between
NU SKIN INTERNATIONAL MANAGEMENT GROUP, INC.
(Company No. 1195205-0142)
and
NU SKIN (MALAYSIA) SDN. BHD.
(Company No. 402787-V)
THIS MANAGEMENT SERVICES AGREEMENT
(hereinafter, this “Agreement”) is entered into this 20th day of June
2002 to be effective as of September 28, 2001 between NU SKIN INTERNATIONAL
MANAGEMENT GROUP, INC. (Company No. 1195205-0142), a company organized under
the laws of the State of Utah, United States of America and having its principal
place of business at 00, Xxxx Xxxxxx Xxxxxx, Xxxxx, Xxxx 00000, Xxxxxx Xxxxxx of
America (“NSIMG”), and NU SKIN (MALAYSIA) SDN. BHD. (Company
No. 402787-V), a company incorporated in Malaysia and having its registered
office at 6th Floor, Menara Boustead, 00, Xxxxx Xxxx Xxxxxx, 00000 Xxxxx Xxxxxx,
Xxxxxxxx and a place of business at Office Xxx 00-00, Xxxxx 0, XXX Xxxxx Xxxx
Retail, Xx. 00, Xxxxx Xxxxxx, 00000 Xxxxx Xxxxxx (“NSMY”). Hereinafter
NSIMG and NSMY shall be collectively referred to as the “Parties” and
each shall be individually referred to as a “Party.”
WHEREAS, NSMY has licensed from Nu Skin
International, Inc. (Company No. 880564-0142) (“NSI”) the right to
utilize NSI’s network of independent distributors to market products and
services and has also acquired the right to distribute various products procured
from or through NSI;
WHEREAS, NSIMG provides various services to
licensees and distributors of NSI to assist in the development of the business
of such licensees and distributors;
WHEREAS, NSMY desires to engage the
services of NSIMG, and NSIMG desires to provide such services, all on the terms
and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises,
the mutual promises and covenants hereinafter set forth and for other good and
valuable consideration, the sufficiency of which is hereby acknowledged, the
Parties agree as follows:
ARTICLE 1DEFINITIONS
For purposes of this Agreement, unless the context otherwise
requires or the Parties otherwise agree within the terms of this Agreement, the
following words, terms and phrases shall have the meanings assigned to them
respectively by this Article 1:
| 1.1 |
|
“Affiliate” shall mean, with respect to any specified person,
any other person that directly, or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with,
such specified person. |
| 1.2 |
|
“Agreement” shall mean this Management Services Agreement
between NSIMG and NSMY, as the same may be modified, amended or supplemented
from time to time. |
| 1.3 |
|
“Compensation Expense” shall mean all expenses and costs
associated with compensation and benefits provided to Consulting Personnel,
including, without limitation, salary, bonus, housing reimbursements, retirement
benefits, insurance costs, and any other benefits, perquisites or other
compensation provided to Consulting Personnel. |
| 1.4 |
|
“Consulting Personnel” shall mean employees of NSIMG or, with
the consent of NSMY, such other persons or entities as NSIMG may retain, hire,
or otherwise contract with for the provision of Management and Consulting
Services on behalf of, or in conjunction with, NSIMG, including employees and
contractors of NSI and its Affiliates. |
| 1.5 |
|
“Consulting Rate” shall mean the consulting rate established
for each Consulting Personnel by NSIMG. Such consulting rate may be a daily
rate, an hourly rate, a monthly rate, or such other rate as NSIMG determines to
be appropriate based on the Management and Consulting Services to be provided by
NSIMG. |
| 1.6 |
|
“Direct Expenses” shall mean all expenses incurred in the
provision of Management and Consulting Services for NSMY, which expenses are
incurred solely for the benefit of NSMY, including, without limitation, business
expenses, convention expenses and travel expenses, but specifically excluding
Compensation Expense. |
| 1.7 |
|
“Expatriate Personnel” shall mean Consulting Personnel who
reside in Malaysia and are seconded to NSMY for a definite or indefinite period
of time to perform Management and Consulting Services. |
| 1.8 |
|
"Intercompany
Agreements" shall mean the License Agreement and the Trademark Licensing Agreement
between NSMY and Nu Skin International, Inc., the Distribution Agreement between NSMY and
Nu Skin Enterprises Hong Kong, Inc., and this Agreement. |
| 1.9 |
|
“Management and Consulting Services” shall mean the following
services: management, financial, marketing and distribution support/training,
public relations, international expansion, human resources, strategic planning,
product development and operations administration and such other services as the
Parties may agree to from time to time. |
| 1.10 |
|
"NSI"
shall mean Nu Skin International, Inc., a corporation duly organized and existing under
the laws of the State of Utah, United States of America. |
| 1.11 |
|
“NSIMG Confidential Information” shall mean any and all
information that is unique, proprietary or competitively sensitive to the
business of NSIMG and/or any Affiliate of NSIMG, including NSI, which NSMY may
obtain knowledge of or access to in connection with its relationship with NSIMG
and the transactions contemplated by the Intercompany Agreements information
relating to products, NSI’s independent distributors, compensation or
commission systems or schemes, pricing methods, historical, current and
projected financial information, marketing information, and any and all
information, technical data or know-how related to any aspect of NSIMG or any of
its Affilliate’s business or technology including data, know-how, formulae,
designs, drawings, proposals, specifications, and the terms of this Agreement. |
| 1.12 |
|
“NSMY Confidential Information” shall mean any and all
information that is unique, proprietary or competitively sensitive to the
business of NSMY which NSIMG may gain knowledge of or access to in connection
with the transaction contemplated hereunder, but specifically excluding the
NSIMG Confidential Information. |
| |
NSMY
may request NSIMG to provide Management and Consulting Services from time to time, either
for specific projects, or for regular, recurring duties and assignments (e.g. legal,
financial, and marketing) that are not tied to a specific project as follows: |
| |
2.1(a) |
If
NSMY requests Management and Consulting Services for a specific project that does not
fall within the scope of regular, recurring Management and Consulting Services, then NSMY
and NSI shall work together to define the scope of the services to be provided and set
forth their agreement in writing, either in the form of a statement of work or a purchase
order agreed to and signed by both parties. |
| |
2.2(B) |
If NSMY requests NSIMG to provide regular, recurring Management and Consulting
Services, NSI and NSIMG shall meet initially and establish the areas of responsibilities
and servicesthat NSMY would like to secure and receive from NSIMG. Details of such
services need not be in writing, and NSIMG and the Consulting Personnel shall be
authorized to undertake and perform such services as they determine in good faith are in
the best interests of NSMY. NSMY and NSIMG thereafter shall meet on a quarterly basis to
review the Management and Consulting Services provided by NSIMG, including the scope of
such services, the quality of such services, the time being spent to perform such
services, the Consulting Personnel performing such services, the benefits to NSMY and the
Consulting Rates being charged. Based on such review, NSMY and NSIMG, may make such
changes to the Management Consulting Services as may be agreed to by both Parties. |
| |
Unless
otherwise agreed in writing, all Management Consulting Services shall be provided on a
time and materials basis as more fully described in this Agreement. NSMY agrees to
reimburse and compensate NSIMG for Management and Consulting Services rendered pursuant to
this Agreement in accordance with the applicable compensation and invoicing provisions
hereof. |
| 2.3 |
Performance
of Services |
| |
Subject
to the terms and conditions of this Agreement, NSIMG will act in good faith and provide
the services in a professional and workmanlike manner. NSIMG will retain sole control over
the manner and means by which the Management and Consulting Services are to be performed
and may engage third parties in the performance of its obligations under this Agreement. |
| |
NSMY
shall provide, in a timely manner and at no cost to NSIMG, such assistance, cooperation,
equipment and information as NSIMG may request in connection with the performance of the
Management and Consulting Services. |
| 2.5 |
Ownership
of Developed Intangibles |
| |
NSIMG or its Affiliates and contractors shall retain ownership of
all intellectual property rights developed pursuant to this Management and
Consulting Services provided under this Agreement. For so long as the
Intercompany Agreements remain in full force and effect, NSMY shall have a
limited license to use for and in the conduct of NSMY’s business, any
intellectual property rights developed pursuant to the services performed NSIMG
and paid for in full by NSMY under the terms of this Agreement. NSMY shall not
take any action that would negatively impact NSIMG’s ownership of such
intellectual property rights and shall not represent or hold itself out as the
owner of such rights. |
| |
(a) |
The Parties shall agree to the terms and circumstances pursuant to which a Consulting
Personnel may be assigned and seconded by NSIMG as an Expatriate Personnel to work at and
as an employee of NSMY; providedthat nothing in this Agreement shall be
interpreted to mean that NSIMG must make available any Consulting Personnel to work at
NSMY as an Expatriate Personnel. |
| |
(b) |
During the term of an Expatriate Personnel’s secondment to NSMY, NSMY will
assume the sole and direct responsibility for supervising and managing such individual
with respect to the services and activities of such individual for and on behalf of NSMY.
In this regard, the Parties agree that the Expatriate Personnel shall perform no services
for NSIMG during the time of the secondment and NSIMG shall have no control of the
day-to-day activities of the Expatriate Personnel. |
| |
(c)
|
During the term of secondment, the Expatriate Personnel will be subject to the
working conditions and schedules in effect at NSMY and shall be provided by NSMY with the
facilities and the equipment and supplies that such individual requires to perform his or
her services for and on behalf of NSMY. |
| |
In
the event that NSMY disputes the amount of any invoice or the amount of services provided,
or has any disputes or complaints concerning the Management and Consulting Services
provided by NSIMG (such as any failure to perform such services in accordance with this
Agreement), NSMY shall provide written notice of such dispute or complaint within sixty
(60) days of the date of the invoice for such services. If NSMY fails to provide such
written notice with such sixty (60) day period, it shall be deemed to have: |
| |
(a) |
accepted the performance of the services in full and confirmed all of such services
were performed in accordance with the requirements of any specific agreement therefor
established pursuant to Clause 2.1 and also of this Agreement, including any warranty set
forth herein, |
| |
(b) |
accepted
the accuracy of such invoice and the validity of all charges on such invoice, and
|
| |
(c) |
waived
any claim relating to such Management and Consulting Services. |
| 3.1 |
Compensation
for Services by Consulting Personnel |
| |
NSMY
agrees to compensate NSIMG for Management and Consulting Services that it provides to NSMY
through Consulting Personnel (other than Expatriate Personnel) in the form of a fee equal
to the Consulting Rate for such Consulting Personnel as established by NSMIG from time to
time multiplied by the number of hours, months or days or other time period, as the case
may be, that such Consulting Personnel provided Management and Consulting Services. |
| 3.2 |
Reimbursement
of Cost of Expatriate Personnel |
| |
NSMY
agrees to be responsible for any Compensation Expense of Expatriate Personnel seconded to
NSMY. NSMY also shall be responsible for all Direct Expenses associated with the services
of such Expatriate Personnel. |
| 3.3 |
Reimbursement
of Direct Expenses |
| |
NSMY
agrees to reimburse NSMY for all Direct Expenses incurred by Consulting Personnel in
connection with the Management and Consulting Services. |
| |
Any
compensation to be paid to NSIMG for Management and Consulting Services rendered pursuant
to this Agreement shall be billed and paid in United States Dollars. |
| |
NSIMG
shall provide NSMY on a periodic basis the Consulting Rates for the Consulting Personnel
who are to provide services to NSMY. In the event NSMY objects to the Consulting Rate for
any Consulting Personnel, NSMY shall provide NSIMG with notice and the parties shall meet
to discuss and agree upon the applicable Consulting Rate prior to the provision of the
services of the Consulting Personnel concerned. |
| 3.6 |
Payment
and Invoicing |
| |
3.6(a) |
Within
thirty (30) days after the end of each month, NSIMG shall prepare and deliver to NSMY,
invoice(s) setting forth the fees and/or the Compensation Expense and/or the Direct
Expenses payable hereunder for or in relation to the provision of Management and
Consulting Services rendered pursuant to this Agreement during such month. |
| |
3.6(b) |
Payments
due under this Agreement shall be due and payable within thirty (30) days after the date
of dispatch of the invoice for such payments. Payments shall be made either directly to
NSIMG in immediately available funds by wire transfer to an account designated by NSIMG
or by such other means of payment acceptable to NSIMG from time to time. |
| |
3.6(c)
|
Without limiting any of Parties’other rights and remedies under this Agreement,
amounts outstanding under the terms of this Agreement not paid within sixty (60) days
from the date due and payable, and as set forth in the payment provisions herein, shall
bear interest (both before and after judgment) at the rate of ten percent (10%) per
annum. NSIMG may (but shall not be obligated to) waive, whether with conditions or
otherwise, its right to the payment of interest payable hereunder, whether in respect of
all or some of the monies due and payable from time-to-time by NSMY to NSIMG and for such
period as NSIMG deems appropriate in its absolute discretion. |
| |
3.6(d)
|
If NSMY shall be prevented by exchange regulation or restraint from making payment of
any sum due to NSIMG in US Dollars then NSMY shall make payment in such other currency as
may be selected by NSIMG and be permitted by exchange regulations. |
| |
3.6(e)
|
NSMY shall make due payments to the Inland Revenue Board, Malaysia, of such
withholding tax (if any) as may be chargeable on and deducted from any amounts payable
hereunder and shall furnish to NSIMG within fourteen (14) days of each payment, a copy of
the prescribed form for such payment and NSMY’s letter to the Inland Revenue Board
accompanying such payment. A copy of the receipt issued to NSMY for each payment made as
aforesaid shall be delivered by NSMY to NSIMG within fourteen (14) days from NSMY’s
receipt thereof. |
| |
3.6(f)
|
All sums payable by NSMY to NSIMG under this Agreement shall be paid without any
set-off, counter-claim, qualification, or condition whatsoever. |
| 4.1 |
Periodic
Reports on Management and Consulting Services |
| |
NSMY
may, upon thirty (30) days’ written notice, request operations reports of NSIMG
setting forth such information regarding the Management and Consulting Services provided
under this Agreement and for such time periods as NSMY shall reasonably request. |
| |
NSIMG
shall provide to NSMY, no less often than quarterly, a billing summary indicating the
number of hours or days or other time periods, as the case may be, each Consulting
Personnel has provided Management and Consulting Services to NSMY. |
| |
At
all times during the term of this Agreement and for a period of three (3) years
thereafter, each of the Parties shall maintain at its principal place of business full,
complete and accurate books of account and records with regard to its activities under
this Agreement. In addition to the books and records pursuant to this Section 4.3 of
Article 4, NSIMG and NSMY may from time to time have in their possession or under their
control (or the control of persons or entities which have rendered services to time)
additional books, records, contracts, instruments, data and other information (together
with the books and records referred to in the first sentence of this Section 4.3, the
“Information”) which may prove necessary or desirable to the other in connection
with the other’s business. Accordingly, |
| |
(i) |
NSIMG shall provide to NSMY, and NSMY shall provide to NSIMG upon the other’s
request, at all reasonable times, full and complete access to (persons with respect to,
and all Information as the other may reasonably request and require in the conduct of its
business, and |
| |
(ii)
|
NSIMG shall make available to NSMY and NSMY shall make available to NSIMG, upon the
other’s request, such persons as may reasonably be required to assist with any
legal, administrative or other proceedings in which NSMY or NSIMG, as the case may be,
may from time to time be involved. The Information shall include, without limitation,
information sought for audit, accounting, claims, litigation and tax purposes as well as
for, in the case of NSMY, purposes of fulfilling disclosure and reporting obligations
under the United States securities laws. The Party providing Information or making
available witnesses shall be entitled to receive from the other Party, upon the
presentation of invoices therefor, payment for its reasonable out-of-pocket expenses
incurred in connection therewith (but not the labor costs thereof), but shall not be
entitled to receive any other payment with respect thereto. Nothing in this Agreement
shall require either Party to reveal to the other any information if to do so would
violate such Party’s written and enforceable duty of confidence to a third party
from whom such information was obtained; under such circumstances, however, the Parties
shall work together to obtain a release of such information without violation of such
duty of confidence. |
| |
NSMY
agrees that, during and after the term of this Agreement, NSMY shall maintain in
confidence all NSIMG Confidential Information and shall not disclose any NSIMG
Confidential Information to any third party or use any NSIMG Confidential Information for
any purpose whatsoever except as contemplated by this Agreement. In maintaining the
confidentiality of NSIMG Confidential Information, NSMY shall exercise the same degree of
care that it exercises with its own confidential information, and in no event less than a
reasonable degree of care. NSMY shall , without limiting its obligation to maintain the
NSIMG Confidential Information in confidence, use commercially reasonable efforts to
ensure that each of its employees and contractors holds in confidence and makes no use of
any NSIMG Confidential Information for any purpose other than those permitted by this
Agreement. NSMY shall use its best efforts to ensure that no person other than its
employees shall have access to NSIMG Confidential Information without the prior written
consent of NSIMG, and shall restrict access to NSIMG Confidential Information to those
having a need for access thereto. |
| 5.2 |
NSIMG
Confidentiality |
| |
NSIMG
agrees that, during and after the term of this Agreement, NSIMG shall maintain in
confidence all NSMY Confidential Information and shall not disclose any NSMY Confidential
Information to any third party or use any NSMY Confidential Information for any purpose
whatsoever except as contemplated by this Agreement. In maintaining the confidentiality of
NSMY Confidential Information, NSI shall exercise the same degree of care that it
exercises with its own confidential information, and in no event less than a reasonable
degree of care. Without limiting its obligation to maintain the NSMY Confidential
Information in confidence, NSIMG shall use commercially reasonable efforts to ensure that
each of its employees and contractors holds in confidence and makes no use of any NSMY
Confidential Information for any purpose other than those permitted by this Agreement. NSI
shall use its best efforts to ensure that no person other than its employees and
contractors shall have access to NSMY Confidential Information without the prior written
consent of NSMY, and shall restrict access to NSMY Confidential Information to those
employees and contractors having a need for access thereto. |
| |
The
obligation of confidentiality contained in this Agreement shall not apply to the extent
that (i) either Party is required to disclose information by order or regulation of a
governmental agency or a court of competent jurisdiction; provided, however,
that such Party shall not, to the extent possible, make any such disclosure without first
notifying the disclosing Party and allowing the disclosing Party a reasonable opportunity
to seek injunctive relief from (or a protective order with respect to) the obligation to
make such disclosure, or (ii) the Party receiving disclosed information can demonstrate
that (A) the disclosed information was at the time of such disclosure already in, or
subsequently becomes part of, the public domain other than as a result of actions of the
receiving Party, its Affiliates, employees, consultants, agents or subcontractors in
violation hereof; (B) the disclosed information was received by the receiving Party on an
unrestricted basis from a source unrelated to the disclosing party provided the receiving
Party has no knowledge or reason to know that such Party is under a duty of
confidentiality with respect to such information. |
| |
Each
Party acknowledges and confirms that the Confidential Information of the other Party
constitutes valuable proprietary information and trade secrets of the other Party and that
the unauthorized use, loss or outside disclosure of such information shall cause
irreparable injury to the other Party. Each Party shall notify the other Party immediately
upon discovery of any unauthorized use or disclosure of Confidential Information of the
other Party, and will cooperate with the other Party in every reasonable way to help
regain possession of such information and to prevent its further unauthorized use. Each
Party acknowledges that monetary damages may not be a sufficient remedy for unauthorized
disclosure of the Confidential Information of the other Party and that the other Party
shall be entitled, without waiving other rights or remedies, to such injunctive or
equitable relief as may be deemed proper by a court of competent jurisdiction, and shall
be entitled to recover reasonable attorneys’ fees for any action arising out of or
relating to a disclosure of such Confidential Information. |
| |
NSMY
shall, upon the request of NSIMG, return to NSIMG all NSIMG Confidential Information,
including any copies or reproductions thereof, in NSMY’s possession or control. |
| |
This
Agreement shall commence and take effect on September 28, 2001, and the initial term shall
end on December 31, 2004 unless earlier terminated pursuant to the provisions of this
Article 6. This Agreement, however, shall automatically renew for successive one (1) year
terms unless either (i) terminated by either Party by written notice given not less than
ninety (90) prior to the end of the current term of this Agreement, or (ii) terminated in
accordance with Article 6 hereof. |
| |
This
Agreement may be terminated by either Party immediately or at any time after the
occurrence of any of the following events: |
| |
6.2(a) |
the
other Party shall commence any case, proceeding or other action: |
| |
|
(i) |
under
any existing or future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for
relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent,
or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution,
compensation or other relief with respect to it or its debts, or |
| |
|
(ii) |
seeking
appointment of a receiver, trustee, custodian or other similar action; |
| |
6.2(b) |
there
shall be commenced against the other Party any case, proceeding or other action of a
nature referred to in Section 6.2(a) of Article 6 hereof which either results in the
entry of an order for relief or any such adjudication or appointment or remains
undismissed, undischarged or unbonded for a period of ninety (90) days; or |
| |
6.2(c) |
if
the other Party causes or allows a judgment in excess of ten percent (10%) of its total
assets as reflected on its most recent balance sheet to be entered against it or
involuntarily allows a lien, security interest, or other encumbrance to attach to its
assets to secure an amount in excess of ten percent (10%) of its total assets. |
| |
6.3(a) |
This
Agreement may be terminated immediately by NSIMG if NSMY fails to pay on due date, any
monies payable hereunder by NSMY to NSIMG and such failure continues for a period of
thirty (30) days from NSMY’s receipt of a written notice given by NSIMG requiring
such payment. |
| |
6.3(b) |
This
Agreement may be terminated by either Party, if the other Party is in default in the
performance of any material obligation hereunder, other than NSMY’s obligation to
pay the monies referred to in Section 6.2(a) of Article 6 hereof and such default has not
been cured within forty-five (45) days after receipt by the defaulting Party of written
notice of such default served by the defaulting party requiring such cure. |
This Agreement may be terminated
by NSIMG if:
| |
6.4(a) |
any
of the parties (other than Nu Skin Enterprises, Inc.) to the Shareholders’Agreement
by and between Nu Skin Enterprises, Inc. and the other shareholders of NSMY’s
parent/holding company, Nu Skin Holdings Sdn Bhd (Company 552189-P) (“NSMH”),
breaches such party’s obligations thereunder and fails to cure such breach within
thirty (30) days after its receipt of a written notice of such breach is given by Nu Skin
Enterprises, Inc., requiring such cure; |
| |
6.4(b) |
the
aforesaid Shareholders Agreement or any other(s) of the Intercompany Agreements is/are
terminated for any reason whatsoever; |
| |
6.4(c) |
by
agreement between the parties to the aforesaid Shareholders Agreement, all of the issued
shares in NSMY are sold by NSMH to a third party or NSMY’s business and assets are
sold by NSMY to a third party; |
| |
6.4(d) |
Nu
Skin Enterprises, Inc., NSI or other Affiliate of NSI ceases to hold at least thirty
percent (30%) of the total issued equity capital of NSMY; or |
| |
6.4(e) |
persons
representing from time-to-time such of Nu Skin Enterprises, Inc., NSI or other Affiliate
of NSI as is the holder of an indirect thirty percent (30%) equity interest in NSMY,
cease (for any reason other than their removal by such holder of an indirect thirty
percent (30%) equity interest in NSMY) to hold office as such number of directors of NSMY
as constitute at least thirty percent (30%) of the total number of NSMY’s Board of
Directors. |
| |
If
this Agreement is terminated by either Party, NSMY shall, notwithstanding any other
provision to the contrary herein, immediately pay all monies then remaining unpaid and
payable by NSMY to NSIMG and whether or not such monies shall then have become due for
payment. |
| |
The
termination or expiration of this Agreement shall be without prejudice to the rights and
remedies of a Party in respect of any antecedent breach of this Agreement. The obligations
of a Party to pay any sums which are due and payable as of the expiration or termination
of this Agreement and its obligation under Article 5 and under Article 8 hereof shall
survive the expiration or termination of this Agreement. |
| |
NSMY
may terminate any specific Management and Consulting Service provided pursuant to this
Agreement by providing written notice thereof to NSIMG not less than sixty (60) days prior
to the desired termination date. NSIMG may discontinue providing any specific Management
and Consulting Service provided pursuant to this Agreement by providing written notice
thereof to the NSMY not less than sixty (60) days prior to the desired termination date. |
| |
NSIMG
makes no warranties of any type with respect to the Management and Consulting Services
other than the limited warranty that the Management and Consulting Services shall be
performed in a professional and workmanlike manner and consistent with industry standards.
NSIMG expressly disclaims any warranty that the work product will be free of any defects
or errors. THE WARRANTIES IN THIS SECTION 7.1 OF ARTICLE 7 ARE EXCLUSIVE AND ARE IN LIEU
OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY
QUALITY, AND NON-INFRINGEMENT. |
| |
NSMY
must report any breach of the foregoing warranty within sixty (60) days of the date of the
invoice for such services. NSMY’s sole and exclusive remedy, and NSIMG’s entire
liability, shall be: (a) to reperform such services at NSIMG’s own cost or expense,
or (b) if NSIMG is unable or elects not to perform such services, it shall refund the fees
paid with respect to the disputed service. In no event shall NSIMG’s liability exceed
the amount of fees paid to NSIMG for such disputed Management and Consulting Services.
NSIMG shall in no event be liable for any consequential, indirect, punitive or special
damages. |
| |
Upon
expiration or termination (collectively, the “Termination”) of this Agreement
for any reason whatsoever, all rights and obligations of the Parties hereunder shall
cease; provided however, that upon Termination of this Agreement, no Party shall be
released from its obligations to pay monies due or to become due or to complete any
unfulfilled obligations under this Agreement, and the provisions of Article 5 shall
survive such Termination. |
| |
Upon
the Termination of this Agreement for any reason, no Party shall be liable or obligated to
the other Party with respect to any payments, future profits, exemplary, special or
consequential damages, indemnifications or other compensation regarding such Termination,
and, except as otherwise required by applicable law, each Party hereby waives and
relinquishes any rights, pursuant to law or otherwise, to any such payments,
indemnifications or compensation. |
| |
In
the performance of its obligations under this Agreement, the Parties shall, at all times,
strictly comply with all applicable laws, regulations and orders of the countries and
jurisdictions in which they operate and such United States laws as outlined in Section 9.3
of Article 9 hereof. |
| |
The
assignment and secondment of the Consulting Personnel as Expatriate Personnel pursuant to
Section 2.6(a) of Article 2 hereof and the provision by NSIMG of such Management
Consulting Services as require the performance by the Consulting Personnel of work in
Malaysia shall be subject to the grant by all relevant authorities in Malaysia (including
the Ministry of Domestic Trade and Consumer Affairs and the Director-General of
Immigration) of all requisite approvals, immigration passes and work permits therefor and,
in the case of the secondment of Consulting Personnel as Expatriate Personnel, of
immigration passes to enable their accompanying families, where applicable, to enter into
and reside in Malaysia, NSMY shall sponsor all applicable immigration passes and work
permits, provide every assistance (including complying with all terms and conditions
imposed on NSMY) for the issue and, if applicable, renewal of all approvals, immigration
passes and work permits, notify NSIMG promptly thereof and pay all fees, costs and
expenses in relation thereto. |
| |
Subject
to the provisions of Section 9.2 of Article 9 hereof, each Party shall, at its own
expense, make, obtain and maintain in force at all times during the term of this
Agreement, all filings, registrations, reports, licenses, permits and authorizations
required under applicable law, regulations or orders in order for it to perform its
obligations under this Agreement. |
| |
In
conformity with the United States Foreign Corrupt Practice Act and with the Parties’
established corporate policies regarding business practices, the Parties and their
respective employees shall not directly or indirectly make an offer, payment, promise to
pay, or authorize payment, or offer a gift, promise to give, or authorize the giving of
anything of value for the purpose of influencing an act or decision (including a decision
not to act) of an official of any Government or of an employee or any company or including
such a person to use his influence to effect any such act or decision in order to assist
any of the Parties in obtaining, retaining or directing any business. |
| |
This
Agreement shall be binding on and inure to the benefit of the successors, assigns and
beneficiaries of the Parties; provided that no Party may assign this Agreement or any
rights or obligations hereunder, whether by operation of law or otherwise, without the
prior written consent of each of the other Party’s authorized representatives (which
consent may be withheld or granted with or without conditions at the sole discretion of
such other Party). Any attempted assignment by any Party without the prior written consent
of the other Party shall be void and unenforceable. Notwithstanding the foregoing, NSIMG
may assign this Agreement to any of its Affiliates. |
| |
A
notice, request and other communication hereunder shall be in writing and shall be deemed
to have been duly given, if delivered by hand, courier or registered airmail, or
communicated by facsimile, cable or similar electronic means to the address, facsimile
number or cable identification number provided below (or as changed in accordance with
this Section 10.2) of the Party to whom it is addressed and shall be deemed to be given if
delivered by hand or courier, at the time of delivery or if communicated by facsimile,
cable or similar electronic means, at the time that receipt thereof has been confirmed by
return electronic communication or signal that the message has been received, or if
mailed, ten (10) days after dispatch by registered airmail, postage prepaid:- |
| |
If to NSIMG: |
Nu Skin International Management Group, Inc.
00 Xxxx Xxxxxx, Xxxxx,Xxxx 00000
Xxxxxx Xxxxxx of America
Attn: General Counsel
(000) 000-0000 |
| |
|
Facsimile No.: (000)000-0000
|
| |
If to NSMY: |
Nu Skin (Malaysia) Sdn. Bhd.
Office Xxx 00-00, Xxxxx 0, XXX Xxxxx Xxxx Retail
Xx. 00, Xxxxx Xxxxxx
00000 Xxxxx Xxxxxx
Xxxxxxxx
Attn: Managing Director
Facsimile No.: 000-0000 0000 |
| |
No
waiver by any Party of any breach or default in performance by any other Party, and no
failure, refusal or neglect of any Party to exercise any right, power or option given to
it hereunder or to insist upon strict compliance with or performance of the other
Party’s obligations under this Agreement, shall constitute a waiver of the provisions
of this Agreement with respect to any subsequent breach thereof or a waiver by any Party
of its right at any time thereafter to require exact and strict compliance with the
provisions thereof. |
| |
This
Agreement shall be governed by and construed in accordance with the laws of the State of
Utah, applicable to contracts made and to be wholly performed within such State. |
| |
Any
dispute or difference which may arise between the Parties at any time hereafter whether
during the continuance in force of this Agreement or upon or after its termination,
touching any matter or thing herein contained or the operation or construction of this
Agreement or any matter or thing in any way connection with, arising from or in relation
to this Agreement or the rights, duties or liabilities of the Parties hereunder shall be
finally settled by arbitration in accordance with the International Arbitration Rules of
the American Arbitration (“AAA”). |
| |
10.5(a) |
A
reference to arbitration shall be to three (3) arbitrators. |
| |
10.5(b)
|
The arbitration shall be held in Provo, State of Utah, United States of America and
the language to be used in the arbitral proceedings shall be English. |
| |
10.5(c)
|
Pending the commencement of the arbitral proceedings, either Party may apply, to the
courts in Utah and/or Malaysia (which shall have non-exclusive jurisdiction) for the
grant of interim injunctions and orders for the protection and preservation of property
subject of or relating to this Agreement. For the purposes of this Section 10.5(c) and as
provided in Arbitration Rules of the AAA, arbitral proceedings shall be deemed to
commence on the date when the administrator of the AAA receives notice of arbitration
from the Party initiation the arbitration. |
| |
The
Parties shall not be responsible for failure to perform hereunder due to force majeure,
which shall include, but not be limited to: fires, floods, riots, strikes, labour
disputes, freight embargoes or transportation delays, shortage of labour, inability to
secure fuel, material, supplies, equipment or power at reasonable prices or on account of
shortage thereof, acts of God or of the public enemy, war, acts of terrorism or civil
disturbances, any existing or future laws, rules, regulations or acts of any government
(including any orders, rules or regulations issued by any official or agency or such
government) affecting a Party that would delay or prohibit performance hereunder, or any
cause beyond the reasonable control of a Party. If an event of force majeure should occur,
the affected Party shall promptly give notice thereof to the other Party and such affected
Party shall use its reasonable best efforts to cure or correct any such event of force
majeure. |
| |
The
Parties agree that neither the Vienna Convention on the International Sale of Goods nor
any such similar law, treaty or act that becomes effective during the term of this
Agreement shall be applicable to this Agreement or the transactions contemplated
hereunder. |
| |
This
Agreement constitutes the entire agreement between the Parties relating to the subject
matter hereof and supersedes all prior or contemporaneous negotiations, representations,
agreements and understanding (both oral and written) of the Parties. |
| |
No
supplement, modification or amendment of this Agreement shall be binding unless
it is in writing and executed by all Parties. |
| |
To
the extent that any provision of this Agreement is (or, in the opinion of counsel mutually
acceptable to all Parties, would be) prohibited, judicially invalidated or otherwise
rendered unenforceable in any jurisdiction relevant to the Parties, such provision shall
be deemed ineffective only to the extent of such prohibition, invalidation or
unenforceability in that jurisdiction, and only within that jurisdiction. Any prohibited,
judicially invalidated or unenforceable provision of this Agreement will not invalidate or
render unenforceable any other provision of this Agreement, nor will such provision of
this Agreement be invalidated or rendered unenforceable in any other jurisdiction. |
| |
This
Agreement may be executed in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same instrument. All
headings and captions are inserted for convenience of reference only and shall not affect
the meaning or interpretation of any provision hereof. |
IN WITNESS WHEREOF, the Parties have, by their
respective duly authorized representatives executed this Agreement as of the day
and year first above written.
NU SKIN INTERNATIONAL MANAGEMENT GROUP, INC.
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: President
NU SKIN (MALAYSIA) SDN. BHD.
By:/s/ Datuk Mohd Nadzmi Bin Mohd Salleh
Name: Datuk Mohd Nadzmi Bin Mohd Salleh
Title: Director
