COLORMAX EXCLUSIVE DISTRIBUTORSHIP AGREEMENT
This Agreement is entered into this 15th day of July, 1999, by and between
Kimrose Holdings Limited (hereinafter referred to as "KHL"), Kowloon, Hong Kong
and Gem Group, Inc. (hereinafter referred to as "GG"), 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, GG is engaged in the business of distribution and representation
of optical and related products.
WHEREAS, KHL and GG 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 GG 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 Japan.
3. Appointment of ColorMax Distributor
KHL hereby appoints GG as its Exclusive Sales Distributor to solicit
orders for the products in the territory. GG 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
GG 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.
GG shall distribute ColorMax products through licensed optical
doctors in the Territory. GG 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.
GG agrees to use reasonable commercial efforts to advertise,
promote, sell or to arrange for advertising and sales of ColorMax
products and GG shall:
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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. GG shall spend at lease 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, GG shall submit to KHL a report on the
advertising budget for ColorMax Products for such contract
year. This advertising and promotion campaign will be done
through the advertising company mutually selected and agreed
by GG and KHL.
c. GG 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 GG 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 GG.
8. Exclusive Distributorship
a. GG shall have the right to distribute ColorMax products on an
exclusive basis in the Territory.
b. GG 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 GG
GG 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 GG.
b. Support technical training.
c. Provide product information.
d. Furnish advertising and promotional information.
11. Relationship of Parties
GG's relationship to KHL in the performance of this Agreement is
that of an independent contractor. GG, its agents, or employees,
shall under no circumstances represent themselves as agents or
representatives of KHL or its subsidiaries; furthermore, they shall
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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 GG
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 GG does not have the power to obligate
or bind KHL in any manner whatsoever.
13. Non-Disclosure and Non-Compete
GG 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, GG
shall not sell, lease, promote or distribute any products, which
uses similar technologies, and compete with ColorMax Products in the
Territory.
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
here worldwide.
15. Assignment
This Agreement may not be transferred, assigned, pledged, mortgaged
or otherwise disposed of by GG 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 GG or to third parties with respect
to the performance characteristics of ColorMax Products. GG shall
indemnify KHL against losses incurred to claims of third parties
against KHL involving the sale of ColorMax Products. GG 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 GG performs this agreement signed.
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b. If GG makes any assignment 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 rason, 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
supercedes 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.
KIMROISE HOLDINGS LIMITED GEM GROUP, INC.
By: /s/ Xxxxxx Xxxxx By: /s/ Xxx Yamonoto
Xxxxxx Xxxxx Xxx Yamonoto
Director Director
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ASSIGNMENT
Gem Group, Inc. hereby assigns whole right and responsibility for the
ColorMax Exclusive Distributorship Agreement dated July 15, 1999 to Xxxx-U
International, Inc., Anaheim, CA, USA. Kimrose Holdings Limited hereby accepts
and authorizes the assignment effective as of September 6th, 1999.
KIMROISE HOLDINGS LIMITED GEM GROUP, INC.
By: /s/ Xxxxxx Xxxxx By: /s/ Xxx Yamonoto
Xxxxxx Xxxxx Xxx Yamonoto
Director Director
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