COLORMAX EXCLUSIVE DISTRIBUTORSHIP AGREEMENT
This Agreement is entered into this 1st day of July 1999 by and between Kimrose
Holdings Limited (hereinafter referred to as "KHL"), Kowloon, Hong Kong and
Harvest Capital Management, Inc. (hereinafter referred to as "HCM"), Kowloon,
Hong Kong.
WHEREAS, KHL is engaged in research, development and manufacturing of
ColorMax Color Vision Enhancement Lenses, using its own proprietary
technologies. KHL wishes to have its products offered for sale and
distribution to various regions of the world.
WHEREAS, HCM is in engaged in the business of distribution and representation
of optical and related products.
WHEREAS, KHL and HCM desire to work together to promote and sell the ColorMax
products.
NOW, THEREFORE, for good consideration the parties hereto agree as follows:
1. Products
The products for which HCM shall act as exclusive sales distributor are as
follows: ColorMax Lenses, ColorMax Vision Enhancement Lenses, ColorMax
Color Test Software, New Color Vision Test and other products as may be
added.
2. Territory
The Territory is defined as the United Kingdom.
3. Appointment of ColorMax Distributor
KHL hereby appoints HCM as its Exclusive Sales Distributor to solicit
orders for the products in the territory. HCM hereby accepts the
appointments and agrees to solicit orders and promote the products,
subject to the terms and conditions of this Agreement.
4. Purchase Orders and Customer Information
HCM shall issue Purchase Orders with Customer Information to KHL for the
production of Products.
5. Quality of Products
KHL will not be responsible for the quality and performance of ColorMax
products, except for standard warranties and specifications.
6. Marketing
HCM shall distribute ColorMax products through licensed optical doctors in
the Territory. HCM will not market ColorMax products outside of the
Territory by means of direct mail or other media, without KHL's express
written authorization.
7. Advertising
HCM agrees to use reasonable commercial efforts to advertise, promote,
sell or to arrange for advertising and sales of ColorMax products and HCM
shall:
a. Establish and maintain an organization to operate the business
contemplated by this Agreement with adequate finances and staff
capable of marketing, sales and promotion of ColorMax products
throughout the Territory.
b. HCM shall spend at least five (5%) of Product revenues for
advertising and promotion of ColorMax products in each year. No less
than thirty (30) days prior to commencement of any contract year,
HCM shall submit to KHL a report on the advertising budget for
ColorMax
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Products for such contract year. This advertising and promotion
campaign will be done through the advertising company mutually
selected and agreed by HCM and KHL.
c. HCM shall submit to KHL, or as KHL may direct, for KHL's approval,
samples of all press releases, printed and advertising materials
intended to be used in connection with Products, before the same may
be used. No materials shall be used by HCM on Products unless and
until the same has been approved by KHL.
d. KHL shall receive a detailed expense report of advertising by the
end of each year and KHL reserves the right to inspect books and
records of all sales of HCM.
8. Exclusive Distributorship
a. HCM shall have the right to distribute ColorMax products on an
exclusive basis in the Territory.
b. HCM shall pay three percent (3%) Royalty on the net wholesale amount
to KHL or KHL's designee during the terms of this Agreement and any
extension thereof.
9. Duties of HCM
HCM shall:
a. Use its best efforts to sell and promote the sales of products
in the Territory and to abide by KHL's company's policies.
b. Make demonstrations to promote sales.
c. Contact and solicit prospective purchasers of the products in the
Territory. d. Assign dedicated staff for the purpose of operating
ColorMax business in the Territory.
A list of these staff and doctors shall be forwarded to KHL.
10. Duties of KHL
KHL shall:
a. Deliver orders placed by HCM.
b. Support technical training.
c. Provide product information.
d. Furnish advertising and promotional information.
11. Relationship of Parties
HCM's relationship to KHL in the performance of this Agreement is that of
an independent contractor. HCM, its agents, or employees, shall under no
circumstances represent themselves as agents or representatives of KHL or
its subsidiaries; furthermore, they shall not make any commitment or
contract for or on behalf of KHL, or in its name or otherwise bind KHL in
any way.
12. No License and No Partnership
Nothing in this Agreement is intended to grant any rights to HCM under any
patent or intellectual properties or proprietary technologies. Nothing
herein contained shall be construed so as to constitute the parties hereto
as partners or as joint ventures, or either as agent of KHL, and HCM does
not have the power to obligate or bind KHL in any manner whatsoever.
13. Non-Disclosure and Non-Compete
HCM agrees not to use any confidential data disclosed by KHL except for
its own use or for any purposes approved by KHL in writing. All employees
and staff who shall engage in ColorMax businesses shall observe such
restrictions. During the term of this Agreement, HCM shall not sell,
leases, promote or distribute any products, which uses similar
technologies, and compete with ColorMax Products in the Territory.
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14. Governing Law
This Agreement shall be governed by and shall be construed in accordance
with Hong Kong law and the courts of Hong Kong, but may be enforced in any
court having jurisdiction over the offending party's places of business,
and shall be binding upon the parties hereto worldwide.
15. Assignment
This Agreement may not be transferred, assigned, pledged, mortgaged or
otherwise disposed of by HCM in whole or in part without written
authorization from KHL.
16. Force Majeure
In the event that KHL's performance of its obligations under this agreement
is made impossible by fire, flood, earthquake, other act of nature,
riot, insurrection, war, strike or other civil disturbance, collectively
referred to as force majeure, KHL shall be excused from the performance of
its obligations hereunder for the duration of such force majeure, together
with the period necessitated by such fore majeure to overcome such force
majeure.
17. Indemnity
KHL will assume no liability to HCM or to third parties with respect to
the performance characteristics of ColorMax Products. HCM shall indemnify
KHL against losses incurred to claims of third parties against KHL
involving the sale of ColorMax Products. HCM shall maintain at its own
expense in full force and effect at all times which ColorMax Products are
being sold and used, with a recognized and responsible insurance carrier
licensed to do business in the Territory, reasonably acceptable to KHL,
product liability insurance.
18. Term and Termination
a. This agreement shall have a duration of ten (10) years with an
effective date of first commencement of 1st day of June, 1999.
However, the initial contract year shall be the 18 month period from
the date that this agreement is signed. This agreement shall be
automatically extended for another two (2) terms, if HCM performs
this agreement signed.
b. If HCM makes any assignments of assets or business for the benefit
of creditors, or a trustee or receiver is appointed to conduct its
business or affairs, or it is adjudged in any legal proceeding to be
either a voluntary or involuntary bankrupt, then the rights granted
herein shall forthwith cease and terminate without prior notice or
legal action by KHL.
19. Severability
If, for any reason, any part of this Agreement is deemed to be unlawful,
or is otherwise invalidated by the Parties, or by any court of competent
jurisdiction, the remaining parts of this Agreement shall remain in full
force and effect.
20. Entire Contract
This Agreement contains the entire understanding of the parties and
supersedes all previous verbal and written agreements, representation or
warranties.
21. Signature
Facsimile signatures on counterparts of this Agreement are hereby
authorized and shall be acknowledged as if such facsimile signatures were
an original execution, and this Agreement shall be deemed as executed when
an executed facsimile hereof is transmitted by party to the other party.
KIMROSE HOLDINGS LIMITED HARVEST CAPITAL MANAGEMENT, INC.
By: /s/ Xxxxxx Xxxxx By: /s/ Xxxxxxx Xxxx
Xxxxxx Xxxxx Xxxxxxx Xxxx
Director Vice-President
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ASSIGNMENT
Harvest Capital Management Group, Inc. hereby assigns whole right and
responsibility for the ColorMax Exclusive Distributorship Agreement dated July
1, 1999 to Xxxx-U International, Inc. Kimrose Holdings Limited hereby accepts
and authorizes the assignment.
KIMROSE HOLDINGS LIMITED HARVEST CAPITAL MANAGEMENT, INC.
By: /s/ Xxxxxx Xxxxx By: /s/ Xxxxxxx Xxxx
Xxxxxx Xxxxx Xxxxxxx Xxxx
Director Vice-President
Date: 8/15/9 Date: 8/25/99
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