx related training and who are considered Important by the Parties to the Distributor’s Xxxxxxx related business. The Distributor will also have the following responsibilities during the term hereof:
4.1.1 the Distributor will establish, maintain and continually strengthen a dedicated sales and marketing team for the promotion, sale, service and warranty support estimate of the Products Distributor expects to sell over the subsequent six month period (the “Forecast”). In addition, Distributor must comply, at a minimum, with the Minimum Net Purchases requirement set forth in Section 4.
2.4 Distributor will maintain an adequately trained sales organization, which will include at least one OxySure Product specialist, to enable Distributor to fulfill its obligations under Section 2.2 of this Agreement. Distributor will further maintain an organized and well stocked collection of technical and marketing information and materials for distribution to prospective Customers. Distributor shall cover the Territory targeted at maximizing and Channel with diligent, adequate and reasonable sales activities, including advertising, distribution of technical and winning new business sales materials, exhibitions, demonstrations and offering best other methods of promoting sales of the Products. Distributor will bear all expenses incurred in class customer connection with these activities. OxySure® Distribution Agreement
2.5 Distributor will employ and maintain sufficiently trained personnel to provide technical support for the Parties’ mutual benefitProducts, such support including, but not being limited to, the use and limited maintenance of the Products. The Distributor and OxySure will cooperate to ensure such personnel become and remain adequately trained and qualified pursuant to Section 3.2.
2.6 Distributor will seek at maintain a reasonable number of demonstration Products for demonstration to prospective and existing Customers. Distributors will not sell any demonstration Product(s) to a Customer.
2.7 OxySure does not authorize Distributor to make, and Distributor will not make, any guaranty or warranty with respect to any Product. OxySure will provide all times Product warranties, if any, directly and in writing to grow sales the Customer. Distributor will make no representations as to Product quality, performance, capabilities and the like except as OxySure expressly authorizes in writing, such as through published, product specifications.
2.8 Distributor agrees to avoid all activities that might place Distributor in a position of the Products through pull through and follow up type business activities including but not limited adverse interest or divided loyalty with OxySure or Distributor’s obligations as defined herein.
2.9 In addition to pursuing opportunities with fleetsSection 8, airlinesDistributor will provide to OxySure upon discovery by Distributor and, rental yardson OxySure’s request, OEM dealers and end-users. In support of this, the Distributor willany information regarding:
(a) advertise and promote interest the infringement, perceived infringement, unauthorized manufacture, use or marketing or misuse of OxySure’s intellectual property, Proprietary Information (as defined in the Products in the Territory. This shall include (but shall not be limited to) the use of local communications mediaSection 10 below), maintaining a detailed and professional Internet web site, and exhibition or display facilities. The Distributor may, with Xxxxxxx’ prior written consent, exhibit and be involved in exhibiting any of the Products at any exhibition or trade show and take part in, support or be involved in competitions, competitive trials or demonstrations of the Products. The Distributor shall upon Xxxxxxx’ reasonable request withdraw at its own expense any particular advertisements, catalogues, sales literature or other printed matter relating to the and/or Products;
(b) provide service training courses in line with appropriate Xxxxxxx guidelines in respect activities within the Territory or Channel marketplace that affect the sales of the Products within the TerritoryProducts;
(c) hold and distribute a pre-agreed (with Xxxxxxx) level and range any inquiries or orders for any of technical, sales and service literature applicable to the Products throughout to be delivered outside the Territory and to its Dealersor Channel or for delivery in the Territory or Channel for ultimate use outside the Territory or Channel;
(d) any observations concerning recurrent issues with the Products;
(e) any changes in the management or ownership of Distributor; and
(df) maintain Products in inventory in accordance with Article 4.1.6 and ensure that they are available for supply to customers.
4.1.2 The Distributor will establish, maintain and use its reasonable best efforts to strengthen an engineering team to provide engineering effort in the areas event Distributor learns of production specification, product engineering, application engineering and focused technical service assistance to its Dealers and customers within the Territory. The Distributor will nominate one appropriately qualified and experienced employee to act as the focal point for application engineering for the Products. The Distributor will ensure that this person attends appropriate Xxxxxxx training courses at least once per year. In addition, the Distributor will ensure that it has the application related equipment and tooling as reasonably specified by Xxxxxxx at the Designated Premises. The Distributor will obtain any omitted items within three (3) months of Xxxxxxx’ written notice identifying the shortfall. The Distributor will be responsible for ensuring that all applications and installations Into which Engines are sold and fitted have been appraised by its staff In accordance with the relevant criteria. In particular all completed application appraisals must be registered with Xxxxxxx for sign off before the customer’s first production date. The Distributor acknowledges that Xxxxxxx has the right to refuse to sign off a particular application where it reasonably believes that it is non-compliant. In such cases and also in cases where no application appraisal has been registered, Xxxxxxx may refuse to supply the relevant Engines and the Distributor waives any rights that it may have to reclaim any loss thereby suffered by it or its customer(s).
4.1.3 The Distributor will establish, maintain and strengthen its Dealer network within the Territory. The Distributor acknowledges the importance of strict adherence to the Xxxxxxx Dealer Policy as communicated to it by Xxxxxxx from time to time. The Distributor also acknowledges that the annual performance appraisal by Xxxxxxx will include a review of its adherence to this policy. The Distributor acknowledges the importance of its Dealers to the success of the Xxxxxxx distributorship and that they will be promoted by Xxxxxxx in Its literature as an essential part of the Xxxxxxx network in the Territory. Therefore the Distributor will only appoint as Dealers entities that have been approved in writing by Xxxxxxx. For its part, Xxxxxxx undertakes not to unreasonably withhold or delay its approval. In the case of any rejections, it will provide to and discuss with the Distributor its justifications. The Distributor will provide to Xxxxxxx upon request copies of all agreements with such Dealers so far as they relate to the Products. Xxxxxxx will hold any such agreements confidential. The Distributor will ensure that its agreements with its Dealers fairly and reasonably reflect the key terms of this Agreement information relating to the operation an alleged malfunction of the Xxxxxxx distributorship. In particular, the Distributor will establish the right or an infliction of Xxxxxxx to review the Dealer’s performance, its premises and facilities for the purpose of Article 6 below. Notwithstanding anything else contained herein, the Distributor shall remain fully responsible for and be liable to Xxxxxxx for the performance of its Dealers.
4.1.4 The Distributor will nominate one of its employees as the trainer for Xxxxxxx Products who will become the in-house trainer for the Distributor’s employees and those of its Dealers involved with the Products. The Distributor will ensure that this employee will attend Xxxxxxx technical training courses at least once every twelve (12) months, such courses to include sales, application engineering, products, service and warranty. The Distributor will provide Product familiarization and training to both its staff and Dealers in accordance with Xxxxxxx Standards, especially with respect to any new Products as and when they are introduced into the Territory an injury by Xxxxxxx. The Distributor will ensure that each Dealer will receive appropriate Product training from the Distributor covering those Products for which the Dealer has a responsibility, such training to take place at least annually.
4.1.5 The Distributor will ensure that its Dealers will establish, maintain and constantly improve their Product service capabilities and facilities for both current Products and any new Products as and when they are introduced Into the Territory by Xxxxxxx.
4.1.6 The Distributor will establish with Xxxxxxx the required minimum level of Product inventory to be purchased and held by it at pre-agreed locations within the Territory. This level will reflect .the forecasted activities of the Distributor. The agreed level will be subject to joint review at least annually. The Distributor will ensure that it and all its Dealers store all Products in an appropriate environment that accords to the Xxxxxxx Service Warranty Manual. As and when any Products require revalidation for warranty purposes, this will be carried out at the Distributor’s expense and in strict accord with the Xxxxxxx Service Warranty Manual.
4.1.7 The Distributor will appoint at least one suitably qualified and experienced employee as its Xxxxxxx Dealer Development and Aftermarket Marketing Manager. The key objectives for this employee will be to deliver measurable year on year improvements in Dealer coverage, sales and market share growth in relation to aftermarket Parts sales, service and aftermarket competitor knowledge. This employee will also be responsible for developing suitable marketing and incentives programs for and with the Dealer network and Engine reconditioners. These programs may qualify for appropriate Special Sales Allowance under the relevant Xxxxxxx scheme as published by Xxxxxxx from time to time.
4.1.8 Every year the Distributor will develop and issue to Xxxxxxx a copy of its proposed annual business plan for its and its Dealers activities in the Territory. The Distributor’s business plan must address marketing objectives with sales forecast, resources requirements, facility descriptions and projected financial statements and all other issues detailed in the Xxxxxxx format. The business plan and all data required by Xxxxxxx will be submitted in accordance with the Xxxxxxx guidelines and standards provided in advance to the Distributor. Xxxxxxx will notify the Distributor of the required receipt date at least six (6) weeks in advance. This plan will be reviewed in good faith with Xxxxxxx and any mutually agreed adjustments incorporated. Once finalized with Xxxxxxx, the Distributor will use all reasonable best efforts to achieve the targets set out in the plan. The Distributor will also develop and issue to Xxxxxxx every year a copy of a three (3) year forecast of the Xxxxxxx business in the Territory. The Distributor will at least annually evaluate with Xxxxxxx the performance achieved against the plan and the forecast. The Distributor will provide supporting data about volumes, margins and revenue by specification achieved with the Dealers and customers. Every year the Distributor will issue to Xxxxxxx a twelve (12) month forecast of Product requirements, and this forecast will be updated monthly. With respect to Engines only, the forecast will also show a provisional three (3) month firm program. The Distributor shall maintain such financial, inventory, sales, service and other records including details of key potential customers, all as mutually agreed with Xxxxxxx. These records shall be made available to Xxxxxxx during normal business hours upon request by Xxxxxxx.
4.1.9 The Distributor shall not, directly or indirectly, solicit, outside the Territory customers for any of the Products, nor for the purpose of delivery of the same establish branches or warehouses outside the Territory, nor advertise any of the Products outside the Territory. This shall not prevent the Distributor from advertising in a publication in circulation both within and outside the Territory. Distributor shall require Its Dealers to abide by this Section 4.1.9 in any agreements between Distributor and its DealersProduct, Distributor shall be responsible for enforcing this Section against its Dealerspromptly notify OxySure and provide all known information as well as assist OxySure in any reasonable investigation concerning such allegations. Distributor will abide by all Distributor-specific governmental reporting requirements as imposed by the United States Food and Drug Administration or any other relevant local, state or federal governmental body.
4.1.10 The 2.10 Distributor shall ensure so far as is reasonably practicable that:
will maintain information regarding the sale of each Product, including, but not limited to: Customer names and addresses, product identification information (a) all Engines sold by it conform to any applicable legislation in force in those countries and the ,Territory where the Distributor’s customer may operate the Engine or to which it may sell the Engine;
(b) the Engines supplied by it or Its approved Dealers are installed and applied by customers in accordance with the limitations and product specifications established by Xxxxxxx;
(c) all required safety and operating instructions and warranty terms are supplied to purchasers of Engines, including but not limited to their Dealers lot numbers, batch numbers, SKU numbers, and that such entitles are fully aware of expiration dates) and properly instructed in all aspects a description of the operation products provided. Distributor will also maintain all books of accounts, documents, correspondence, records, or the like, relating to any transaction involving the Products. In the event OxySure desires to communicate regulatory or other information to Customers, or otherwise notify Customers for any reason, Distributor will use the Customer information that it maintains to send such notice or communication on behalf of OxySure in a timely manner. Further, Distributor will make such Customer information available to OxySure to the extent necessary for OxySure to comply with relevant laws, rules, regulations, and maintenance thereof; andjudicial or administrative orders.
(d) 2.11 Distributor shall furnish to OxySure copies of all proposed advertising, technical, sales, and other materials relating to the Products and refrain from using and/or discontinue the use of any such materials which in the sole opinion of OxySure are false or misleading or may subject OxySure to liability.
2.12 Distributor agrees to carry out all of its obligations to OxySure promptly and in good faith. Time is of the essence in this Agreement.
2.13 Distributor shall not take any action that may result in denigrating, tarnishing or otherwise adversely affecting the reputation or goodwill of OxySure. Without limiting the foregoing, Distributor agrees that it shall not (a) explicitly or implicitly misrepresent any feature or function of the Product, (b) make available unauthorized claims or statements related to a prospective purchaser the Products, or (c) make any false statements related to the Product or OxySure. OxySure® Distribution Agreement
2.14 In performing its obligations hereunder, Distributor shall comply with any and all brochuresrelevant laws, bookletsrules, manuals regulations, and other literature restrictions, including, but not limited to, any that may be specifically applicable to the Products and information provided by Xxxxxxx and which Xxxxxxx designates as intended for such usersthe sale thereof.
4.1.11 The 2.15 Distributor will appoint one suitably qualified and experienced employee as its prime contact point and administrator for warranty issues within may not market, promote, distribute, advertise, offer, sell or otherwise provide any Product through a Web site, email communications, or other electronic method or medium unless each of the Territory. The Distributor acknowledges parties have executed the absolute priority of ensuring that all warranty related requests within its Territory from customers must be attended “Internet Distribution Attachment” attached to within twelve (12) hours of their notification where so required. To this end, the Distributor will always consider the use by it of Engines within its inventory as warranty replacements where the customer’s operational requirements so demand. in addition where Xxxxxxx so requests, the Distributor and its Dealers will carry out pro-service warranty work at a customer’s premises within the Territory in accordance with the Xxxxxxx Service Warranty Manual procedures. The Distributor will directly and through its Dealers provide a repair, service and warranty service to purchasers of Products (including those items specifically referenced in Article 2.2.1 above) in the Territory. In relation to all warranty related activity hereunder, the Distributor and its Dealers will operate in accordance with the Xxxxxxx Service Warranty Manual procedures as notified to the Distributor by XxxxxxxAgreement. Notwithstanding the terms foregoing, Distributor may provide Product materials, pricing and invoices via email to a Customer, provided that such email communications are in response to direct Customer inquiries and are not part of such proceduresa marketing or other promotional campaign or effort.
2.16 Distributor shall, Xxxxxxx will use its reasonable best efforts to process immediately upon the Effective Date pursue and pay obtain any and all accepted claims within twenty-eight regulatory approvals (28“Regulatory Approvals”) days of their receipt provided those claims have been compiled required in accordance with the Xxxxxxx Service Warranty Manual and submitted to Xxxxxxx within sixty (60) days of the Engine failure. In relation to Product service issues, the Distributor will appoint an appropriately qualified and experienced employee as its Xxxxxxx service manager Territory for the Territory. The Distributor will ensure that the employee attends at least on an annual basis relevant Xxxxxxx product Part Numbers 615-00 and service training courses615-01 illustrated in Exhibit A, at its own expense and cost. Any regulatory approvals will be applied for, issued and held in the name of OxySure Systems, Inc.
2.17 Intentionally omitted.
4.1.12 In addition to the above, the Distributor will provide to Xxxxxxx against an agreed program sales and Inventory data for itself and its Dealers activities hereunder and financial and operating statements that may reasonably be requested. The Distributor shall provide within 120 days of the end of its fiscal year financial statements certified by an Independent firm of public or chartered accountants In a form acceptable to Xxxxxxx. In addition and at the same time, the Distributor will confirm the ownership and management control details of its business to the extent it relates to its appointment hereunder.
Appears in 1 contract
Samples: Exclusive Distribution Agreement (OxySure Systems Inc)
