Distributor’s Duties. The Distributor shall have the following duties:
(a) The Distributor agrees, as agent for the Trust, that all orders to create Shares in Creation Unit size aggregations must be placed with the Distributor, and it is the responsibility of the Distributor to transmit and process such orders and deliver them to the Trust, as described in the Registration Statement and in accordance with the provisions thereof.
(b) The right granted to the Distributor to receive all orders to create Shares in Creation Unit size aggregations and to transmit such orders to the Custodian and Transfer Agent for each Fund shall be exclusive, and no other principal underwriter or distributor shall be granted such right; provided, however, that nothing herein shall affect or limit the right and ability of the Custodian to accept Portfolio Deposits and related Cash Components (each as defined in the Prospectus), and as provided in and in accordance with each Fund's then-current Prospectus. The exclusive right to place creation orders for Shares granted to the Distributor may be waived by the Distributor by notice to the Trust and the Custodian in writing, either unconditionally or subject to such conditions and limitations as may be set forth in such notice to the Trust and the Custodian. The Trust hereby acknowledges that the Distributor may render principal underwriting, distribution and other services to other parties, including other exchange-traded funds.
(c) At the request of the Trust, the Distributor shall enter into Participant Agreements, in the form attached hereto as Exhibit A, between and among Participating Parties, the Distributor, the Transfer Agent and the Trust, in accordance with the provisions of the Registration Statement and current Prospectus. The Distributor shall make available for inspection during normal business hours at its offices at 2455 Corporate West Drive, Lixxx, XX 00000, x xxxx xx xxx Xxxxxxxxxxxxx Parties who have entered into Participant Agreements with the Distributor and the Trust.
(d) The Distributor shall (i) generate and transmit confirmations of Creation Unit purchase order acceptances to the purchaser, (ii) deliver copies of the current Prospectus, included in the Registration Statement, to purchasers of such Creation Units and upon request the current Statement of Additional Information and (iii) maintain telephonic, facsimile and/or access to direct computer communications links with the Transfer Agent.
(e) The Distributor shall provide t...
Distributor’s Duties. Distributor shall:
a. Use commercially reasonable good faith efforts to actively and diligently promote, solicit and push vigorously the wide distribution and sale of the Products to Distributor’s Accounts in the Territory, and shall allocate and devote thereto at least such resources and efforts as are proportional to the volume that Distributor’s sales of Products in the Territory represent to the volume of Distributor’s sales of the principal (Flagship) brand of Energy Drinks (including energy colas) of KO, Distributor and their respective affiliates from time to time in the Territory. Without detracting from the foregoing, the resources and efforts that Distributor shall allocate and devote to the promotion, marketing and distribution of the Products shall in no event be less than the resources and efforts Distributor allocates and devotes to the promotion, marketing and distribution of all Energy Drinks (including energy colas) of KO, Distributor and their respective affiliates, unless to do so (with respect to Distributor’s obligations under this sentence) would not be commercially feasible based on the then-current sales volumes of the Products;
b. Use commercially reasonable good faith efforts to actively and diligently develop new business opportunities for Products in Distributor’s Accounts in the Territory, and shall allocate and devote thereto at least such resources and efforts as are proportional to the volume that Distributor’s sales of Products in the Territory represent to the volume of Distributor’s sales of the principal (Flagship) brand of Energy Drinks (including energy colas) of KO, Distributor and their respective affiliates from time to time in the Territory. Without detracting from the foregoing, the resources and efforts that Distributor shall allocate and devote to develop new business opportunities for Products at early sales presentations and during the new business development phase shall in no event be less than the resources and efforts Distributor allocates and devotes to develop new business opportunities for all Energy Drinks (including energy colas) of KO, Distributor and their respective affiliates at early sales presentations and during the new business development phase;
c. Use commercially reasonable efforts to actively and diligently manage all of Distributor’s sub-distributors throughout the Territory to gain system alignment to promote the sale and distribution of Products;
d. Secure extensive in-store merchandisi...
Distributor’s Duties. Distributor shall:
a. Use commercially reasonable good faith efforts (i) to actively and diligently promote, solicit and push vigorously the wide distribution and sale of the Products to Distributor’s Accounts in the Territory, and (ii) to develop and exploit the full potential of the business of distributing, Marketing (as defined below) and selling the Products throughout the Territory by creating, stimulating and expanding continuously, the future demand for the Products and satisfying fully and in all respects, the current demand therefor (except to accounts reserved for MEC pursuant to Exhibit C and those National Accounts (as defined below) that are serviced directly by MEC in accordance with Section 14). For the purposes of this Section 3 and Section 13(a) below, “Marketing” means trade marketing, local marketing and local Product promotions in the Territory;
b. Use commercially reasonable good faith efforts to actively and diligently develop new business opportunities for Products in Distributor’s Accounts in the Territory;
c. Use commercially reasonable good faith efforts to actively and diligently manage all of Distributor’s sub-distributors throughout the Territory to gain system alignment to promote the sale and distribution of Products;
d. Secure extensive in-store merchandising and optimal shelf positioning in Distributor’s Accounts in the Territory with respect to Products, except for those National Accounts serviced directly by MEC in accordance with Section 14 below;
e. Perform complete and efficient distribution functions to and in Distributor’s Accounts throughout the Territory;
f. Fully implement the Annual Business Plan (as defined and to be agreed upon from time-to-time in accordance with Section 13(b) below), and use commercially reasonable good faith efforts to achieve and maintain all of the objectives set with respect thereto as contemplated in Section 13(b) below;
g. Achieve and maintain the Performance Targets (as defined and determined each calendar year in accordance with Section 13(d) below);
h. In relation to the sales of the Products only, permit MEC representatives to accompany Distributor’s salesmen on sales routes in the Territory, upon reasonable advance notice to Distributor;
i. Achieve optimum ambient and cold space, position, prominence, and visibility of the Products in all Distributor’s Accounts in the Territory, except for those National Accounts serviced directly by MEC in accordance with Section 14 below;
j. Pro...
Distributor’s Duties. Distributor shall:
a. Use commercially reasonable good faith efforts to actively and diligently promote, solicit and push vigorously the wide distribution and sale of the Products to Distributor’s Accounts in the Territory, and develop and exploit the full potential of the business of distributing, Marketing (as defined below) and selling the Products throughout the Territory by creating, stimulating and expanding continuously, the future demand for the Products and by satisfying fully and in all respects, the current demand therefore (except to accounts reserved for
Distributor’s Duties. 3.1. Subject to the applicable statutory requirements, each of the Distributors undertakes and agrees with the Company that it will at all times while this Agreement is in force observe and perform the terms and conditions of this Agreement and in particular will:
3.1.1. use its best endeavours to actively introduce, promote, sell and support the Kits and, as applicable, Other Products on a continuing basis in the entire Territory; in particular the Distributor shall work with key opinion leaders in the Territory prior to Registration and conduct such clinical trials as are appropriate;
3.1.2. not to resell Kits or Other Products outside the Territory;
3.1.3. not for the period of this Agreement and for a period of 12 months after its termination either by itself or its officers, employees, agents, subsidiary or associated companies be concerned in or interested in the use, production, marketing, distribution, sale or other dealing in any goods in the Territory which are the same as or competitive with the Kits or Other Products, except where the Distributor is selling the competitive products prior to the Commencement Date, as expressly agreed by the Company and the Distributor;
3.1.4. not undertake commercialization or manufacturing activities of any kind in relation to the Kits or Other Products, other than as expressly permitted under this Agreement;
3.1.5. allow the Company or its duly authorized agent full access to inspect the Products from time to time and if the Company reasonably deems any of the Products to have become not saleable as a result of any act or omission by the Distributor, such Products shall be disposed of by the Distributor strictly in accordance with the Company’s instructions, and Distributor shall, to the extent it has not previously done so, pay the Company the customer list price for each such Product;
3.1.6. provide quarterly status reports as to the progress of the Registration application;
3.1.7. will not make any promises or guarantees with reference to the Kits or any other Product other than (i) as set forth in the Company’s Conditions of Sale, as they may be amended by the Company from time to time (the current version of which is attached hereto as Schedule 4) and (ii) in Hong Kong where the Distributor may refer to the Kits CE xxxx and, when received and only when received, indicate that the PRC Registration has been duly granted by the PRC State Food and Drug Administration; and for the avoidance of doubt shall not ...
Distributor’s Duties. Distributor’s duties hereunder shall include:
(a) promoting and selling the Products to Customers in the Sales Territory through Distributor’s trained field sales representatives;
(b) regularly and diligently soliciting Product orders from present and potential Customers within the Sales Territory for use within the Sales Territory;
(c) supporting, developing, administering, monitoring and participating in Market Development Programs in accordance with Section 5;
(d) consulting with and furnishing information to LifeCell concerning Customers’ requirements and other matters that may affect Product sales in the Sales Territory;
(e) not giving any warranties in favor of Customers or proposed Customers beyond those contained in Section 4.9 hereof;
(f) being responsible for reporting to LifeCell all information in Distributor’s possession or of which Distributor is aware, upon reasonable request by LifeCell to enable LifeCell to ensure that the Products meet all applicable laws, rules and regulations relating to health, safety, labeling and the like;
(g) refraining from any act or practice that (i) reasonably might tend to diminish or inhibit Product sales or in any way adversely reflect upon LifeCell, provided, however, except as limited by subsection (i) below, nothing contained herein shall restrict Distributor from developing or otherwise acquiring rights to or selling (1) synthetic derived graft containment products, or (2) xenograft tissue products, provided, however, that if xenograft tissue products exceed [***]% of Distributor’s sales of graft containment products, Lifecell at its option may change the Agreement to non-exclusive, and if xenograft tissue products exceed [***]% of Distributor’s sales of graft containment products, Lifecell at its option may terminate the Agreement; or (ii) constitutes a violation of applicable law;
(h) refraining from promoting, soliciting or otherwise participating in the sale of human derived soft tissue graft containment products that directly compete with the Products, in North America during the Term, and solely if this Agreement is terminated by LifeCell due to a material and intentional breach by Distributor hereof which is not remedied within applicable cure periods for [***] after such termination of this Agreement (and the foregoing shall survive such termination of this Agreement for a period of [***], if applicable); provided, however, that Distributor may develop a human-derived dermal product offering (whic...
Distributor’s Duties. Distributor shall:
(a) submit its non-cancelable orders for the Products by written purchase order, it being agreed that the terms and conditions of Distributor's standard purchase order form shall not apply to transactions pursuant to this Agreement;
(b) pay for such orders * net * from date of invoice (excluding only the Initial Order) in U.S. dollars and payment shall be made by wire transfer, check or letter of credit approved by Manufacturer; all prices are quoted FOB Bethlehem, Pennsylvania, USA. Past due amounts incur interest at the rate of * of the invoice amount per month or the highest rate allowable by law, whichever is less;
(c) provide to its customers instructions in the use of the Products and field service for such products in accordance with product information provided by Manufacturer;
(d) purchase the minimum commitment as per Attachment A-1. and use its best efforts to exceed these minimum commitments;
(e) refrain, outside the Territory and in relation to the Products, from seeking customers, from establishing any branch and from maintaining any distribution depot;
(g) not give any warranties, above and beyond those in Article 9 hereto, to any end-use customers;
(h) provide instruction and assistance on compliance with any regulatory and labeling requirements of the Territory; However, Manufacturer remains solely responsible for compliance with all regulatory and labeling requirements of the Territory - in its role as holder of the ANDA.
(i) cooperate to a reasonable degree with Manufacturer to obtain any regulatory approval of the Products as required by the Territory;
(j) not use sub-distributors or any other agent, other than itself, without the prior written consent of the Manufacturer;
(k) have a Dedicated Head of Sales for the Hospital Market in place upon signing this Agreement;
(l) have a minimum of five (5) Hospital Market Field Sales Representatives in place within 3 months of signing this Agreement (one in each of the Manufacturer defined US Regions). A reasonable number will be added upon the launch of Sevoflurane as per mutual agreement between Manufacturer and Distributor;
(m) provide monthly unit sales broken down by product, size and by hospital specific DEA code to Manufacturer within thirty (30) days of the end of the preceding month;
(n) register all products with correct NDC's and provide this information to the Manufacturer.
Distributor’s Duties. Distributor shall:
a. Use commercially reasonable good faith efforts to actively and diligently promote, solicit and push vigorously the wide distribution and sale of the Products to Distributor’s Accounts in the Territory, and develop and exploit the full potential of the business of distributing, Marketing (as defined below) and selling the Products throughout the Territory by creating, stimulating and expanding continuously, the future demand for the Products and by satisfying fully and in all respects, the current demand therefore (except to accounts reserved for XXX pursuant to Exhibit C and those MMM Accounts (as defined below) that are serviced directly by XXX in accordance with Section 14). For the purposes of this Section 3 and Section 13(a) below, “Marketing” means trade marketing, local marketing and local Product promotions in the Territory;
Distributor’s Duties. Distributor agrees to perform reasonable best efforts in the following duties at its own expense:
Distributor’s Duties. In addition to the foregoing, with respect to each target market Distributor also agrees to:
