LICENSE AGREEMENT
THIS AGREEMENT made the 2ND day of November, 1995.
BETWEEN:
EVERGREEN INTERNATIONAL TECHNOLOGY INC.
0000 - 000 Xxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxx Xxxxxxxx, X0X 0X0
(hereinafter referred to as "Licensor")
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CDNet SYSTEMS INC.
Xxxx #000, 000 Xxxx 0xx Xxxxxx,
Xxxxx Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
(hereinafter referred to as "Licensee")
WHEREAS:
A. Licensee is in the business of developing and Commercially Exploiting
computer software for use in connection with the Internet;
B. Licensor is the owner of Technology which is capable of being adapted and
combined with other technology to create authoring tools for the Internet;
C. Licensor desires to grant to Licensee and Licensee desires to receive from
Licensor a grant of a NON-EXCLUSIVE license and interest in the Technology
to develop and Commercially Exploit same for Internet Authoring Tool
Applications in accordance with the provisions of this Agreement;
D. Licensor is a party to extensive litigation including petitions filed in
the Supreme Court of British Columbia pursuant to the BANKRUPTCY ACT of
Canada and is not able to raise the $3,000,000 to $5,000,000 required to
develop and market Internet Authoring Tool Applications;
E. Licensor's Technology must be combined with technology from Braintech, Inc.
in order to develop Internet Authoring Tool Applications and Braintech,
Inc. is under no obligation to do business with Licensor;
F. Because of lack of funding and lack of access to the technology of
Braintech, Inc., Licensor is not in a position to develop Internet
Authoring Tool Applications; and
G. Is in the best interest of Licensor to enter into this License Agreement:
(a) in order to earn the payments and royalties provided for in Article
3 hereof; and
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(b) to have an opportunity to obtain a license back from Licensee with
respect to Internet Authoring Tool Applications as provided for in
Article 2A hereof.
NOW THEREFORE, in consideration of the premises and the mutual
covenants herein contained (the adequacy of which consideration as to each of
the parties hereto is hereby mutually acknowledged), the parties hereto covenant
and agree as follows:
ARTICLE 1 - INTERPRETATION
1.1 DEFINITIONS
In this Agreement and in the recitals and Schedules hereto annexed,
unless otherwise specified or patently required by the context, the words and
phrases defined in the recitals and elsewhere in this Agreement shall have the
meanings ascribed to them therein, and the following words and terms shall have
the respective meanings ascribed to them as follows:
(a) "AFFILIATE" means with respect to any person, any other person
directly or indirectly controlling, controlled by, or under common
control with such first person. "Control" shall mean having the
power to direct the affairs of a person by reason of the ownership
of or controlling the right to vote sufficient numbers of shares of
voting stock, or to direct the general management of the affairs of
such person by contract or otherwise.
(b) "ASSOCIATE" where used to indicate a relationship with any person or
company means (i) an Affiliate or any company of which such person
or company beneficially owns, directly or indirectly voting
securities carrying more than 10 per cent of the voting rights
attached to all voting securities of the company for the time being
outstanding; (ii) any partner of that person or company, (iii) any
trust or estate in which such person or company has a substantial
beneficial interest or as to which such person or company serves as
trustee or in a similar capacity, or (iv) any relative of the
person.
(c) "COMMERCIALLY EXPLOIT" means in relation to any technology to make
Improvements to and to market, distribute and grant sub-licenses to
use the technology in conjunction with the Improvements and to
reproduce the technology for these purposes.
(d) "CONFIDENTIAL INFORMATION" means the confidential, secret or
proprietary information of one party (the "Disclosing Party"),
including technical, financial, and business information and
computer programs of the Disclosing Party which has been or may
hereafter be disclosed, directly or indirectly to the other party
(the "Recipient"), either orally, in writing or in any other
material form, or delivered to the Recipient.
(e) "EFFECTIVE DATE" means the date first written above.
(f) "IMPROVEMENTS" means, in relation to any technology or intellectual
property, modifications, improvements, enhancements, additions and
adaptations to, and derivative works based upon or derived from, the
technology or intellectual property.
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(g) "INTELLECTUAL PROPERTY RIGHTS" means all intellectual and industrial
property rights and includes rights to (i) inventions and patents
for inventions, including re-issue thereof and continuation and
continuations in part, (ii) copyrights, (iii) designs and industrial
designs, (iv) trade-marks (v) know-how, trade secrets and
confidential information, and (vi) other proprietary rights.
(h) "INTERNET AUTHORING TOOL APPLICATIONS" means computer software
application programs (including utilities and tools) which are
designed primarily for use as authoring tools for use on the
Internet.
(i) "LICENSE" means the rights conferred upon Licensee pursuant to
Article 2.
(j) "LICENSEE IMPROVEMENTS" means Improvements made to the Technology by
or for Licensee.
(k) "NET REVENUE" means the net sale price, license and rental fees,
royalties, lump sum payments, and other payments and consideration
earned and received by Licensee or Associates of Licensee from the
Commercial Exploitation of the Technology, Licensee Improvements,
and Products without any deductions other than the following items
of expenses, if any, to the extent they are actually paid: taxes on
sales or use, packaging, insurance, transportation product
advertising and promotion expenses of sales, and import duties.
(l) "PRODUCT" AND "PRODUCTS" means any computer programs, software,
system or product, whether tangible or intangible, which is based
upon or derived from or which incorporates or uses any of the
Technology or Licensee Improvements.
(m) "TECHNOLOGY" means the source code for the computer software known
as "JOT-IT" and its predecessor "Evergreen Notes".
1.2 HEADINGS
The division of this Agreement into Articles and Sections and the
insertion of headings are for convenience of reference only and shall not affect
the construction or interpretation of this Agreement. The terms "this
Agreement", "hereof", "hereunder" and similar expressions refer to this
Agreement and not to any particular Article or Section or other portion hereof
and include any agreement supplemental hereto. Unless something in the subject
matter or context is inconsistent therewith, references herein to Articles or
Sections are to Articles or Sections of this Agreement.
1.3 EXTENDED MEANINGS
In this Agreement words importing the singular number only shall
include the plural and VICE VERSA, and words importing persons shall include
individuals, partnerships, associations, trusts, unincorporated organizations
and corporations. The terms "provision" and "provisions" refer to terms,
conditions, provisions, covenants, obligations, undertakings, warranties and
representations in this Agreement.
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1.4 AMBIGUITIES
The parties hereto agree that each of them has participated in the
drafting of this Agreement and that any rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not apply to the
interpretation of this Agreement.
ARTICLE 2 - LICENSE
2.1 GRANT OF LICENSE
Subject to the provisions of this Agreement, Licensor hereby grants
to Licensee, and Licensee hereby accepts from Licensor, a worldwide
NON-EXCLUSIVE license and interest in the Technology during the term of this
Agreement to Commercially Exploit the Technology for Internet Authoring Tool
Applications.
2.2 RESERVATION OF RIGHTS
Notwithstanding the provisions of Section 2.1, Licensor hereby
expressly reserves the right to Commercially Exploit the Technology for
non-Internet Authoring Tool Applications and to Commercially Exploit the
Technology for Internet Authoring Tool Applications.
2.3 SUB-LICENSE AGREEMENTS
The License conferred hereunder upon Licensee includes permission to
grant sublicenses to third parties to Commercially Exploit the Technology for
Internet Authoring Tool Applications. All sublicense agreements or other
arrangements between Licensee and third parties shall be consistent with the
terms of this Agreement including without limitation those pertaining to term,
termination, ownership of Intellectual Property Rights, and use and maintenance
of Confidential Information, except that third parties shall not have any right
to grant any further sublicenses, without the prior written consent of Licensor.
The form of all sublicense agreements including without limitation agreements
with end users and distributors shall contain provisions to protect the
Confidential Information of Licensor. Licensee agrees to use reasonable efforts
to enforce the terms of all sublicenses. Licensee agrees, if requested to do so
by Licensor, to provide Licensor with a copy of sublicense agreements.
ARTICLE 2A - LICENSE BACK TO LICENSOR
2A.1 If Licensee is successful in developing Internet Authoring Tool
Applications pursuant to this License and a license obtained by Licensee from
Braintech, Inc., and if Licensee is successful in obtaining $3,000,000 to
$5,000,000 from a significant investor in order to Commercially Exploit the
Internet Authoring Tool Applications, then Licensee will negotiate in good faith
with Licensor with a view to granting back to Licensor a worldwide NON-EXCLUSIVE
license to allow Licensor to use the Licensee Improvements to develop and market
electronic performance support systems (such license to be on reasonable
commercial terms acceptable to both Licensee and Licensor, one such term to be
that Licensor will not develop and market products that compete with the
Internet Authoring Tool Applications of Licensee).
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ARTICLE 3 - PAYMENTS AND ROYALTIES TO LICENSOR
3.1 LUMP SUM PAYMENT
Licensee agrees to pay the Licensor a one time lump sum payment of
$25,000 within 14 days of the Effective Date.
3.2 ROYALTIES
Licensee agrees to pay the Licensor royalties on Net Revenue as
follows:
(a) on the first $10 Million of Net Revenue, the Licensor shall not be
entitled to any royalties whatsoever. Licensor and Licensee
recognize and acknowledge that the Licensee will attempt to obtain
$3 Million to $5 Million in financing to develop and market Products
and that the first $10 Million of Net Revenue must be unimpeded by
royalties so that the Licensee can offer an attractive investment
opportunity to a significant investor;
(b) on the next $20 Million of Net Revenue, the Licensee shall pay
royalties equal to 5% of the Net Revenue, such royalties to be
payable within thirty (30) days of the end of each calendar quarter;
(c) the Licensor shall be entitled to a maximum of $1 Million in
royalties under this License. For greater certainty, the Licensor
shall not be entitled to any royalties on Net Revenue in excess of
$30 Million.
3.3 CALCULATION OF ROYALTIES
The royalties due hereunder will accrue and the Net Revenue will be
deemed to have been earned by Licensee when payment is received by Licensee or
an Associate of Licensee. No royalties will be payable on returns which are
accepted and credited by Licensee or the Associate.
3.4 INTEREST
In the event any payment due to Licensor hereunder is not made when
due and payable, interest on any unpaid amount shall accrue annually at the rate
of two (2%) percent above the prime rate of interest charged by the main branch
of the Royal Bank of Canada in Vancouver to its most creditworthy customers.
3.5 PAYMENT AND REPORTS
Within thirty (30) days following the end of each calendar quarter
during the term of this Agreement, Licensee will submit to Licensor a report
setting forth separately all Products Commercially Exploited and licenses
granted by Licensee, the Net Revenue with respect thereto, and the royalties due
and payable to Licensor hereunder. The report shall be accompanied by full
payment, without deduction or set-off of any kind, save and except for any
deduction permitted pursuant to Section 8.3. The payment will be transmitted by
Licensee to a bank designated by Licensor in writing and will be payable in
Canadian dollars or U.S. dollars or partly in Canadian dollars and partly in
U.S. dollars, at the option of the Licensee.
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3.6 RECORDS AND EXAMINATIONS
Licensee agrees to keep, and shall cause its Associates to keep,
full and accurate books of accounts and records regarding the Commercial
Exploitation of the Technology, Licensee Improvements and Products in sufficient
detail to enable the payments specified in this Article 3 to be determined.
Licensor may, at its expense, designate Deloitte Touche, Price Waterhouse or
Peat Marwick Xxxxxx to examine such books and records insofar as they pertain to
verifying the reports submitted in accordance with this Article. Such
examination shall be conducted no more than once in any calendar year. If such
examination results in an additional amount due which is five percent (5%) or
greater than the amount previously reported and paid for in the relevant period,
then Licensee will be obligated to pay the expenses of the examination.
ARTICLE 4 - INTELLECTUAL PROPERTY RIGHTS
4.1 OWNERSHIP OF TECHNOLOGY
The parties acknowledge and agree that this License grants to
Licensee an interest in the Technology to Commercially Exploit the Technology
for Internet Authoring Tool Applications. However, Licensee acknowledges and
agrees that this License does not transfer to Licensee the title to or any
Intellectual Property Right in or to the Technology. Licensee agrees not to
contest the title or ownership of Licensor in or to the Technology.
4.2 LICENSEE IMPROVEMENTS
Licensee will own all Intellectual Property Rights in Licensee
Improvements.
4.3 PROPRIETARY LEGENDS
Licensee agrees to affix to all Products and copies of the
Technology, where commercially feasible and where permitted by law, and where
directed by Licensor to packaging materials, notices and proprietary legends
reasonably requested by Licensor to provide notice to the public of the
Intellectual Property Rights owned or claimed by Licensor.
4.4 OBTAINING INTELLECTUAL PROPERTY RIGHTS
Licensor retains the exclusive right to make applications to protect
the Intellectual Property Rights in the Technology. Licensee shall have the
exclusive right to make applications to obtain and maintain Intellectual
Property Rights in the Licensee Improvements.
ARTICLE 5 - INFRINGEMENT
5.1 PROSECUTION OF INFRINGEMENT CLAIMS
The parties shall as soon as possible notify each other in writing
of any actual, alleged, or threatened infringements, misappropriations or other
unauthorized uses ("Infringements") with respect to the Technology of which they
become aware. Licensor may, but is not required to, take any and all
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actions, legal or otherwise, which are necessary to terminate or prevent
Infringements. Licensee shall have the right to be kept informed of the status
and progress of all actions instituted by Licensor pursuant to this section 5.1.
Licensor shall bear all expenses of all actions which it initiates pursuant to
this section 5.1. Licensee shall have no right to take any action, legal or
otherwise, to terminate or prevent Infringements with respect to the Technology.
Licensee shall have the exclusive right to take all actions, legal or otherwise,
to terminate or prevent Infringements with respect to Licensee Improvements.
5.2 DEFENSE OF INFRINGEMENT CLAIMS
During the term of this Agreement, Licensor will defend at its own
expense any action brought against Licensee which is based on a claim that the
Technology as furnished by Licensor to Licensee as part of the Technology
Package infringes in Canada or the United States any existing copyright, patent
or trade secret (a "Claim") and Licensor will pay any costs, settlements,
damages and legal fees finally awarded against Licensee with respect to such
Claim; provided that Licensee notifies Licensor promptly in writing of the
Claim, permits Licensor fully to control the defence of the Claim, does not
agree to any settlement of the Claim without Licensor's written consent, and
agrees to any settlement reasonably proposed by Licensor. Licensor's
obligations under this section shall apply to Claims based solely on the
infringement of the Technology as provided to Licensee as part of the Technology
Package and shall not extend to any Improvements made thereto by any person or
to the use of the Technology in combination with any equipment, hardware,
software or system of any third party where the combination is the source of the
Claim. Licensee shall not consent to any judgement or enter into any settlement
of a Claim which affects the validity of, or Licensor's title to the Technology,
without Licensor's prior written consent. Licensee agrees to assist Licensor in
defending all Claims. In the event that any Claims arise as a result of any
Licensee Improvement, Licensee shall indemnify and hold harmless Licensor
against any and all damages, settlement costs and expenses (including reasonable
legal fees) suffered or incurred by Licensor in respect thereof. This Section
states the entire obligations of Licensor and the sole remedies of Licensee with
respect to any claim pertaining to the infringement, misappropriation or
violation of an Intellectual Property Right related to the Technology.
ARTICLE 6 - CONFIDENTIALITY
6.1 CONFIDENTIALITY OBLIGATION
(a) Each party acknowledges that Confidential Information will be
exchanged between the parties pursuant to this Agreement. Each party shall use
no less than the same means it uses to protect its similar confidential and
proprietary information, but in any event not less than reasonable means, to
prevent the disclosure and to protect the confidentiality of the Confidential
Information of the other party. Each party agrees that it will not use the
Confidential Information of the other party except for the purposes of this
Agreement and as authorized herein.
(b) Notwithstanding section 6.1(a), the Recipient of Confidential
Information may use or disclose the Confidential Information to the extent that
the Recipient can show that such Confidential Information is (i) already known
by the Recipient without an obligation of confidentiality, (ii) publicly known
or becomes publicly known through no unauthorized act of the Recipient, (iii)
rightfully received from a third party, (iv) independently developed by the
Recipient without use of the information of the Disclosing Party, (v) approved
by the Disclosing Party for disclosure, or (vi) required to be disclosed
pursuant to a requirement of a governmental agency or law so long as the
Recipient provides the other
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party with notice of such requirement prior to any such disclosure and takes all
reasonable steps available to maintain the information in confidence.
6.2 LOSS OF CONFIDENTIAL INFORMATION
In the event of any unauthorized disclosure or loss of, or inability
to account for, Confidential Information of the Disclosing Party, the Recipient
will notify the Disclosing Party immediately.
6.3 ENFORCEMENT OF CONFIDENTIALITY OBLIGATION
Each of party acknowledges and agrees that irreparable injury may
result to the other party if such party breaches the provisions of this
Agreement relating to Confidential Information and that damages may be an
inadequate remedy in respect of such breach. Each party hereby agrees in
advance that, in the event of such breach, the other party shall be entitled, in
addition to such other remedies, damages and relief as may be available under
applicable law, to the granting of injunctive relief in such party's favour.
ARTICLE 7 - REPRESENTATIONS AND WARRANTIES
7.1 CORPORATE CAPACITY OF LICENSOR
Licensor represents and warrants to Licensee that:
(a) Licensor is a corporation duly incorporated, organized and
subsisting under the laws of the Province of British Columbia with
corporate power to own its assets and to carry on its business;
(b) Licensor has good and sufficient power, authority and right to enter
into and deliver this Agreement and to grant the License to Licensee
free and clear of all liens, charges and encumbrances;
(c) Neither the entering into nor the delivery of this Agreement, nor
the carrying out of the obligations of Licensor hereunder will
result in a violation of:
(i) any of the provisions of the constating documents or
by-laws of Licensor;
(ii) any agreement or other instrument to which Licensor is
a party or is bound; or
(iii) any applicable law or regulation.
(d) this Agreement constitutes a valid, binding and legally enforceable
obligation of Licensor in accordance with its terms.
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7.2 CORPORATE CAPACITY OF LICENSEE
Licensee represents and warrants to Licensor that:
(a) Licensee is a corporation duly incorporated, organized and
subsisting under the laws of BRITISH COLUMBIA with corporate power
to own its assets and to carry on its business;
(b) Neither the entering into nor the delivery of this Agreement, nor
the carrying out of the obligations of Licensee hereunder will
result in a violation of:
(i) any of the provisions of the constating documents or
by-laws of Licensee;
(ii) any agreement or other instrument to which Licensee is
a party or is bound; or
(iii) any applicable law or regulation.
(c) this Agreement constitutes a valid, binding and legally enforceable
obligation of Licensee in accordance with its terms.
ARTICLE 8 - LIMITATION OF LIABILITY
8.1 DISCLAIMER OF ADDITIONAL WARRANTIES
Licensee acknowledges that the Technology Package to be delivered to
Licensee hereunder may not be error free. Licensee agrees that in the event
errors or deficiencies in the Technology are discovered that it will correct
same itself. Licensor expressly disclaims all representations, warranties and
conditions expressed or implied not contained herein, including representations,
warranties and conditions of quality, performance, merchantability, fitness for
a particular purpose, and those arising by statute or otherwise in law or from a
course dealing or use of trade.
8.2 LOSS OF PROFIT CLAIMS
The Licensor will not be liable for lost profits, loss of revenue or
earnings, claims made by third parties, or for any commercial, economic,
special, incidental, indirect, consequential or exemplary damage arising from
any defect in the Technology, even if Licensor has been advised of, or foresees
the possibility of, any of these damages occurring.
ARTICLE 9 - COVENANTS OF LICENSEE
9.1 LIABILITY CLAIMS
Licensee shall be responsible for the development of all
Improvements to the Technology and for the engineering, design, manufacture and
publishing of all Products Commercially Exploited by it or any person authorized
by it to do so. Licensee assumes all responsibility and liability for loss or
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damage caused by or attributable to the Products, however caused. Licensee
agrees to indemnify and hold harmless Licensor and its officers, directors,
employees and agents from any and all claims, damages, liability and costs,
including reasonable legal fees and disbursements, which Licensor or the said
persons suffer or incur as a result of or which relate to the manufacture, sale,
licensing, publishing, distribution, or use of Products (including for example,
personal injury and product liability claims related to the Products). Licensee
shall obtain and maintain throughout the term of this Agreement and for a period
of ten (10) years thereafter, public liability, product liability and indemnity
insurance covering the Products and their use, in an amount of not less than $1
Million for personal injury or death and shall include Licensor as a named
insured, provided that such insurance is available on commercially reasonable
terms. Licensee shall provide Licensor, if requested to do so by Licensor, with
evidence satisfactory to Licensor that such insurance has been obtained.
9.2 TRADE PRACTICES
Licensee agrees to comply with all applicable laws, ordinances and
regulations in performing its obligations under this Agreement and in
Commercially Exploiting Products.
9.3 TRADE-MARKS AND TRADE NAMES
Licensee shall not use any trade-xxxx or trade name owned by or
proprietary to Licensor including the trade-xxxx "Evergreen" in its business or
to market or promote any Product without the prior written consent of Licensor.
ARTICLE 10 - TERM AND TERMINATION
10.1 TERM
Subject to the provisions of this Agreement, the term of this
Agreement shall commence on the Effective Date and shall terminate fifteen (15)
years from the Effective Date.
10.2 TERMINATION
(a) This Agreement may be terminated:
(i) at any time by mutual written consent of Licensee and Licensor;
(ii) by notice from Licensor to Licensee in the event Licensee shall
dissolve or liquidate and not continue business in another entity or
form, or the Licensee shall be declared bankrupt by a court of
competent jurisdiction and such court order is not reversed within 2
years, or Licensee shall have made a general assignment for the
benefit of creditors, or a receiver of all or any substantial part
of Licensee's assets shall have been appointed and not discharged
within 2 years; or
(iii) by notice from Licensee to Licensor in the event the Licensee
determines that it no longer requires this License for its business.
By way of example, this may occur if the Licensee writes new source
code which does not embody the source code or the design of the
source code of the Technology.
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(b) The failure of a party to terminate this Agreement for any of the
reasons specified in section 10.2 shall not in any way be deemed a waiver of
such party's rights in respect thereof or otherwise limit its rights to enforce
the obligations of the other party hereunder.
10.3 EFFECT OF TERMINATION
(a) Upon the termination of this Agreement the following shall occur:
(i) the License shall immediately terminate;
(ii) the Licensee shall pay all amounts owed to Licensor up to
such date;
(iii) sublicenses to third parties pertaining to the Commercial
Exploitation of the Technology shall immediately terminate;
(iv) sublicenses granted to end users of Licensee (other than
Associates) for the use of computer software forming part of
Products shall continue for as long as the licensee thereof
is not in breach of it's license agreement with respect to
such software. Licensee shall continue to enforce the terms
of such agreements pertaining to the use of the Technology
and Confidential Information of Licensor and will, if
requested to do so by Licensor, at the option of Licensor,
permit Licensor to enforce the agreements in the name of
Licensee or assign all or any of the agreements to Licensor;
and
(v) Licensee and Associates of Licensee shall return to Licensor
all copies of the Technology and Confidential Information of
Licensor in their possession, power and control. Licensee
shall be entitled to retain all such information as it
relates to the Licensee Improvements.
(b) The expiration or termination of this Agreement for any reason shall
not limit or otherwise affect the respective rights and obligations of the
parties under Articles 3, 6, 8 and 9 and Section 10.3 and any other rights and
obligations of the parties hereunder accrued prior to the date hereof.
10.4 RIGHTS AND REMEDIES
All rights and remedies of either party under this Agreement shall
be cumulative and may be exercised singularly or concurrently.
ARTICLE 11 - GENERAL
11.1 RELATIONSHIP
The relationship between the parties constituted by this Agreement
is intended and is to be construed as of that independent contracting parties
only and not that of partnership, joint venture, agency or any other association
whatsoever. Nothing whatsoever contained herein shall constitute either party
as having the authority to bind the other in any manner whatsoever, and nothing
whatsoever contained herein shall give or is intended to give any rights of any
kind to any third party.
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11.2 ACCOUNTING PRINCIPLES
Wherever in this Agreement reference is made to a calculation to be
made in accordance with accounting principles, such reference shall be deemed to
be to generally accepted accounting principles applicable as at the date on
which such calculation is made or required to be made, established by The
Canadian Institute of Chartered Accountants, or any successor institute.
11.3 CURRENCY
All sums due under this Agreement shall be paid in CANADIAN dollars
unless otherwise specified.
11.4 ASSIGNMENT
Neither party may assign or otherwise transfer this Agreement or any
of its rights or obligations herein without the prior written consent of the
other party, which consent shall not be unreasonably withheld. Notwithstanding
the foregoing, either party may assign this Agreement in connection with the
sale of all or substantially all of the assets of the party in connection with a
corporate reorganization to an Affiliate of the party, provided that the
assignee undertakes in writing with the other party to be bound by all of the
provisions of this Agreement.
11.5 AMENDMENTS AND WAIVER
No modification of or amendment to this Agreement shall be valid or
binding unless set forth in writing and duly executed by the parties hereto and
no waiver of any breach of any term or provision of this Agreement shall be
effective or binding unless made in writing and signed by the party purporting
to give the same and, unless otherwise provided, shall be limited to the
specific breach waived.
11.6 FURTHER ASSURANCES
Each of the parties hereto shall from time to time execute and
deliver all such further documents and instruments (including instruments of
conveyance) and do all acts and things as the other party may reasonably require
to effectively carry out or better evidence or perfect the full intent and
meaning of this Agreement.
11.7 NOTICES
Any demand, notice or other communication to be given in connection
with this Agreement shall be given in writing and shall be given by personal
delivery or by electronic means of communication addressed to the recipient as
follows:
To Licensor: EVERGREEN INTERNATIONAL TECHNOLOGY INC.
0000 - 000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
Facsimile: 000-000-0000
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To Licensee: CDNet SYSTEMS INC.
Xxxx #000, 000 Xxxx 0xx Xxxxxx,
Xxxxx Xxxxxxxxx, Xxxxxx X0X 0X0
Facsimile No.: 000-000-0000
or to such other address, individual or electronic communication number as may
be designated by notice given by either party to the other. Any demand, notice
or other communication given by personal delivery shall be conclusively deemed
to have been given on the day of actual delivery thereof and, if given by
electronic communication, on the day of transmittal thereof if given during the
normal business hours of the recipient and on the business day during the
business hours of the recipient and on the business day during which such
business hours next occur if not given during such hours on any day.
11.8 SEVERABILITY
If a court or other lawful authority of competent jurisdiction
declares any provision, Article or Section of this Agreement invalid, illegal or
unenforceable, this Agreement will continue in full force and effect with
respect to all other provisions, Articles and Sections and all rights and
remedies accrued under such other provisions, Articles and Sections will survive
any such declaration.
11.9 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws of the Province of British Columbia and the laws of Canada applicable
therein.
11.10 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and cancels and supersedes any
prior understandings and agreements between the parties hereto with respect
thereto. There are no representations, warranties, terms, conditions,
undertakings or collateral agreements, express, implied or statutory, between
the parties other than as expressly set forth in this Agreement.
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IN WITNESS WHEREOF the parties have executed this Agreement as of
the date first written above.
EVERGREEN INTERNATIONAL TECHNOLOGY INC.
By: /s/ [ILLEGIBLE]
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CDNet SYSTEMS INC.
By: /s/ [ILLEGIBLE]
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