EXHIBIT 10.23
INTERNATIONAL MARKETING AND
CONSULTING SERVICES AGREEMENT
NEW IMAGE INDUSTRIES, INC.
PREPARED BY: ROBERT L. TROUTMAN
INTERNATIONAL MARKETING AND CONSULTING SERVICES AGREEMENT
THIS AGREEMENT made and entered into the First day of January, 1996.
B E T W E E N:
VTM MEDICAL MARKETING, INC., having its principal place of business at
191 University Boulevard, Suite 250, Denver, State of Colorado, United
States of America
hereinafter called "VTM"
- and -
New Image Industries, Inc., 21218 Vanowen Street, Canoga Park,
California, 91303
hereinafter called "MANUFACTURER"
WHEREAS:
(1) MANUFACTURER manufactures the AcuCam-TM-, AcuCam PC-TM-, MultiCam-TM-,
AcuNet-TM-, AcuView-TM-, AcuRay-TM-, AcuChart-TM-, products; and has established
a reputation for quality and goodwill incident to its trade name, trademarks and
Products (as defined herein); and
(2) VTM provides consulting services relative to international sales and
marketing; and
(3) MANUFACTURER is desirous of retaining VTM's services to assist it with
international sales of its Products.
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 or any similar Products bearing a different brand name
which are manufactured by MANUFACTURER and its subsidiaries, and such
accessories as are from time to time during the term of this Agreement offered
for sale in the Territory by MANUFACTURER. As used herein the word Products
does not include any OEM products manufactured by MANUFACTURER and its
subsidiaries for another company,
bearing a different brand name. New Products shall mean those products which
may hereafter be manufactured, developed, or contracted by MANUFACTURER, that
are related to those defined, but not included, in Schedule A, including
additional Products acquired by MANUFACTURER through acquisition or purchase,
and are offered for sale in the Territory ( as described in Schedule C ) by
MANUFACTURER.
(ii) NEW PRODUCTS. MANUFACTURER shall give VTM written notice of the New
Products including, without limitation, full technical specifications,
promotional literature, samples, export price lists, and commission schedule,
whereupon VTM shall have a reasonable time, not exceeding 60 days, within which
to evaluate the, New Products and prepare the market launch plan. In the event
that VTM wishes to handle the marketing and promotion of such New Products in
the Territory, VTM shall provide written notice, to include Schedule B, of its
intention to MANUFACTURER within sixty (60) days of evaluation. In the event
that VTM does not wish to handle the marketing and promotion of such New
Products in the Territory, VTM shall provide written notice to MANUFACTURER
within 60 days after MANUFACTURER'S written specification thereof and
MANUFACTURER shall be at liberty to appoint a marketing agent and/or distributor
for such New Products within the Territory. The parties hereto agree that the
procedure set out in this paragraph shall be applicable to each of the New
Products developed by MANUFACTURER during the term of this Agreement, or any
renewal thereof.
2. APPOINTMENT AND "TERRITORY"
(i) Subject to the terms of this Agreement, MANUFACTURER hereby appoints
VTM as its sole Marketing Consultant for the Products and New Products, within
the countries within the Territory, and VTM hereby accepts such appointment.
3. EFFECTIVE PERIOD AND TERMINATION
(i) TERM. This Agreement is effective January 1, 1996 and unless sooner
terminated, will remain in effect for two years from the effective date.
(ii) TERMINATION BY BANKRUPTCY. Either party may terminate this Agreement
on thirty (30) days written notice to the other party if the other party becomes
bankrupt or makes an assignment for the benefit of creditors.
(iii)TERMINATION BY DEFAULT. In the event that MANUFACTURER does not
achieve the Minimum Dollar Sales Budget as defined in schedule E, for any
contract year that the Marketing Contract is in force, such failure shall
constitute a material default under this Agreement as its sole remedy for such
default, MANUFACTURER may terminate this Agreement, upon sixty (60) days written
notice to VTM.
(iv) TERMINATION FOR BREACH OF CONTRACT. 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,
effective immediately, by written notice to the breaching party.
(v) CONVERSATION FOLLOWING TERMINATION. If, as of the effective date of
the expiration or termination of this Agreement, MANUFACTURER has outstanding
orders for product delivered to it from distributors in the territory, and
within six (6) months after the effective date of the expiration or termination
of this Agreement, these orders remain outstanding, while other customers
received shipment of the same products, then MANUFACTURER shall be obligated to
compensate VTM for the sale of such Products in accordance with schedule D.
(vi) 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 VTM of MANUFACTURER upon written notice submitted at
least 90 days prior to the end of the Term or Renewal Term, or unless otherwise
terminated pursuant to Section 3. Except as otherwise specifically provided, the
Renewal Term shall be on the same terms and conditions as the Term.
4. PRICING
(i) INTERNATIONAL PRICE LIST. A comprehensive international price list to
be specifically used for the marketing of the Products in the Territory shall be
jointly prepared and endorsed by MANUFACTURER and VTM, and attached as part of
Schedule A of this agreement.
(ii) EXCLUSIVE RIGHTS, At all times, MANUFACTURER has exclusive and
singular rights to establish pricing.
5A. OBLIGATIONS OF MANUFACTURER
(i) PROMOTIONAL MATERIALS. MANUFACTURER shall be obligated to promptly
provide VTM with information considered by MANUFACTURER appropriate to assist
VTM in its preparation of sales promotional materials and provide VTM with sales
promotion material, Product literature and samples, to facilitate VTM's
marketing services. MANUFACTURER will provide reasonable samples. Such samples
will be charged to but not paid by VTM. Such samples will be returned by VTM at
the end of the Agreement and full credit will be issued for such samples
returned. Payment will be made for such samples which are not returned or are
lost, at MANUFACTURER'S cost. Samples of disposable products will be issued to
VTM free of charge without any return obligation, at the discretion of
MANUFACTURER.
(ii) TRAINING. MANUFACTURER shall be obligated to provide Product training
for VTM associates.
(iii)LICENSE. MANUFACTURER shall obtain export or regulatory licenses for
the Products in the Territory.
(iv) COMPENSATION. MANUFACTURER shall be obligated to compensate VTM for
its services on the basis of commissions on sales of Products to distributors
within the Territory, according to the agreed upon rate, as stated in Schedule
D.
(v) AUDIT RIGHTS, MANUFACTURER agrees at all times to maintain accurate
books of accounts regarding sale of Products within the Territory and grants VTM
and its representative the right to audit those books upon request at reasonable
intervals during business hours. The cost of any audit shall be paid by VTM
unless underpayments to VTM discovered during the audit exceed 5% of the
commissions paid, in which event MANUFACTURER shall bear the cost of such audit.
(vi) REFERRALS. MANUFACTURER shall immediately refer all inquiries, leads
and request for the Products or information regarding the Products from anyone
in the Territory, and from parties wishing to ship product into the Territory,
to VTM.
5B. OBLIGATIONS OF VTM
(i) SCOPE OF RESPONSIBILITY. VTM shall, at its sole cost and expense, use
its continuing best efforts to assist the MANUFACTURER and its distributors to
market and promote the Products within the Territory. VTM shall report
regularly to MANUFACTURER in regard to market conditions and statistics
affecting the sale of the Products within the Territory; VTM shall report
regularly to MANUFACTURER in regard to all VTM's marketing and promotional
activities that affect MANUFACTURER. VTM shall not take any action which would
impair or diminish the reputation of MANUFACTURER or its Products.
(ii) MARKETING. VTM shall specifically promote the Products and
demonstrate the Products to potential purchasers, and distribute literature,
samples, catalogs, and other printed materials made available to VTM by
MANUFACTURER. VTM shall promptly forward to MANUFACTURER all leads, inquiries
and prospects for the sale of Products outside the Territory.
(iii) DISTRIBUTORS. VTM shall identify a distributor or distributors in
the countries within the Territory that are capable of representing the Products
and present to the MANUFACTURER.
(iv) DISTRIBUTION AGREEMENTS. VTM shall provide guidance and assistance to
MANUFACTURER in establishing and maintaining Distribution Agreements with the
distributors.
(v) TRAINING. VTM shall provide product training for the distributors or
arrange for training of the distributors at MANUFACTURER'S facility.
(vi) NON-COMPETITIVE PRODUCTS. During the term of this Agreement,
except as otherwise provided herein, VTM shall not manufacture, market,
distribute, sell or represent for sale in the Territory any products which
are competitive with the Products unless expressly agreed in writing by
MANUFACTURER. MANUFACTURER acknowledges that VTM is currently marketing other
medical products listed in Schedule F, which do not compete with the
Products, and that VTM is free to continue to market such products, and other
products which manufacturer determines do not compete with the Products.
(vii) REQUIREMENTS AND AUTHORIZATIONS. VTM shall provide, upon written
request from MANUFACTURER, written notification of product requirements and
specifications for the transportation and the lawful sale and use of Products in
the Territory, and shall assist MANUFACTURER in obtaining all necessary
authorizations, approvals, licenses and certifications for the sale and use of
Products in the Territory. MANUFACTURER will incur the cost of modifying or
changing the Product in order to comply with the Territory requirements;
however, making Product changes will be done at MANUFACTURER'S discretion.
6. MARKETING POLICY
MANUFACTURER and VTM shall be jointly responsible for determining marketing
and promotional strategies for the Products within the Territory during the term
of this Agreement and any renewal thereof.
7. TRADE NAMES, TRADE MARKS
MANUFACTURER will provide VTM a list of MANUFACTURER'S trade marks and
instruct VTM on the correct use of its trade marks. VTM is responsible for the
correct use of trade marks and it is further agreed that:
(i) INFRINGEMENT. VTM will notify MANUFACTURER promptly of any suspected
infringement or passing off or any adverse pending or threatened litigation or
other proceedings concerning its trademarks and trade names as chosen by
MANUFACTURER which may come to its attention;
(ii) RETRIBUTION. MANUFACTURER shall have the right, but not the
obligation to prosecute, defend and conduct at its own expense all suits
involving its trademarks and trade names including without limitation, actions
involving suspected infringement and/or passing off.
8. ASSIGNMENT OF OBLIGATIONS
The rights and obligations of VTM under this Agreement may not be assigned
in whole or in part by operation of law or otherwise with the prior express
written consent of MANUFACTURER; any attempted assignment of any rights, duties
or obligations hereunder without such consent shall be void. The rights, duties
and obligations of MANUFACTURER under this Agreement may be assigned in whole
but not in part in
connection with any sale of all or substantially all of MANUFACTURER'S assets
or in connection with any merger or consolidation of MANUFACTURER with any
other corporation or entity.
9. INDEPENDENT CONTRACTOR
The relationship between MANUFACTURER and VTM will, during the term of this
Agreement, be that of vendor and marketing agent and neither party is in any way
the legal representative or instrument of the other for any purpose whatsoever
and has no 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.
10. CONFIDENTIALITY
(i) VTM acknowledges that as a result of VTM's retention by the
MANUFACTURER, VTM has and will become informed of, and have access to, valuable
and confidential information of the MANUFACTURER, including inventions, trade
secrets, technical information, know-how, plans, specifications, and the
identity of distributors, customers and suppliers (collectively, the
"Confidential Information"), and the Confidential Information, even though it
may be contributed, developed or acquired by VTM, is the exclusive property of
the MANUFACTURER to be held by VTM in trust and solely for the manufacturers
benefit. Accordingly, VTM 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 the MANUFACTURER, except to responsible officers and
employees of VTM or who have a need for this information for purposes which are
in the best interests of MANUFACTURER. This provision does not prohibit VTM from
disclosing information which legally is or becomes of general public knowledge
from authorized sources other than VTM.
(ii) Upon the termination of this Agreement, VTM shall promptly deliver to
the MANUFACTURER all drawings, manuals, letters, notes, notebooks, reports and
copies thereof and all other materials, including those of a secret or
confidential nature, relating to the MANUFACTURER'S business which are in VTM's
possession or control.
11. NONCOMPETITION
VTM agrees that during the Term (and, if applicable, the Renewal Term) and
for one year after termination of this agreement VTM shall not, unless approved
by MANUFACTURER, (a) in any area where MANUFACTURER is conducting business
during the Term (and, if applicable, the Renewal Term) or on the date this
Agreement is terminated, alone or in association with others, as principal,
officer, agent employee, director or stockholder of any corporation,
partnership, association or other entity, or through the investment of capital,
lending of money or property, or rendering of services or otherwise, engage in
any business activity which is at the time directly competitive with the
business being conducted by MANUFACTURER; or (b) RECRUIT or otherwise solicit or
induce any person who is at the time an employee or consultant of
MANUFACTURER to terminate his employment with, or otherwise cease his
relationship with MANUFACTURER, or hire any such employee or consultant who
has left the employ of MANUFACTURER within one year after termination of such
employee's or consultant's employment with MANUFACTURER.
The restrictions against competition set FORTH above are considered by the
parties to be reasonable for the purpose of protecting the business of ACTUREK
If any restriction is found by a court of competent jurisdiction to be
enforceable because it extends for too long a period of time, over too broad a
range of activities or in too large a geographic area, that restriction shall be
interpreted to extend only over the maximum period of time, range of activities
or geographic area as to which it may be enforceable.
12. ENTIRE AGREEMENT
This Agreement and its schedules constitutes the entire and only agreement
between the parties hereto relating to the subject matter and supersedes all
previous agreements, commitments and presentations in respect thereto and may
not be released, changed or modified in any manner except by an instrument of
subsequent date signed by both parties.
13. 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.
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 the Agreement.
15. ARBITRATION
Any dispute or controversy arising between the parties to this Agreement
relating to the validity, enforceability, enforcement, performance, construction
or interpretation of this Agreement, including a dispute pertaining to the
validity or enforceability of this provision, other than matters pertaining to
injunctive relief, shall be determined by binding arbitration in Los Angeles
County, California in accordance with the Commercial Rules of Arbitration of the
American Arbitration Association then in effect. The award of the arbitrator
may be enforced in any court of competent jurisdiction. Any proceeding for
injunctive relief (including temporary restraining orders, preliminary
injunctions and permanent injunctions) may be brought in any court of competent
jurisdiction.
16. GOVERNING LAW
This Agreement shall be governed and construed in accordance with, by the
laws of the State of California, U.S.A., without regard for the conflicts of
laws rules thereof, and any court of competent jurisdiction in the State of
California, U.S.A. shall
have jurisdiction over this Agreement. Place of fulfillment is the County of
Los Angeles.
17. NOTICES
All notices, communications, payments or the like 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:
VTM Medical Marketing, Inc.
191 University Blvd., Suite 250 Denver, Colorado 80206
tel. 303-321-9881
fax. 303-321-9882
New Image Industries, Inc. Attention: President
21218 Vanowen Street
Canoga Park, California 91303
tel. 818-702-0285
fax. 818-702-8868
18. COMPLIANCE WITH LAW
MANUFACTURER warrants that the Products comply, and will continue to
comply, in all material respects with all laws applicable thereto in the
Territory.
19. ATTORNEYS' FEES
In the event of litigation arising under or in connection -with this
Agreement, the prevailing party shall be entitled to recover from the losing
party any and all reasonable attorneys' fees and costs incurred, in addition to
all other attorney's fees and costs incurred, in additions to all other remedies
to which the prevailing party may be entitled.
20. SURVIVAL
The provisions of Sections 3(v), 5A(vi), 18 and 19 of this Agreement shall
survive the termination hereof.
21. TIME OF THE ESSENCE Time shall be of the essence of this Agreement.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the day
and year first above written.
VTM Medical Marketing, Inc. New Image Industries,
Inc.
By: /s/ Robert L. Troutman By: /s/ Dewey F. Edmunds
----------------------- -----------------------
Robert L. Troutman Dewey F. Edmunds
President President & CEO
Date:_________________________ Date:_______________________