Common use of Distributor Responsibilities Clause in Contracts

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 ▇▇▇▇▇▇▇ Standards. The Distributor will establish and maintain a senior management structure appropriate to ensuring professional management of its business. The Distributor will give ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ related training and who are considered Important by the Parties to the Distributor’s ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇’ 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 ▇▇▇▇▇▇▇’ 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 ▇▇▇▇▇▇▇ guidelines in respect of the Products within the Territory; (c) hold and distribute a pre-agreed (with ▇▇▇▇▇▇▇) 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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ at the Designated Premises. The Distributor will obtain any omitted items within three (3) months of ▇▇▇▇▇▇▇’ 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 ▇▇▇▇▇▇▇ for sign off before the customer’s first production date. The Distributor acknowledges that ▇▇▇▇▇▇▇ 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, ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Dealer Policy as communicated to it by ▇▇▇▇▇▇▇ from time to time. The Distributor also acknowledges that the annual performance appraisal by ▇▇▇▇▇▇▇ will include a review of its adherence to this policy. The Distributor acknowledges the importance of its Dealers to the success of the ▇▇▇▇▇▇▇ distributorship and that they will be promoted by ▇▇▇▇▇▇▇ in Its literature as an essential part of the ▇▇▇▇▇▇▇ network in the Territory. Therefore the Distributor will only appoint as Dealers entities that have been approved in writing by ▇▇▇▇▇▇▇. For its part, ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ upon request copies of all agreements with such Dealers so far as they relate to the Products. ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ distributorship. In particular, the Distributor will establish the right of ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ for the performance of its Dealers. 4.1.4 The Distributor will nominate one of its employees as the trainer for ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Standards, especially with respect to any new Products as and when they are introduced into the Territory by ▇▇▇▇▇▇▇. 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 ▇▇▇▇▇▇▇. 4.1.6 The Distributor will establish with ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Service Warranty Manual. 4.1.7 The Distributor will appoint at least one suitably qualified and experienced employee as its ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ scheme as published by ▇▇▇▇▇▇▇ from time to time. 4.1.8 Every year the Distributor will develop and issue to ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ format. The business plan and all data required by ▇▇▇▇▇▇▇ will be submitted in accordance with the ▇▇▇▇▇▇▇ guidelines and standards provided in advance to the Distributor. ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ and any mutually agreed adjustments incorporated. Once finalized with ▇▇▇▇▇▇▇, 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 ▇▇▇▇▇▇▇ every year a copy of a three (3) year forecast of the ▇▇▇▇▇▇▇ business in the Territory. The Distributor will at least annually evaluate with ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇. These records shall be made available to ▇▇▇▇▇▇▇ during normal business hours upon request by ▇▇▇▇▇▇▇. 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 ▇▇▇▇▇▇▇; (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 ▇▇▇▇▇▇▇ and which ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Service Warranty Manual procedures as notified to the Distributor by ▇▇▇▇▇▇▇. Notwithstanding the terms of such procedures, ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Service Warranty Manual and submitted to ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ service manager for the Territory. The Distributor will ensure that the employee attends at least on an annual basis relevant ▇▇▇▇▇▇▇ product and service training courses. 4.1.12 In addition to the above, the Distributor will provide to ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇. 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.