Exhibit 10.43
DATED FEBRUARY 26, 2004
DWEER TECHNOLOGY LTD.
-AND-
DESALCO LIMITED
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Amendment to the Distributorship Agreement
dated 24 September 2002 between
DWEER Technology Ltd. and DesalCo Limited
relating to
DWEER Products
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[Campbells Logo]
0xx Xxxxx, Xxxxxxxxxx Building
P.O. Box 884GT
Grand Cayman
Cayman Islands
THIS AGREEMENT is made on February 26, 2004
BETWEEN:
(1) DWEER TECHNOLOGY LTD., a Cayman Islands exempted company, the
registered office of which is c/x Xxxxxxxx Corporate Services
Limited, 0xx Xxxxx, Xxxxxxxxxx Xxxxxxxx, X.X. Xxx 000XX, Xxxxx
Xxxxxx, Xxxxxx Xxxxxxx (hereinafter "DWEER-Tech"); 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-Tech and DesalCo (the
"DWEER-Tech Distributorship Agreement"), DWEER-Tech appointed
DesalCo as its exclusive distributor for Products in the
Territory (both terms as defined in the DWEER-Tech
Distributorship 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 ("the Technology Licence") between DWEER-Tech and Xxxxxx XX,
a Swiss company, the registered office of which is
Xxxxxxxxxxxxxxxxx 000, Xxxxxxxxx Xxxx, Xx-0000 Xxxxxxxx,
Xxxxxxxxxxx (hereinafter "Calder") 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 DWEER-Tech 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, the
parties hereto wish to suspend the DWEER-Tech Distributorship
Agreement in order to allow Calder and DesalCo to enter into a
new distribution agreement in the form of that attached at the
Schedule hereto ("the Calder Distributorship Agreement"), in
order to enable DesalCo to deal directly with Calder with respect
to the
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distribution of Products in the Territory so long as the
Technology Licence is in effect.
(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 the Calder Distributorship
Agreement.
(E) Pursuant to this Agreement, the DWEER-Tech Distributorship
Agreement is to be 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
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, capitalised terms and
expressions defined in the DWEER-Tech Distributorship
Agreement shall have the same meaning herein.
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;
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(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. DWEER-TECH DISTRIBUTORSHIP AGREEMENT
2.1 The DWEER-Tech Distributorship Agreement is hereby suspended
for so long as the Technology Licence remains in full force
and effect. In the event that the Technology Licence is
terminated, the DWEER-Tech Distributorship Agreement shall
revive.
2.2 During the period that the DWEER-Tech Distributorship
Agreement is suspended:-
2.2.1 Neither party shall exercise any rights or perform
any obligations it has under the DWEER-Tech
Distributorship Agreement excepting only such rights
and obligations that have accrued or arisen prior to
the date of this Agreement; and
2.2.2 Notwithstanding the foregoing, the provisions of
clauses 6 and 10 of the DWEER-Tech Distributorship
Agreement shall continue to apply.
2.3 In the event that the DWEER-Tech Distributorship Agreement
revives:
2.3.1 The DWEER-Tech Distributorship Agreement shall
thereafter apply and continue in force and effect as
if this Agreement had not been entered into and
executed by the parties hereto; and
2.3.2 Any rights, remedies or obligations of Calder which
are expressed or intended to continue after
termination of the Calder Distributorship Agreement
that are intended to protect the intellectual
property rights and interests of DWEER-Tech
(including without limitation the provisions of
clause 6 thereof) shall be enforceable by DWEER-Tech
instead of Calder.
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2.4 In the event that the Technology Licence is terminated
DWEER-Tech shall give DesalCo notice in writing thereof within
14 days of such termination.
2.5 DWEER-Tech hereby advises DesalCo that the Technology Licence
includes a provision that Calder may not amend, waive or vary
any of the provisions of the Calder Distributorship Agreement
without DWEER-Tech's prior written permission (which may be
given or withheld at its exclusive discretion). Any amendment
to the Calder Distributorship Agreement shall not in any way
be deemed to vary the DWEER Distributorship Agreement.
2.6 DesalCo shall use its best endeavours to enable DWEER-Tech to
conduct testing and experimentation of Products on plants
owned or operated by DesalCo or its Affiliates at which
Products are installed provided that DWEER-Tech 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.
3. TERMINATION
The DWEER-Tech Distributorship Agreement shall terminate forthwith upon
termination of the Calder Distributorship Agreement unless the latter
is caused by the termination of the Technology Agreement, but, for the
avoidance of doubt, such termination shall be without prejudice to any
rights, remedies or obligations that have accrued or arisen under or
pursuant to the DWEER-Tech Distributorship Agreement prior to
termination thereof and any rights, remedies or obligations which are
expressed or intended to continue after termination thereof. For the
avoidance of doubt and notwithstanding the foregoing, in the event that
the Technology Licence is terminated (following which the Calder
Distributorship Agreement is terminated pursuant to clause 9.4
thereof), the DWEER-Tech Distributorship Agreement shall revive in
accordance with Clause 2.1 of this Agreement.
4. MISCELLANEOUS PROVISIONS
4.1 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.
4.2 This Agreement together with the DWEER-Tech Distributorship
Agreement contains the entire agreement between the parties
with respect to the subject
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matter hereof, supersede 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.
4.3 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.
4.4 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.
5. 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.
6. 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 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:
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6.1 if to DWEER-Tech:
00 Xxx-xx-Xxxxx Xxxx, Xxxxx 0000
Xxxxxxxx XX 00, Xxxxxxx
Xxxxxxxxx: Managing Director
Facsimile No:x0 (000) 000-0000
6.2 if to DesalCo:
Trafalgar Place
1428A West Bay Road
Grand Cayman, Cayman Islands
Attention: President
Facsimile No:x0 (000) 000-0000
AS WITNESS whereof the parties have hereto set their hands the day and year
first before written.
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THE SCHEDULE
The Calder Distributorship Agreement
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SIGNED FOR AND ON BEHALF OF )
DESALCO LIMITED by )
Xxxxxxxxx X. XxXxxxxxx, Director ) /s/ Xxxxxxxxx XxXxxxxxx
in the presence of: ) ---------------------------------
Xxxxxxxxx X. XxXxxxxxx, Director
Witness: /s/ XXXXX XXXXXX
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Witness name: Xxxxx Xxxxxx
Address: CH-J704 Egliswil, Switzerland
Occupation: Managing Director
SIGNED FOR AND ON BEHALF OF )
DWEER TECHNOLOGY LTD. by )
Xxxxxxx X. Xxxxxxx, Director ) /s/ Xxxxxxx Xxxxxxx
in the presence of: ) ---------------------------------
Xxxxxxx X. Xxxxxxx, Director
Witness: /s/ XXXXX XXXXXX
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Witness name: Xxxxx Xxxxxx
Address: XX-0000 Xxxxxxxx, Xxxxxxxxxxx
Occupation: Managing Director
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