LICENSE AGREEMENT
THIS AGREEMENT made in duplicate effective the lst day of April, 2000, between:
Aquatex Group Industrie S.A., a corporation organized under the laws of
the commonwealth of the Bahamas (hereinafter called "Agisa")
OF THE FIRST PART
-and -
HydroFlo, Inc., a corporation organized under the laws of the State of
North Carolina, USA (hereinafter called "HydroFlo")
OF THE SECOND PART
WHEREAS Agisa is the owner of proprietary physical technology in the aeration of
gases into liquids, which is useful in the treatment of wastewater and other
water-based pollution, as well as other industrial applications; and
WHEREAS HydroFlo wishes to exploit the market for the sale of products embodying
such technology; and
WHEREAS HydroFlo wishes to obtain a non-exclusive license to manufacture and
market such products in the United States of America and Agisa is willing to
grant such license;
NOW THEREFORE THIS AGREEMENT WITNESSES that, in consideration of the
representations and warranties and mutual covenants and agreements herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto covenant and
agree each with the other as follows:
ARTICLE 1 - DEFINITIONS
1.01 The terms hereinafter defined shall, for all purposes of this Agreement,
have the meaning hereinafter specified unless the context otherwise requires:
"Annual Gross Revenue" means the gross sales of HydroFlo to independent third
parties derived from any sale, rental, lease, or hire of Products before the
deduction of any expenses or taxes, starting from the date of this Agreement,
calculated in accordance with generally accepted United States of America
accounting standards, in each Fiscal Period, calculated by reference to
HydroFlo's invoice price, f.o.b. factory, after deduction of freight charges and
sales, use, and other similar taxes borne by HydroFlo. Sales of ancillary
equipment sold at fair market value in conjunction with the Products shall not
be included in the definition of Annual Gross Revenue.
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"Dollars" means the lawful currency of the United States of America and is the
only currency referred to in this Agreement.
"Fiscal Period" means the fifteen-month period ending June 30,2001 and each
successive twelve-month period thereafter during the term of this Agreement and
any extension thereof.
"Improvements in Technology" means any part or combination of parts, processes,
steps, or methods of use which affect the Technology in any one or more of the
following ways: improves performance, increases service life, broadens
applicability, increases marketability, and falls within the claims of the
related patents of Agisa.
"License" means those rights granted to HydroFlo by Agisa in Article 2 herein.
"Minimum Royalty" means the minimum Royalty payment by HydroFlo to Agisa of
$15,000, $20,000, $25,000, $35,000, and $50,000 in the first, second, third,
fourth, and fifth Fiscal Periods of this Agreement respectively, to be paid
annually in advance within thirty (30) days of the beginning of each Fiscal
Period of this Agreement.
"Products" means any equipment or service based on or derived from the
Technology or Improvements in Technology.
"Royalty" means the amount in cash equal to the Royalty Rate multiplied by the
Annual Gross Revenue of HydroFlo, to be paid by HydroFlo to Agisa, calculated
and paid annually in arrears within sixty (60) days of the end of each Fiscal
Period of this Agreement, and includes the annual Minimum Royalty payment for
such Fiscal Period as a portion thereof, and is payable to Xxxxxxx X. Xxxxx,
Barrister and Solicitor, in Trust.
"Royalty Rate" means five (5) percent of the first five million dollars
($5,000,000 USD) of the Annual Gross Revenue of HydroFlo of each Fiscal Period,
four (4) percent of the second five million dollars ($5,000,000) of the Annual
Gross Revenue of HydroFlo of each Fiscal Period, and three (3) percent of the
remainder thereafter of the Annual Gross Revenue of HydroFlo of each Fiscal
Period.
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"Technology" means the technology that is described in U.S. Patents 5,460,731
and 5,601,724, together with all related procedures, processes, methods,
formulae, know-how, trade secrets, and other commercial confidential information
and intellectual property generally respecting the production thereof, including
all notes, charts, diagrams, drawings, and other writings in respect thereof and
the copyright thereof, but not including anything which is lawfully in the
public domain.
"Territory" means the human and animal wastewater treatment and cooling tower
market segments of the united States of America and any order of Product from
any other licensee of the Technology.
ARTICLE 2 - GRANT OF LICENSE
2.0l Subject to all of the terms of this Agreement, Agisa hereby grants to
HydroFlo the non-exclusive right and license to manufacture, sell, rent, lease,
and hire Products within the Territory and HydroFlo hereby accepts such License
and agrees to so act.
2.02 HydroFlo agrees that it shall not export the Products from the Territory or
knowingly sell to others for resale or reshipment outside the Territory.
2.03 The rights granted herein to HydroFlo may be exercised by HydroFlo within
the Territory only.
2.04 HydroFlo hereby acknowledges that any rights not specifically and expressly
granted to HydroFlo herein are expressly reserved by Agisa and may be exploited
by Agisa without limitation. Any such use or exploitation by Agisa of any such
reserved rights shall in no way be deemed to be an interference with or
infringement upon any of HydroFlo's rights hereunder nor a breach of this
Agreement.
2.05 HydroFlo may not sub-license, assign, transfer, or lease either this
Agreement or any of its rights hereunder to any third party, directly or
indirectly, in whole or in part, without the prior consent in writing of Agisa,
which may be withheld at its sole discretion.
ARTICLE 3 - ROYALTY AND MINIMUM ROYALTY
3.01 In consideration of the granting of the License, HydroFlo hereby agrees to
pay the Royalty and Minimum Royalty amounts to Agisa when due.
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3.02 Any correction in the calculation of Annual Gross Revenue occasioned by the
independent audit required in Article 3.05 herein shall be settled between the
parties within fifteen (15) days of the issuance of such audit report.
3.03 In the event that a Royalty or Minimum Royalty payment is not paid within
fifteen (15) days of becoming due, then HydroFlo shall pay to Agisa interest on
the unpaid amount thereof at a rate equal from time to time to the us Federal
Reserve Discount Rate plus two (2) percent per annum, such interest to start to
be calculated when such unpaid amount first became due, and continue until such
amounts, and accumulated interest, have been paid.
3.04 All reasonable costs, charges, and expenses of Agisa, including legal fees
determined on an attorney and his own client basis, incurred in realizing,
enforcing, or recovering any unpaid Royalty or Minimum Royalty from HydroFlo
shall be payable to Agisa by HydroFlo.
3.05 HydroFlo hereby agrees to provide to Agisa a professional independent audit
report of the correctness of the amount of Annual Gross Revenue of HydroFlo
within ninety (90) days of the end of each Fiscal Period of this Agreement.
ARTICLE 4 - TERM
4.01 The term of this Agreement shall be from the date of this Agreement until
June 30, 2005.
4.02 This Agreement shall be automatically renewed for one additional five-year
term upon the achievement of at least five million dollars ($5,000,000) of
Annual Gross Revenue in any Fiscal Period during the first term of this
Agreement.
4.03 Upon thirty (30) days receipt of a Notice of Default in writing issued to
HydroFlo by Agisa, this Agreement shall terminate without further notice upon
the occurrence of anyone or more of the following events, unless such event has
been cured within such thirty (30) day period:
(a) the bankruptcy or insolvency of HydroFlo or the appointment of a receiver to
take possession of all or substantially all of the assets of HydroFlo or the
assignment of all or substantially all of the assets of HydroFlo for the benefit
of creditors generally;
(b) a reduction of voting equity ownership in HydroFlo by Xxxxxx Xxxx to less
than 50% of the total of outstanding voting shares that is not consented to in
writing by Agisa, such consent not to be unreasonably withheld;
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(c) the failure of HydroFlo to provide to Agisa a professional independent audit
report of the correctness of the amount of Annual Gross Revenue of HydroFlo
within ninety (90) days of the end of each Fiscal Period of this Agreement as
agreed in Article 3.05 herein;
(d) the conviction of HydroFlo of a criminal offense that is so serious as to
bring Agisa into disrepute in the Territory by the continued operation of this
Agreement;
(e) the failure of payment by HydroFlo to Agisa of the Royalty or Minimum
Royalty or corrected Royalty in accordance with Article 3.02 herein when due
that is not remedied to Agisa's satisfaction within said thirty days or in
accordance with an Arbitrator's decision in accordance with Article 12.15
herein; and
(f) upon notice by Agisa of any violation of Agisa's rights to the Technology or
Improvements in Technology by HydroFlo that is not remedied to Agisa's
satisfaction within said thirty days or in accordance with an Arbitrator's
decision in accordance with Article 12.15 herein.
Such automatic termination without further notice shall be stayed and postponed
until fifteen (15) days after issuance of an Arbitrator's decision in accordance
with Article 12.15 herein, if HydroFlo requests such arbitration before the
expiry of the thirty (30) day notice period herein.
4.04 At the termination of this Agreement or any extension thereto, HydroFlo
shall:
(a) forthwith pay to Agisa any and all royalties exigible to the date of such
termination, but in the event that HydroFlo has sold, rented, leased, or hired
any Products whereby revenue is payable in a future fiscal period or periods,
HydroFlo shall pay Royalties in respect thereof as if all such revenues had
actually been received by HydroFlo on the date of such termination;
(b) immediately and forever thereafter cease and desist from any further
manufacturing, selling, renting, leasing, or hiring of the Products, save but
the orderly disposition of inventory of Products existing at the time of such
termination;
(c) return forthwith to Agisa any confidential information of Agisa in its
possession; and
(d) henceforth not, on its own behalf or on behalf of any other person,
partnership, corporation, or other entity, directly or indirectly or through any
affiliate carry on, be engaged in, or otherwise be involved in any business
similar to or in competition with the business of Agisa in the Territory.
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4.05 Upon thirty (30) days receipt of a Notice of Default in writing issued to
Agisa by HydroFlo, this Agreement shall terminate without further notice upon
the bankruptcy of Agisa, unless such event has been cured within such thirty
(30) day period.
4.06 At any time after the termination of this Agreement or any extension
thereto, HydroFlo hereby grants to Agisa the right to purchase for cash all of
HydroFlo's inventory of Products and spare parts therefore at HydroFlo's book
value, and thereafter HydroFlo shall immediately and forever thereafter cease
and desist from any further manufacturing, selling, renting, leasing, or hiring
of the Products.
ARTICLE 5 - CONDITIONS PRECEDENT TO AGREEMENT COMING INTO FORCE
5.01 The following terms are conditions precedent to the coming into force of
this Agreement, which must be satisfied within fifteen (15) days of execution of
this Agreement by HydroFlo:
(a) the payment of the Minimum Royalty for the first Fiscal Period by HydroFlo
to Agisa, payable to Xxxxxxx X. Xxxxx, Barrister and Solicitor, in Trust; and
(b) the provision to Agisa of evidence from HydroFlo of its incorporation,
organization, and ownership that is acceptable to Agisa in writing.
5.02 Upon Article 5.01 herein being satisfied, Agisa shall forthwith furnish to
HydroFlo such technical information as it requires to use the Technology during
the term of this Agreement. All costs and expenses of such technical assistance
shall be borne by HydroFlo.
ARTICLE 6 - CONFIDENTIAL INFORMATION
6.01 Each party hereto acknowledges that the confidential information to be
disclosed to it by the other party comprises an important and valuable asset of
such party and that any removal, disclosure, or other unauthorized use of any of
the confidential information by the other party would do irreparable damage to
such party.
6.02 Each, party hereto represents that it will obtain agreements with its
present and future employees and agents so as to protect the confidential
information of the other party that it becomes obligated to protect in a
confidential relationship. Each party, when receiving such confidential
information from the other party, shall protect such confidential information
with the same degree of care that it would employ to safeguard its own
confidential information from an unauthorized use or disclosure.
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6.03 Each party hereto hereby covenants that it will not, on its own behalf or
on behalf of any other person, partnership, corporation or other entity,
directly or indirectly, use or disclose the confidential information of the
other party, unless required to do so by operation of law.
ARTICLE 7 - OWNERSHIP OF TECHNOLOGY
7.01 HydroFlo acknowledges that the Technology shall remain, and all
Improvements in Technology whether made or conceived by HydroFlo alone or in
conjunction with Agisa shall become, the property of Agisa. HydroFlo hereby
assigns and transfers to Agisa any and all Improvements in Technology made or
conceived in whole or in part by HydroFlo, whether alone or jointly with others.
7.02 HydroFlo covenants that it shall secure agreements with all its present and
future employees and agents that any and all improvement's, inventions,
formulae, processes, techniques, know-how and data, whether or not patentable,
made or conceived or reduced to practice or learned by the employee or agent,
either alone or jointly with others, during the period of the employment which
are related to or useful in the business of HydroFlo, or result from tasks
assigned to the employee or agent by HydroFlo, or result from use of premises
owned, leased or contracted for by HydroFlo, are the property of HydroFlo. To
the extent necessary to ensure that all Improvements in Technology become the
property of Agisa, HydroFlo hereby assigns to Agisa the benefit of all such
agreements between HydroFlo and its employees and agents.
ARTICLE 8 - COVENANTS OF HYDROFLO
8.01 At its own expense, HydroFlo shall use its best efforts and skill to
manufacture, market, and sell the Products.
8.02 HydroFlo shall have full responsibility for all of its sales and shall be
solely responsible for billing and collecting from its customers. HydroFlo's
payments to Agisa shall be made without regard to HydroFlo's collections from
its customers.
8.03 HydroFlo shall not, on its own behalf or on behalf of any other person,
partnership, corporation, or other entity, directly or indirectly or through any
affiliate carry on, be engaged in, or otherwise be involved in any business
similar to or in competition with the business of Agisa anywhere in the world,
save and except pursuant to this Agreement.
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8.04 HydroFlo shall keep and maintain at its regular place of business complete
written books and records of all business transacted by HydroFlo in connection
with the Products, including but not limited to books and records relating to:
(a) revenues from any sale, rental, lease, or hire of Products;
(b) testing results of the Products;
(c) all enhancements, modifications, and "spare parts" of the Products
prepared or sold by HydroFlo;
(d) the name and address of each purchaser of the Products and the date of
purchase of such Products; and
(e) HydroFlo's current inventory of Products, and replacement parts therefor.
Such books and records shall be maintained in accordance with generally accepted
accounting and business practices and principles applicable in the Territory,
consistently applied. During the term of this Agreement and for a period of
twelve months thereafter, Agisa or its duly appointed agents or representatives
shall have the right to inspect and audit said books and records at HydroFlo's
premises during the regular business hours at Agisa's expense, provided that
Agisa shall give HydroFlo at least three (3) days advance written notice of its
intention to do so.
8.05 HydroFlo shall conduct the promotion and marketing of the Products in the
Territory with due care and diligence, and shall cultivate and maintain good
relations with its customers and potential customers in accordance with sound
commercial principles.
8.06 HydroFlo hereby covenants and agrees to protect and indemnify Agisa and its
directors, officers, employees, and agents against all losses (other than loss
of sales), claims, damages, liabilities, costs or expenses of any kind caused or
incurred, directly or indirectly, by reason of or arising out of any guarantees,
warranties, and representations associated with the Products made by HydroFlo in
the Territory.
8.07 In the event that a claim is made in the United states by another party
against HydroFlo or by HydroFlo against another party with respect to a matter
concerning the Products or the Technology that is not covered elsewhere in this
Agreement, then Agisa shall assist HydroFlo defend or prosecute such claim as
requested, and the costs of such assistance, including the fees and expenses of
all lawyers, accountants, engineers, consultants, and lay and expert witnesses
incurred by Agisa shall be borne by HydroFlo.
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ARTICLE 9 - TRADEMARK MATTERS
9.01 HydroFlo shall not have any right to use, and hereby covenants and agrees
not to use, within and without the Territory, Agisa's trademarks relating to the
Products, whether now in existence or developed in the future, and in particular
the trademark "Agisa" and "Aquatex", in promoting the sales of the Products in
the Territory.
ARTICLE 10- PATENT AND TECHNOLOGY MATTERS
10.01 In the event that any party shall have knowledge that the patent and other
technology rights herein referred are being infringed or otherwise abused, or if
any third party impugns the validity of any patent of Agisa, such knowledge
shall promptly be transmitted to Agisa.
10.02 In the event that a claim is made in the United States by another party
that the Products or the Technology infringes on any alleged or asserted patent,
copyright, or proprietary right of any person, then Agisa shall defend such
third party claim, continue or discontinue any such claim, and at its own
expense compromise or settle such claim, and the costs of such defence,
settlement, or compromise, including the fees and expenses of all lawyers,
accountants, engineers, consultants, and lay and expert witnesses, including any
such costs incurred by HydroFlo, shall be borne by Agisa.
10.03 HydroFlo covenants and agrees to assist Agisa in any prosecution or
defence conducted by Agisa pursuant to Article 10.02 herein, and agrees to be
available to meet with representatives of Agisa and its counsel at all
reasonable times, and to provide to or prepare as necessary and provide to Agisa
all reports, documents, drawings, archives, and other things related to the
origin and history of the Technology that may be available to HydroFlo, all at
the cost of Agisa.
10.04 In the event that a final determination by a court of competent
jurisdiction, or by virtue of any compromise or settlement of any claim referred
to in article 10.02 herein, establishes that the Products or the Technology
infringes upon the patent, copyright, or other proprietary right of any third
party, then Agisa at its expense shall procure from such third party the title
to, or a right, license, or other interest in such patent, copyright, or
proprietary right of the third party, and at no cost to HydroFlo shall assign to
HydroFlo, to the extent necessary to enable HydroFlo fully to enjoy the License
granted hereunder, an interest in the interest so acquired by Agisa from such
third party.
10.05 HydroFlo shall not contest the ownership of the Technology hereunder, nor
of any of the rights of Agisa under which this License is granted; nor will
HydroFlo willingly become an adverse party to litigation in which others shall
so contest the Products, patents, or Agisa's said rights. HydroFlo further
acknowledges that Agisa owns all right and title to the Technology, including
any modifications, improvements, and enhancements thereto, and the right to
grant the rights of the License to HydroFlo.
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ARTICLE 11 - REPRESENTATIONS AND WARRANTIES OF AGISA
Agisa hereby represents and warrants to HydroFlo, and acknowledges that HydroFlo
is relying upon such representations and warranties in connection with the
Agreement contemplated herein, that:
11.01 Agisa has all the requisite power, capacity, and authority to carry out
the provisions hereof.
11.02 No person, firm or corporation, except that of Agisa itself, now has any
agreement or option, or right or privilege (whether pre-emptive or contractual)
capable of becoming an agreement, for the marketing, distribution, purchase, or
sales of the Product in the Territory.
11.03 All necessary action has been taken to authorize the adoption of this
Agreement by Agisa so as to constitute a valid and binding obligation upon Agisa
enforceable against Agisa by HydroFlo in accordance with its terms.
11.04 The entering into of this Agreement will not result in any violation of
any terms or conditions of any undertaking or agreement, written or oral, to
which Agisa will become a party or which Agisa may become a party by which it
will be bound.
11.05 Agisa has and will continue to have all propriety rights of the
Technology, either by ownership or exclusive license, and covenants to defend
the continued enjoyment of those exclusive rights in the Territory"
11.06 Agisa represents that it is not a party of any litigation that is relevant
to the subject matter of this Agreement, nor is any such litigation pending.
11.07 Agisa covenants that all modifications and improvements of the Technology
developed by it will be subject to this Agreement.
11.08 Agisa represents that the license rights to the Technology granted to its
former subsidiary, Aquatex Corporation in Canada, have been terminated.
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ARTICLE 12 - GENERAL
12.01 There are not and shall not be any oral statements, representations,
warranties, undertakings, or agreements between the parties relating to the
subject matter hereof. This Agreement may not be amended or modified in any
respect except by written instrument executed by all of the parties hereto.
12.02 Time shall be of the essence of this Agreement and every part hereof
provided that the time for doing or completing any matter provided for herein
may be extended or abridged.
12.03 This Agreement shall be governed by and performed, construed and enforced
in accordance with the laws of the Province of Alberta, Canada. HydroFlo
irrevocably attorns to the exclusive jurisdiction of the Alberta Courts for the
purposes of this Agreement. Agisa irrevocably attorns to the exclusive
jurisdiction of both the Alberta and any American Court for the purposes of this
Agreement.
12.04 Any provision hereof which is prohibited or unenforceable in any
jurisdiction shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
12.05 Either party may waive in whole or in part non-compliance with any of the
conditions herein or extend the time for compliance therewith without prejudice
to its rights in respect of any other condition or conditions or any other
subsequent breach or non-compliance.
12.06 The parties hereto shall take such further steps and execute or cause to
be executed such documents as may be required in order to implement or further
evidence the foregoing obligations and covenants.
12.07 Nothing in this Agreement shall be construed as having created a
principal-agent or employer-employee relationship between the parties. For
purposes of greater certainty, HydroFlo cannot enter into a contract on behalf
of Agisa.
12.08 HydroFlo may not assign its interest in this Agreement, in whole or in
part, without the prior consent in writing of Agisa, which may be withheld at
its sole discretion.
12.09 This, Agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective successors and permitted assigns.
12.10 Articles 3.03, 3.04, 4.04, 4.06, and all of Articles 6, 7, 9, and 10
herein shall survive the termination of this Agreement and shall continue in
full force and effect for the benefit of the parties.
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12.11 This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original and all of which together shall constitute one and
the same instrument. It shall not be necessary that any single counterpart
hereof be executed by all parties so long as at least one counterpart is
executed by each party.
12.12 Words importing the singular number only in this Agreement shall include
the plural number and vice versa and words importing one gender only in this
Agreement shall include individuals, partnerships, corporations, and any other
entities, legal or otherwise.
12.13 No party shall be in breach of this Agreement if there is any total or
partial failure of performance by it or its duties and obligations occasioned by
any act of God, fire, act of government or state, war, civil commotion,
insurrection, embargo, prevention from or hindrance in obtaining any raw
materials, energy or other supplies, labour disputes of whatever nature, and any
reason beyond the control of such party.
12.14 Any formal notice required to be given to a party of this Agreement by the
other party shall be given to the following addresses or such successor address
as may be advised in writing in the future by such party:
(a) In the case of Agisa: #702, 21- 00000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx,
Xxxxxx X0X 0X0.
(b) In the case of HydroFlo: 0000 Xxxxxxxxx Xxxxxx, Xxxxxxx, XX 00000, XXX.
12.15 All differences or disputes which arise between the parties and whether
during or after the termination of this Agreement and whether in relation to the
interpretation of the Agreement or to any act or omission of any party to the
dispute or to any act which ought to be done by the parties in dispute or in
relation to any other matter whatsoever touching the subject matter of this
Agreement shall be referred to a single arbitrator to be agreed upon by the
parties to the dispute and in default of agreement to a single arbitrator
appointed pursuant to the Arbitration Act (Alberta) then in force, with the
place of arbitration to be determined by agreement of the parties or in
accordance with said Act. The award or determination which shall be made by such
arbitrator shall be final and binding upon the parties thereto and their assigns
and there shall be no appeal from such award or determination. This Agreement
shall be subject to the 1958 Convention of the Recognition and Enforcement of
Foreign Arbitral
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Award. The arbitrator shall also make a determination of liability as between
the parties of the costs of such arbitration. Further, such arbitrator may order
the termination of this Agreement in the event of serious misconduct on the part
of one of the parties that has caused or is likely to cause irreparable or grave
harm to the other.
12.16 Each party acknowledges that if they violate the provisions of this
Agreement, the other party may suffer immediate and irrevocable harm for which
damages would be an inadequate remedy. That other party shall be entitled to
equitable relief, including injunction and specific performance, and if this
Agreement is breached, all parties consent to the preliminary or ex-parte
issuance of such relief by any court of appropriate jurisdiction. No failure or
delay by a party in exercising any right, power or privilege shall operate as a
waiver of any right to such equitable relief.
12.17 The parties acknowledge that a facsimile/telefax copy of this Agreement
may be executed by each respective party at different places and at different
times. All duly endorsed and acknowledged facsimile documents shall be
considered as original documents and shall constitute binding and enforceable
instruments.
12.18 Headings are included in this Agreement for convenience of reference only
and shall not affect the interpretation hereof.
IN WITNESS THEREOF the parties hereto have executed this Agreement as of the day
and year first above written.
AQUATEX GROUP INDUSTRIE S.A.
Per:
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Xxxxxxx X. Xxxxx
General Counsel as Agent
HYDROFLO, INC.
Per:
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Xxxxxx X. Xxxx
President
