1
Exhibit 10.14
DATED: ______________________, 1997 LASER SERVICES AGREEMENT
BETWEEN: Xxxx Group Marketing, Inc.
000 Xxxxx Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxx Xxx, Xxxxxx Xxxx 00000 ("XXXX GROUP")
-And-
_________________________
_________________________
_________________________ ("CUSTOMER")
RECITALS:
Whereas, XXXX GROUP is a wholly owned subsidiary of XXXX/BIOPHILE
INTERNATIONAL CORPORATION, a Delaware corporation;
Whereas, XXXX GROUP is the sub-licensee and provider of services in the
areas of training, marketing, maintenance and operation of the laser depilation
system known as the Chromos 694 Xxxx Xxxx Pulse Laser ("Chromos 694");
Whereas, CUSTOMER intends to accept delivery of the laser depilation
system from XXXX/BIOPHILE INTERNATIONAL CORPORATION;
Whereas, CUSTOMER is interested in obtaining on-going services
generally from XXXX GROUP for the training, marketing, maintenance and operation
of the laser depilation system; and
Now Therefore, with respect to the foregoing and for the mutual
promises hereinafter set forth, the parties to this Agreement acknowledge that
they have entered into a binding and valid contract for which their mutual
promises provide full and adequate consideration, wherein they agree as follows.
I. DEFINITIONS:
1. CHROMOS 694: The depilation laser, known as the Chromos 694, which XXXX GROUP
believes will provide for a substantially better method for the professional
removal of unwanted hair, and for use of which patent protection has been filed
under patents and patents pending.
2. BUSINESS PREMISES: The term "Business Premises" shall mean the premises
wherein the Chromos 694(s) is (are) located. See attached Schedule A for
location and serial number.
3. GROSS REVENUE: "Gross Revenue" shall mean all receipts of the CUSTOMER
associated with the Chromos 694, including CONSULTATION AND TREATMENT, before
deductions for any purpose, except any sales, use, consumption or related taxes
collected by the CUSTOMER on behalf of the taxing authority in the jurisdiction.
II. TERM
The term of this Agreement is effective from the execution date for a
period of THREE (3) YEARS after CUSTOMER'S acceptance of the Chromos 694.
CUSTOMER is granted an option to renew upon timely written notice to and
approval by XXXX GROUP for two further terms of three (3) years on the same
conditions as specified herein. XXXX GROUP'S approval of renewal terms shall not
be unreasonably withheld.
1
2
III. LICENSES
1. XXXX GROUP grants CUSTOMER a license for the use of the Chromos 694 at the
Business Premises to the extent such rights are created in any patents in the
field of laser depilation issued and assigned to XXXX GROUP. XXXX GROUP retains
all rights in any patents except said use granted to CUSTOMER. Such license
shall be only for the Term of this Agreement and shall terminate without notice
at the time of expiration or termination of this Agreement.
2. CUSTOMER agrees to keep confidential any and all patented products,
processes, any trade secrets or other proprietary information applicable to
laser depilation made available to CUSTOMER as a part of the services rendered
by XXXX GROUP and to retain the confidential nature by taking reasonable steps
to safeguard information and material including but not limited to instructing
personnel regarding confidential nature of information and taking reasonable
precautions to safeguard against unauthorized release.
3. CUSTOMER agrees to disclose and license to XXXX GROUP on reasonable terms all
ideas, inventions and other developments or improvements conceived by CUSTOMER,
alone or with others, during the Term of this Agreement that are related in any
manner to the Chromos 694 and its use in laser depilation. CUSTOMER further
agrees to assist XXXX GROUP, at XXXX GROUP'S expense, to obtain patents on
patentable ideas, inventions and other developments, and agrees to execute all
documents necessary to obtain such patents in the name of XXXX GROUP.
4. CUSTOMER agrees not to operate a competing laser depilation system for the
Term of this Agreement.
IV. TERMS AND CONDITIONS OF DELIVERY
1. Title to the Chromos 694 shall remain in XXXX/BIOPHILE INTERNATIONAL
CORPORATION. CUSTOMER shall have only the right to use it subject to the terms
and provisions of this Agreement.
2. XXXX GROUP will give CUSTOMER 120 days notice of the date of delivery and
installation of the Chromos 694.
3. XXXX GROUP will be responsible for paying freight and insurance, customs
clearance, duty/taxes, storage, delivery and any other charges for
transportation of the Chromos 694 from the manufacturer to the Business
Premises.
4. CUSTOMER shall provide the necessary electrical, other utilities and general
preparedness for the safe and suitable installation of the Chromos 694. XXXX
GROUP will be responsible for the complete installation of the Chromos 694 at
the Business Premises.
V. TRAINING AND OPERATION
1. XXXX GROUP will provide at no cost to the CUSTOMER the required training
course in the operation of the Chromos 694 for up to three staff members.
Additional training shall be five hundred dollars ($500.00) per staff member.
Expenses related to travel and accommodation for any training will be the
responsibility of the CUSTOMER.
2. Trainees must meet manufacturer's standard of operation and obtain a
certificate of successful completion.
3. CUSTOMER agrees to ensure that none other than certified persons operate the
Chromos 694.
4. CUSTOMER agrees to attend for a reasonable fee on-going training for
up-grades or changes to the Chromos 694.
5. XXXX GROUP shall provide the CUSTOMER with advice and consulting services
relating to the operation of the Chromos 694 and to the suitability or
applicability of the treatment as may be reasonably requested by CUSTOMER.
2
3
6. CUSTOMER agrees to operate the Chromos 694 at all times in accordance with
the operations manual supplied by the manufacturer and supply XXXX GROUP with
proof of all required authorizations for the operation of the Chromos 694 from
the governing agency of the state wherein the Business Premises is located, and
shall only make those representations concerning the Chromos 694 set forth by
the Food and Drug Administration.
VI. PROMOTION AND ADVERTISING
1. XXXX GROUP, in its sole discretion and at its cost, shall provide the
CUSTOMER with initial literature including brochures, reports, clinical data and
consultation questionnaires for CUSTOMER'S marketing and use of the Chromos 694.
CUSTOMER may purchase from XXXX GROUP additional marketing materials.
2. CUSTOMER shall use only advertising and promotional materials for the Chromos
694 approved by XXXX GROUP in writing before use and participate in any
promotional programs for the Chromos 694 sponsored or adopted by XXXX GROUP.
XXXX GROUP may refuse to approve advertisements on reasonable grounds, in which
case, CUSTOMER agrees to immediately remove or cease using the affected
material.
3. CUSTOMER agrees to pay for any local advertising CUSTOMER chooses to
undertake. XXXX GROUP will pay for any national advertising that XXXX GROUP
chooses to undertake.
4. CUSTOMER agrees not to engage in any conduct which may prejudicially affect
the goodwill of the Chromos 694 or of XXXX GROUP, ensuring that its servants,
employees, agents or representatives will only make those representations and
warranties in respect to the treatment that are included in literature provided
by XXXX GROUP.
VII. MAINTENANCE AND UPGRADES
1. XXXX GROUP will keep the Chromos 694 in satisfactory working order and
repair, except that, if replacements or service charges are necessitated by
CUSTOMER'S improper use of the Chromos 694 or negligence in its use, CUSTOMER
will bear the expense of such replacements or repairs. CUSTOMER shall not permit
any party other than XXXX GROUP or it authorized sub-contractor to provide the
maintenance, repair or replacement parts for the Chromos 694.
2. CUSTOMER will allow XXXX GROUP sufficient time to perform maintenance and
repair. XXXX GROUP will not be responsible for any losses, including any loss of
income or consequential damage, attributable in any way to the time during which
the maintenance/repair is being performed. XXXX GROUP shall perform repairs to
the Chromos 694 within a reasonable time.
3. XXXX GROUP agrees that should any upgrades or changes to hardware or software
of the Chromos 694 be developed, these changes shall be made at NO CHARGE to the
CUSTOMER. CUSTOMER agrees to take delivery of and properly use after sufficient
training any and all upgrades or changes.
VIII. ACCOUNTS, RECORDS AND ACCESS
1. CUSTOMER shall maintain books and records for the Business Premises in
accordance with generally accepted accounting practices (GAAP). CUSTOMER shall
provide XXXX GROUP with patient statistical and financial records for the
Chromos 694. Customer may mask patient names or take other precautions necessary
to protect the confidentiality of its patients, provided such measures do not
prevent XXXX GROUP from obtaining the information to which it is entitled.
2. CUSTOMER agrees to permit XXXX GROUP or its authorized representatives upon
five (5) days notice to enter the Business Premises during business hours in
order to ensure CUSTOMER has complied with the obligations imposed on CUSTOMER
under this Agreement.
3
4
IX. CUSTOMER'S PAYMENT OF FEES FOR SERVICES
1. CUSTOMER shall pay to XXXX GROUP a monthly fee for services equal to FIFTY
PERCENT (50%) of the monthly gross revenue generated by each Chromos 694. The
monthly fee for services shall be payable on or before the 15TH day of the month
for the preceding month's gross revenue.
2. MINIMUM MONTHLY GUIDELINES: CUSTOMER shall use its best efforts to market and
use the Chromos 694. In the event that CUSTOMER shall fail to attain a minimum
monthly fee for services in the amount of Ten Thousand Dollars ($10,000.00) per
month for each Chromos 694 after CUSTOMER has used the laser for a period of six
(6) months, XXXX GROUP, upon thirty (30) days written notice, shall have the
right to terminate this Agreement and to reclaim the Chromos 694 and any
ancillary products connected with it. XXXX GROUP shall not seek compensatory
damages in the form of lost profits upon the failure of CUSTOMER to attain the
minimum monthly fee for services.
3. XXXX GROUP shall provide CUSTOMER with the "Smart Card" as demand requires.
XXXX GROUP shall have the right to withhold issuance of the "Smart Card" in the
event that CUSTOMER is delinquent in its payment of the monthly fee for
services.
X. INSURANCE AND INDEMNITY
1. XXXX GROUP shall take out valid and enforceable product liability insurance
in the amount of One Million Dollars ($1,000,000.00) and provide CUSTOMER with
proof of insurance by certificate. CUSTOMER shall take out valid and enforceable
professional liability insurance in the amount of One Million Dollars
($1,000,000.00). CUSTOMER shall take out a valid and enforceable all risk
equipment floater policy including theft in the amount of One Hundred Thousand
Dollars ($100,000.00) per Chromos 694 and shall name XXXX GROUP as an additional
insured. CUSTOMER shall provide XXXX GROUP with proof of insurance by
certificate.
2. CUSTOMER agrees to indemnify XXXX GROUP against all expenses, losses,
damages, costs, claims, demands and liabilities that XXXX GROUP may sustain or
incur as a result, whether directly or indirectly, of any: (a) breach of this
Agreement by CUSTOMER including but not limited to a breach in respect of which
XXXX GROUP exercises an express right to terminate this Agreement; (b) claim by
a third party arising out of CUSTOMER'S negligent operation of the Chromos 694;
or (c) loss or damage to any property or injury to or death of any person caused
by any act or omission of CUSTOMER, its officers or staff, in relation to any
breach of CUSTOMER'S obligations under this Agreement.
XI. REPRESENTATIONS, COVENANTS AND WARRANTIES
1. XXXX GROUP AND CUSTOMER each represent, warrant and covenant to one another
that:
(a) It is an entity duly organized, validly existing and in good
standing under the laws of the jurisdiction in which it conducts business and
has the power to own its assets and properties and to carry on its business as
now being and heretofore conducted;
(b) The execution, delivery and performance of this Agreement have been
duly authorized, do not violate its certificate of incorporation, bylaws or
similar governing instruments or applicable law; and
(c) All claims and representations made by XXXX GROUP and CUSTOMER to
one another about its ability to perform its obligations under this Agreement
are true and correct. XXXX GROUP and CUSTOMER covenant that such claims and
representations, and any additional information provided to one another in the
marketing and use of the Chromos 694 shall be and remain true and correct and in
compliance with all rules and regulations of any applicable local, state, and
federal authority.
4
5
XII. TERMINATION
1. XXXX GROUP may terminate this Agreement in the event CUSTOMER:
(a) is in breach of this Agreement, and if the breach is capable of
being rectified, fails to rectify such breach within fourteen (14) days of
written notice being given by XXXX GROUP requiring rectification;
(b) commits any act of bankruptcy or has assets assigned to the benefit
of creditors;
(c) fails to give XXXX GROUP notice of relocation of the Business
Premises; or
(d) defaults in payment of the fee for services due to XXXX GROUP on
the date appointed for payment thereof and fails to cure such default within
three (3) days of written notice, XXXX GROUP may immediately terminate this
Agreement.
2. CUSTOMER may terminate this Agreement where XXXX GROUP:
(a) is in breach of this Agreement, and if the breach is capable of
being rectified, fails to rectify such breach within fourteen (14) days of
written notice being given by CUSTOMER requiring rectification; or
(b) goes into liquidation.
3. Upon termination of this Agreement CUSTOMER must:
(a) pay all amounts of the fee for service due but unpaid to XXXX GROUP
under this Agreement;
(b) cease using the Chromos 694;
(c) keep confidential all information for a period of three (3) years
from the date of termination; and
(d) allow XXXX GROUP access to the Business Premises to recover
possession of the Chromos 694 and any ancillary products and surrender the same
in the original repair, condition and working order as at the commencement of
the term except for reasonable wear and tear resulting from permitted use.
The termination of this Agreement for any reason whatsoever shall not
affect any obligation of CUSTOMER under this Agreement which expressly or by
implication continues thereafter, including but not limited to maintaining
confidentiality, nor shall it affect any accrued rights or remedies which either
party may have.
XIII. GENERAL PROVISIONS
1. This Agreement shall be governed by, construed under and enforced in
accordance with the substantive laws of the Commonwealth of Puerto Rico without
regard to principles of conflict of law.
2. The parties hereto agree to submit all disputes arising out of, or relating
to this Agreement which cannot be resolved amicably, to arbitration. Such
arbitration will be held in San Xxxx, Puerto Rico, before a panel of three (3)
arbitrators, under and pursuant to the rules of the American Arbitration
Association, with any decision thereunder to be final and non-appealable. One
arbitrator will be chosen by XXXX GROUP, a second arbitrator will be chosen by
CUSTOMER, and the third arbitrator will be chosen by the two arbitrators.
Notwithstanding the above arbitration provisions, both parties shall be entitled
to seek both legal and equitable relief for breach of confidentiality, breach of
non-competition, challenges to or infringements of XXXX GROUP'S intellectual
property and the obligation to pay money.
3. The prevailing party in any arbitration or litigation arising with respect to
interpretation, performance, or enforcement of this Agreement, shall recover all
court costs and reasonable attorney's fees, including attorney's fees for
services rendered on appeal.
4. CUSTOMER shall not assign, transfer, sell, sub-license, mortgage or encumber
or otherwise dispose of the right conferred on CUSTOMER by this Agreement
without the prior written consent of XXXX GROUP. Any approval which may be given
by XXXX GROUP under this article shall be subject to the following conditions:
(a) that CUSTOMER is not in breach of this Agreement; and
(b) that CUSTOMER ensures that the transferee assumes all of the
obligations of CUSTOMER under this Agreement;
5
6
5. XXXX GROUP shall have the right to cause the services required or provided
for in this Agreement to be provided through third parties, whether related to
or associated with XXXX GROUP, and the provision of such services, maintenance
and training by such third parties will be conclusively deemed to fulfil XXXX
GROUP'S obligation under this Agreement.
6. All notices, requests, demands or other communications to or from the
respective parties required or permitted to be given hereunder shall be in
writing and shall be deemed to have been received when delivered in person or
sent by facsimile, seven (7) days if by first class, or upon receipt of
registered or certified mail, or by a reliable overnight delivery service
providing a receipt evidencing such delivery, to the recipient at its address
given above or at such other address as hereafter shall be furnished by a notice
sent in like manner by such addressee to the other.
7. Every provision of this Agreement is intended to be severable, and, if any
term or provision hereof is determined to be illegal or invalid for any reason
whatsoever, such illegality or invalidity shall not affect the legality or
validity of the remainder of this Agreement.
8. No modification, limitation, waiver, termination, rescission, discharge or
cancellation of this Agreement or any provision thereof shall be binding on the
party unless in writing and signed by all parties.
9. Force Majeure:
(a) The parties to this Agreement shall not be considered to be in
default of any obligation hereunder, other than the obligation of a party to
make payment of amounts due to the other party, if the failure of performance
shall be due to a Force Majeure, including but not limited to drought, flood,
earthquake, storm, fire, lightning, epidemic, war, riot, civil disturbance,
sabotage, strike or labor difficulty, casualty to equipment or other
unavailability of equipment or replacement equipment, inability to obtain and
maintain right-of-way permits, licenses, and other required authorizations from
any local, state or federal agency or person for any of the facilities or
equipment necessary to provide or receive service hereunder, and restraint by
court or public authority.
(b) If any party is affected by a Force Majeure event, such party shall
give fourteen (14) days notice to the other party stating the nature of the
event, its anticipated duration and any action being taken to avoid or minimize
its effect. The suspension of performance shall be of no greater scope and no
longer duration than is required and the nonperforming party shall use its best
efforts to remedy its inability to perform. The obligation to pay money in a
timely manner is absolute and shall not be subject to the Force Majeure
provisions, except to the extent prohibited by governmental rule or regulation.
10. This Agreement constitutes the entire agreement between the parties
pertaining to the subject matter hereof and supersedes all prior and
contemporaneous agreements and understandings, oral and written, of the parties
concerning the subject matter hereof.
11. XXXX GROUP and CUSTOMER are independent contractors with respect to one
another and nothing herein shall create any relationship of employer and
employee, principal and agent, association, partnership, joint venture, agency
or fiduciary relationship between them except as provided for in this Agreement.
12. The Agreement may be executed in any number of counterparts and by
facsimile, each of which when so executed shall be deemed to be the original,
but all such counterparts shall constitute one and the same instrument.
EXECUTED as an Agreement, the parties hereto have hereunto set their
hands:
_________________________________ Signature: ___________________________
XXXX X. XXXXXX,
Vice-President of Marketing Print name: __________________________
XXXX GROUP MARKETING, INC.
(XXXX GROUP) Title: _______________________________
Company Name: ________________________
(CUSTOMER)
6
7
SCHEDULE A
BUSINESS PREMISES
THE BUSINESS PREMISES AS SPECIFIED IN THIS AGREEMENT SHALL MEAN AS FOLLOWS:
NOTE: EACH LOCATION OF THE BUSINESS PREMISES SHALL BE PROVIDED TO XXXX GROUP BY
CUSTOMER.
1.
