EXHIBIT 10.22
INTERNATIONAL
DISTRIBUTION AGREEMENT
between
NEW IMAGE INDUSTRIES, INC.
and
TAKARA BELMONT CO. LTD.
DISTRIBUTION AGREEMENT
TABLE OF CONTENTS
SECTION Page
- ------- ----
1 Products 2
2 Appointment and Territory 3
3 Term and Termination 4
4 Pricing 6
5A Obligations of NEW IMAGE 6
5B Obligations of TAKARA BELMONT 7
6 Minimum Purchase Requirements 8
7 Sales Policy 9
8 Patents, Trade Names, Trademarks 9
9 Assignment 11
10 Independent Contractor 11
11 Entire Agreement 11
12 Headings 11
13 Confidentiality 12
14 Severability 12
15 Governing Law 12
16 Notices 13
17 Compliance with Law 13
18 Survival 13
19 Waiver 13
20 Force Majeure 13
21 Arbitration 14
Signature 14
Schedule A Current Products
Schedule B New Products
Schedule C Minimum Purchase Requirements
Schedule D Trade Names and Trademarks
NEW IMAGE INDUSTRIES, INC.
INTERNATIONAL DISTRIBUTION AGREEMENT
THIS AGREEMENT made and entered into the first day of January, 1996.
BETWEEN:
NEW IMAGE INDUSTRIES INC., a California Corporation, having its principal place
of business at 2283 Cosmos Court, Carlsbad, California 92009, United States of
America
hereinafter called "NEW IMAGE"
OF THE FIRST PART,
- and -
TAKARA BELMONT CO. LTD.
P.O. BOX OSAKA MINANU 27
1-1,2-CHOME, HIGASAI-SHINSAIBASHI
CHUO-KU, OSAKA, JAPAN
hereinafter called "TAKARA BELMONT"
OF THE SECOND PART.
WHEREAS:
(1) NEW IMAGE manufactures, sells and distributes the NEW IMAGE, intraoral
camera system and related accessories and has established a reputation for
quality and goodwill incident to its trade name, trademarks and Products (as
defined
herein);
(2) TAKARA BELMONT desires to market and distribute such Products on an
exclusive basis in the Territory (as defined herein); and
(3) The parties intend that their relationship be that of independent
contractors;
NOW THEREFORE THIS AGREEMENT WITNESSETH and in consideration of the mutual
covenants and agreements herein contained, the parties hereto do covenant and
agree as follows:
1. PRODUCTS
(i) DEFINITION. As used herein the word "PRODUCTS" shall mean those set
out in Schedule A hereto and such accessories thereto as are from time to time
during the term of this Agreement offered for sale in the Territory by NEW
IMAGE, "NEW PRODUCT (plural, "New Products") shall mean a product which may
hereafter be manufactured, developed, or distributed by NEW IMAGE that is
related to those defined, but not included, in Schedule A. If TAKARA BELMONT
elects to market and distribute a New Product in accordance with Section I(ii),
items included in the term "Products" shall thereafter include such New Product.
(ii) NEW PRODUCTS. Upon the international introduction of a New Product
NEW IMAGE shall give TAKARA BELMONT written notice thereof including full
technical specifications and export pricing. Within sixty (60) days after
TAKARA BELMONT receives written notice of a New Product, it shall give written
notice to NEW IMAGE specifying whether TAKARA BELMONT elects to market and
distribute such New Product in the Territory. If TAKARA BELMONT elects to
market and distribute such New Product in the Territory, TAKARA BELMONT'S
written notice to NEW IMAGE shall be in the form of Schedule B. If TAKARA
BELMONT notifies NEW IMAGE that it elects not to market and distribute such New
Product, or fails to make an election to do so in the form of Exhibit B within
such sixty (60) day period, NEW IMAGE may appoint a third party to market and
distribute such New Product in the Territory. The procedure set out in this
paragraph shall be applicable to each New Product during the "TERM" and any
"RENEWAL Term," both as defined in Section 3.
(iii) PRODUCT SPECIFICATIONS. TAKARA BELMONT shall provide NEW IMAGE
written notification of requirements and specifications for products to be
imported into and transported within the Territory. NEW IMAGE will incur the
cost of modifying or changing Products in order to comply with all product
requirements and specifications provided that all Product changes will be done
at NEW IMAGE'S
discretion.
(iv) IMPORT APPROVALS. TAKARA BELMONT shall incur, directly or through
its affiliate Belmont Corporation, all costs of obtaining import, or other
regulatory licenses required for the Products to be imported into, transported
within, and sold and used within the Territory.
2. APPOINTMENT AND TERRITORY
(i) GRANT OF RIGHTS. NEW IMAGE grants to TAKARA BELMONT the limited
right to use the "TRADEMARKS," as defined in Section 8 on the terms set forth in
that Section and exclusive authority (subject to laws in the Territory) to
market and distribute the Products to customers in JAPAN (the "TERRITORY") NEW
IMAGE will notify TAKARA BELMONT of all inquires originating within the
Territory that relate to Products (i) or to New Products which TAKARA BELMONT
does not represent.
(ii) TERRITORIAL RESTRICTIONS. The grant of exclusive authority under
Section 2(i) above is limited to sales and marketing of Products in the
Territory for use in the Territory. TAKARA BELMONT accepts this grant of
exclusive authority and agrees not to market, distribute, or use the Products
directly or indirectly in any capacity outside the Territory. TAKARA BELMONT
agrees not to distribute the Products to any person other than customers for use
in the Territory. Subject to the laws in the Territory, TAKARA BELMONT shall
not permit any other person to market or distribute the Products in any place
other than the Territory or to persons other than customers. Except as provided
herein, during the Term of this Agreement and any Renewal Term, NEW IMAGE shall
not make sales of, or grant to others the right to sell the Products, within the
Territory. NEW IMAGE further agrees not to sell any Products to any person,
firm or company which NEW IMAGE knows or has reason to believe intends to resell
or export, is reselling or exporting and or has resold or exported, the Products
into the Territory. If due to oversight, inadvertence or lack of knowledge, any
purchaser or licensee manufactures or exports Products for sale into the
Territory, then NEW IMAGE will use its best efforts to take whatever steps are
necessary to have such parties cease such offending activities.
(iii) EXCLUSIVITY OF DISTRIBUTION. During the term of this Agreement,
TAKARA BELMONT shall not, directly or indirectly, in any capacity acquire,
market, promote, use, sell, or otherwise deal with or distribute any products
that compete with the Products without prior written consent of NEW Image TAKARA
BELMONT learns that any person or entity is infringing on TAKARA BELMONT'S
exclusive right to market and distribute the Products in the Territory, TAKARA
BELMONT agrees to notify NEW IMAGE immediately and cooperate fully with NEW
IMAGE in halting such infringement. New Image acknowledges that Takara Belmont
agreed, prior to the effective date of this Agreement, to purchase from Moritex
50 units of a product competing with the Products. New Image consents to such
purchase and to the resale of such items.
3. TERM AND TERMINATION
(i) TERM. This Agreement shall remain in effect until December 31, 1998
(the "TERM"), subject to the renewal provisions of Section 3(ii) and the earlier
termination provisions of Section 3(iii) through 3(iv).
(ii) AUTOMATIC ANNUAL RENEWAL. If this Agreement is still in full force
and effect at the end of the Term, it shall be automatically renewed at that
time and each year thereafter for an additional one year period (the "RENEWAL
TERM"), unless terminated by either TAKARA BELMONT or NEW IMAGE upon written
notice submitted at least ninety (90) days prior to the end of the Term or
Renewal Term, or unless otherwise terminated pursuant to Section 3(iii)
through 3(v). Except as otherwise specifically provided, the Renewal Term shall
be on the same terms and conditions as the Term. When this Agreement has been
renewed, thereafter "Term" shall include the period of the "Renewal Term."
(iii) IMMEDIATE TERMINATION. In addition to all other rights or remedies,
either NEW IMAGE or TAKARA BELMONT may terminate this Agreement upon 10 days
prior written notice if:
(a) the other party (1) makes an assignment for the benefit of
creditors; (2) files a voluntary petition in bankruptcy or is adjudicated as
bankrupt or insolvent; or (3) files any petition or answer seeking
reorganization, liquidation or similar relief or files an answer admitting the
material allegations of a petition against it for any such relief,
(b) within 90 days after the commencement of any proceeding
against the other party seeking reorganization, liquidation or similar relief,
the proceeding has not been dismissed;
(c) any court, tribunal, or government agency modifies any term
of this Agreement to the substantial detriment of the party seeking termination;
(d) the other party dissolves or ceases to do business; or
(e) the other party appoints a receiver or trustee for all or a
part of its assets, business, or property.
(iv) ADDITIONAL RIGHTS TO TERMINATE. In addition to all of its other
rights or remedies, NEW IMAGE may terminate this Agreement if:
(a) TAKARA BELMONT transfers or attempts to transfer without NEW
IMAGE'S prior written consent the rights granted under this Agreement;
(b) TAKARA BELMONT fails to purchase the Minimum Purchase
Requirements of Products set forth in Schedule C for any calendar year;
(c) the parties fail to agree upon the Minimum Purchase
Requirement
for Period 3, 60 or more days prior to the beginning of such period.
(d) TAKARA BELMONT fails to maintain all necessary licenses and
government approvals required to import into, transport within, and market,
sell, and use the Products in the Territory;
(e) TAKARA BELMONT fails to obtain the governmental approvals
necessary to import, transport, market, sell and use the Products in the
Territory within 6 months after the date of this Agreement.
TAKARA BELMONT and NEW IMAGE each agrees to advise the other immediately in
writing of the occurrence of any event specified in Section 3(iii) or 3(iv).
(v) TERMINATION FOR BREACH OF AGREEMENT. In the event that either party
breaches any material term of this Agreement and such breach continues for more
than ten (10) days after written notice thereof from the non-breaching party,
such non-breaching party shall have the right to terminate this Agreement by
written notice to the breaching party, such termination to be effective not less
than thirty (30) days after the receipt of such notice.
(vi) INVENTOR AT TERMINATION. If as of the effective date of the
expiration or termination of this Agreement TAKARA BELMONT has, on hand, any
Products delivered to it by NEW IMAGE within six (6) months of the effective
date of such expiration or termination, then NEW IMAGE shall have the right but
not the obligation to repurchase from TAKARA BELMONT such Products at the landed
cost paid by TAKARA BELMONT. Any Products so purchased shall be in the same
condition as when they were received and shall not have been used.
(vii) PARTS AND COMPONENTS FOLLOWING TERMINATION. New Image agrees to
supply Takara Belmont parts and components, priced on the same basis as during
the Term of this Agreement, for Products for a period of 12 full calendar months
following the termination of this Agreement.
4. PRICING
(i) INTERNATIONAL PRICE LIST. TAKARA BELMONT shall order and purchase
the Products from NEW IMAGE and NEW IMAGE shall sell the Products to TAKARA
BELMONT at the price set forth in the then current price list for export to the
Territory, the current version of which is attached as part of Schedule A. NEW
IMAGE may from time to time during the Term or any Renewal Term of this
Agreement change any or all of the prices set forth in the then current price
list upon ninety (90) days written notice to TAKARA BELMONT.
(ii) PRICING TERMS. The prices for Products are quoted FOB Carlsbad,
California U.S.A. All orders are to be in writing and shall be subject to
prompt written acceptance by NEW IMAGE. TAKARA BELMONT shall designate a
carrier to whom
NEW IMAGE may deliver the Products FOB, Carlsbad, California and a receiving
address to which NEW IMAGE may ship the Products Risk of loss of the Products
shall shift to TAKARA BELMONT upon delivery by NEW IMAGE to the carrier. TAKARA
BELMONT shall be responsible for all import formalities including, without
limitation, clearing customs and paying import duties, if any. Title to all the
Products remain with NEW IMAGE until receipt by NEW IMAGE of full purchase
price.
(iii) PAYMENT TERMS. Payment for orders for the Products placed by TAKARA
BELMONT shall be made to NEW IMAGE in U.S. dollars at or prior to shipment, by
letter of credit or wire transfer.
5A. OBLIGATIONS OF NEW IMAGE
(i) PROMOTIONAL MATERIALS. NEW IMAGE shall provide to TAKARA BELMONT
(a) information considered by NEW IMAGE appropriate to assist TAKARA BELMONT
in its preparation of sales promotional materials, (b) sales promotional
material and material to facilitate TAKARA BELMONT'S advertising of the
Products, and (c) written warranty and warranty claim materials.
(ii) PRODUCT WARRANTY. NEW IMAGE warrants to TAKARA BELMONT that the
Products sold to TAKARA BELMONT (i) are fit for the purpose of use as an
intraoral camera system by trained personnel and (ii) shall be free from defects
in materials and workmanship for a period of one (1) year from the date the
Products are received by the actual end user thereof, provided however, that
this warranty shall in no event extend beyond the close of the eighteenth (18th)
full calendar month following the date of shipment by NEW IMAGE. EXCEPT AS JUST
PROVIDED, NEW IMAGE GIVES NO WARRANTY AS TO MERCHANTIBILITY, FITNESS FOR A
PARTICULAR PURPOSE, OR ANY OTHER WARRANTY, EXPRESS OR IMPLIED, CONCERNING THE
PRODUCTS. TAKARA BELMONT shall not make any other warranty, guarantee, or
representation with respect to the Products or their use except at its own risk
and expense. If TAKARA BELMONT or its customers are made parties to any claim
or action involving the Products, including claims relating to the manufacture
or use of the Products, TAKARA BELMONT shall immediately notify NEW IMAGE in
writing. This paragraph (ii) sets forth the sole and entire warranty obligation
of NEW IMAGE with respect to Products.
(iii) SHIPMENT OF ORDERS. NEW IMAGE will manufacture and ship all orders
placed by TAKARA BELMONT in a prompt and timely manner according to NEW IMAGE'S
production capability, with NEW IMAGE to provide prompt notification of any
delays and rescheduled shipping duties.
5B. OBLIGATIONS OF TAKARA BELMONT
(i) SCOPE OF RESPONSIBILITY. TAKARA BELMONT shall, at its sole cost and
expense, use its continuing best efforts to sell the Products and provide
technical assistance, as defined below, within the Territory. TAKARA BELMONT
shall keep NEW IMAGE informed of market information and TAKARA BELMONT'S sales
and marketing activities. TAKARA BELMONT shall
not take any action which would impair or diminish the reputation of NEW IMAGE
or its Products.
(ii) SALES, SERVICE AND TECHNICAL ASSISTANCE. During the Term and any
Renewal Term of this Agreement, TAKARA BELMONT shall, at its own cost and
expense, provide qualified sales and technical personnel to market and sell the
Products and provide technical assistance to the customers in the Territory.
The parties are negotiating as to the handling of warranty claims, service, and
repair of Products. The results of these negotiations will be the subject of a
separate agreement.
(iii) MARKETING. TAKARA BELMONT shall, at its own cost and expense, use
its best efforts to market the Products in the Territory during the Term and any
Renewal Term of this Agreement. TAKARA BELMONT shall advertise the Products,
participate in such trade shows and exhibits, demonstrate the Products to
potential customers, and distribute literature and other printed materials made
available to TAKARA BELMONT by NEW IMAGE In all advertising and in holding
itself out to others, TAKARA BELMONT shall use only the language contained in
NEW IMAGE'S authorized advertising material, provided that reasonable non-
substantive adjustments may be made for the JAPANESE market. NEW IMAGE shall
not be responsible for any claims arising out of any advertising not approved in
writing by NEW Image. At TAKARA BELMONT'S request and expense, NEW IMAGE will
provide to TAKARA BELMONT literature and marketing materials TAKARA BELMONT
shall promptly forward to NEW IMAGE all leads, inquiries and prospects for sale
outside the Territory of Products and New Products.
(iv) INVENTORY. TAKARA BELMONT shall carry an adequate inventory of the
Products to meet customers' orders for the Products. TAKARA BELMONT shall
distribute the Products on a first-in, first-out basis.
(v) INTEGRITY OF THE PRODUCTS. TAKARA BELMONT agrees that it will not
(and will not permit any other person under its control to) change or modify the
Products in any manner. TAKARA BELMONT agrees that it will not repackage or
re-label any packages of the Products after they have been packaged and labeled
by NEW IMAGE except with the prior written consent of NEW IMAGE. TAKARA BELMONT
acknowledges that the integrity of the Products must be maintained to retain the
safety and efficacy of the Products and regulatory approvals.
(vi) CUSTOMER COMPLAINTS. TAKARA BELMONT agrees to promptly notify NEW
IMAGE of any written or oral complaints relative to the identity, quality,
durability, reliability, safety, effectiveness, or performance of the Products
it distributes ("complaints")TAKARA BELMONT further agrees to fully cooperate
with NEW IMAGE to the extent reasonably necessary to investigate said complaints
and/or submit medical device reports to the U.S. Food and Drug Administration.
6. MINIMUM PURCHASE REQUIREMENTS
NEW IMAGE agrees to sell Products to TAKARA BELMONT and TAKARA BELMONT
agrees to purchase at least the target quantities of the Products within the
time periods set forth in Schedule C (the Minimum Purchase Requirements). For
purposes of this Section 6, Products will be deemed to be purchased by TAKARA
BELMONT when TAKARA BELMONT orders the Products from NEW IMAGE for shipment in
the ordinary course.
7. SALES POLICY
TAKARA BELMONT shall be solely responsible for determining sales and
marketing strategies and selling prices for the Products within the Territory
during the Term and any Renewal Term. TAKARA BELMONT agrees, however, to
consult with NEW IMAGE from time to time in connection with such strategies and
to report regularly to NEW IMAGE on market conditions affecting the sale of the
Products within the Territory.
8. PATENTS, TRADE NAMES, TRADEMARKS
(i) TRADEMARKS. "Trademarks" means (a) the marks set forth in
Schedule D (b) all designs related to those marks, and (c) all other marks
that NEW IMAGE adds from time to time and authorizes TAKARA BELMONT to use by
written notice. The Trademarks are protected by trademark registration and
applications both in the United States Patent and Trademark Office and other
foreign countries.
(ii) TRADE NAMES. "Trade Names" means (a) the names set forth in
Schedule D and(b) all other names that New Image adds from time to time and
authorizes TAKARA BELMONT to use by written notice.
(iii) INTELLECTUAL PROPERTY. Subject to the provisions of this Agreement,
NEW IMAGE grants to TAKARA BELMONT the nonexclusive, nontransferable limited
right to use the Trademarks and Trade Names in connection with the marketing and
distribution of the Products to customers in the Territory during the Term of
this Agreement. This limited right may not be sublicensed by TAKARA BELMONT.
TAKARA BELMONT shall use the Trademarks and Trade Names solely for the benefit
of NEW IMAGE and the sale and distribution of the Products. Except for the
limited right granted above, this Agreement does not give TAKARA BELMONT any
additional rights or interests in the Trademarks or Trade Names. TAKARA BELMONT
agrees that the nature and quality of all services rendered and goods sold by
TAKARA BELMONT in connection with the Trademarks shall conform to standards set
by and be under the control of NEW IMAGE. TAKARA BELMONT and NEW IMAGE agree
that the limited right and permission granted to TAKARA BELMONT in this
Agreement extends only to the marketing and distribution of the Products in the
Territory during the Term of this Agreement. Nothing in this Agreement shall
limit the right of NEW IMAGE or any of NEW IMAGE'S other licensees to use the
Trademarks and Trade Names in connection
with the Products and New Products outside the Territory or other products
inside or outside the Territory.
(iv) MAINTENANCE OF TRADEMARK. TAKARA BELMONT acknowledges the ownership
of the Trademarks of NEW IMAGE and covenants not to prejudice or impair the
Trademarks or the interest of NEW IMAGE in the Trademarks. TAKARA BELMONT
agrees that it will not attack the title of NEW IMAGE to the Trademarks nor the
validity of the license If TAKARA BELMONT knows that any person or entity is
infringing on any Trademark, TAKARA BELMONT agrees to notify NEW IMAGE
immediately and cooperate fully with NEW IMAGE, and NEW IMAGE shall have the
right (and the obligation) to defend and protect the Trademark against the
infringer at NEW IMAGE'S expense.
(iv) USE OF TRADEMARKS. TAKARA BELMONT agrees to use the Trademarks only
in the form and manner and with appropriate legend prescribed by NEW IMAGE.
Before any label, container or other item bearing a NEW IMAGE Trademark is
placed in use by TAKARA BELMONT, a sample or facsimile must be submitted by
TAKARA BELMONT to NEW IMAGE for written approval and such approval shall not be
unreasonably withheld or delayed. TAKARA BELMONT agrees to use the Trademarks
as a prominent item in all of its advertising and promotional material for the
Products. TAKARA BELMONT shall not use any other trademarks for the Products
nor shall it use the Trademarks to promote any product other than the Products.
TAKARA BELMONT shall not alter the Trademarks, trade dress or product packaging
supplied by NEW IMAGE. TAKARA BELMONT shall not have the right to use any of
the Trademarks as part of TAKARA BELMONT'S name or trade name. TAKARA BELMONT
represents that it has not filed any application to register any of the
Trademarks or similar marks and that it will not file any such application
without NEW IMAGE'S prior written consent. If TAKARA BELMONT files an
application to register any of the Trademarks or any similar mark, either with
or without NEW IMAGE'S consent, TAKARA BELMONT hereby agrees to perform all
reasonable acts, including executing and delivering all right, title and
interest in the application and the registration to NEW IMAGE TAKARA BELMONT
shall comply with all applicable laws and regulations and obtain all appropriate
government approvals pertaining to the sale, distribution and advertising of
goods and services covered by this license.
(v) PATENTS. TAKARA BELMONT acknowledges that certain Products subject
to this Agreement are extremely proprietary to NEW IMAGE, and NEW IMAGE
expressly retains all right, title, or interest in the Products, patents, patent
applications, copyrights, or trade secrets related to the Products. NEW IMAGE
shall retain all right, title and interest, including any improvements, in
(i) the Products, (ii) inventions and (iii) continuation patent applications
whether in the United States or in foreign countries. This includes any
improvements to the technology, modifications in the structure or design of the
Products or component parts of the Products. This Agreement shall not be
construed as a patent license.
9. ASSIGNMENT
The rights and obligations of TAKARA BELMONT under this Agreement may not
be assigned in whole or in part by operation of law or otherwise without the
prior written consent of NEW IMAGE, and any attempted assignment of any rights,
duties or obligations hereunder without such consent shall be void For purposes
of this Agreement, any change in ownership of the capitalization or voting
control of TAKARA BELMONT which results in the persons or entities which have a
majority of such interests at the time this Agreement is signed being reduced to
less than 50% of either of such items will constitute an assignment prohibited
by the preceding sentence unless NEW IMAGE gives its prior written consent to
such changes. The rights, duties and obligations of NEW IMAGE under this
Agreement may be assigned, in whole or in part, to any Company controlling,
controlled by, or under common control with NEW IMAGE.
10. INDEPENDENT CONTRACTOR
The relationship of TAKARA BELMONT to NEW IMAGE is that of independent
contractor and neither party is in any way the legal representative or agent of
the other for any purpose whatsoever. Neither party has any right or authority
to assume or create, in writing or otherwise, any obligation of any kind,
express or implied, in the name of or on behalf of the other.
11. ENTIRE AGREEMENT
This Agreement and its schedules constitute the entire and only agreement
between the parties hereto relating to this subject matter. This Agreement
supersedes all previous agreements, commitments and presentations in respect
thereto and may not be changed or modified in any manner except by an instrument
of subsequent date signed by both parties.
12. HEADINGS
The headings of this Agreement are inserted only as a matter of convenience
and for reference and in no way define the scope or content of this Agreement or
the construction of any provision hereof or of any instrument or document
referred to herein.
13. CONFIDENTIALITY
(i) TAKARA BELMONT acknowledges that as a result of being appointed
exclusive distributor for the Territory, it will become informed of, and have
access to, valuable and confidential information of NEW IMAGE, including
inventions, trade secrets, technical information, know-how, plans,
specifications, and identity of distributors, customers and suppliers which will
be identified to TAKARA BELMONT on the face thereof as "Confidential"
(collectively, the "Confidential Information"), and the Confidential
Information, is the exclusive property of NEW IMAGE to be held by TAKARA BELMONT
in trust and solely for the benefit of NEW IMAGE. Accordingly,
TAKARA BELMONT shall handle NEW IMAGE Confidential Information with the same
precautions in all respects as it uses to protect its own confidential
information and shall not at any time during or subsequent to the Term use,
reveal, report, publish, transfer or otherwise disclose to any person,
corporation or other entity, any of the Confidential Information without the
prior written consent of NEW IMAGE, except to responsible officers and employees
of TAKARA BELMONT who have a need for this information for purposes which are
in the best interest of NEW IMAGE. This provision does not prohibit TAKARA
BELMONT from disclosing information which legally is, or becomes, of general
public knowledge from authorized sources other than TAKARA BELMONT or to its
accountants and legal counsel or as required by law.
(ii) Upon the termination of this agreement, TAKARA BELMONT shall promptly
deliver to NEW IMAGE all drawings, manuals, letters, notes, notebooks, reports
and copies thereof and all other materials, including those of a secret or
confidential nature, relating to NEW IMAGE'S business which are in TAKARA
BELMONT possession or control and are identified on the face thereof or which
have otherwise been identified in writing, as "Confidential".
14. SEVERABILITY
Whenever possible, each provision of this Agreement and all related
documents shall be interpreted in such a manner as to be valid under applicable
law, but if any such provision is invalid or prohibited under said applicable
law, such provision shall be in effect up to the extent of such invalidity or
prohibition without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
15. GOVERNING LAW
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of California, U.S.A., without regard to the conflicts of law
rules thereof, and any court of competent jurisdiction in the State of
California, U.S.A. shall have jurisdiction over this Agreement. The place of
performance by NEW IMAGE is the County of San Diego, State of California, U.S.A.
16. NOTICES
All notices or other communications required or given in connection with
this Agreement shall be deemed to have been properly made when telecopied or
deposited in the mail, postage pre-paid addressed as follows:
NEW IMAGE INDUSTRIES, INC. ATTN: PRESIDENT
2283 Cosmos Court Tel: 619-930-9900
Carlsbad, California 92009 Fax: 619-930-9999
TAKARA BELMONT CO. LTD. ATTN:
P.O. Box OSAKA MINAMI 27 Tel: 81-6-213-5945
1-1,2-CHOME, HIGASHI-SHINSAIBASHI Fax: 81-6-212-3680
CHUO-KU, OSAKA, JAPAN 542
17. COMPLIANCE WITH LAW
New Image will cooperate with Takara Belmont in seeking to have all
Products comply in all material respects with all applicable laws in the
Territory.
18. SURVIVAL
The provisions of Sections 3(vi), 5A(ii), 8 and 17 of this Agreement and
financial obligations of the parties which are due at the time this Agreement
terminates shall survive the termination hereof.
19. WAIVER
No delay by either party in exercising any right, remedy, power, or
privilege granted under this Agreement or otherwise, and no failure on the part
of either party to insist upon strict compliance by any other party with its
obligations under this Agreement, shall operate as a waiver of those rights.
20. FORCE MAJEURE
Except for obligations relating to the payment of money, neither party will
be liable for failure to perform its obligations under this Agreement when the
failure is due to causes beyond the control of that party.
21. ARBITRATION
Any dispute or controversy arising under this Agreement shall be determined
and settled by arbitration in San Diego, California under the Commercial
Arbitration Rules of the American Arbitration Association. The parties further
agree that:
(i) ATTORNEYS FEES. The arbitrator shall include attorney fees and costs
in the award to the prevailing party.
(ii) FINDINGS AND CONCLUSIONS. The award shall include findings of fact
and conclusions of law showing the legal and factual basis for the arbitrator's
decision.
(iii) ERRORS OF LAW. The award shall be subject to appeal to any court of
competent jurisdiction solely with respect of errors of law (but not with
respect to errors of fact). For an appeal to be given effect, the party seeking
to appeal must give notice of intent to appeal to the arbitrator and the other
party to the arbitration within ten days following the date the notice of the
award is received by such party and the appeal itself must be filed with the
proper court within 30 days of the date of such receipt.
(iv) ENFORCEMENT. Subject to any appeal permitted under
subparagraph (iii), the award may be entered by any court of competent
jurisdiction.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of
the day and year first above written.
NEW IMAGE INDUSTRIES, INC.
By: /s/ Dewey F. Edmunds
-----------------------------
Dewey F. Edmunds
President and
Chief Executive Officer
Date: 2/23/96
---------------
TAKARA BELMONT CO. LTD.
By: /s/ Kunifusa Yoshikawa
-----------------------------
Kunifusa Yoshikawa
Managing Director
Date: Feb 23 '96
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