EX-10.36
(This is the form of Trademark\Tradename Licensing Agreement for Nu Skin USA,
Inc. and the other North American Private affiliates. Payments are paid in the
local currency of the country in which the private affiliate operates)
NU SKIN INTERNATIONAL, INC.
AND
NU SKIN USA, INC.
TRADEMARK\TRADENAME LICENSING AGREEMENT
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS..................................................2
1.1 "Agreement".................................................2
1.2 "Business Portfolios".......................................2
1.3 "Commercial Materials"......................................2
1.4 "Independent Distributor Network"...........................2
1.5 "Intercompany Agreements"...................................2
1.6 "Know-How"..................................................3
1.7 "Licensed Marks and Names"..................................3
1.8 "Net Sales".................................................3
1.9 "NSI Independent Distributor"...............................3
1.10 "NSI Trademark"............................................3
1.11 "NSI Tradename"............................................3
1.12 "Product"..................................................4
1.13 "Proprietary Information"..................................4
1.14 "Sales Aid"................................................5
1.15 "Territory"................................................5
ARTICLE II GRANT OF EXCLUSIVE LICENSE; ROYALTIES........................5
2.1 Grant of Exclusive License..................................5
2.2 NSI's Interest in Licensed Marks and Names..................5
2.3 Recitals of Value of Licensed Marks and Names...............5
2.4 Warranty of Title...........................................6
2.5 Royalties...................................................6
ARTICLE III COMPUTATION AND PAYMENT TERMS................................6
3.1 Royalty Payments............................................6
3.2 Records.....................................................7
3.3 Payment Terms...............................................7
3.4 Default Rate................................................7
ARTICLE IV CERTAIN COVENANTS............................................7
4.1 Use of Licensed Marks and Names.............................7
4.2 Modifications...............................................8
4.3 Prejudicial Use.............................................8
4.4 Labels......................................................8
4.5 Goodwill....................................................8
4.6 Export of Products..........................................9
ARTICLE V TERM.........................................................9
ARTICLE VI TERMINATION..................................................9
ARTICLE VII EFFECT OF TERMINATION........................................10
7.1 Obligation of NSUSA Upon Termination........................10
7.2 Survival of Obligations.....................................11
7.3 Reversion of Rights.........................................11
ARTICLE VIII GOVERNMENTAL APPROVALS, LAWS AND REGULATIONS.................11
ARTICLE IX INFRINGEMENT; INDEMNIFICATION................................12
ARTICLE X CONFIDENTIALITY..............................................13
ARTICLE XI NATURE OF RELATIONSHIP.......................................14
ARTICLE XII MAINTENANCE OF TRADEMARKS; RECORDING;
REGISTRATION OF TRADEMARK..................................14
ARTICLE XIII MISCELLANEOUS................................................15
13.1 Assignment..............................................15
13.2 Force Majeure...........................................15
13.3 Governing Law and Dispute Resolution....................16
13.4 Waiver and Delay........................................17
13.5 Notices.................................................17
13.6 Integrated Contract.....................................18
13.7 Modification and Amendment..............................18
13.8 Severability............................................18
13.9 Counterparts and Headings...............................18
TRADEMARK \ TRADENAME LICENSING AGREEMENT
THIS TRADEMARK \ TRADENAME LICENSING AGREEMENT (hereinafter the
"Agreement") is entered into and made effective this 31st day of December, 1997,
between Nu Skin International, Inc., a corporation organized under the laws of
the State of Utah, U.S.A., (hereinafter referred to as "NSI"), and Nu Skin USA,
Inc., a corporation organized under the laws of the State of Delaware, U.S.A.
(hereinafter "NSUSA"). Hereinafter, NSI and NSUSA shall collectively be referred
to as the "Parties" and each shall be individually referred to as "Party."
W I T N E S S E T H
WHEREAS, NSI is engaged in the design, production and marketing of
Products (as defined below) and related Sales Aids (as defined below) for
distribution in worldwide markets through a network of independent distributors;
and,
WHEREAS, NSUSA acts as the exclusive wholesale distributor of
Products in the Territory (as hereafter defined) , having entered into a
separate Wholesale Distribution Agreement with NSI dated as of the date hereof,
WHEREAS, NSUSA desires to affix NSI Trademarks (as defined below) to
Products and to affix NSI Tradenames (as defined below) to Commercial Materials
it envisions for the Territory thereby deriving benefit from the goodwill, value
and reputation such marks and names shall lend when used to identify such
Products and Commercial Materials; and,
WHEREAS, the Parties desire to enter into this Trademark \ Tradename
Licensing Agreement as set forth herein;
NOW THEREFORE, in consideration of the premises, the mutual promises,
covenants, and warranties hereinafter set forth and for other valuable
consideration, the sufficiency of which is hereby acknowledged, the Parties
agree as follows:
ARTICLE I
DEFINITIONS
For the purposes of this Agreement, the following words and terms
shall have the meaning assigned to them in this Article I:
1.1 "Agreement" shall mean this Trademark\Tradename Licensing
Agreement (together with any exhibits and schedules hereto), as the same may be
modified, amended or supplemented from time to time.
1.2 "Business Portfolios" shall mean those materials approved by NSI
and not purchased from NSI that are intended for sale in conjunction with the
execution of a distributor contract to NSI Independent Distributors in the
Territory explaining the Nu Skin independent business opportunity, the
contractual relationship with NSI and the marketing support programs for the
Territory.
1.3 "Commercial Materials" shall mean, without limitation, any
business marquis, sign, letterhead, business card, pamphlet, brochure, magazine,
flyer, newsletter, Sales Aid, advertisement or other associated tangible
materials NSUSA uses in its activities with the Independent Distributor Network
or the public to enhance its image and competitiveness in the Territory that
NSUSA has not purchased from NSI. Commercial Materials shall not, for the
purposes of this Agreement, include Business Portfolios (as defined below).
1.4 "Independent Distributor Network" shall mean the network of all
NSI Independent Distributors.
1.5 "Intercompany Agreements" shall mean The Wholesale Distribution
Agreement, The Licensing and Sales Agreement, The Management Services Agreement,
and The Trademark/Tradename Agreement between the Parties.
1.6 "Know-How" shall mean any information, including, without
limitation, any commercial or business information, lists, marketing methods,
marketing surveys, processes, specifications, quality control reports, drawings,
photographs, or any other information owned by NSI, whether or not considered
proprietary, relating to the Independent Distributor Network, NSI Independent
Distributors, the NSI distributor lists, and the NSI sales compensation plan.
1.7 "Licensed Marks and Names" shall mean any NSI Trademark,
including those affixed to any Product for purposes of identifying, promoting or
selling such Product in the Territory to any NSI Independent Distributor, and
any NSI Tradename, including those affixed to or used in connection with any
Commercial Materials produced to further NSUSA's commercial activities in the
Territory and any product formula as agreed to by the Parties from time to time.
1.8 "Net Sales" shall mean, for any period, the number of Products,
Commercial Materials and Introductory Kits (or any part thereof) sold by NSUSA
during such period, multiplied by NSUSA's then current selling price to NSI
Independent Distributors for each such Product, Commercial Material and
Introductory Kits, less applicable consumption taxes and returns or refunds
reasonably accepted and credited by NSUSA during such period.
1.9 "NSI Independent Distributor" shall mean a person or business
entity authorized by contract with NSI to distribute, as an independent
contractor, Products and Sales Aids.
1.10 "NSI Trademark" shall mean any NSI service ▇▇▇▇, trademark, logo
or device (or combination thereof) used or for which NSI has a bonafide intent
to use, registered or otherwise.
1.11 "NSI Tradename" shall mean any commercially valuable "▇▇▇▇,"
"name," or "device" or combination thereof whether or not similar in appearance
to any NSI Trademark of which NSI is the owner, registered or otherwise.
1.12 "Product" shall mean any of the following bearing an NSI
Trademark: any product, including, without limitation, cosmetics, nutritional
products, dietary supplements, vitamins, over-the-counter drugs, quasi-drugs,
drugs and pharmaceutical products, and other products, which NSUSA designs,
manufactures, produces and/or distributes or causes to be designed,
manufactured, produced or distributed in the Territory, that NSUSA has not
purchased from NSI. Products shall not, for the purposes of this Agreement,
include Business Portfolios.
1.13 "Proprietary Information" shall mean, without limitation, all
information other than information in published form or expressly designated by
either party in writing as non-confidential, which is directly or indirectly
disclosed to the other party, regardless of the form in which it is disclosed,
relating in any way to the following property owned by the Parties or which the
Parties have been licensed to use or sub-license: (1) proprietary technical
information related to the Licensed Marks and Names and the Business Portfolios;
(2) information respecting actual or potential customers or customer contacts
and customer sales strategies, names, addresses, phone numbers, identification
numbers, database information and its organization, unique business methods; (3)
market studies, penetration data, customers, products, contracts, copyrights,
computer programs, applications, technical data, licensed technology, patents,
inventions, procedures, methods, designs, strategies, plans, liabilities,
assets, cost revenues, sales costs, production costs, raw material sources and
other market information; (4) other sales and marketing plans, programs and
strategies; (5) trade secrets, Know-How, designs and proprietary commercial and
technical information, methods, practices, procedures, processes, formulae with
respect to manufacturing, assembly, design or processing products subject to
this Agreement and any component, part or manufacture thereof; (6) profits,
organization, employees, agents, distributors, suppliers, trademarks, tradenames
and services; (7) other business and commercial practices in general relating
directly or indirectly to the foregoing; (8) computer disks or other records or
documents, originals or copies, containing in whole or in part any of the
foregoing; and (9) tax information, returns and other financial information.
1.14 "Sales Aid" shall mean materials, in whatever form and/or design
produced to assist in the marketing of Products or the Nu Skin independent
business opportunity in the Territory.
1.15 "Territory" shall mean the United States of America, including
its territories.
ARTICLE II
GRANT OF NON EXCLUSIVE LICENSE; ROYALTIES
2.1 Grant of Exclusive License. NSI hereby grants to NSUSA an
exclusive license and right to use, the Licensed Marks and Names in the
Territory, provided that all such uses shall comply in all material respects
with the terms of this Agreement.
2.2 NSI's Interest in Licensed Marks and Names. NSI hereby retains
legal title to the Licensed Marks and Names for all purposes, including but not
limited to, the bringing or defending of any legal action in the Territory which
it deems reasonable to protect its rights therein. NSUSA agrees to assist NSI in
any manner to protect NSI's rights in the Licensed Marks and Names which NSI may
reasonably request. NSI shall reimburse NSUSA for any third party costs incurred
by NSUSA in providing such assistance.
2.3 Recitals of Value of Licensed Marks and Names. NSUSA recognizes
and agrees that NSI has expended considerable time, effort and resources to
develop, register, apply for registrations, maintain and enhance the value and
reputation of the Licensed Marks and Names. NSUSA further agrees it will derive
a considerable benefit from its use of the Licensed Marks and Names in the
Territory and from NSI's efforts and expenditures respecting the Licensed Marks
and Names.
2.4 Warranty of Title. NSI hereby represents and warrants that it is
the sole and exclusive owner of the Licensed Marks and Names and that to the
best of its knowledge and information no claim exists or has been made
contesting the ownership and title of said Licensed Marks and Names.
2.5 Royalties. As compensation for the exclusive licenses granted
pursuant to the terms of this Agreement, NSUSA shall pay to NSI a royalty equal
to five percent (5%) (or as otherwise mutually agreed upon by the Parties) of
its Net Sales in the Territory during the entire term of this Agreement. If
NSUSA elects to produce and/or purchase any Products from a third party rather
than through or from NSI, and such Product is based on or contains NSI
proprietary information, formulas or ingredients, and such Product bears
Licensed Marks and Names, the applicable royalty shall be eight percent (8%) of
Net Sales, or as otherwise mutually agreed upon by the Parties.
ARTICLE III
COMPUTATION AND PAYMENT TERMS
3.1 Royalty Payments.
3.1(a) Within 30 days following the close of each month, NSUSA
shall deliver to NSI, by electronic transmission or such
other medium as the parties shall agree from time to
time, a statement of its Net Sales during such month in
the Territory and a computation of the royalties payable
hereunder. NSUSA shall make payment of such royalties in
accordance with Section 3.3 hereof concurrently with the
delivery of such statement.
3.1(b) For purposes of computing the royalty, Products and
Commercial Materials shall be considered sold when
recognized for accounting purposes as a sale by NSUSA as
per U.S. GAAP.
3.1(c) The Parties agree that the royalty shall remain
competitive within the Territory and shall be negotiated
and determined on an arm's length basis and may be
adjusted from time to time as agreed by the Parties in
writing.
3.2 Records. Each Party shall keep complete and accurate records of
its activities under this Agreement which shall be open to inspection by
authorized representatives of the other party at any reasonable time.
3.3 Payment Terms. Payments made by NSUSA to NSI under this Agreement
shall be payable in U.S. dollars. Payments shall be made either directly to NSI
in immediately available funds by wire transfer to an account designated by NSI,
or by such other means of payment acceptable to NSI from time to time.
3.4 Default Rate. Without limiting any of NSI's 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 at the prime
interest rate as reported in the Wall Street Journal plus two percent (2%) for
the full period outstanding. Whether or not interest charges are actually levied
is at the discretion of NSI.
ARTICLE IV
CERTAIN COVENANTS
4.1 Use of Licensed Marks and Names. NSUSA may use the Licensed Marks
and Names only in accordance with the terms of this Agreement.
4.1(a) All Products and Commercial Materials bearing the
Licensed Marks and Names shall be approved by NSI and
shall be used in accordance with standards,
specifications and instructions approved by NSI; and,
4.1(b) NSI shall have the right to inspect the premises of
NSUSA and those of any of NSUSA's subcontractors at
which Product(s) are being manufactured, at reasonable
times, and also to receive samples of such Product(s),
in accordance with a reasonable schedule to be
established promptly between NSI and NSUSA; and,
4.1(c) NSUSA agrees to correct, as promptly as possible, any
defects in the Product(s) and/or manufacturing thereof
brought to NSUSA's attention by NSI or otherwise; and,
4.1(d) NSUSA agrees to submit to NSI for prior approval, which
approval will not be unreasonably withheld, labels,
packaging, advertising and promotional materials, in
relation to which any of the Licensed Marks and Names
are proposed to be used, including the marking legends
intended to be used in relation thereto.
4.2 Modifications. NSUSA shall make no modification to the Licensed
Marks and Names without the express, prior written consent of NSI.
4.3 Prejudicial Use. NSUSA shall not use the Licensed Marks and Names
in any way that will prejudice NSI's rights therein.
4.4 Labels. At the request of NSI, labels or packaging which bear any
of the Licensed Marks and Names shall also bear an asterisk placed immediately
above the end of the ▇▇▇▇ to reference a statement which shall appear underneath
the ▇▇▇▇ and shall contain the words "TM Registered - Licensed by Nu Skin
International, Inc." (where the ▇▇▇▇ is registered) or "TM - Licensed by Nu Skin
International, Inc." (where the ▇▇▇▇ is not registered).
4.5 Goodwill. All goodwill generated by use of the Licensed Marks and
Names shall inure to NSI, and, upon termination of this Agreement, NSUSA shall
not have any claim against NSI for compensation for loss of distribution rights,
loss of goodwill or any similar loss.
4.6 Export of Products. The Licensee shall not export any product on
which any Licensed ▇▇▇▇ or Name is affixed to any country outside the Territory
without the prior written consent of NSI.
ARTICLE V
TERM
This Agreement shall be effective from the Effective Date for a term
of two (5) years unless terminated pursuant to Article 11. The Term of this
Agreement shall be renewed automatically for successive one year terms unless
terminated (90) days prior to the end of the then current term .
ARTICLE VI
TERMINATION
6.1 This Agreement may be terminated by either Party immediately or
at any time after the occurrence of any of the following events:
(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; or
(b) there shall be commenced against the other Party any
case, proceeding or other action of a nature referred to
in clause (a) above which (A) results in the entry of an
order for relief or any such adjudication or appointment
or (B) remains undismissed, undischarged or unbonded for
a period of 90 days. Events described in clauses (a) and
(b) of this Section 12.1(a) shall be referred to as a
?Bankruptcy Event?. If a Bankruptcy Event occurs, all
amounts owing under this Agreement shall become
immediately due and payable, without any notice thereof.
6.2 This Agreement may be terminated by either Party, if the other
Party is in default in the performance of any material obligation under this
Agreement and such default has not been cured within ninety (90) days after
receipt of written notice of such default by the defaulting Party; or
6.3 This Agreement may be terminated by NSI (a) if the original
pre-IPO Shareholders of Nu Skin Asia Pacific shall no longer owns or controls a
majority of the voting interest in NSUSA; (such termination will be effective
thirty (30) days after NSI gives written notice to NSUSA of the occurrence of a
change in control and its intention to terminate this Agreement based thereon);
or (b) if NSUSA causes or allows a judgment in excess of twenty-five million
dollars ($25,000,000) to be entered against it or allows a lien, security
interest, or other encumbrance to attach to its assets which secures an amount
in excess of twenty-five million dollars ($25,000,000).
ARTICLE VII
EFFECT OF TERMINATION
7.1 Obligation of NSUSA Upon Termination. Upon termination of this
Agreement by either Party, NSUSA agrees to (a) sell, destroy or otherwise
dispose of all Products and Commercial Materials bearing the Licensed Marks and
Names within 45 days after such termination; (b) immediately discontinue use of
the Licensed Marks and Name in any form and not adopt in place thereof any word
or design that is confusingly similar thereto; and (c) return to NSI all
manuals, drawings, and standards or any other documents provided by NSI to NSUSA
relating to the use of the Licensed Marks and Names.
7.2 Survival of Obligations. The obligations of the Parties to pay
any sums which are due and payable as of the expiration or termination of this
Agreement and their obligations under Section 2.2, Article IX and Article X
hereof shall survive the expiration or termination of this Agreement.
7.3 Reversion of Rights. Upon termination of this Agreement by NSI,
all rights and licenses herein granted to NSUSA shall immediately cease and
shall revert to NSI, and NSUSA shall cease representing to any third party that
it has any right to use, assign, convey or otherwise transfer the Licensed Marks
and Names.
ARTICLE VIII
GOVERNMENTAL APPROVALS, LAWS AND REGULATIONS
8.1 NSUSA agrees to obtain, or cause to be obtained, at its sole cost
and expense, any governmental approval and make, or cause to be made, any
filings or notifications required under all applicable laws, regulations and
ordinances of the Territory to enable this Agreement to become effective or to
enable any payment pursuant to the provisions of this Agreement to be made.
NSUSA agrees to keep NSI informed of the progress in obtaining all such
government approvals. NSUSA agrees to cooperate with NSI and to take such
actions as NSI shall reasonably request in order to obtain such approvals. NSI
shall reimburse NSUSA for any third party costs incurred by NSUSA in taking such
actions. 8.2 Each party agrees to refrain from any action that will cause the
other party to be in violation of any applicable law, regulation, or ordinance
of the Territory .
ARTICLE IX
INFRINGEMENT; INDEMNIFICATION
NSI hereby represents and warrants that, as of the date hereof, there
are no infringement or misappropriation suits pending or filed or, to its
knowledge, threatened against NSI within the Territory that relate to the
Licensed Marks and Names and NSI is not presently aware of any such infringement
or misappropriation. NSI shall indemnify and hold NSUSA harmless from and
against all claims, actions, suits, proceedings, losses, liabilities, costs,
damages and attorneys' fees in respect of a third party claim alleging
infringement or misappropriation by NSUSA in respect of its use of the Licensed
Marks and Names in the Territory; provided that NSUSA shall give NSI prompt
written notice of any such claim, action, suit or proceeding and, without
limiting the generality of Section 2.2 hereof, shall cooperate with NSI in the
defense of any such claim, action, suit or proceeding. Notwithstanding the
foregoing, NSI shall have no obligation to indemnify NSUSA for any liabilities
arising out of NSUSA?s failure or the failure of the NSI Independent
Distributors in the Territory to utilize the Licensed Marks and Names (i) in the
manner for which the Licensed Marks and Names are reasonably intended, (ii) in
compliance with Nu Skin policies and procedures or (iii) as contemplated by the
Intercompany Agreements. NSI shall have the right to select counsel in any such
claim, action, suit or proceeding. In the event that any such claim, action,
suit or proceeding is successful, NSI shall use reasonable efforts to make such
changes in the Licensed Marks and Names to permit NSUSA to continue to use of
the Licensed Marks and Names free and clear of all infringement and
misappropriation. NSUSA shall give NSI prompt written notice of any infringement
or misappropriation of the Licensed Marks and Names by any third party. NSI
shall have the sole right to initiate any and all legal proceedings against any
such third party and, without limiting the generality of Section 2.2 hereof,
NSUSA shall cooperate with NSI in the pursuit of any such proceeding. NSI shall
retain any damage award obtained from such third party.
ARTICLE X
CONFIDENTIALITY
All Proprietary Information or other non-public or proprietary
business or technical information owned or used by NSI or NSUSA and supplied to
or acquired by the other whether in oral or documentary form (the "Confidential
Information") shall be supplied and acquired in confidence and shall be solely
for the use of the receiving party pursuant to this Agreement and such party
shall keep the Confidential Information confidential and shall not disclose the
same, at any time during the term of this Agreement or after its termination,
except to its employees, or its affiliates, or its affiliates? employees for the
purposes of its business in accordance with this Agreement and except as may be
required by law; provided that if the receiving party determines that a
disclosure is required by law, the receiving party shall notify the disclosing
party in order to give the disclosing party an opportunity to seek an injunction
or otherwise attempt to keep the Confidential Information confidential. The
receiving party shall, at the request of the disclosing party, destroy or return
the Confidential Information without retaining copies if, as and when this
Agreement is terminated or expires. For purposes of this Agreement, the term
"Confidential Information" shall not include information or documents that (i)
become generally available to the public other than as a result of a disclosure
by the receiving party, (ii) was otherwise lawfully available to the receiving
party, or (iii) was generated independently by the receiving party. The
provisions of this Article shall survive termination of this Agreement for a
period of 10 years after he termination of this Agreement provided that this
Agreement is not extended or renegotiated.
ARTICLE XI
NATURE OF RELATIONSHIP
The relationship of NSUSA and NSI shall be and at all times remain,
respectively, that of Licensee and Licensor. Nothing contained or implied in
this Agreement shall be construed to constitute either party as the legal
representative or agent of the other or to constitute or construe the Parties as
partners, joint venturers, co-owners or otherwise as participants in a joint or
common undertaking. Neither party is authorized to conclude any contract or
agreement or make any commitment, representation or warranty that binds the
other or otherwise act in the name of or on behalf of the other.
ARTICLE XII
MAINTENANCE OF TRADEMARKS; RECORDING;
REGISTRATION OF TRADEMARK
NSI covenants to use its best efforts to maintain the registrations
of the NSI Trademarks currently registered in the Territory as set forth in
Exhibit A hereto. NSI, in its sole discretion, shall have the right to record
this Agreement or proof thereof, or to enter NSUSA as a registered user in the
Territory. NSUSA agrees to cooperate, as reasonably requested by NSI, in
arranging for such recordings or entries, or in bearing or canceling such
recordings or entries in the event of amendments to or termination of this
Agreement for any reason. Upon termination of this Agreement for any reason, the
Parties agree to do everything necessary to effect cancellation of the record of
NSUSA as a registered user of the NSI Trademarks in the Territory.
At the request of NSUSA, NSI shall file applications in the Territory
for the registration of all new NSI Trademarks that NSUSA intends to use in the
Territory. If any ▇▇▇▇ used by NSI in the United States of America with respect
to certain products is used by NSUSA in the Territory in relation to similar
products, then, whether or not the ▇▇▇▇ is registered in the Territory, NSUSA
shall not claim any proprietary interest in any NSI trademarks. If any of such
marks are immediately registrable in the Territory, NSUSA will cooperate with
NSI in filing an application for registration of the marks in the name of NSI.
If any such marks are not immediately capable of registration because they lack
distinctiveness, then at any time when in the opinion of legal counsel for NSI
the use of the marks by NSUSA has conferred on them sufficient distinctiveness
to permit registration in the Territory, NSUSA shall, when requested by NSI, do
all things necessary and execute all documents required to register such marks
in the Territory and assign the eventual registrations to NSI who shall
reimburse NSUSA for the cost of registration and assignment, but shall not be
obligated to make any other payment in consideration for the assignment.
ARTICLE XIII
MISCELLANEOUS
13.1 Assignment. This Agreement shall be binding on and inure to the
benefit of the heirs, successors, assigns and beneficiaries of the Parties;
provided that neither party may assign this Agreement or any rights or
obligations hereunder, whether by operation of law or otherwise, without the
prior written consent of the other party through its authorized representative.
Any such attempted assignment without the written consent provided herein shall
be void and unenforceable.
13.2 Force Majeure. 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, labor disputes, freight embargoes or
transportation delays, shortage of labor, 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 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.
13.3 Governing Law and Dispute Resolution. 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 arising out of this Agreement, if not resolved by mutual agreement of
NSI and NSUSA within 30 days after written notice of such dispute is given by
NSI or NSUSA, as the case may be, shall be resolved through arbitration with the
Utah office and division of the American Arbitration Association ("AAA"). If the
dispute is not resolved within such 30-day period, the Parties shall petition
the AAA to promptly appoint a competent, disinterested person to act as such
arbitrator. Within 30 days after the designation or appointment of such
arbitrator, such arbitrator shall be required to commence the arbitration
proceeding in the state of Utah at a time and place to be fixed by the
arbitrator, who shall so notify NSI and NSUSA. Such arbitration proceeding shall
be conducted in accordance with the applicable rules and procedures of the AAA,
and/or as otherwise may be agreed by NSI and NSUSA and may be enforced in any
court of competent jurisdiction. The expenses and costs of such arbitration
shall be divided and borne equally by NSI and NSUSA; provided, that such of NSI
and NSUSA shall pay all fees and expenses incurred by it in presenting or
defending against such claim, right or cause of action.
13.4 Waiver and Delay. No waiver by either party of any breach or
default in performance by the other party, and no failure, refusal or neglect of
either 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
either party of its right at any time thereafter to require exact and strict
compliance with the provisions thereof.
13.5 Notices. All notices, requests and other communications
hereunder shall be in writing and shall be deemed to have been duly given, if
delivered by hand, or if communicated by facsimile, cable or similar electronic
means to the facsimile number or cable identification number as previously
provided by each party to the other, 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, from any post office addressed as follows:
If to NSUSA: General Manager
Nu Skin U.S.A., Inc.
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If to NSI: General Manager
Nu Skin International, Inc.
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Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
Either party may change its facsimile number, cable identification
number or address by a notice given to the other party in the manner set forth
above.
13.6 Integrated Contract. 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 understandings (both oral and written) of the Parties.
13.7 Modification and Amendment. No supplement, modification or
amendment of this Agreement shall be binding unless it is in writing and
executed by both of the Parties.
13.8 Severability. To the extent that any provision of this Agreement
is (or in the opinion of counsel mutually acceptable to both Parties would be)
prohibited, judicially invalidated or otherwise rendered unenforceable in any
jurisdiction, 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.
13.9 Counterparts and Headings. 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 caused this Agreement to be
executed in the United States of America by their respective duly authorized
representatives as of the day and year first-above written.
NU SKIN INTERNATIONAL, INC. NU SKIN USA, INC.
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. Halls
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇ Name: ▇▇▇▇▇ ▇. Halls
Its: Executive Vice President & Secretary Its: Vice President