EXHIBIT 10.1
AGREEMENT
This marketing and distribution agreement ("Agreement") is made by and between
SII TRADING INC. ("STD") of 0, Xxxxxx 0-xxxxx, Xxxxxx-Xx, Xxxxx-xxx Xxxxx
261-8507, Japan, and PARENTECH, INC. ("Parentech") of 000 Xxxxxxxx Xxxx, Xxxxx
000, Xxx Xxxxx, Xxxxxxxxxx 00000, (collectively, the "Parties"). The Agreement
shall be effective as of the last date written on the signature page of this
Agreement (the "Effective Date").
For purposes of this Agreement, "Exchange Rate" shall mean the exchange rate
then in effect pursuant to Section 6 of this Agreement. Both STD and Parentech
understand that the Agreement may be subject to applicable local laws,
governmental registration requirements and government approvals.
1. Appointment
Parentech hereby grants STD exclusive marketing, rental, and
distribution rights (the "Marketing Rights") in Japan for the nature's
cradle mechanism (the "Mechanism"), and any new models, improved
versions and successor versions of the Mechanism.
2. Territory.
The Parties hereby agree and acknowledge that the Marketing Rights
granted herein will be limited to Japan (the "Territory"). STD hereby
acknowledges and agrees that it will have no Marketing Rights with
regards to the Mechanism outside of the Territory, and that it will
not, directly or indirectly, exercises Marketing Rights for the
Mechanism outside of the Territory. In exchange for the exclusive
Marketing Rights granted under this Agreement, STD agrees not to
acquire, establish or in any way become affiliated with any business
that sells, rents or otherwise distributes, and STD itself will not
sell, rent or otherwise distribute, products that compete with the
Mechanism whether within or outside the Territory. Whether or not an
item is competitive will be determined in the sole discretion of
Parentech
3. Products Covered.
The Agreement will pertain only to Marketing Rights concerning the
Mechanism and the manufacture, marketing and distribution of the
related Softgoods. If Parentech decides to market additional products
other than the Mechanism and related Softgoods in the Territory and STD
has fulfilled all of its obligations under the Agreement as of that
date, STD will have a right of first negotiation with respect to
Marketing Rights concerning those additional products in the Territory
before Parentech negotiates with any third party for such Marketing
Rights.
For the purposes of this Agreement, the following home use accessories
to the Mechanism and Hospital use accessories to the Mechanism are
referred to as the "Softgoods," and include the following:
a) a bassinet carrier for the Mechanism;
Hospital use accessories to the Mechanism are;
a) Mounting attachment for cart;
b) Plastic Tub;
c) Cart
d) Mattress
4. Mechanisms for Home Use.
4.1 Rental.
Parentech will lease 400 Mechanism (equivalent of 800 rentals)
Mechanisms to STD to be leased by STD to parties for home use
("Home Use Mechanisms") for calendar years 2000 and 2001 at a
rental fee in yen that equals $85.00 U.S. per Home Use
Mechanism per six-month period ("Rental Period") based on the
then-existing Exchange Rate as determined by Section 6 of this
Agreement ("Semi-Annual Rental Fee"). The total annual fee for
the number of the Home Use Mechanisms, will be that amount in
yen which shall equal $170.00 U.S. per Home Use Mechanism per
year based on the then-existing Exchange Rate as determined by
Section 6 of this Agreement ("Annual Rental Fee").
The Semi-Annual Rental Fee and the Annual Rental Fee
(collectively the "Rental Fees") apply to all Home Use
Mechanisms received by STD, including those actually rented to
STD customers and those that are not rented, but instead
remain in the possession of STD.
Parentech will lease a number of Home Use Mechanisms to STD
for calendar years 2002, 2003 and 2004. The Parties shall
negotiate in good faith and use their best efforts to
determine, by November 2001, both the number of, and the
rental fees for, Home Use Mechanisms to be leased in years
2002, 2003 and 2004.
STD shall use its best efforts to market and promote the
distribution of the Home Use Mechanisms within the Territory,
which best efforts shall include but not be limited to, such
contract with others for the distribution of the Home Use
Mechanisms. STD shall use its best efforts to ensure that STD
shall perform its obligations under this Agreement in a manner
consistent with promoting the reputation of, and public
confidence in, the Home Use Mechanism and Parentech.
4.2 Beginning of Rental Period(s).
Parentech's Rental Fees charged to STD are measured in six
month increments, or Rental Periods. The first Rental Period
for each Home Use Mechanism will be deemed to begin 30 days
following its delivery to STD.
4.3 Payment of Rental Fees; Initial Rental Fee.
STD will pay to Parentech the then current Annual Rental Fee
prior to the initial shipment of each Home Use Mechanism from
Parentech to STD. Subsequent Rental Fees for each Mechanism
will be due and payable upon receipt of invoice at the start
of every six month interval, following the completion of the
initial two (2) Rental Periods, and at the then current
Semi-Annual Rental Fee.
4.4 Restocking Fee.
If STD returns any Home Use Mechanisms to Parentech which are
not defective, then STD will pay the then current Semi-Annual
Rental Fee for such Home Use Mechanisms as a restocking fee,
regardless of whether or not the Home Use Mechanisms are
subsequently sold, leased, licensed, or in some other way
transferred to a third party.
4.5 Purchase of Softgoods.
Parentech desires the right to purchase any Softgoods
manufactured by STD through its elected distributor(s). STD
will also use its best efforts to cause its distributor(s) to
provide the Softgoods to Parentech for approval of such goods
for safety, function, quality, and appearance; however,
ultimate responsibility for the quality of the Softgoods
remains with STD. Any Softgoods provided to Parentech will
carry the Parentech brand, unless otherwise agreed by
Parentech.
4.6 Acceptance Inspection
STD shall perform the acceptance inspection on the quantity
and quality of Mechanism in accordance with the standards and
procedures agreed between both parties separately (
"Acceptance Inspection"). In the event any Mechanisms is found
in shortage or defective as a result of the Acceptance
inspection, return shipping costs for defective Mechanisms
sent to Parentech's manufacturing location and for replacement
Mechanisms sent to STD shall be covered by Parentech.
4.7 Maintenance.
STD has the right to request Parentech, at its discretion, to
replace or repair the Home Use Mechanisms covered by the
warranty that are no longer serviceable due to defects in
materials or workmanship. Parentech will provide a quantity of
Mechanisms to be stocked by STD to facilitate immediate
replacement; the quantity will be mutually agreed upon by the
Parties in good faith on the basis of actual usage data. For
purposes of this Agreement, "Actual Usage Data" means the
actual number of mechanisms sold and rented to end-users and
the number of defective units returned.
4.8 Warranty
Home Use Mechanisms are warranted by Parentech for replacement
if Mechanism and Softgoods are non-compliant with the
mechanical specifications which are mutually agreed upon by
the Parties and Parentech shall also have responsibilities
concerning such specifications. Return shipping costs for
noncompliant Mechanisms and Softgoods sent to Parentech's
manufacturing location will be covered by STD and shipping
costs of replacement Mechanisms and Softgoods sent to STD will
be covered by Parentech.
Notwithstanding the foregoing, Parentech's responsibilities
hereunder shall not apply to; (1) scratches on the surface of
Softgoods (2) exhaustion, including wear and tear, in normal
use of Softgoods (4) other defects which are agreed by both
parties.
5. Mechanisms for Hospital Use.
5.1 Price of Mechanism
During calendar year 2000, Parentech will sell to STD, and STD
will accept, not less than 50 Mechanisms for hospital use
("Hospital Use Mechanisms") at a price in yen equal to $250.00
U.S. per Hospital Use Mechanism at the 2000 Exchange Rate,
f.o.b. Parentech's manufacturing location (the "Purchase
Price"). The Purchase Price for Hospital Use Mechanisms after
year 2000 will be adjusted as mutually agreed upon by the
Parties in good faith. In the event that STD rents a Hospital
Use Mechanism at any time, STD will become obligated to pay the
then applicable Rental Fees in addition to the Purchase Price.
5.2 Price of Softgoods
The price of the Softgoods described in Article 3 hereof will
depend on the type of cart. Parentech will quote the hospital
use Softgoods by STD's request.
5.3 Payment
STD shall remit Parentech all amount due for Hospital Use
Mechanism purchased by STD within thirty (30) days from the end
of the month of Air Way Xxxx date.
5.4 Warranty.
Hospital Use Mechanisms and Softgoods are warranted by
Parentech for twelve months from date of STD' receipt.
Mechanism and Softgoods that are defective in design,
specification, material and workmanship may be returned to
Parentech for credit or replacement. All return shipping costs
for Mechanisms and Softgoods in warranty will be covered by
Parentech.
Notwithstanding the foregoing, Parentech's responsibilities
hereunder shall not apply to; (1) scratches on the surface of
Softgoods (2) exhaustion, including wear and tear, in normal
use of Softgoods (3) other defects which are agreed by both
parties
5.5 Service
STD has the right to request Parentech, at its discretion, to
replace or repair Mechanisms and Softgoods covered by the
warranty that are no longer serviceable due to defects in
materials or workmanship. Parentech will provide a quantity of
Mechanisms to be stocked by STD to facilitate immediate
replacement; the quantity will be mutually agreed upon by the
parties based on sales volume.
5.6 Title and Risk
Title and risk of loss or damage to Mechanism and Softgoods
shall pass to STD at the Parentech's manufacturing location.
6. Method of Determining Exchange Rate
For calendar year 2000 transactions, the Rental Fees will be
based on the Exchange Rate published in the Japan Economic
Journal (Nippon Keizai Shimbun) on the date the Agreement is
executed (the "2000 Exchange Rate").
For calendar year 2001 transactions, the Rental Fees will be
based on the Exchange Rate published in the Japan Economic
Journal (Nippon Keizai Shimbun) on January 1, 2001, unless
that date is not a business day in Japan, then the exchange
rate will be based on the first regular business day following
January 1, 2001 (the "2001 Exchange Rate").
For all subsequent years' transactions under the Agreement,
the rental fees will be based on the Exchange Rate published
in the Japan Economic Journal (Nippon Keizai Shimbun) on
January 1 of each calendar year, unless that date is not a
business day in Japan, then the Exchange Rate will be based on
the first regular business day following that date.
Notwithstanding anything in this Agreement, if the exchange
rate between the U.S. dollar and the Japanese yen published in
the Japan Economic Journal (Nippon Keizai Shimbun) should
change (up or down) by more than twenty percent (20%) from the
Exchange Rate then in effect (the "Exchange Rate Limitation"),
and said Exchange Rate would be in effect for more than three
(3) months after the date such change occurs, then the party
adversely affected by such change may request renegotiation of
the rental rates and prices set forth in this Agreement.
Within fifteen (15) days of such request, the Parties shall
negotiate in good faith to agree upon an equitable adjustment
to the Exchange Rate then in effect, which adjustment will be
retroactive to the date on which the Exchange Rate Limitation
was exceeded. If the parties are not able to reach agreement
on an adjustment to the Exchange Rate, then the party
adversely affected by the expedience of the Exchange Rate
Limitation may terminate this Agreement immediately.
7. Promotional Activity
7.1 STD's Activity
STD shall exert its best efforts to promote the sale of
Mechanism and Softgoods in Territory through adequate market
research and advertisement in its own name and its account.
7.2 Information
Parentech shall supply STD from time to time with advertising
materials and information, including the U.S. market
conditions, which STD considers necessary for the promotion of
the sales and the rental of Mechanism and Softgoods.
8. Report
STD shall furnish Parentech every month with the written report, which
contains the quantity stocked, the sales and rental results of the
Mechanism, the prospect of sale and rental of the Mechanism, the
reputation of the Mechanism in Territory, address and names of customers,
and complaints from customers. STD shall further report on matters as may
be requested by Parentech from time to time
9. Regulatory Approvals.
Parentech shall obtain and maintain all permits, licenses and government
registrations necessary or appropriate to perform hereunder and shall
make all filings with governmental authorities required of this
Agreement by applicable law, including without limitation registering
with the applicable provincial or state administration of foreign
exchange and other authorities necessary to enable STD to make payments
to Parentech in U.S. Dollars (collectively, "Regulatory Permits"),
provided however that STD shall use its best efforts to assist Parentech
in obtaining such Regulatory Permits at Parentech's request. STD, its
employees and agents shall at all times in carrying out the terms of
this Agreement abide by, and be in full compliance with, the laws,
regulations and practices of their Country and Territory. On Parentech's
request, STD shall provide Parentech with written assurances of such
compliance. STD will determine the need to obtain Kosheisho approval for
the Mechanism, and if such approval is necessary, will obtain the
approval at the cost of STD. STD will determine the need to obtain the
S-Xxxx for the product, and if such approval is necessary, will assist
Parentech in obtaining the xxxx at the cost of STD. In the event that
the Agreement is terminated prior to December 31, 2004 and Parentech
continues to sell its products in Japan using a Kosheisho approval or
S-Xxxx obtained by STD, Parentech will reimburse STD pro rata for its
expenses paid in obtaining that approval, based on the portion of the
Agreement's Initial Term remaining at the time of termination.
10. Product Branding.
Parentech will obtain at its option and its expense, trademark
protection in Japan for the trademark PARENTECH and any other trademarks
(on behalf of Parentech and in Parentech's name) to be used in
exercising Marketing Rights for the Mechanism and the Softgoods in Japan
pursuant to this Agreement. Notwithstanding the foregoing, however,
Parentech will retain all rights to ownership and use of these
trademarks, in Japan and elsewhere, and will grant a license to STD to
use these trademarks solely for use in exercising their Marketing Rights
under this Agreement. Notwithstanding anything to the contrary contained
herein, STD may use any of its own trademarks selected by STD at its
discretion in exercising its Marketing Rights concerning the Mechanism
and the Softgoods pursuant to this Agreement.
11. Term of Agreement.
11.1 Expiration and Renewal.
The Agreement will have a term commencing with its execution
and concluding on December 31, 2004 ("Initial Term"). The
Agreement will be automatically renewed for five successive
one (1) year terms (the "Renewal Terms"), unless notice of
non-renewal is given at least one hundred eighty (180) days
prior to the expiration of the Initial Term or of any Renewal
Term, as the case may be, but if renewal occurs by failure to
give notice of termination, a Renewal Term will not take
effect until the parties have agreed on adjustments to the
Purchase Prices and Rental Fees set forth in the Agreement or
have affirmatively agreed not to change such Purchase Prices
and Rental Fees.
Notwithstanding the provision of the Article11.1 and Article
21 hereof, the provisions of the Article 4.8, 5.4, 5.5, 11.1,
12, 13, 14, 15, 16, and 17 hereof shall survive the
termination or cancellation of this Agreement.
STD hereby acknowledges and agrees to meet a minimum performance
guarantee described in Article 4.1 and 5.1 hereof. ("Performance
Guarantee").
Each year, STD undertakes to meet the Performance Guarantee. If, in any
year, STD does not meet the Performance Guarantee (or if the parties
have not agreed on a Performance Guarantee for any given year), the
Parties shall work together in good faith to identify the reasons for
such failure, and each shall use its best efforts to resolve the
problem. In order to facilitate resolution of the problem, STD will
submit in writing to Parentech the reasons for such failure within
thirty (30) days. Parentech undertakes to be reasonable in its
assessment of STD's failure to meet the Performance Guarantee.
If Parentech and STD are unable to agree that STD's failure to meet the
Performance Guarantee was reasonable (or if the Parties cannot agree on
a Performance Guarantee for any given year), STD will lose its
exclusive Marketing Rights for the Mechanism and softgoods for the
remainder of the term of the Agreement, but the other terms of the
Agreement will remain in effect. STD may avoid the loss of its
exclusive rights by paying any shortfall to Parentech within thirty
(30) days of Parentech's notice to STD that STD has not met the
Performance Guarantee in any year. If STD does not meet the Performance
Guarantee for two (2) consecutive years, then Parentech, may, in its
sole discretion, have, as its sole remedy, the right to terminate this
Agreement.
Parentech's sole and exclusive remedy for failure to meet the
Performance Guarantee set forth in the paragraph above shall be to
alter the Marketing Rights of STD under this Agreement, such that they
are no longer exclusive. STD shall have no other liability whatsoever
to Parentech by reason of failure to meet the Performance Guarantee.
12 Confidentiality.
12.1 Neither party shall, without the prior written consent of the other
party, disclose to any third parties except its subsidiaries, advisors and
agents, any Confidential Information provided to it by the other party, nor
use such Confidential Information for any purpose other than the purposes of
this Agreement.
12.2 The obligations of each party contained in this Article 13 regarding
Confidential Information of the other party shall not apply to information
that:
(1) was known to it prior to disclosure to it by the other party;
(2) is or becomes publicly available;
(3) is rightfully received by it from a third party, without
accompanying secrecy obligations;
(4) is independently developed by it;
(5) is approved by the other party in writing for release; or
(6) is required to be disclosed by law.
12.3 The obligation of each party provided in this Article 13 regarding the
Confidential Information of the other party shall terminate after three (3)
years from the date of disclosure of such Confidential Information.
13. Products Liability.
13.1 Parentech shall indemnify, defend and hold STD harmless from any
and all liabilities, damages, losses, costs and expenses (including
legal fees and other legal expenses) arising from or relating to any
personal injury (including death) or physical damage to tangible
property, which arise out of or relate to any actual or alleged defect
in design, workmanship or materials, of any Mechanism and Softgoods, and
Bassinets which consist of Mechanism and Softgoods ("Bassinets")
purchased by STD under this Agreement.
13.2 Parentech's obligations under Section 13.1 shall not apply to
liabilities, damages, losses, costs and expenses (including legal fees
and other legal expenses) caused by: (i) unauthorized modification,
change or addition to the Mechanism and Softgoods by persons other than
Parentech; or (ii) instruction, direction or specification indicated by
STD.
If Parentech is requested but is not permitted by law to defend or
settle such claims, Parentech shall reimburse STD for the costs and
lawyers' fees reasonably incurred by STD in defense or settlement.
14. Indemnities for Infringement.
14.1 If any of the Mechanism or Softgoods or Bassinets or processes used
in the manufacture thereof become the subject of a claim, suit or other
proceeding for infringement of a patent, copyright or any other
intellectual property right (including, but not limited to,
misappropriation of trade secrets), Parentech shall indemnify, defend
and hold STD and its customers, distributors or users harmless from and
against any losses, damages, costs, expenses (including attorneys' fees)
and other liabilities of any nature arising therefrom. Without limiting
the generality of the foregoing, Parentech shall, at its option and
expense, either promptly procure for STD the right to continue using the
Mechanism or Softgoods thereof which are subject to the claim, suit or
other proceeding in question, or promptly modify the Mechanism,
Softgoods or Bassinets which are subject to the claim, suit or other
proceeding in question, or promptly modify the Mechanism, Softgoods or
Bassinets which are subject to the claim, suit or other proceeding in
question, so that they are non-infringing, without materially altering
the performance, characteristics or functions thereof.
14.2 In the event of any claim, suit or other proceeding for which STD
seeks indemnification from Parentech, as a condition precedent to
Parentech's obligations hereunder, STD shall:
14.2.1 promptly notify Parentech in writing of any such claim, suit or
other proceeding or the threat thereof;
14.2.2 permit Parentech to have the sole right and authority to defend,
prosecute, negotiate, compromise and otherwise handle such claim, suit
or other proceeding or threat thereof; and
14.2.3 cooperate with Parentech, including, without limitation,
providing such information as Parentech may reasonably request.
14.3 If for any reasonable business justification Parentech is unable
to assume the defense, prosecution, negotiation, compromise or other
handling of any claim, suit or other proceeding for which STD seeks
indemnity, STD shall, at Parentech's cost and in strict accordance with
Parentech's instructions, defend, prosecute, negotiate, compromise and
otherwise handle such claim, suit or other proceeding. STD shall advise
Parentech in writing as to all material aspects relating to such claim,
suit or other proceeding and, in any event, shall report to Parentech
thereon in writing on a regular basis. In no event shall STD compromise
or otherwise settle such claim, suit or other proceeding without
Parentech's prior written consent. If STD fails to obtain Parentech's
prior written consent to any such compromise or settlement, STD shall
be solely responsible for all costs of such compromise or other
settlement.
15. Governing Law
STD acknowledges that Parentech is based in the State of California,
U.S.A. and requires uniformity and consistency in the laws under which
it deals with all of its domestic and international distributors.
Accordingly, this Agreement shall be governed and construed, in
accordance with the laws of the State of California, without regard to
its conflicts of laws rules. The United Nations Convention on Contracts
for International Sale of Goods shall not apply to this Agreement.
16. Dispute Resolution.
16.1 All disputes, controversies or differences which may arise between
the parties hereto, out of or in relation to or in connection with this
Agreement, or any obligations hereunder by either party hereto, or for
the breach thereof, shall be finally settled by arbitration without
recourse to the courts. It shall be conducted before a single
arbitrator. If Parentech initiates arbitration, such proceeding shall
be held in the Japan Commercial Arbitration Association of Tokyo, Japan
pursuant to the Rules of the Japan Commercial Arbitration Association;
if STD initiates arbitration, such proceeding shall be held in the
International Chamber of Commerce of Oakland, California pursuant to
the Rules of the American Arbitration Association for Commerical
Arbitration. The arbitration process, including selection of the
arbitrator, exchanges or request for information and the arbitration
hearing, shall be completed within 60 days following the initiation of
the arbitration by either party, and the actual arbitration hearing
shall be limited to one (1) day. The arbitrator shall issue a written
judgment within ten (10) days following the arbitration hearing.
Judgment upon any arbitration award may be entered in any court having
jurisdiction thereof. This provision is self-executing, and in the
event that either party fails to appear at any properly noticed
arbitration proceeding, an award may be entered against such party
notwithstanding said failure to appear. This clause shall survive the
termination of this Agreement.
Any xxxx resulting from such arbitration shall be final and binding on each
party hereto and its legal successors, and shall be enforced in any court of
competent jurisdiction.
17. Attorney's Fees.
In the event of any litigation or arbitration hereunder, the arbitrator
or court shall award costs and reasonable attorneys' fees to the
prevailing party.
18. Expenses.
Each party shall bear its own costs and expenses with regard to the
negotiation, execution and consummation of the transactions
contemplated by this Agreement, including the fees of its respective
attorneys, accountants or consultants. In the event that no Agreement
is executed between STD and Parentech, despite diligent and good faith
negotiations by both parties, neither party shall be liable to the
other for any costs or expense incurred in the negotiation of this
Agreement.
19. Import and Export Controls.
STD hereby acknowledges that the Mechanism(s) are subject to United
States export controls, pursuant to the U.S. Export Administration
Regulations. STD shall comply with all applicable provisions of the
Export Administration Regulations, and shall not export, re-export,
transfer, divert or disclose, directly or indirectly, including via
remote access, the Mechanisms, any confidential information contained
or embodied in the Mechanisms, or any direct product thereof, except as
authorized under the Export Administration Regulations. STD shall
comply with all other applicable laws and regulations of the United
States and the Territory pertaining to exportation or importation of
the Mechanisms.
20. Taxes
STD will pay any and all taxes, import duties and any levies of any
kind imposed by the Japanese Government.
21. Termination
21.1 Breach
In the event any party hereto breaches or otherwise fails to perform
any part of this Agreement, or any representation or warranty proves to
be false, then the other party hereto not in breach shall notify the
party in breach and demand that such breach or such failure to perform
be corrected. If the party in breach fails to correct the breach within
thirty (30) days from the receiving date of such written notice of
demand for correction, other parties may, at its sole discretion,
immediately terminate this Agreement by giving the party in breach
written notice of termination. Each party not in breach may claim its
damages suffered by such termination against the other party in breach.
21.2 Other Reasons for Termination with Cause
Each party hereto shall have the right to terminate this Agreement for
cause upon written notice to the other party hereto in the event that
the other party:
a) files, or have been filed against it ( which filing is not
dismissed within sixty (60) calendar days ), a petition to
declare it insolvent or bankrupt, or make an assignment for
the benefit of its creditors; or
b) fails to pay its debts hereto as they mature;
c) is dissolved or liquidated;
d) suffers or permits the appointment of a receiver for its
business or assets or enters an agreement with its creditors
for the payment of its debts
e) transfers fifty percent (50%) or more of its common capital
stock in a single transaction or in a series of transactions,
transfers its business and/or substantially all of its assets,
or not survive a merger or corporate reorganization; or
f) has happen against or by it any other acts similar in nature
to those described in this Section 21.2 (a) through (e)
hereof.
If any party hereto is involved in any of the events
enumerated in Section 21.2 (a) through (e) hereof, it shall
notify the other party hereto immediately of the occurrence of
such event in writing. The party which terminates this
Agreement in accordance with this Section 22.2 may claim its
damages suffered by such termination against the other party.
22. Notices.
All notices and other communications hereunder shall be given in
writing and delivered (a) by personal delivery, by prepaid overnight or
international courier service to the addresses set forth on the
signature page of this Agreement, or (b) by facsimile to such facsimile
number as may be provided in writing by a party. Notices are deemed
given on receipt or attempted delivery (if receipt is refused).
23. Severability.
The provisions of this Agreement shall be deemed severable and the
invalidity or unenforceability of any one or more of the provisions
hereof shall not affect the validity and enforceability of the other
provisions hereof.
24. Construction.
In the interpretation and construction of this Agreement, the Parties
hereby agree and acknowledge that the terms herein reflect extensive
negotiations between the Parties and that this Agreement shall not be
deemed to have been drafted by either party.
25. English Language.
English is the authoritative text of this Agreement, and all
communications, arbitrations, and other adjudications hereunder shall
be made and conducted in English.
26. Independent Contractor.
It is understood and agreed that each of the Parties hereto shall be
acting only in the capacity of an independent contractor to the other
party insofar as this Agreement is concerned, and not as a partner,
co-venturer, agent, employee, franchisee, or representative of the
other party.
27. Entire Agreement; Modifications.
This Agreement, together with exhibits and schedules attached hereto,
constitutes the entire agreement of the Parties, supersedes any and all
prior and contemporaneous oral or written understanding as to the
subject matter hereof, and excludes all implied representations,
conditions, warranties, and other terms. Each party acknowledges that
it is entering into this Agreement as a result of its own independent
investigation and not as a result of any representation of the other
party not contained herein. No changes or modifications of or additions
to this Agreement shall be valid unless the same shall be in writing
and signed by the other party hereto.
28. Force Majeure.
Except as expressly provided elsewhere in this Agreement, neither party
shall be liable to the other for its failure to perform any of its
obligations hereunder during any period in which such performance is
delayed by circumstances beyond its reasonable control including, but
not limited to earthquake, fire, flood, war, embargo, strike, inability
to secure materials and transportation facilities, or the intervention
of any governmental authority. If such delaying cause shall continue
for more than thirty (30) days, the party injured by the inability of
the other to perform shall have the right, upon written notice to the
other, to either (i) terminate this Agreement or (ii) treat this
Agreement as suspended during the delay and reduce any commitment in
proportion to the duration of the delay.
29. Assignment.
No party to this Agreement may, voluntarily or by operation of law,
assign or otherwise transfer any of his, her, or its rights or
obligations under this Agreement, without obtaining the prior written
consent of the other parties hereto. Any attempted assignment in
violation of this Agreement shall be void and of no effect.
30. Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of the
parties, their successors and assigns.
31. Waiver.
No waiver of any of the provisions of this Agreement shall be deemed to
be or shall constitute a waiver of any other provision of this
Agreement, whether or not similar, nor shall any waiver constitute a
continuing waiver. No waiver of any provision of this Agreement shall
be binding on the parties hereto unless the party making the waiver
executes it in writing.
32. No Third-Party Benefits.
None of the provisions of this Agreement shall be for the benefit of,
or enforceable by, any third-party beneficiary.
33. Headings.
The Section and Subsection headings used herein are for convenience or
reference only, are not part of this Agreement, and are not to affect
the construction of, or be taken into consideration in interpreting any
provision of this Agreement.
34. Authority of Signatory.
By signing this Agreement, each of the undersigned represents and
warrants that it is authorized to execute this Agreement and the entity
on whose behalf they are signing is bound by the terms hereof.
Accepted by:
SII TRADING INC. PARENTECH, INC.
By: By:
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Hiroshi Xxxx President Xxxxxxx X. Xxxxxxx M.D.
Chairman
Date: Date:
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