EXHIBIT 10.11
DATED JANUARY 22, 1998
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(1) XXXXX LIMITED
- and -
(2) XXXXX AUTOMOTIVE (PTY) LTD
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DISTRIBUTION AGREEMENT
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South Africa
THIS AGREEMENT is made on 22nd day of January 1998
BETWEEN:-
(1) XXXXX AFTERMARKET OPERATIONS, a division of XXXXX LIMITED a company
incorporated in England and Wales with Registered Number 872948 whose
registered office is at Xxxxxxxxx Xxxx, Xxxxxxxx X00 0XX, Xxxxxxx
("Xxxxx").
AND
(2) XXXXX AUTOMOTIVE (PTY) LTD whose registered office is at 0 Xxxxx Xxxxxx,
Xxx Xxxx, Xxxxxxx, Xxxxxxxxx, Xxxxx Xxxxxx ("the Distributor").
WHEREBY IT IS AGREED as follows:
1. DEFINITIONS
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In this Agreement the expressions set out in column 1 of the First
Schedule shall (unless inconsistent with the context) have the meanings
set out opposite them in column 2 of that Schedule.
2. APPOINTMENT
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2.1 With effect on and from the Commencement Date Xxxxx hereby appoints
the Distributor to be a distributor of the Products in the
Aftermarket in the Territory and the Distributor agrees to act as
such distributor upon and subject to the terms set out in this
Agreement. Xxxxx shall not during the term of this Agreement grant
any distributor, agent or person, whether within or outside the
Territory other than the Distributor, the right to sell, offer for
sale or negotiate the sale of Products in the Aftermarket within, or
for delivery in, the Territory nor shall Xxxxx itself directly or
indirectly (but subject to clauses 6.1 to 6.3) sell or offer for
sale any Products in the
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Aftermarket to customers in, or who require delivery in, the
Territory or who Xxxxx knows or has good reason to believe intend to
sell Products in the Aftermarket in the Territory.
2.2 Notwithstanding clause 2.1 the Distributor shall not supply or agree
to supply any Original Equipment Manufacturer with any of the
Products for any application whatsoever without first obtaining
Xxxxx' prior written consent which Xxxxx xxx in its absolute
discretion refuse. Nothing in this Agreement shall however in any
way restrict the Distributor from manufacturing or selling whether
directly or through appointed Distribution Outlets any other spare
and replacement parts in the Territory provided that they are not
Competitive Goods, this being without prejudice to the Distributor's
obligations under this Agreement.
3. TERM
----
Subject to clauses 12 and 14.4, this Agreement shall continue in force for
the Minimum Period and shall thereafter continue in force unless and until
either party shall have given the other at least 12 months' prior written
notice expiring on or at any time after the expiry of the Minimum Period.
4. SUPPLY OF PRODUCTS
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Xxxxx shall use all reasonable endeavours to supply or procure the supply
of Products written orders for which are made by the Distributor in
accordance with the provisions of this Agreement. Products shall be
supplied within such lead time period for orders as may be agreed between
the parties from time to time and subject thereto Xxxxx shall deliver
Products at the times required by the Distributor.
5. RELATIONSHIP OF PARTIES
-----------------------
Each of the parties is an independent contractor and nothing contained in
this Agreement shall be construed to imply that there is any relationship
between the parties of partnership or of principal/agent or of
employer/employee nor are the parties
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hereby engaging in a joint venture; and accordingly neither of the parties
shall have any right or authority to pledge the credit of the other or to
act on behalf of the other nor to bind the other by contract or otherwise
unless expressly permitted by the terms of this Agreement.
6. XXXXX' RIGHTS AND OBLIGATIONS
-----------------------------
6.1 Subject to clauses 6.2 and 6.3 Xxxxx will sell Products in the
Territory only to the Distributor PROVIDED ALWAYS that Xxxxx xxx sell
Products in the Territory:
6.1.1 to Original Equipment Manufacturers;
6.1.2 to Government Departments;
6.1.3 to Armed Forces;
provided that, subject to clause 2.2, the Distributor may sell
Products in the Territory to the classes of customer specified in
this clause 6.1.
6.2 If the Distributor is unable or refuses to distribute any of the
Products in the Territory in accordance with the terms of this
Agreement then Xxxxx xxx at its sole discretion sell such Products in
the Territory either for its own account or through a third party.
6.3 In good time prior to the commencement of each Agreement Year other
than the first Agreement Year, Xxxxx and the Distributor will meet to
discuss and negotiate in good faith with a view to agreeing the
Minimum Purchase Target for the forthcoming Agreement Year and if the
parties reach such agreement the sum agreed will be the Minimum
Purchase Target for such Agreement Year but if the parties fail to
reach such agreement the Minimum Purchase Target for the Agreement
Year immediately preceding such forthcoming Agreement Year shall be
the Minimum Purchase Target for such forthcoming Agreement Year. If
at the end of the third or fourth
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Agreement Year the Distributor shall not have achieved the Minimum
Purchase Target for such third or fourth Agreement Year Xxxxx' sole
right in relation to such non-achievement (but without prejudice to
the other express terms of this Agreement) shall be to convert the
rights granted to the Distributor under clause 6.1 into Non-Exclusive
Rights (but otherwise on the terms of this Agreement) by summarily
giving written notice to the Distributor to that effect and Xxxxx
shall then be entitled following the giving of such notice freely to
sell Products in the Territory and/or appoint any other
distributor(s) in the Territory to do so provided always that Xxxxx
shall not be entitled so to convert if and to the extent that the
Minimum Purchase Target in respect of the third or fourth Agreement
Year has not been achieved because of (a) Force Majeure (b) any
breach of this Agreement by Xxxxx or (c) prevailing local market
conditions which have generally affected all distributors' selling
products which are similar to the Products in the Aftermarket in the
Territory and which are beyond the control of the Distributor and
which have materially changed since the Commencement Date or, if
applicable, since the end of the latest Agreement Year in which the
Minimum Purchase Target has been achieved.
6.4 Xxxxx will supply to the Distributor such Documentation as shall be
reasonably necessary to support the sale of Products in the Territory
and will provide such other promotional support as Xxxxx in its sole
discretion considers necessary.
6.5 Insofar as it is appropriate to do so, Xxxxx will within a reasonable
time following a request from the Distributor and without charge to
the Distributor (a) at the reasonable request of the Distributor
train or advise on the training of service, sales and marketing
personnel of the Distributor; and (b) supply to the Distributor
technical literature for use in connection with the service and
repair of Products.
6.6 Xxxxx will reimburse the Distributor for Warranty Replacement in
accordance with the Xxxxx labour scales current at the Commencement
Date
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or such other scales as may be agreed between Xxxxx and the
Distributor from time to time.
6.7 Xxxxx will, at the reasonable request of, and subject to reasonable
prior notice being given by, the Distributor, make available
personnel support which Xxxxx in its absolute discretion considers
appropriate for promotional events such as exhibitions and/or
customer visits.
6.8 Xxxxx will appoint a person as the main point of contact at Xxxxx for
all matters concerning this Agreement and whose responsibility it
will be to ensure that the Distributor has a ready point of contact
at all reasonable times. Xxxxx will notify the Distributor of the
name, business address, telephone and fax numbers of such person
within 14 days of the Commencement Date. Xxxxx xxx change its
appointee from time to time.
6.9 Based on market statistics and sales history, Xxxxx will from time to
time make recommendations to the Distributor in relation to the
quantities of stock of Products which it would be appropriate for the
Distributor to hold provided that Xxxxx shall have no liability
whatsoever to the Distributor in relation to any such recommendation.
6.10 The Distributor will have the right to participate in any Xxxxx stock
cleanse policy which is from time to time in force, the terms of
which shall be in the absolute discretion of Xxxxx.
6.11 Xxxxx will indemnify and hold the Distributor harmless against all
actions, claims, costs, demands, expenses and liabilities in respect
of any death, personal injury and loss or damage to property made
against, incurred or suffered by the Distributor from any defective
Product supplied by Xxxxx pursuant to this Agreement provided that
the limit of Xxxxx' liability under this clause shall be an amount
equal to US$10,000,000 for each and every event and in the aggregate
in any one year of insurance pursuant to the policy of insurance
effected under clause 6.13.
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6.12 Without prejudice to the provisions of clause 6.11 above, Xxxxx will
effect and maintain or cause another Xxxxx Associate Company to
effect and maintain for its and the Xxxxx Associate Company's benefit
insurance in respect of product liability for the Products supplied
by Xxxxx to the Distributor in an amount equal to not less than
US$10,000,000 for each and every event and in the aggregate in any
one year of insurance under such policy and will at the request of
the Distributor from time to time during the life of this Agreement
produce written evidence that such insurance is in force. Insofar as
and to the extent that Xxxxx or any such Xxxxx Associate Company
receives any proceeds of insurance in respect of a claim made by the
Distributor in respect of Products supplied to the Distributor
pursuant to this Agreement such proceeds shall be held on trust by
Xxxxx or any such other Xxxxx Associate Company for the Distributor,
pro rata where the insurance proceeds recovered include monies in
respect of claim(s) other than the Distributor's claim.
7. DISTRIBUTOR'S OBLIGATIONS
-------------------------
7.1 The Distributor will use its reasonable endeavours to achieve the
maximum possible sales of Products in the Territory by appropriate
means including, without limitation, (a) through Distribution
Outlets, attendance at trade shows and the organisation of sales and
other promotions; (b) by employing proficient marketing and sales
technical specialists and other personnel; and (c) by maintaining a
sufficient stock of Products.
7.2 The Distributor warrants that it will maintain during the continuance
of this Agreement (at the Distributor's cost and expense unless
otherwise agreed by Xxxxx in writing) all permissions, licences,
consents, authorisations, orders, grants or approvals that it has at
the Commencement Date and will use its best efforts to obtain any
additional ones that may after the Commencement Date be required to
enable the Distributor to sell the Products and perform its other
obligations in accordance with the terms of this Agreement.
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7.3 The Distributor shall notify Xxxxx in writing of any change of
Controllers within five days after such change.
7.4 The Distributor shall at its own cost and expense:
7.4.1 be entitled to use Distribution Outlets to maximise sales of
the Products in or to the Territory subject always to the
provisions of clause 7.8;
7.4.2 provide to any Distribution Outlet used pursuant to clause
7.8 such Documentation as may be reasonably required by such
Distribution Outlet;
7.4.3 provide Xxxxx with such other information relating to the
performance, development and operation of the Distributor's
marketing and sales of Products and the market for the same
as Xxxxx xxx from time to time reasonably request.
7.5 The Distributor will carry out Warranty Replacement on behalf of
Xxxxx according to the provisions contained in the appropriate
warranty policy set out in clause 7 of the Conditions of Sale as may
be modified by agreement between the Distributor and Xxxxx from time
to time.
7.6 The Distributor shall not without the previous written consent of
Xxxxx be engaged, concerned or interested either directly or
indirectly in the supply of Competitive Goods in the Territory,
provided always that:
7.6.1 the foregoing provisions of this clause 7.6 shall not apply
to any products which, or the packaging of which, are not
branded with the Trade Marks and which:-
7.6.1.1 at the date hereof are in the product portfolio of
the Prestolite Group;
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7.6.1.2 become part of the product portfolio of the
Prestolite Group hereafter and Xxxxx shall have
given its prior written consent to the Distributor
supplying the same in the Territory, such consent
not to be unreasonably withheld;
7.6.1.3 are manufactured at the date hereof by Xxxxx Indiel
Argentina S.A. in Argentina or by any other company
or business which on the Commencement Date becomes
part of the Prestolite Group by acquisition from
Xxxxx or a Xxxxx Associate Company;
7.6.1.4 are Second Tier Products; or
7.6.1.5 are products which are similar to or competitive
with Xxxxx XX Products but which are now or at any
time hereafter manufactured by the Distributor or by
any other member of the Prestolite Group.
7.6.2 notwithstanding the provisions of clause 7.6.1 the
Distributor shall not be engaged, concerned or interested
either directly or indirectly in the supply of diesel spare
or replacement parts in the Original Equipment Service in the
Territory.
7.7 The Distributor shall provide such technical facilities as are
necessary to enable the Distributor to repair and service Products
and provide warranty support to a standard consistent with that which
exists at the Commencement Date or to such higher standard as shall
be necessary in the future to keep up to date with developments in
the marketplace generally and which shall be reasonably stipulated by
Xxxxx to its distributors generally.
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7.8 The Distributor shall have the right to continue dealing with any
Distribution Outlets in the Territory in existence at the
Commencement Date on such terms and under such agreements as shall
then be in place (but not so that Xxxxx shall have any liability if
any Distribution Outlet does not independently of any direction from
Xxxxx wish to deal with the Distributor) and shall have the right
after the Commencement Date to appoint Distribution Outlets in the
Territory in respect of Products subject to the following
provisions:
7.8.1 the Distributor shall notify Xxxxx in writing within 14 days
of the appointment of each additional Xxxxx Authorised
Distribution Outlet;
7.8.2 the Distributor shall not grant or seek to grant any
Distribution Outlet any rights in relation to the Trade Marks
without the prior written consent of Xxxxx which it may
either refuse in its absolute discretion or grant subject to
such conditions as it shall in its absolute discretion
decide;
7.8.3 the Distributor shall not hereafter grant any Distribution
Outlet exclusivity in relation to the sale or use of Products
in any country or part thereof;
7.8.4 in relation to the appointment of any additional Xxxxx
Authorised Distribution Outlets, each Sub-Agreement shall (a)
be capable of termination by the Distributor no later than
the termination of this Agreement; and (b) incorporate a
provision enabling the benefit and burden of the Sub-
Agreement to be assigned to Xxxxx, or a person nominated by
Xxxxx, on the termination of this Agreement.
7.9 The Distributor agrees to fully indemnify and keep Xxxxx fully
indemnified against all actions, claims, costs, damages, expenses and
liabilities
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whatsoever suffered or incurred by Xxxxx (a) as a result of things
done to or in respect of any Products for which things the
Distributor is responsible, including, without limitation, the mode
of sale, storage, fitting or repair of Products; (b) arising directly
or indirectly from any breach of this Agreement by the Distributor;
or (c) as a result of a claim made against Xxxxx by any third party
as a result of any act or omission of a Distribution Outlet which
would have been a breach of this Agreement if the Distribution Outlet
had been a party to this Agreement. In addition the Distributor will
use reasonable endeavours to ensure that Distribution Outlets comply
with the terms and agreements applicable to them in relation to the
sale of Products.
7.10 The Distributor will not actively seek customers for the Products
outside the Territory nor establish any branch reselling Products nor
maintain any distribution depot for Products outside the Territory.
7.11 Save where any mandatory provision of any applicable law prohibits
such a restriction, the Distributor shall not without the prior
written consent of Xxxxx sell any of the Products outside the
Territory or to any person, firm or company inside the Territory
where the Distributor knows or has good reason to believe that the
Products in question will be sold outside the Territory.
7.12 The Distributor shall promptly refer to Xxxxx any enquiries or orders
for Products received by the Distributor from persons, firms or
companies outside the Territory.
8. PRICE AND TERMS OF CONTRACT
---------------------------
8.1 The prices for the Products to the Distributor shall be those from
time to time agreed by the parties and failing such agreement shall
be those prices notified from time to time by Xxxxx to the
Distributor. Such prices are on the basis of delivery FOB English
Port which is the manner in which Xxxxx shall deliver the Products to
the Distributor.
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8.2 Payment for Products supplied by Xxxxx to the Distributor pursuant to
this Agreement shall be made in sterling 60 days after the end of the
month in which delivery is made.
8.3 The Conditions of Sale and the terms of this Agreement shall apply in
relation to the sale of any Products by Xxxxx to the Distributor
pursuant to this Agreement, which Conditions of Sale and the other
provisions of this Agreement shall apply to the exclusion of any
terms and conditions of purchase from time to time used by the
Distributor, whether or not such terms and conditions are endorsed
upon or delivered with any document sent by either party to the other
from time to time. In the event of any conflict between the
Conditions of Sale and the terms of this Agreement, the terms of this
Agreement shall prevail.
9. INTELLECTUAL PROPERTY
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9.1 The Distributor acknowledges that the Trade Marks are owned and
controlled by Xxxxx and disclaims any rights (save as may separately
be or have been granted in writing by Xxxxx or any Xxxxx Associate
Company to the Distributor) to the Trade Marks.
9.2 The Distributor will inform Xxxxx of any infringement of any patents,
trade marks, copyright or other intellectual property rights owned by
Xxxxx relating to Products immediately the Distributor becomes aware
of any such infringement.
9.3 The Distributor will not without the prior written consent of Xxxxx
remove, obscure or in any way tamper with the name plates, marks or
numbers on Products or on the packaging of Products.
9.4 The Distributor will not use the Trade Marks in any manner not
previously approved in writing by Xxxxx and in particular but without
limiting the generality of the foregoing the Distributor shall not
use the Trade Marks as
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part of the corporate or trading name of the Distributor nor permit
any Distribution Outlet to do likewise provided that the Distributor
shall not be required to take any action against any Distribution
Outlet which at the date hereof is using the Trade Marks as part of
its corporate or trading name.
10. CONFIDENTIALITY
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Each party undertakes that it shall not and shall ensure that its
employees shall not disclose, use or permit the use of any confidential
information disclosed to it by the other party except as may be necessary
for complying with its obligations under this Agreement and then only in
such a manner as to protect fully the confidentiality of such confidential
information. The obligations of non-disclosure by each party shall
continue to apply notwithstanding the termination of this Agreement
howsoever arising but shall not apply to any information which falls into
the public domain other than by breach of such obligation of non-
disclosure. Registration or notification of this Agreement with or to any
regulatory authority shall not be a breach of confidence for the purposes
of this clause.
11. PRODUCTS
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Without prejudice to the other provisions of this Agreement Xxxxx reserves
the right to add Products to the Second Schedule or to vary Products
either by making such changes in the design, specification, production or
packing of the Products as Xxxxx thinks fit or on reasonable notice to the
Distributor withdraw from this Agreement a Product or Products if Xxxxx in
its sole judgement considers that there are reasonable grounds for so
doing.
12. TERMINATION
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12.1 Either party may terminate this Agreement forthwith by notice if the
other of them is in breach of this Agreement and shall have failed to
remedy the breach (where the breach is capable of remedy), within
three months after receipt of a request in writing from the party not
in breach to remedy the
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breach, such request indicating that failure to remedy the breach may
result in termination of this Agreement.
12.2 Xxxxx will also be entitled to terminate this Agreement forthwith by
notice to the Distributor if:
12.2.1 at any time the Distributor is insolvent or has a receiver,
manager, administrator, administrative receiver, or
liquidator, (or a person of similar status in any country)
appointed over it or its undertaking assets or income or any
part thereof or Xxxxx reasonably apprehends that any such
event is about to occur in relation to the Distributor;
12.2.2 there is a change in Controllers of the Distributor or of any
direct or indirect parent company of the Distributor or of
any company to which this Agreement may be novated as
contemplated by clause 12.2.5, the new Controllers being a
Xxxxx Competitor;
12.2.3 the Distributor fails after having been given 7 days' notice
of being in default of payment to pay any material sum due to
Xxxxx;
12.2.4 any distraint, execution or other process is levied or
enforced on any property of the Distributor and is not paid
out withdrawn or discharged within 21 days; or
12.2.5 the Distributor has ceased to trade other than pursuant to
any corporate reorganisation without insolvency under which
another company in the Prestolite Group trades in place of
the Distributor and to whom this Agreement is novated with
Xxxxx' prior written consent, not to be unreasonably
withheld.
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13. EFFECTS OF TERMINATION
----------------------
13.1 The termination of this Agreement howsoever arising will be without
prejudice to the rights and duties of either party accrued prior to
termination. The clauses in this Agreement which expressly or
impliedly have effect after termination will continue to be
enforceable notwithstanding termination howsoever arising. Any
indemnities given in this Agreement will continue to apply
notwithstanding termination.
13.2 As from the date of termination howsoever arising the Distributor
will forthwith cease to hold himself out as a distributor for Xxxxx.
13.3 On the termination of this Agreement howsoever arising Xxxxx will
have the option (to be exercised by notice to be served within one
month after the date of termination) of buying all or any Products
owned by the Distributor at the date of exercising such option and
which the Distributor is not committed by contract at such date to
sell to a third party. The price for such Products will be agreed
between the parties or failing such agreement will be the price
previously charged by Xxxxx to the Distributor for the Products in
question (excluding the costs of supply and sales taxes) and upon the
exercise of such option the Distributor will yield up such Products
to Xxxxx or to such person as Xxxxx xxx nominate.
13.4 On termination of this Agreement howsoever arising the Distributor
shall (at the Distributor's cost and expense) forthwith yield up to
Xxxxx or to such person as Xxxxx xxx nominate any Products in the
possession of the Distributor the property in which has not passed to
the Distributor.
13.5 On termination of this Agreement howsoever arising the Distributor
shall (at the Distributor's costs and expense) forthwith return to
Xxxxx or to such other person as Xxxxx xxx nominate all technical
data, commercial information, written documents and other things on
loan or free issue from Xxxxx and all copies thereof made by the
Distributor which are in the Distributor's possession, custody or
control at the date of such termination
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and shall destroy all stationery, business literature, advertisement
and similar materials bearing any of the Trade Marks (unless
permitted or authorised pursuant to any other agreement in writing
between Xxxxx or any Xxxxx Associate Company and the Distributor) or
which refers to the Distributor as a distributor of Xxxxx products.
13.6 On the termination of this Agreement howsoever arising Xxxxx will
have the option (to be exercised by notice to be served on the
Distributor on or before the date of termination) of taking an
assignment of the benefit and burden of the Sub-Agreements, or any of
them insofar as they relate to Products, with effect from the date of
termination, without being required to pay any consideration or
compensation to the Distributor in relation thereto other than as may
be required by applicable law and cannot be contracted out of under
such applicable law.
13.7 The Distributor shall not be entitled to any compensation, indemnity
or damages on the termination of this Agreement howsoever arising for
the loss of its rights under this Agreement provided always that this
clause shall (a) not exempt Xxxxx from liability for any breach of
this Agreement by Xxxxx which occurred prior to termination and (b)
only apply to the extent permitted by applicable law and cannot be
contracted out of under such applicable law.
14. FORCE MAJEURE
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Neither party shall be liable to the other for any failure or delay in
performing its obligations under this Agreement due to Force Majeure
provided always that:
14.1 The Distributor shall not be excused by reason of Force Majeure from
its obligations to pay Xxxxx for Products as required by this
Agreement.
14.2 Subject to the provisions of clause 14.4 the date for performance of
the contractual obligation which has been delayed by Force Majeure
shall be deemed suspended for a period equal to the delay thereby
caused.
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14.3 The party seeking to exempt itself from liability by virtue of the
provisions of this clause 14 shall give notice to the other party
within 7 days of becoming aware of the Force Majeure event or
circumstance and shall at all times use all reasonable endeavours to
mitigate the severity of the same.
14.4 If the failure or delay caused by the Force Majeure event or
circumstance shall extend for a continuous period of 180 days in any
365 day period, either party shall have the right to terminate this
Agreement by notice to the other at any time after the expiry of such
period while such Force Majeure event or circumstance continues to be
operative, without thereby incurring any liability to the other
party.
14.5 The party seeking to exempt itself from liability by virtue of the
provisions of this clause 14 shall not be entitled to payment from
the other party in respect of extra costs and expenses incurred by
virtue of the Force Majeure event or circumstance.
14.6 If the Distributor is unable to distribute Products in the Territory
in accordance with the provisions of this Agreement by reason of
Force Majeure for a continuous period of one month then Xxxxx shall
be entitled to distribute the Products in the Territory either itself
or through another distributor but only while such Force Majeure
event or circumstance continues to be operative.
15. ASSIGNMENT
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Neither party shall be entitled to assign the benefit or delegate the
burden of this Agreement without the prior written consent of the other
party save that Xxxxx shall be entitled to do so to any Xxxxx Associate
Company without such consent.
16. SEVERABILITY
------------
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The illegality, invalidity or unenforceability of any clause or part of
this Agreement will not affect the legality, validity or enforceability of
the remainder. If any such clause or part is found by any competent court
or competent authority to be illegal, invalid or unenforceable the parties
agree that they will substitute provisions whose effect is as similar to
the offending provisions as is possible without thereby rendering them
illegal, invalid or unenforceable.
17. ENTIRE AGREEMENT
----------------
17.1 This Agreement and the documents referred to in it, contain the whole
agreement between the parties relating to the transactions
contemplated by this Agreement and supersede all previous agreements
between the parties relating to such transactions.
17.2 Each of the parties acknowledges that in agreeing to enter into this
Agreement it has not relied on any pre-contractual representations,
warranties or other assurances in relation to the subject matter of
this Agreement except those set out in this Agreement but without
prejudice to any representations, warranties or other assurances
given in any other agreement between the parties or between any Xxxxx
Associate Company and the Distributor or any other company in the
Prestolite Group.
17.3 Each party hereby agrees that it shall have no remedy against the
other party for any innocent or negligent misrepresentation made by
such other party in relation to such transactions prior to this
Agreement being entered into except to the extent that the same shall
have been incorporated in this Agreement as a warranty representation
or indemnity in which case any claim in relation to the same shall
lie only on the basis of a breach of this Agreement or under the
relevant indemnity provision.
18. VARIATIONS
----------
No variations to this Agreement shall be effective unless in writing
signed by a duly authorised representative of each of the parties hereto.
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19. WAIVER
------
19.1 Failure to exercise or delay in exercising on the part of either
party any right, power or privilege of that party under this
Agreement shall not in any circumstances operate as a waiver thereof
nor shall any single or partial exercise of any right, power or
privilege in any circumstances preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
19.2 Any waiver of a breach of any of the terms hereof or of any default
hereunder shall not be deemed a waiver of any subsequent breach or
default and shall in no way affect the other terms of this Agreement.
20. NOTICES
-------
Any demand, notice or communication shall be made in writing and served by
hand, by registered airmail post or by facsimile transmission addressed to
the recipient at its registered office or its address stated in this
Agreement (or such other address or facsimile number as the recipient may
nominate in writing from time to time). Xxxxx hereby nominates:
Xxxxx Limited
Xxxxxxxxx Xxxx
Xxxxxxxx
Xxxx Xxxxxxxx
X00 0XX
Xxxxxxx
Attn: Sales and Distribution Director
Facsimile No: 0121 697 5003
with a copy of the notice to be sent to the Company Secretary of Xxxxx
Limited at the above address.
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The Distributor hereby nominates:
Xxxxx Automotive (Pty) Limited
0 Xxxxx Xxxxxx
Xxx Xxxx
Xxxxxxx
Xxxxxxxxx
Xxxxx Xxxxxx
Attn: Managing Director
Facsimile No: x00000 000 0000
With a copy of the notice to be addressed to "Managing Director and
Finance Director" Prestolite Electric Limited, Xxxxxxxxx Xxxx, Xxxxxxx,
Xxxxxxx, Xxxxxxxxxx, XX0 0XX, Xxxxxxx
21. HEADINGS
--------
The headings to the clauses of this Agreement shall not affect its
construction.
22. LANGUAGE
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22.1 The English language version of this Agreement shall be the
authoritative version even though it may have been translated into
some other language.
22.2 All communications between the parties shall unless otherwise agreed
in writing be in the English language.
23. EXPENSES
--------
Except where otherwise expressly provided herein each party will bear its
own costs and expenses in relation to the preparation completion and
operation of this Agreement.
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24. ENGLISH LAW
-----------
The formation, construction, performance, validity and all aspects
whatsoever of this Agreement shall be governed by English law. If any party
wishes to take legal action arising out of this Agreement it shall have the
option of either proceeding in the English Courts or (if different) in the
Courts having jurisdiction in the place of residence or business of the
proposed defendant.
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FIRST SCHEDULE
--------------
(DEFINITIONS)
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Column 1 Column 2
-------- --------
"the Aftermarket" means the market for (a) spare and
replacement parts for components and
sub-assemblies comprised within
products of Original Equipment
Manufacturers and (b) automotive
accessories and test equipment.
"Agreement Year" means (i) the period from the
Commencement Date until 31st December
1998; or (ii) a period of twelve (12)
months beginning thereafter on each
1st January during the life of this
Agreement except that should this
Agreement terminate on a day other
than 31st December in any year the
final "Agreement Year" shall be the
period from the last 1st January
preceding the date of termination to
the date of termination.
"the Commencement Date" means the date hereof.
"Competitive Goods" means those goods which are similar
to and/or competitive with those
Products listed in the Second
Schedule which are marked with an
asterisk, and including but not
limited to Xxxxx XX Products.
"Conditions of Sale" means the terms and conditions of
sale set out in Annex "A" or any
modification thereof from time to
time agreed between
21
the Distributor and Xxxxx.
"Controllers" means persons able to decide or
influence the management or policies
of the relevant company in any
material respect including (without
prejudice to the generality of the
foregoing), its owners, its
directors, any of its partners or any
majority of its shareholders.
"Distribution Outlets" means wholesalers, retailers,
sub-distributors, dealers, stockists,
service outlets, garages, workshops
and other persons who buy or acquire
or are to buy or acquire Products
from the Distributor otherwise than
as the ultimate end user of those
Products and includes Xxxxx
Authorised Distribution Outlets.
"Documentation" means designs and literature
including, without prejudice to the
generality of the foregoing,
catalogues and leaflets, produced by
or at the direction of Xxxxx for the
purpose of promoting Products.
"FOB" has the meaning given to such
expression in Incoterms 1990 provided
that where there is a conflict
between the rights, duties and
obligations of the parties as set out
in Incoterms and those set out in
this Agreement, those set out in this
Agreement shall prevail
"Force Majeure" means any event or circumstance of
the
22
following kinds which is beyond
the reasonable control of the party
in question: governmental actions,
war, riots, civil commotion, fire,
flood, tempests or other extreme
weather conditions, epidemics, acts
of terrorism, bombings, explosion,
acts of God, other natural disasters
or any event or circumstance similar
in nature to the foregoing.
"Xxxxx Associate Company" means LucasVarity plc or any company
or entity which is ultimately
controlled by or under the same
control direct or indirect as
LucasVarity plc from time to time and
at the time that the relevant clause
in which such expression appears has
application, which where a claim is
to be made under the relevant clause
shall mean when the cause of action
accrued under such clause.
"Xxxxx Authorised means Distribution Outlets which, by
Distribution Outlets" virtue of the specialist activities
they undertake, need to be associated
with the Xxxxx name, including by way
of example only, Diesel Diagnostic
Centres.
"Xxxxx Competitor" means any of the following companies
or entities and any company or entity
which from time to time and at the
time that the relevant clause in
which such expression appears has
application is ultimately controlled
by or under the same control direct
23
or indirect as any of the following:
Bosch, Magneti Marelli and Valeo.
"Xxxxx XX Products" means (a) those starter motors and
alternators which are at the
Commencement Date in the product
range of Xxxxx Aftermarket KK (a
Japanese corporation)namely starter
motors and alternators which are for
vehicles whose country of origin is
in Asia or whose original electrics
equipment is of Asian origin ("Asian
Vehicles") as such starter motors and
alternators may be improved or
modified from time to time; and (b)
those starter motors and alternators
which are sold by Xxxxx Aftermarket
KK after the Commencement Date for
Asian Vehicles ("New KK Products")
provided that products will only be
Competitive Goods in relation to New
KK Products for the purposes of this
Agreement if the Distributor so
consents, such consent not to be
unreasonably withheld or delayed and
it shall not be reasonable for the
Distributor to withhold its consent
if neither the Distributor nor any
other company in the Prestolite Group
at the time such consent is sought
manufactures, sells or distributes a
product or has a product in actual
development which in either case is
interchangeable with such New KK
Product.
"Minimum Period" means the period of 5 years
commencing on the Commencement Date.
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"Minimum Purchase Target" means in respect of the first
Agreement Year sales of Products by
Xxxxx to the Distributor having a Net
Invoice Value of
(Pounds)830,000 and in respect of
each subsequent Agreement Year such
sales having a Net Invoice Value of
the amount agreed between the parties
or determined pursuant to clause 6.3.
"Net Invoice Value" means the invoiced value of Products
after deduction of (a) discounts
(other than discounts for prompt
payment); (b) VAT or similar taxes;
and (c) any freight or insurance
charges shown separately on the
relevant invoice.
"Non-Exclusive Right" means a right enjoyed by the
Distributor in common with Xxxxx and
all other persons to whom Xxxxx shall
grant a like right.
"Original Equipment means any manufacturer or assembler
Manufacturer" of transport vehicles, engines or
similar equipment including, but not
limited to, a manufacturer or
assembler of motor cars, vans, buses,
coaches, forklifts, industrial
vehicles, trucks, tractors, or
marine, motive power or stationary
engines or a manufacturer of
components or sub-assemblies to be
fitted as original equipment to such
vehicles, engines or similar
equipment.
25
"Original Equipment Service" means the market for supplies of
spare and replacement parts to any
Original Equipment Manufacturer other
than for fitting as original
equipment or to any dealer of any
Original Equipment Manufacturer in
its capacity as a dealer for such
Original Equipment Manufacturer.
"Prestolite Group" means PEI Holdings Incorporated and
any company or entity which is
ultimately controlled by or under the
same control direct or indirect as
PEI Holding Incorporated from time to
time and at the time that the
relevant clause in which such
expression appears has application,
which where a claim is to be made
under the relevant clause shall mean
when the cause of action accrued
under such clause.
"Products" means the range of products set out
in the Second Schedule hereto
available from the Xxxxx Aftermarket
Operations division of Xxxxx and such
other product as may be agreed
between Xxxxx and the Distributor
from time to time subject to the
provisions of clause 11.
"Second Tier Products" means a starter motor or alternator
which is clearly aimed at a different
market sector than a Xxxxx branded
starter motor or alternator being a
market which does not
26
require a premium branded product but
requires a product which is markedly
cheaper than a premium branded product
and which is prepared to accept a
product which is of inferior quality
and/or is sold with a less favourable
warranty or other less favourable
conditions that that or those
applicable to premium branded products,
"Second Tier Products" being best
illustrated by the starter motors and
alternators which are manufactured or
sourced at the date hereof by the
Distributor in South Africa and
marketed under the brand name
"Electrotech".
"Sub-Agreement" means any agreement between the
Distributor and a Xxxxx Authorised
Distribution Outlet of the
Distributor.
"The Territory" means the Republic of South Africa,
Namibia, Botswana Swaziland and
Lesotho.
"Trade Marks" means the trade and service marks
"Xxxxx" and/or the diagonal device
and/or such other trade, service and
other marks and names as Xxxxx xxx
from time to time use in relation to
the Products.
"Warranty Replacement" means a repair and/or replacement to
a Product sold by the Distributor in
the Aftermarket in the Territory that
is also sold by Xxxxx to the
Distributor after the Commencement
Date and which a customer
27
is entitled to have carried out under
the terms of the Product Warranty given
to such customer and includes a repair
or replacement carried out after this
Agreement has been terminated.
28
SIGNED by XXXXX XXXX-LEATHER ) /s/ Xxxxx Xxxx-Leather
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as duly authorised attorney for and ) Xxxxx Xxxx-Leather as
------------------
on behalf of XXXXX LIMITED ) attorney of Xxxxx Limited
------------- -------------
SIGNED by P. XXX XXXXXXX )
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duly authorised for and on behalf of ) /s/ P. Xxx Xxxxxxx
------------------
XXXXX AUTOMOTIVE (PTY) LTD )
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