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EXHIBIT 10.37
Executed THIS 1ST DAY OF OCTOBER, 1997
BETWEEN
SHO-BOND CORPORATION
AND
XXSYS TECHNOLOGIES, INC.
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DISTRIBUTORSHIP AGREEMENT
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DISTRIBUTORSHIP AGREEMENT
This AGREEMENT has been made on this 1st day of October, 1997, by and between
SHO-BOND CORPORATION, a corporation duly organized and existing under the laws
of Japan with its principal place of business at 0-00, Xxxxx Xxxxxxx-xxx,
Xxxxxxx-xx Xxxxx 000, Xxxxx ("MANUFACTURER"), and XXsys TECHNOLOGIES, INC., a
corporation duly organized and existing under the laws of California with its
principal place of business at 0000 Xxxxxxxxx Xxxxxx Xxx Xxxxx, XX 00000,
U.S.A., ("DISTRIBUTOR").
WHEREAS, the MANUFACTURER is engaged in the business of the manufacture and sale
of the SHO-BOND BICS METHOD (concrete crack injection system) as well as the
related products (the "PRODUCTS"), such system, products and technical know how
as well as any other information associated with the products belonging to the
sole and proprietary ownership of the MANUFACTURER;
WHEREAS, the nature of such PRODUCTS and technical know how as well as any other
information associated with the PRODUCTS is such that any distribution or sale
thereof shall necessitate certain technical services (the "RELATED SERVICES")
and MANUFACTURER is desirous of developing its business in the Territory as
hereinafter defined by providing technical information and know-how appropriate
for the RELATED SERVICES as well as the PRODUCTS to DISTRIBUTOR;
WHEREAS, the DISTRIBUTOR is engaged in the business of earthquake retrofitting
and other infrastructure repair and is currently in the process of doing
qualification work on a variety of corrosion repair products and has the
technical capacity and strength to provide the RELATED SERVICES as well as
using, distributing and selling the PRODUCTS, and is desirous of doing so and
assisting MANUFACTURER in obtaining the required state and / or federal
approvals for use of the PRODUCTS in the aforementioned applications, is willing
to be appointed as the distributor authorized for the promotion, marketing and
distributing of the PRODUCTS and rendering the RELATED SERVICES hereinafter
defined;
WHEREAS, MANUFACTURER is desirous of granting DISTRIBUTOR such distributorship
for the PRODUCTS and RELATED SERVICES in the Territory upon the terms and
conditions hereinafter set forth;
NOW THEREFORE, in consideration of the mutual covenants hereinafter set forth,
it is agreed between the parties as follows:
ARTICLE 1. DEFINITIONS
(1) "PRODUCTS" as used in this Agreement shall mean SHO-BOND BICS METHOD
(concrete crack injection system) as well as products associated with
them presently manufactured by MANUFACTURER, and such other related
products, including but not limited to, the following products: concrete
slab reinforcement, concrete protection,
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corrosion restoration and repair, concrete girder reinforcement, repair
of piers and abutments, binders for resin mortar and resin concrete, and
any and all improvements or enhancements thereof as MANUFACTURER may
develop from time to time.
(2) "RELATED SERVICES" as used in this Agreement shall mean certain technical
services including supervision and training in the use or application of
the PRODUCTS. To effectively offer the RELATED SERVICES, DISTRIBUTOR may,
in any way, elect to the form of an entity, division of subsidiary to
perform infrastructure repair, upgrade and/or rehabilitation services
utilizing the PRODUCTS.
(3) "Territory" as used in this Agreement shall mean the United States of
America and Canada.
(4) "Person" as used in this Agreement shall mean an individual, partnership,
firm, corporation, association, government and any other organization.
(5) "Qualification/Qualified" as used in this Agreement shall mean obtaining
the necessary approvals from governmental and standardization agencies
necessary to use the PRODUCTS on highways and buildings. Qualification in
any jurisdiction shall be deemed to have occured on the date the last
such approval is obtained in that jurisdiction.
Exhibits hereto attached and herein referred to are incorporated and made a part
hereof as if their contents are fully set forth herein.
ARTICLE 2. DISTRIBUTORSHIP
(1) MANUFACTURER hereby appoints DISTRIBUTOR to be its exclusive distributor
for the promotion, marketing and distribution of the PRODUCTS and the
performance of RELATED SERVICES in the Territory. DISTRIBUTOR agrees to
act as such an exclusive distributor and to diligently perform its
duties to the best of its ability under the terms and conditions of this
Agreement.
(2) MANUFACTURER shall deliver to DISTRIBUTOR know how and any other
technical information and assistance necessary and appropriate for the
Qualification, sale or use of the PRODUCTS or the rendering of the
RELATED SERVICES.
(3) Any inquiry received by MANUFACTURER with respect to the PRODUCTS from
any person in the Territory or with respect to sales in the Territory,
shall be referred to DISTRIBUTOR.
(4) Unless otherwise agreed, DISTRIBUTOR shall not sell, transfer or
otherwise make the PRODUCTS available for delivery or provide RELATED
SERVICES outside the Territory, nor shall it sell, transfer or otherwise
make the PRODUCTS available or provide RELATED SERVICES to any person
who, to DISTRIBUTOR'S actual
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knowledge, intends to sell, transfer or otherwise make the PRODUCTS
available for delivery outside the Territory.
(5) DISTRIBUTOR shall neither directly nor indirectly purchase, import,
sell, manufacture or otherwise deal, nor have purchased imported, sold,
manufactured or otherwise deal in any products competitive with or
similar to the PRODUCTS in the Territory without prior written consent
of MANUFACTURER.
ARTICLE 3. QUALIFICATION OF PRODUCTS
MANUFACTURER acknowledges that DISTRIBUTOR will have little, if any, sales of
the PRODUCTS or RELATED SERVICES, unless and until the PRODUCTS are Qualified in
at least one jurisdiction. The parties have agreed to share the costs of
obtaining such Qualifications as set forth in Exhibit A.
ARTICLE 4. SALES CONTRACT
(1) MANUFACTURER shall sell the PRODUCTS exclusively to DISTRIBUTOR for
resale in the Territory under the terms and conditions hereof. Unless
otherwise agreed, relevant provisions in this Agreement shall be
applicable to each sales contract to be made hereunder between the
parties.
(2) No sales contract shall be binding unless and until accepted by
MANUFACTURER.
(3) MANUFACTURER shall use its best efforts to accept any reasonable orders
for the PRODUCTS placed by DISTRIBUTOR, provided, however, that it shall
not be required to accept a Distributor's order or any part thereof
when:
(a) there is not a sufficient amount of PRODUCTS available to fill
the order, other orders placed by DISTRIBUTOR, or the orders of
other customers; or
(b) MANUFACTURER has discontinued the manufacture or sale of the
PRODUCTS ordered at the time the order is received.
ARTICLE 5. PRICE
(1) The price list applicable to the orders received by MANUFACTURER through
June 30, 1998 is attached hereto as Exhibit B. Thereafter, the price
shall be set forth in the price list of MANUFACTURER as received and
effective from time to time; provided that no new price list shall be
effective until three (3) months from the date of notification by
MANUFACTURER to DISTRIBUTOR of such revised pricing.
(2) The price of the PRODUCTS quoted by MANUFACTURER to DISTRIBUTOR shall be
CIF Long Beach, price in Japanese Yen.
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ARTICLE 6. PAYMENT
Unless otherwise agreed, DISTRIBUTOR shall cause an irrevocable and confirmed
letter of credit to be made available to MANUFACTURER against sight draft, to be
opened for each sales contract through Sanwa Bank at least 10 days prior to the
dates of shipment therein set forth.
ARTICLE 7. MINIMUM PURCHASE REQUIREMENT
(1) DISTRIBUTOR agrees to use its best efforts to purchase the PRODUCTS from
MANUFACTURER as follows:
(a) no minimum purchase quantities prior to the first Qualification;
(b) 2,000 BL-INJECTORs for the first year following the date of first
Qualification of the BICS PRODUCTS;
(c) 5,000 injectors for the second years following first
Qualification;
(d) 10,000 injectors for the third, fourth and fifth years following
first Qualification.
(2) If the volume of actual purchases during any one year period is below
the minimum purchase requirement for the year set forth in the preceding
paragraph, the volume not achieved shall be carried forward and added on
to the minimum requirement amount of the next succeeding year, subject
only to the provisions of Article 15 (2)(iii).
(3) DISTRIBUTOR shall sell the PRODUCTS and render the RELATED SERVICES in
the Territory in such a manner as will ensure that the PRODUCTS and the
RELATED SERVICES meet the MANUFACTURER'S quality standards and
specifications using the MANUFACTURER's Intellectual Properties, as
defined in Article 8, with the degree of care of a good manager, and
deviation from the MANUFACTURER's quality standards and specifications
shall require the prior written consent of MANUFACTURER.
(4) DISTRIBUTOR shall sell the PRODUCTS and render the RELATED SERVICES in
the Territory hereunder for its own account and risk using fair business
practices and DISTRIBUTOR shall in no way be a representative or agent
of MANUFACTURER and have no authority to act or assume any obligation on
behalf of MANUFACTURER.
ARTICLE 8. INTELLECTUAL PROPERTIES; TECHNICAL ASSISTANCE; RESALE
(1) MANUFACTURER hereby grants to DISTRIBUTOR a non-assignable right and
license to use the trademarks, patents, designs or copyrights embodied
in the PRODUCTS and the technical know-how referred to in Article 13
(all of the foregoing collectively the "Intellectual Properties") solely
for the purpose of Qualification and subsequent sales of the PRODUCTS
and rendering by DISTRIBUTOR of the RELATED SERVICES during the term of
this Agreement in the Territory.
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(2) MANUFACTURER shall promptly upon execution hereof disclose the
Intellectual Properties, notably the know-how and other technical
information which are necessary and sufficient for DISTRIBUTOR to carry
out its obligations for applying for and communicating with the
authorities concerned with Qualification, and to distribute and sell the
PRODUCTS as well as render the RELATED SERVICES hereunder.
(3) Upon request of DISTRIBUTOR, and at a time and in a circumstance
convenient to MANUFACTURER, MANUFACTURER shall provide technical
assistance either in Japan or in California, U.S.A. in the degree and
scope necessary and appropriate so that DISTRIBUTOR shall be in a
position to better and sooner acquire the know-how and other technical
information which will assist DISTRIBUTOR in applying for Qualification
as well as selling the PRODUCTS and rendering the RELATED SERVICES.. The
costs of providing such technical assistance and obtaining the
Qualifications are to be shared by the parties as set forth on Exhibit
A. Nothing set forth above shall be interpreted as an excuse for
DISTRIBUTOR in the case of its failure to obtain Qualification, and
DISTRIBUTOR shall not raise any claim whatsoever against manufacture in
such an event for any reason including without limitation in relation to
the sufficiency or appropriateness of MANUFACTURER's assistance.
(4) The aforementioned technical assistance as well as the grant of the
license to use the Intellectual Properties by MANUFACTURER to
DISTRIBUTOR will be given without compensation (other than as set out
above), on the mutual understanding, agreement and condition that
DISTRIBUTOR shall in good faith assume (except for those costs and
expenses specified in Exhibit A) all actions necessary or appropriate as
the intermediary in applying to and communicating with the authorities
concerning Qualification.
ARTICLE 9. WARRANTY
(1) MANUFACTURER hereby warrants that each of the PRODUCTS is free from
material defects in respect of material and workmanship. MANUFACTURER
further warrants that the PRODUCTS reasonably conform to the test data,
specifications, drawings and quality standards and any other technical
or sales information delivered to DISTRIBUTOR under this Agreement
.
(2) As a condition to MANUFACTURER's warranty, and DISTRIBUTOR's right to
make a claim hereunder, DISTRIBUTOR shall notify MANUFACTURER of any
such defect in writing within thirty (30) days of its knowledge of the
specific defect and six (6) months after the delivery date of such
PRODUCTS to DISTRIBUTOR, and arrange, if requested by MANUFACTURER, for
the PRODUCTS in question to be inspected by MANUFACTURER, at
MANUFACTURER's expense, within sixty (60) days of the discovery of the
alleged defect, or alternatively, provide MANUFACTURER a detailed
written explanation along with the photographs and other data reasonably
evidencing such defect. Otherwise, MANUFACTURER shall not be liable to
DISTRIBUTOR for any damages or losses incurred by DISTRIBUTOR as a
result of any defect, either express or
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hidden, in the PRODUCTS. MANUFACTURER agrees to provide lot control
numbers and manufacture dates on all product containers.
(3) Except as expressly stated herein, to the maximum extent permitted by
law, MANUFACTURER has not, and does not, make any representations,
warranties or guaranties of any kind, oral or written, express or
implied, patent or latent, concerning marketability, profitability,
compliance with applicable laws and regulations, suitability or fitness
for a particular use or purpose, of the PRODUCTS. Any warranty shall
also be excluded against any damages or losses attributable to
DISTRIBUTOR or any entity referred to in Article 1(2).
(4) Without limiting the general disclaimer in the foregoing sentence, the
warranty hereunder shall not apply to:
(i) any of the PRODUCTS, which has been subject to abuse or neglect
in shipment, use, maintenance or service.
(ii) any defect caused by, resulting from or in connection with,
alteration of the PRODUCTS involved or their improper storage, or
any deviation from or non-observance of the quality standards,
specifications other technical information in providing or
otherwise concerning the RELATED SERVICES; and
(iii) any repair or replacement made necessary by normal wear and tear
after one (1) year for injection materials and six (6) months for
sealing materials each from the date of manufacture as indicated
on the container can in English.
(5) As the primary remedy of DISTRIBUTOR under said warranty, any warranty
by MANUFACTURER shall be limited to either the shipment to DISTRIBUTOR
of all parts necessary for repair of the defective PRODUCTS, replacement
of the defective PRODUCTS, each without charge, or reduction of the
purchase price corresponding to the extent of such defects, at the full
discretion of the MANUFACTURER.
(6) MANUFACTURER shall take out such product liability insurance on the
PRODUCTS as will ordinarily be available to a manufacturer of products
similar to the PRODUCTS, covering all relevant damages, losses, claims
or proceedings alleging the defects in the PRODUCTS of not less than
$3,000,000.
(7) DISTRIBUTOR shall effect the insurance on any services rendered by it
under this Agreement, especially installation and supervision of such
installation carried out by DISTRIBUTOR or any entity referred to in
Article 1(2), in such amounts as may be required by its customers.
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ARTICLE 10. STOCK AND REPAIR SERVICES
DISTRIBUTOR shall maintain sufficient stock of the PRODUCTS for the purpose of
display, demonstration and distribution, and keep itself manned with technical
personnel so that adequate warranty services may be offered to the customers for
all the PRODUCTS sold hereunder.
ARTICLE 11. PROMOTION AND ADVERTISING
DISTRIBUTOR shall exert its best efforts in promoting the sale of the PRODUCTS
in the Territory at its own cost. MANUFACTURE shall provide DISTRIBUTOR free of
charge with such quantities of catalogs, leaflets, posters and other advertising
materials as MANUFACTURER considers necessary, adequate and reasonable for the
promotion and advertising of the PRODUCTS in the Territory. With respect to
promotion and advertising, both parties shall agree every year on the annual
plan for the next one year period and also occasionally consult with each other
as to the promotion and advertising activities in the Territory. MANUFACTURER
may, when it deems proper, perform for its own account the promotion and
advertising activities for the PRODUCTS in the Territory.
ARTICLE 12. REPORTS
DISTRIBUTOR shall furnish MANUFACTURER with quarterly reports setting forth the
quantities of the PRODUCTS of each model sold by DISTRIBUTOR, the number and
type of customers / markets, the quantities of the PRODUCTS carried by
DISTRIBUTOR in stock at the end of such quarter, details of the claims and
suggestions made by customers with respect to the PRODUCTS, information on the
market conditions in the Territory, including the information on competitive
products, and DISTRIBUTOR's suggestions and recommendations, if any, as to the
PRODUCTS and the marketing thereof. MANUFACTURER may, from time to time, request
that DISTRIBUTOR provide other reasonable information related to the sale of the
PRODUCTS or market conditions in the Territory.
ARTICLE 13. TRADEMARK AND OTHER RIGHTS
(1) All the PRODUCTS sold in the Territory shall bear MANUFACTURER's and no
other, trademark specified below:
"SHO-BOND"
Such trademark and any goodwill created in connection therewith as well
as other kinds of the Intellectual Properties shall be sole properties
of MANUFACTURER, and DISTRIBUTOR shall not acquire by execution of this
Agreement or performance thereunder or otherwise any right with respect
to such trademark or goodwill or other Intellectual Properties other
than to use them to distribute the PRODUCTS and render the RELATED
SERVICES hereunder, during the term thereof. DISTRIBUTOR shall not use
or register MANUFACTURER's trademark as its corporate name or a part
thereof.
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(2) During the term of this Agreement and thereafter DISTRIBUTOR shall not
apply for or acquire the registration of MANUFACTURER's trademark, nor
shall DISTRIBUTOR contest MANUFACTURER's right in or disturb
MANUFACTURER's use of such trademark or goodwill. Should DISTRIBUTOR
have the MANUFACTURER's trademark registered in its name or the name of
any other person, MANUFACTURER shall have right to have the registration
canceled or transferred to it at DISTRIBUTOR's cost. DISTRIBUTOR shall
not use or register MANUFACTURER's trademark as its corporate name or a
part thereof and MANUFACTURER shall have the right to require
DISTRIBUTOR to discontinue such use or to cancel such registration of
the trademark.
(3) DISTRIBUTOR shall discontinue and cause its dealers to discontinue the
use of the MANUFACTURER's trademark free of compensation upon termination
of this Agreement, whether upon expiration of the term or any other
reason whatsoever and thereafter shall not use or cause to be used the
MANUFACTURER's trademark or any similar trademark or other Intellectual
Properties, provided, however, that DISTRIBUTOR and its dealers may sell
the PRODUCTS bearing MANUFACTURER's trademark held by them in stock at
the time of termination of this Agreement for the period of six (6)
months following such time. Alternatively, MANUFACTURER shall have the
option, but not the obligation, to repurchase existing inventory at
DISTRIBUTOR's landed cost.
(4) Any patent, design or copyright embodied in the PRODUCTS shall be sole
property of MANUFACTURER, and DISTRIBUTOR shall not acquire any right in
them by execution of this Agreement or performance thereunder or
otherwise and shall not use any of them after termination of this
Agreement for expiration of its term or any other reason whatsoever. This
shall apply mutatis mutandis to any and all information or reports
obtained by MANUFACTURER from DISTRIBUTOR and those delivered or made
available by MANUFACTURER to DISTRIBUTOR according to any provisions
provided for herein or by any transaction contemplated herein.
(5) MANUFACTURER has obtained patents for the SHO-BOND BICS METHOD in the
U.S. and Canada. Copies of such patents are attached as Exhibit C.
MANUFACTURER shall indemnify, defend and hold DISTRIBUTOR harmless from
any claim of infringement or alleged infringement of patent, trademark,
copyright or other industrial property right that may be brought by a
third party with respect to the PRODUCTS sold hereunder. DISTRIBUTOR
shall render full non-financial assistance to MANUFACTURER in defending
all such claims.
ARTICLE 14. TERM OF AGREEMENT
This Agreement shall come into force on the date first above written and, unless
earlier terminated, remain in force for a period of five (5) years from
Qualification, and shall be automatically renewed and continued from year to
year unless either party gives to the other a notice not to renew the Agreement
at least three (3) months before the end of the term then in effect.
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ARTICLE 15. TERMINATION.
(1) Neither party may terminate this Agreement during the Qualification
period, except upon written notice in the following circumstances
(i) If the other party become insolvent or a petition for bankruptcy,
corporate reorganization or any similar relief is filed by or
against the other party, or a receiver or provisional receiver is
appointed with respect to any of the assets of the other party,
or liquidation proceeding is commenced by or against the other
party, or a resolution for voluntary winding up is made; or
(ii) if the whole or an important part of the business of the other
party is transferred to a third party by agreement, order of
court or otherwise; or
(2) After Qualification, either party in the case of (ii) below and for the
reasons set forth in 1(i) or 1(ii) above, and MANUFACTURER in the case
of (I) and (iii) below, may terminate this Agreement:
(i) DISTRIBUTOR has failed to make any payment for the PRODUCTS for
the second time in any 12 month period except if any such
non-payment is strictly limited to the PRODUCTS subjected to a
bona fide dispute regarding defects and or warranty issues under
Article 9;
(ii) if the other party defaults in any of the provisions of this
Agreement and does not remedy the default within thirty (30) days
after a written notice is given requesting to remedy the default;
or
(iii) if DISTRIBUTOR has failed to achieve the minimum purchase
requirement in the Article 7(1) herein for two (2) successive
years (excluding any carry-forward as set out in Article 7(2) to
the third year), or twice annually in 3 years (without any
carry-forward as set out in Article 7(2) to the succeeding year).
In the case of the failure by DISTRIBUTOR to meet the minimum
purchase requirements, MANUFACTURE may have the right in its sole
discretion, but shall not be bound, to deem DISTRIBUTOR as a
non-exclusive distributor and to appoint another person or
persons as distributors in the Territory and enter into
respective agreements with them and DISTRIBUTOR shall raise no
objection or claim whatsoever against such appointments.
(3) If the PRODUCTS do not receive Qualification in at least one
jurisdiction within one year from the date of this Agreement,
DISTRIBUTOR may terminate this Agreement upon thirty (30) days written
notice.
(4) Termination of this Agreement under Articles 14 and 15 shall be without
prejudice to and the right to terminate shall be additional to any right
and remedy available to the terminating party under the provisions of
this Agreement, law, statute or otherwise. Upon
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termination of this Agreement all the payment to be made under this
Agreement or in connection with the sale of the PRODUCTS shall become
immediately due and payable.
ARTICLE 16. OBLIGATIONS AFTER TERMINATION
(1) The provisions of this Agreement shall, in the event of expiration or
termination thereof, continue to apply to the rights and duties of the
parties existing under this Agreement or sales contracts thereunder, at
the time of termination or expiration of this Agreement, provided,
however, that DISTRIBUTOR shall only be required to pay for PRODUCTS
ordered prior to the effective termination date and shall not be liable
for unpurchased minimum quantities. MANUFACTURER shall have an option to
cancel without any liability any order accepted but not performed before
such termination or expiration. The provisions of Article 8, paragraph
(1); Article 9; Article 13; Article 16; and Article 17 of this Agreement
shall survive such termination or expiration.
(2) DISTRIBUTOR shall refrain from any use or disposition of any of the
PRODUCTS or Intellectual Properties, except for disposition of inventory
as set forth in Section 13(3).
ARTICLE 17. PATENT; SECRECY
(1) MANUFACTURER has obtained patent Nos. 4430841, 4555295, and 4555286 (the
"PATENT" ) for the SHO-BOND BICS METHOD in the U.S. and Canada. Copies
of which PATENT are attached hereto as Exhibit C. MANUFACTURER shall
indemnify, defend and hold DISTRIBUTOR harmless from any claim of
infringement of the PATENT that may be brought by a third party with
respect to the PRODUCTS sold hereunder. DISTRIBUTOR shall promptly
notify MANUFACTURER of any claim or suit for patent infringement against
DISTRIBUTOR or its customers based on the use, distribution or sale of
the PRODUCTS in the Territory and request MANUFACTURER to defend any
such suit, and shall render full non-financial assistance to
MANUFACTURER in defending all such claims.
(2) DISTRIBUTOR hereby acknowledges that all of the Intellectual Properties
constitute commercially valuable properties and confidential information
of MANUFACTURER, and hereby undertakes to MANUFACTURER to use the PATENT
and other Intellectual Properties made available to it hereunder only in
connection with and for the purpose of distribution, use and sale of the
PRODUCTS as well as the rendition of the RELATED SERVICES, to hold them
confidential, and not to reveal any of the Intellectual Properties to
any other Person.
(3) In handling the Intellectual Properties DISTRIBUTOR shall use the same
degree of care as DISTRIBUTOR would normally exercise to protect its own
proprietary information. DISTRIBUTOR may, however, disclose the
Intellectual Properties to persons such as its employees to the extent
as may be required by law or necessary in order to effect distribution,
use or sale of the PRODUCTS, and then only after obtaining from each
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Person an agreement against further disclosure by such Person. The
obligation imposed by this Article 17 shall not apply to any or all
information:
(i) which at the time of the disclosure by MANUFACTURER is in the
public domain;
(ii) which, after the time of disclosure by MANUFACTURER, becomes part
of the public domain without fault of DISTRIBUTOR;
(iii) which at the time of disclosure is already in the possession of
DISTRIBUTOR and was not acquired directly or indirectly from
MANUFACTURER ; or
(iv) which is lawfully received by DISTRIBUTOR from a third party who
has the right to disclose it.
ARTICLE 18. NOTICE
Any notice or request required or permitted to be given or made in connection
with this Agreement or performance thereunder to either party shall be sent to
the addresses first above written, or such other addresses as the parties may
notify each other from time to time, by a registered air mail, telefax or
telegram, including telex, followed immediately by a confirmation letter by a
registered air mail. When the letter, telefax or telegram is dispatched as
provided for above, the notice shall be deemed to be made when the letter,
telefax or telegram arrives at the addresses.
ARTICLE 19. ARBITRATION
Any and all disputes, controversies or differences arising from or in connection
with this Agreement or a transaction conducted under this Agreement shall be
settled by mutual consultation between parties in good faith as promptly as
possible, but failing an amicable settlement, shall be settled by arbitration in
San Diego , California if MANUFACTURER is the party initiating the arbitration,
and in Tokyo, Japan, if Distributor is the party initiating the arbitration, in
either case in accordance with the Commercial Arbitration Rules of the
International Chamber of Commerce. The award of the Arbitration shall be final
and binding upon the parties.
ARTICLE 20. GOVERNING LAW
This Agreement shall be interpreted and construed in accordance with the law of
the State of California.
ARTICLE 21. ASSIGNMENT OF AGREEMENT
Neither party shall assign, pledge or otherwise dispose of its right, or benefit
or delegate its obligation or duty under this Agreement, without a prior written
consent of the other party. This shall not, however, prohibit the merger or
consolidation of either party into or with a third party if
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the survivor of or the new company formed by the merge or consolidation shall
expressly assume the obligations of the party hereto merged or consolidated.
ARTICLE 22. AMENDMENT
This Agreement may be amended only by a written instrument signed by duly
authorized representatives of both parties and expressly stating that it is an
amendment to this Agreement.
ARTICLE 23. ENTIRE AGREEMENT
This Agreement supersedes and cancels any and all previous agreement, contracts
or understandings, express or implied, between the parties relating to the
PRODUCTS and RELATED SERVICES and expresses the complete and final agreement of
the parties in respect thereof.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed
by their duly authorized representatives in duplicate the day and year first
above written.
Date: September 30, 1997 Date: September 30, 1997
MANUFACTURER: DISTRIBUTOR:
SHO-BOND CORPORATION XXsys TECHNOLOGIES, INC.
/s/ AKIRA UEDA /s/ XXXXXX MA
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By: Xx. Xxxxx Xxxx By: Dr. Gloria Ma
Chairman Chairman and Chief Executive Officer
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