Exhibit 10.44
DATED FEBRUARY 26, 2004
XXXXXX XX
-AND-
DESALCO LIMITED
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Distributorship Agreement
relating to
DWEER Products
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[Campbells Logo]
0xx Xxxxx, Xxxxxxxxxx Xxxxxxxx
X.X. Xxx 000XX
Xxxxx Xxxxxx
Cayman Islands
THIS DISTRIBUTORSHIP AGREEMENT is made on February 26, 2004
BETWEEN:
(1) XXXXXX XX, a Swiss company, the registered office of which is
Xxxxxxxxxxxxxxxxx 000, Xxxxxxxxx Xxxx, Xx-0000 Xxxxxxxx,
Xxxxxxxxxxx (hereinafter "CALDER"); and
(2) DESALCO LIMITED, a Cayman Islands company duly incorporated in
the Cayman Islands, the registered office of which is Xxxxxxxxx
Xxxxx, 0000X Xxxx Xxx Road, Grand Cayman, Cayman Islands
(hereinafter "DESALCO").
WHEREAS:
(A) Pursuant to and upon the terms of a Distributorship Agreement
dated 24 September 2002 between DWEER Technology Ltd., a Cayman
Islands company ("DWEER-Tech") and DesalCo (the " Original
Distributorship Agreement"), DWEER-Tech appointed DesalCo as its
exclusive distributor for Products in the Territory (both terms
as defined in this Agreement) and gave DesalCo the exclusive
right to sell and distribute the Products in the Territory.
(B) Pursuant to and upon the terms of a Technology Licence relating
to the manufacturing, marketing and sale of DWEER and LinX
products, work exchangers and related products dated 30 April
2003 between DWEER-Tech and Calder ("the Technology Licence")
DWEER-Tech granted Calder the exclusive right to, inter alia,
design, manufacture and sell, inter alia, the Products worldwide,
excluding the rights granted to DesalCo under the Original
Distributorship Agreement which were reserved to DWEER-Tech.
(C) By virtue of the fact that Calder has the exclusive right to
manufacture the Products worldwide pursuant to the Technology
Licence and will, during the term of the Technology Licence, be
manufacturing and supplying Products on a worldwide basis,
DWEER-Tech and the parties hereto wish to suspend the Original
Distributorship Agreement and enter into this Agreement, in order
to enable DesalCo to deal directly with Calder with respect to
the distribution of Products in the Territory so long as the
Technology Licence is in effect.
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(D) Concurrent with the execution of this Agreement, the Technology
Licence has been amended to remove the exclusion of rights
mentioned in recital B above and so as to permit and enable
Calder and DesalCo to enter into this Agreement.
(E) Concurrent with the execution of this Agreement, the Original
Distributorship Agreement has been suspended for so long as the
Technology Licence is in effect, on the basis that, inter alia,
all clauses thereof that are intended to survive termination
(e.g. 6.5 - Confidentiality) remain in effect, that DWEER-Tech
undertakes to immediately inform DesalCo of termination of the
Technology Licence, and that the suspension is to be lifted
immediately upon termination of the Technology Licence.
NOW IT IS HEREBY AGREED as follows:-
1. INTERPRETATION
1.1 In this Agreement, save where otherwise provided or where the
context otherwise requires or admits, the following terms and
expressions shall have the meaning set out below:
"AFFILIATE" means at any time during the term of
this Agreement or extension thereof
with respect to a person, another
person that directly, or indirectly
through one or more intermediaries,
controls, or is controlled by, or is
under common control with, such
person;
"DWEER
INTELLECTUAL
PROPERTY" any patent, copyright, registered or
unregistered design, trade xxxx, or
other industrial or intellectual
property right subsisting worldwide
in respect of the Products, and any
applications for the same;
"ORIGINAL
DISTRIBUTORSHIP
AGREEMENT" means the Original Distributorship
Agreement as defined in the recitals
hereto.
"PERSON" includes an individual, partnership,
firm, company, association,
unincorporated association or
organisation or
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any entity or body of whatsoever
nature including a governmental,
quasi governmental, judicial or
regulatory entity or any department,
agency, or political subdivision
thereof;
"PRODUCTS" means the work-exchanger (also
called pressure-exchanger)
energy-recovery systems, components
and sub-components thereof for use
for water desalination using the
reverse osmosis process manufactured
and sold by Calder pursuant to the
Technology Licence;
"TECHNOLOGY means the Technology Licence as
LICENCE" defined in the recitals hereto.
"TERRITORY" means:
(a) all countries, territories and
protectorates in or bordering
on the Gulf of Mexico and the
Caribbean Sea excluding,
except as provided for in
sub-clause (c) hereof, the
mainland of Mexico, Belize,
Guatemala, Honduras,
Nicaragua, Costa Rica, Panama,
Colombia and Venezuela; and
(b) the Bahamas, Barbados, and the
Turks and Caicos Islands; and
(c) the mainland territory within
30 miles of the Gulf of Mexico
or Caribbean Sea coasts of
Mexico, Belize, Guatemala,
Honduras, Nicaragua, Costa
Rica, Panama, Colombia and
Venezuela
save that the continental United
States and associated United States
coastal islands (e.g. Florida Keys,
but not the U.S. Virgin Islands or
Puerto Rico) are specifically
excluded;
"TRADE MARKS" the trademarks "DWEER" and
"LinX" and all other names, symbols,
trade and service marks (whether
registered or unregistered) used by
DWEER-Tech or Calder in
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connection with or in relation to
the Products from time to time.
1.2 In this Agreement, save where otherwise provided or where the
context otherwise requires or admits:
(a) references to any law or provision of law shall
include a reference to any law or provision of any
law which amends or replaces, or has amended or
replaced, it;
(b) references to this Agreement or any other agreement
or document shall be construed as a reference to this
Agreement as the same may from time to time be
amended, varied or supplemented;
(c) a "clause" or "schedule" is a reference to a clause
hereof or schedule hereto;
(d) a "sub-clause" is a reference to a sub-clause of the
clause in which the reference appears;
(e) any word, term or expression (including defined terms
and expressions) that imports any gender shall
include all genders and words and terms (including
defined terms and expressions) importing the singular
shall include the plural and vice versa.
1.3 In this Agreement the headings are inserted for convenience
only and shall not affect the construction hereof.
2. DISTRIBUTION OF PRODUCTS IN THE TERRITORY
2.1 For the period set out in clause 9 below, Calder hereby grants
DesalCo the exclusive right to distribute and sell the
Products in the Territory, and DesalCo agrees to act in such
capacity, subject to and upon the terms and conditions of this
Agreement. For the avoidance of doubt, DesalCo may sell and/or
deliver the Products purchased under this Agreement inside or
outside of the Territory, provided that such Products are to
be installed and used within the Territory.
2.2 For the period that DesalCo has the exclusive right to
distribute and sell the Products in the Territory, Calder:
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(a) shall not appoint any other person as a distributor
or agent for the Products in the Territory;
(b) shall not supply the Products to any person other
than DesalCo or, at the request of DesalCo,
Affiliates of DesalCo, who, to the knowledge of
Calder, intends to use or install such Products in
the Territory or intends to resell such Products to
any person who intends to use or install such
Products in the Territory without the prior written
consent of DesalCo; and
(c) shall obtain a written undertaking, from all persons
to whom it sells the Products (other than DesalCo and
Affiliates of DesalCo which it supplies at the
request of DesalCo) that they (1) shall not use or
install such Products within the Territory and (2)
shall not resell such Products to any person who
intends to use or install such Products inside the
Territory.
2.3 DesalCo and its Affiliates shall during the term of this
Agreement:
(a) not obtain the Products from any person other than
Calder for use or installation inside the Territory;
(b) not obtain any goods which compete with the Products;
(c) not be concerned or interested, either directly or
indirectly, in the design, manufacture, distribution,
marketing or sale of any goods which compete with the
Products;
(d) not sell the Products purchased from Calder under
this Agreement to any person who, to the knowledge of
DesalCo or its Affiliates, intends to use or install
such Products in any country which is outside the
Territory or intends to resell such Products to any
person who intends to use or install such Products
outside the Territory; and
(e) obtain a written undertaking from all persons to whom
it sells the Products purchased from Calder under
this Agreement that they (1) shall not use or install
such Products outside the Territory and (2) shall not
resell such Products to any person who intends to use
or install such Products outside the Territory.
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2.4 For so long as this Agreement is in force:
(a) in the event that DesalCo wishes to purchase any
Products from Calder for use or installation outside
the Territory, it shall place an order for such
Products with Calder stating that such Products are
intended for use or installation outside the
Territory and stating where such Products are
intended to be used, or installed; and
(b) in the event that Calder agrees to supply such
Products, DesalCo may purchase such Products for use
or installation outside the Territory, free of any of
the restrictions contained in this Agreement, and the
provisions of this Agreement shall not apply to any
Products so purchased by DesalCo or any Affiliate
thereof Provided That, notwithstanding this, clause 6
of this Agreement shall apply to all information
disclosed to DesalCo by DWEER-Tech or Calder or which
relates to the Products and which comes into the
knowledge, possession or control of DesalCo whether
pursuant to or in connection with this Agreement or
pursuant to or in connection with the Original
Distributorship Agreement, and the provisions of
clauses 5.4 5.5, 5.7 and 5.8 of this Agreement shall
also apply outside the Territory.
2.5 Any energy-recovery devices (including pressure-exchangers or
work-exchangers) for water desalination using the reverse
osmosis process to be installed on reverse osmosis
desalination units with a brine flowrate of less than 880 US
gallons per minute (200 m3/hour) shall be deemed to be goods
which do not compete with the Products.
2.6 DesalCo shall be entitled to describe itself as the
"authorised exclusive distributor" for the Products in the
Territory but it shall not hold itself out as DWEER-Tech's or
Calder's agent for sales of the Products or as being entitled
to bind DWEER-Tech or Calder in any way.
2.7 DesalCo shall not without the express written permission of
Calder sell through a sales agent or to a sub-distributor any
Products which it purchases from Calder under this Agreement.
2.8 Nothing in this Agreement shall entitle DesalCo to;
(a) any priority of supply in relation to the Products as
against Calder's other distributors or customers;
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(b) any right or remedy against Calder if any Product
supplied by Calder or its Affiliates is sold,
installed, or used in the Territory by any person
other than DesalCo or its Affiliates, provided that
Calder can show that it has obtained the written
undertaking required by sub-clause 2.2(c) above from
the person to whom Calder supplied the Product and
further provided that Calder shall, at the request
and expense of DesalCo, take all such steps as
DesalCo may reasonably require to assist DesalCo in
preventing the installation, use or resale of such
Products in the Territory.
2.9 Calder shall not have any right or remedy against DesalCo if
any Product supplied by DesalCo or its Affiliates is sold,
installed or used outside the Territory by any person other
than DesalCo or its Affiliates, provided that DesalCo can show
that it has obtained the written undertaking required by
clause 2.3(e) above from the person to whom DesalCo supplied
the Product and further provided that DesalCo shall, at the
request and expense of Calder, take all such steps as Calder
may reasonably require to assist Calder in preventing the
installation, use or resale of such Products outside the
Territory.
3. SUPPLY OF PRODUCTS
3.1 Calder shall use its reasonable endeavours to supply the
Products to DesalCo in accordance with DesalCo's orders from
time to time and to deliver the same in accordance with
DesalCo's directions.
3.2 Calder shall not be under any obligation to continue the
manufacture of all or any of the Products, and shall be
entitled to make such alterations to the specifications of the
Products as it may think fit from time to time and may, as it
thinks fit from time to time, change, amend or replace any
trademark used in relation to the Products (including, without
limitation, the Trade Marks).
3.3 The prices for each order of Products to be supplied under
this Agreement shall be at least as good as and shall not be
more than the lowest price charged by Calder for comparable
orders of Products by other persons.
3.4 Each order for Products by DesalCo shall be in writing and
shall constitute a separate contract and payment for such
Products shall be made by DesalCo without deduction or
set-off. The standard terms and conditions of sale of Calder
from time to time shall apply to all sales of the Products to
DesalCo under this
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Agreement except to the extent that any of the same is
inconsistent with any of the provisions of this Agreement, in
which case the latter shall prevail, and subject to any
modifications thereto agreed to in writing between DesalCo and
Calder.
3.5 Prior to acceptance of an order, DesalCo shall provide Calder
with comprehensive accurate drawings and plans showing the
manner in which Products will be incorporated into and
installed in the relevant desalination plant. DesalCo shall
give due regard to any observations or comments made by Calder
in relation thereto provided that Calder shall not thereby
incur any liability to DesalCo. Calder's observations and
comments shall be limited to compatibility of the Products
with the relevant desalination plant. Save as agreed in
writing by Calder, Calder shall not be liable or responsible
for the design, operation or functioning of any desalination
plants.
4. MARKETING AND USE OF THE PRODUCTS
4.1 DesalCo shall use its best endeavours to promote the sale and
use of the Products throughout the Territory and to satisfy
market demand therefor.
4.2 DesalCo shall be entitled, subject to the terms of this
Agreement, to promote and market the Products in the Territory
in such manner as it may think fit, and in particular shall be
entitled to resell the Products to its customers on such terms
and at such prices as it may determine.
4.3 DesalCo shall maintain such stocks of parts for the Products
as may be necessary to meet its customers' requirements.
4.4 In connection with the promotion, marketing and the sale of
the Products, DesalCo shall:
(a) make clear, in all dealings with its customers and
prospective customers, that it is acting as
distributor of the Products and not as agent of
Calder or DWEER-Tech;
(b) comply with all legal requirements from time to time
in force relating to the storage and sale of the
Products;
(c) use only such advertising, promotional, and selling
materials as are approved in writing by Calder;
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(d) provide an after sale service for customers in
relation to the Products on terms to be agreed from
time to time between DesalCo and Calder; and
(e) advise Calder of projected sales of Products as early
as reasonably possible.
4.5 Calder shall, from time to time, provide DesalCo with such
samples, catalogues, brochures, and up to date information
concerning the Products as Calder may consider reasonably
appropriate in connection with the sale of the Products in the
Territory, and Calder shall endeavour to answer as soon as
practicable any technical enquiries concerning the Products
which are made by DesalCo or its customers.
4.6 DesalCo shall use its best endeavours to enable Calder to
conduct testing and experimentation of Products on plants
owned or operated by DesalCo or its Affiliates at which
Products are installed provided that Calder shall indemnify
and save harmless DesalCo from any costs, expenses, loss or
damage, of whatever type and howsoever caused arising from or
relating to such tests or experiments.
5. INTELLECTUAL PROPERTY
5.1 Calder hereby authorises DesalCo to use the Trade Marks in the
Territory on or in relation to the Products for the purposes
only of exercising its rights in performing its obligations
under this Agreement and Calder shall not so authorise any
other person, firm or company for such use provided that
Calder and/or DWEER-Tech may prohibit by notice in writing to
DesalCo any particular use of the Trade Marks which in the
opinion of Calder damages the goodwill of Calder or DWEER-Tech
in such Trade Marks.
5.2 DesalCo shall ensure that each reference to and use of any of
the Trade Marks by DesalCo is in a manner, from time to time,
approved by Calder and, if requested, accompanied by an
acknowledgement, in a form approved by Calder, that the same
is a trade xxxx (or registered trade xxxx as the case may be)
of Calder or DWEER-Tech as the case may be.
5.3 DesalCo shall not:
(a) make any unauthorised modifications to the Products;
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(b) alter, remove, or tamper with any Trade Marks,
numbers or other means of identification used on or
in relation to the Products;
(c) use any of the Trade Marks in any way that might
prejudice their distinctiveness or validity;
(d) use in relation to the Products any trade marks other
than the Trade Marks without first obtaining the
prior written consent of Calder; or
(e) use in the Territory any trade marks or trade names
so resembling any Trade Marks or the trade names of
DWEER-Tech or Calder as to be likely to cause
confusion or deception.
5.4 Except as provided in clause 5.1, DesalCo shall have no rights
in relation to any of the Trade Marks or the goodwill
associated therewith, and DesalCo hereby acknowledges that,
except as expressly provided in this Agreement, it shall not
acquire any rights in respect thereof and that all such rights
and goodwill are, and shall remain, vested in DWEER-Tech or
Calder, as the case may be, and that all rights and benefits
arising from the use of the Trade Marks by DesalCo shall
accrue to and be for the benefit of Calder or DWEER-Tech as
the case may be.
5.5 DesalCo shall, at the request and expense of Calder, take all
such reasonable steps as Calder may reasonably require to
assist Calder in maintaining the validity and enforceability
of any DWEER Intellectual Property during the term of this
Agreement.
5.6 DesalCo shall, at the request and expense of Calder, execute
such agreements or licences in respect of the use of the Trade
Marks in the Territory as Calder may reasonably require,
provided that the provisions thereof shall not be more onerous
or restrictive than the provisions of this Agreement.
5.7 DesalCo shall not, during the term of this Agreement,
challenge the validity of any DWEER Intellectual Property.
5.8 DesalCo shall not do or authorise any third party to do any
act which would or might invalidate or be inconsistent with
any DWEER Intellectual Property and shall not omit or
authorise any third party to omit to do any act which, by its
omission, would have that effect or character.
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5.9 DesalCo shall promptly and fully notify Calder of any actual
threatened or suspected infringement in the Territory of any
DWEER Intellectual Property which comes to DesalCo's notice,
and of any claim by any third party so coming to its notice
that the importation of the Products into the Territory, or
their sale therein, infringes any rights of any other person,
and DesalCo shall at the request and expense of Calder do all
such things as may be reasonably required to assist Calder or
DWEER-Tech in taking or resisting any proceedings in relation
to any such infringement or claim.
6. CONFIDENTIALITY
6.1 Except as provided by clauses 6.3 and 6.4 below, DesalCo and
any Affiliate thereof shall at all times during the
continuance of this Agreement and thereafter:
(a) use its best endeavours to keep all Restricted
Information (as defined below) confidential and
accordingly shall not disclose any Restricted
Information to any other person; and
(b) not use any Restricted Information for any purpose
other than the performance of its obligations under
this Agreement or any other agreement for the sale of
the Products.
6.2 "Restricted Information" means any information:
(a) which is disclosed to DesalCo by Calder or DWEER-Tech
pursuant to or in connection with this Agreement or
the Original Distributorship Agreement or any other
agreement for the sale of the Products; (whether
orally or in writing); or
(b) which relates to the Products and which comes into
the knowledge, possession or control of DesalCo
pursuant to this Agreement or the Original
Distributorship Agreement or any other agreement for
the sale of the Products;
regardless of whether or not such information is expressly
stated to be confidential or marked as such.
6.3 Notwithstanding clauses 6.1 and 6.2 above, any Restricted
Information may be disclosed by DesalCo to:
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(a) any customers or prospective customers;
(b) any governmental or other authority or regulatory
body;
(c) any employees or Affiliates of DesalCo;
to the extent only as is required for the purposes
contemplated by this Agreement, or as is required by law and
subject in each case to DesalCo using its best endeavours to
ensure that the person in question keeps the same confidential
and does not use the same except for the purposes for which
the disclosure is made.
6.4 Any Restricted Information may be used by DesalCo or its
Affiliates for any purpose, or disclosed by DesalCo to any
other person, to the extent only that it is, at the date
hereof, or hereafter, is or becomes public knowledge through
no fault of DesalCo or its Affiliates (provided that in doing
so DesalCo and its Affiliates shall not disclose any
Restricted Information which is not public knowledge).
6.5 Any press releases, learned papers or similar publications
made by Calder that make reference to DesalCo or its
Affiliates or plants owned or operated by DesalCo or its
Affiliates shall be approved in advance by DesalCo provided
that such approval shall not be unreasonably withheld and
shall be given in a sufficiently timely manner.
7. REPRESENTATIONS, WARRANTIES AND LIABILITY
7.1 Subject as herein provided Calder warrants to DesalCo that:
(a) all the Products supplied hereunder shall be of
satisfactory quality and shall comply with any legal
or other specification, agreed for them;
(b) it is not aware of any rights of any third party in
the Territory which would or might render the sale of
the Products, or the use of any of the Trade Marks on
or in relation to the Products, unlawful.
7.2 In the event of any breach of Calder's warranty in clause 7.1
above (whether by reason of defective materials, production
faults or otherwise) Calder's liability shall be limited to:
(a) replacement of the Products in question; or
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(b) at Calder's option, repayment of the purchase price
therefor (where this has been paid).
7.3 Notwithstanding anything to the contrary in this Agreement,
DWEER-Tech and/or Calder shall not be liable to DesalCo by
reason of any representation or implied warranty, condition or
other term or any duty at common law, or under the express
terms of this Agreement, for any consequential loss or damage
(whether for loss of profit or otherwise and whether
occasioned by the negligence of DWEER-Tech and/or Calder or
its employees or agents or otherwise) arising out of or in
connection with any act or omission of DWEER-Tech and/or
Calder relating to the manufacture or supply of the Products,
their resale by DesalCo or their use by any customer.
7.4 Each party hereto represents and warrants to the other that:
(a) It is a validly existing company in good standing
under the laws of its jurisdiction of incorporation
and is duly qualified as necessary to carry on its
business in the jurisdictions in which such business
is carried on; and
(b) this Agreement has been duly authorised, executed and
delivered by it and is a valid and legally binding
obligation of it enforceable in accordance with its
terms.
8. FORCE MAJEURE
8.1 If either party's performance of this Agreement is affected by
Force Majeure (as defined below) it shall forthwith notify the
other party of the nature and extent thereof.
8.2 Neither party shall be held to be in breach of this Agreement,
or otherwise be liable to the other, by reason of any delay in
its performance, or non performance, of any of its obligations
under this Agreement to the extent that such delay or non
performance is due to Force Majeure of which it is notified to
the other party, and the time for performance of such
obligations shall be extended accordingly.
8.3 If the Force Majeure in question prevails for a continuous
period in excess of 180 days, the parties shall enter into
bona fide negotiations with a view to alleviating its effects,
or to agreeing such alternative arrangements as may be fair
and
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reasonable, and if no agreement is reached between the parties
with respect thereto within 30 days, then either party may
upon giving written notice to the other, terminate this
Agreement without prejudice to any rights, remedies or
obligations which have accrued prior to termination.
8.4 "Force Majeure" means, in relation to either party, any
circumstances beyond the reasonable control of that party
(including, without limitation, acts of god, war, strike, lock
out, go slow, work to rule or other form of industrial action,
fire, flood, civil disturbance, or government intervention or
government failure to act).
9. DURATION AND TERMINATION
9.1 This Agreement shall come into force on the date of this
Agreement and, subject as provided in clauses 9.2, 9.3, 9.4
and 9.5 below, shall continue in force until 31st October,
2009 whereupon it shall terminate unless previously renewed or
extended by the mutual written agreement of the parties
hereto.
9.2 Calder shall be entitled to terminate this Agreement if:
(a) DesalCo fails to diligently promote the sale of and
the use of the Products throughout the Territory
provided that DesalCo does not have to offer to sell
or sell the Products to competitors that are bidding
in connection with the construction or expansion of
desalination projects in the Territory in connection
with which DesalCo or any of its Affiliates is also
bidding (but DesalCo may do so at its sole and
absolute discretion); or
(b) DesalCo at any time challenges the validity of all of
any of the DWEER Intellectual Property;
provided that DesalCo fails to remedy the same within 30 days
after receipt of written notice giving full particulars of the
breach and requiring it to be remedied.
9.3 DesalCo may, at any time, terminate this Agreement upon one
(1) month's prior written notice to Calder.
9.4 This Agreement shall automatically terminate upon termination
of the Technology Licence.
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9.5 Either party shall be entitled forthwith to terminate this
Agreement by written notice to the other (provided that such
termination shall not affect any orders accepted by and
binding on Calder as provided in clause 3.4 above) if:
(a) that other party commits any material breach of any
of the provisions of this Agreement and, in the case
of a breach capable of remedy, fails to remedy the
same within 30 days after receipt of a written notice
giving full particulars of the breach and requiring
it to be remedied;
(b) an encumbrancer takes possession or a receiver is
appointed over any of the property or assets of that
other party;
(c) that other party makes any voluntary arrangement with
its creditors or goes into winding up or liquidation
(except for the purposes of amalgamation or
reconstruction and in such manner that the company
resulting therefrom effectively agrees to be bound by
or assume the obligations imposed on that other party
under this Agreement);
(d) anything analogous to any of the foregoing under the
law of any jurisdiction occurs in relation to that
other party; or
(e) that other party ceases, or threatens to cease, to
carry on business.
9.6 For the purposes of clause 9.5 above, a breach shall be
considered capable of remedy if the party in breach can comply
with the provision in question in all respects other than as
to the time of performance (provided that time of performance
is not of the essence).
9.7 Any waiver by either party of a breach of any provision of
this Agreement shall not be considered as a waiver of any
subsequent breach of the same or any other provision thereof.
9.8 The rights to terminate this Agreement given by this clause 9
shall be without prejudice to any other right or remedy of
either party in respect of the breach concerned (if any) or
any other breach.
10. CONSEQUENCE OF TERMINATION OR EXPIRATION
Upon termination of this Agreement for any reason:
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10.1 the terms of this Agreement shall continue in full force for
so long as is required and to the extent and insofar as is
necessary to allow DesalCo to complete any binding contracts
for the sale of the Products in effect at the date of
termination and any bids, offers, quotations and/or proposals
made by DesalCo to other persons prior to termination of this
Agreement which have been accepted before termination of this
Agreement or are capable of being accepted after termination
of this Agreement provided that, for the avoidance of doubt
and notwithstanding the foregoing, the provisions of clauses
2.1, 2.2 and 2.6 above shall cease to apply forthwith upon
termination of this Agreement;
10.2 DesalCo shall cease to promote, market or advertise the
Products or to make any use of the Trade Marks other than for
the purpose of selling existing stock consisting of the
Products and for such purpose only and to such extent the
provisions of this Agreement shall continue in full force and
effect;
10.3 the provisions of clause 6, and any other clauses which are
intended to survive the termination of this Agreement, shall
continue in force in accordance with their respective terms
notwithstanding termination of this Agreement;
10.4 DesalCo shall have no claim against Calder for compensation
for loss of distribution rights, loss of goodwill or any
similar loss;
10.5 subject to as otherwise provided herein and to any rights,
remedies or obligations which have accrued prior to
termination, neither party shall have any further obligation
to the other under this Agreement.
11. MISCELLANEOUS PROVISIONS
11.1 Calder shall be entitled to perform any of the obligations
undertaken by it and to exercise any of the rights granted to
it under this Agreement through any Affiliate and any act or
omission of any such Affiliate shall for the purposes of this
Agreement be deemed to be the act or omission of Calder.
11.2 DesalCo may assign this Agreement to any Affiliate, but
otherwise DesalCo may not without the prior written consent of
Calder assign, mortgage, charge (otherwise than by floating
charge) or dispose of any of its rights hereunder, or
subcontract or otherwise delegate any of its obligations
hereunder.
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11.3 Nothing in this Agreement shall create or be deemed to create
a partnership or relationship of principal and agent or
employer and employee between the parties.
11.4 This Agreement contains the entire agreement between the
parties with respect to the subject matter hereof, supersedes
all previous agreements and understandings between the parties
with respect hereto, and may not be modified except by an
instrument in writing signed by the duly authorised
representatives of the parties.
11.5 Each party acknowledges that in entering into this Agreement
it does not do so on the basis of, and does not rely on, any
representation, warranty or other provision except as
expressly provided herein, and all conditions, warranties, or
other terms implied by statute or common law are hereby
excluded to the fullest extent permitted by law.
11.6 If any provision of this Agreement or any agreement entered
into pursuant hereto is or becomes illegal, invalid or
unenforceable in any jurisdiction, that shall not affect:-
(a) the validity or enforceability in that jurisdiction
of any other provision of this Agreement or such
other agreement; or
(b) the validity or enforceability in other jurisdictions
of that or any other provision of this Agreement or
such other agreement.
12. JURISDICTION
This Agreement shall be governed by and construed in all respects in
accordance with the laws of the Cayman Islands and each party hereby
submits to the non-exclusive jurisdiction of the Cayman Islands Courts.
13. NOTICES
All notices or other communications required or permitted to be given
hereunder shall be in writing and shall be served by delivering the
same by hand or by sending the same by facsimile or reputable courier
service and shall be deemed given, if sent by hand, when delivered, if
sent by facsimile, upon the date stated in the transmission report or,
if sent by courier service, on delivery by the relevant courier
service, in each case, to the address set out below or such other
address as is notified by the relevant person from time to time,
provided that a notice given in accordance with the above but received
on a non-working
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day or after business hours in the place of receipt shall only be
deemed to be given on the next working day in that place:
13.1 if to Calder:
Xxxxxxxxxxxxxxxxx 000, Xxxxxxxxx Xxxx
XX-0000 Xxxxxxxx
Xxxxxxxxxxx
Attention: President
Facsimile No:x(00) 00 000 00 00
13.2 if to DesalCo:
Trafalgar Place
1428A West Bay Road
Grand Cayman, Cayman Islands
Attention: President
Facsimile No:x0 (000) 000-0000
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AS WITNESS whereof the parties have hereto set their hands the day and year
first before written.
SIGNED FOR AND ON BEHALF OF )
DESALCO LIMITED by )
Xxxxxxxxx X. XxXxxxxxx, Director ) /s/ Xxxxxxxxx XxXxxxxxx
in the presence of: ) ------------------------------------
Xxxxxxxxx X. XxXxxxxxx, Director
/s/ Xxxxxxx Xxxxxxx
------------------------------------
Witness
Witness name: Xxxxxxx Xxxxxxx
Address: Bermuda
Occupation: Managing Director
SIGNED FOR AND ON BEHALF OF )
XXXXXX XX by )
Xxxxx Xxxxxx, Director and President ) /s/ Xxxxx Xxxxxx
in the presence of: ) ------------------------------------
Xxxxx Xxxxxx, Director and President
/s/ Xxxxxxx Xxxxxxx
------------------------------------
Witness
Witness name: Xxxxxxx Xxxxxxx
Address: Bermuda
Occupation: Managing Director
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