GOVERNMENTAL CHARGES IMPOSED UPON THE IMPORTATION, EXPORTATION, SALE,
DISTRIBUTION AND USE OF THE APPLIANCE OR THE APPLIANCE SYSTEM TO THE EXTENT PAID
BY VTAL AND NOT OTHERWISE REIMBURSED, WITHIN THIRTY (30) DAYS OF THE DATE OF
VTAL'S INVOICE, WHICH INVOICE MAY BE ISSUED ANY TIME ON OR AFTER THE DATE OF
SHIPMENT OF THE APPLIANCE BY VTAL.
PAYMENT OF THIS AMOUNT WITH RESPECT TO AN
APPLIANCE SHALL ENTITLE EZEM DURING THE YEAR FOLLOWING DELIVERY TO SECONDARY
WARRANTY/MAINTENANCE SERVICES PROVIDED BY VTAL WITH RESPECT TO THE APPLIANCE, IT
BEING UNDERSTOOD THAT EZEM OR ITS DEALER OR SERVICE ASSOCIATE SHALL PROVIDE THE
FIRST LEVEL OF WARRANTY/MAINTENANCE SERVICE, MEANING THAT IT SHALL USE
COMMERCIALLY REASONABLE EFFORTS TO RESOLVE WARRANTY/MAINTENANCE ISSUES WITHOUT
VTAL INTERVENTION.
FOR THE AVOIDANCE OF DOUBT, EZEM SHALL NOT BE OBLIGATED IN
CONNECTION WITH ANY SUCH SALE TO REIMBURSE VTAL FOR THE COST OF ANY ROYALTIES OR
OTHER PAYMENTS PAYABLE TO ANY THIRD PARTY WITH RESPECT TO THE SALE OF AN
APPLIANCE.
9.7.
RECORD-KEEPING; INSPECTION AND AUDIT.
EZEM AND VTAL RESPECTIVELY
AGREE TO KEEP AND MAINTAIN ACCURATE RECORDS THROUGHOUT THE TERM OF THIS
AGREEMENT OF ALL SALES OF APPLIANCE SYSTEMS AND OPTIONS SUFFICIENT TO PERMIT
CALCULATION/CONFIRMATION OF THE AMOUNTS PAYABLE UNDER THIS ARTICLE 9, BUT SHALL
ONLY BE REQUIRED TO MAINTAIN SUCH RECORDS FOR A PERIOD OF FIVE (5) YEARS AFTER
THE END OF THE CALENDAR QUARTER TO WHICH SUCH RECORDS RELATE.
EACH PARTY SHALL
HAVE THE RIGHT, FROM TIME TO TIME DURING THE TERM OF THIS AGREEMENT, UPON TWENTY
(20) DAYS WRITTEN NOTICE TO THE OTHER AND AT THE NOTIFYING PARTY'S EXPENSE, TO
HAVE AN INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT REASONABLY ACCEPTABLE TO THE
NOTIFIED PARTY, AUDIT THE BOOKS OR ACCOUNTS RELATING TO CALCULATION/CONFIRMATION
OF THE SUCH AMOUNTS PAYABLE TO THE EXTENT NECESSARY TO VERIFY THE FACTS
NECESSARY TO DETERMINE THE ACCURACY THEREOF.
THE NOTIFYING PARTY SHALL BEAR THE
COST OF ANY SUCH ACCOUNTING BY IT, UNLESS THE AUDIT SHOWS A DISCREPANCY IN SUCH
PARTY'S FAVOR OF MORE THAN 10%, IN WHICH CASE THE OTHER PARTY SHALL BE
RESPONSIBLE FOR ALL COSTS AND EXPENSES RELATED TO THE AUDIT.
EACH PARTY AGREES
TO TREAT THE OTHER'S BOOKS, ACCOUNTS, AND RECORDS AS CONFIDENTIAL AT ALL TIMES.
9.8.
MOST "FAVORED BUYER" AND COMPARATIVE END-USER PROVISIONS.
IN THE
EVENT THAT THE APPOINTMENT OF EZEM HEREUNDER BECOMES NON-EXCLUSIVE WITH RESPECT
TO THE UNITED STATES AND:
(A)
THEREAFTER VTAL SELLS THE APPLIANCE TO ANOTHER DISTRIBUTOR FOR
INSTALLATION IN THE UNITED STATES AT RATES, TERMS AND CONDITIONS THAT ARE
OVERALL AND IN THE AGGREGATE SUBSTANTIALLY MORE FAVORABLE TO SUCH OTHER
DISTRIBUTOR THAN THE RATES, TERMS AND CONDITIONS HEREOF ARE FAVORABLE TO EZEM,
THEN VTAL WILL NOTIFY EZEM THEREOF IN WRITING (THE "MFB NOTICE").
EZEM SHALL
HAVE THE OPTION, BY GIVING WRITTEN NOTICE TO VTAL (THE "ELECTION NOTICE") WITHIN
SIXTY (60) DAYS OF DELIVERY TO IT OF THE MFB NOTICE, TO ELECT (I) TO CONTINUE TO
ACQUIRE THE APPLIANCE FOR INSTALLATION IN THE UNITED STATES UNDER THE TERMS OF
THIS AGREEMENT IN EFFECT ON THE DATE HEREOF OR (II)