EXHIBIT 10.17
DATED 2000
ADVANCED COMMUNICATIONS TECHNOLOGIES (AUSTRALIA) PTY LTD
AND
ADVANCED COMMUNICATIONS TECHNOLOGIES, INC.
--------------------------------------------------------------------------------
LICENCE AND DISTRIBUTION AGREEMENT
--------------------------------------------------------------------------------
TABLE OF CONTENTS
1. DEFINITIONS...............................................................1
2. TERM......................................................................6
2.1. Effective Date.................................................6
2.2. Indefinite Term................................................6
3. APPOINTMENT...............................................................6
3.1. Appointment of ADVC............................................6
3.2. Exclusive Appointment in the Territory.........................6
3.3. Licence........................................................6
4. LICENCE OF SOFTWARE.......................................................7
4.1. ACT to Licence.................................................7
4.2. ACT may Permit ADVC to Sub-Licence.............................7
5. PROMOTIONAL MATERIALS AND ORDERING OF PRODUCT.............................7
5.1. Promotional Materials..........................................7
5.2. Order only from ACT or Authorised Replicator...................7
6. Obligations of ADVC.......................................................7
6.1. Promotion of Product...........................................7
6.2. No Export......................................................8
6.3. Minimum Sales Requirements.....................................8
7. NO MODIFICATION OR BUNDLING...............................................9
7.1. No Modifications...............................................9
7.2. ADVC's Name and Logo...........................................9
7.3. No Bundling....................................................9
7.4. Licence Terms..................................................9
8. PAYMENTS..................................................................9
8.1. Entitlement....................................................9
8.2. ACT to Remit...................................................9
8.3. ADVC to Remit..................................................9
8.4. Minimum Guarantee Amount......................................10
8.5. Reports.......................................................10
8.6. ADVC to Account to ACT after Termination......................10
8.7. Taxes.........................................................10
9. ACCOUNTS, AUDITS AND INSPECTIONS.........................................10
9.1. ADVC to Keep Records..........................................10
9.2. ACT's Right to Inspect Records................................11
9.3. ACT's Right to Inspect for 7 Years............................11
9.4. Payment of any Difference Revealed by Inspection..............11
9.5. If Reports not Delivered......................................11
9.6. Inspection of ADVC's Facilities...............................12
10. WARRANTIES...............................................................12
10.1. General Warranties............................................12
10.2. Warranties by ACT.............................................12
10.3. ACT does not Warrant..........................................12
10.4. Warranties by ADVC............................................12
10.5. Amendment.....................................................13
10.6. Intellectual Property Rights of Alteration....................13
10.7. Acknowledgement...............................................13
11. SCOPE OF LIABILITY.......................................................13
11.1. ACT's Indemnity...............................................13
11.2. ADVC's Indemnity..............................................14
11.3. Exclusion of Liability........................................14
11.4. Liability Limit...............................................15
11.5. Notification of Claims........................................15
11.6. Keep ACT Informed.............................................15
11.7. ACT to Conduct Litigation.....................................15
11.8. Conduct of Litigation.........................................15
11.9. Payment of Judgment against ADVC..............................16
11.10. Consent to Settlement.........................................16
11.11. Consent to Settlement.........................................16
11.12. Payment of Sums under Indemnity...............................16
12. MARKETING AND PROMOTION..................................................17
12.1. Marketing Plan................................................17
12.2. ACT to Approve all Marketing Material.........................17
12.3. ACT's Approval................................................17
13. WITHDRAWAL OF PRODUCT....................................................17
13.1. Suspension of Distribution....................................17
13.2. ADVC to Notify................................................17
13.3. If ACT is Unable to Rectify the Product.......................18
13.4. If ACT is able to Rectify the Product.........................18
14. SUB-DISTRIBUTORS.........................................................18
14.1. ADVC may Appoint Sub-distributors.............................18
14.2. ADVC Liable for Sub-distributors..............................18
14.3. Payments to Sub-distributors..................................18
15. CONFIDENTIALITY..........................................................18
15.1. Confidential Information......................................18
15.2. No Disclosure.................................................19
15.3. No Unauthorised Copying.......................................19
15.4. Return of Materials...........................................19
15.5. Responsibility for Employees, Agents etc......................19
15.6. Publicity.....................................................19
16. WITHDRAWAL OF EXCLUSIVITY................................................20
16.1. Application of Rule...........................................20
16.2. Withdrawal of Exclusivity.....................................20
17. TERMINATION..............................................................20
17.1. Termination for Breach........................................20
17.2. Immediate Termination.........................................20
17.3. Accrued Rights................................................21
18. RELATIONSHIP OF THE PARTIES..............................................21
18.1. No Partnership................................................21
18.2. No Representations of Authority...............................21
19. GENERAL..................................................................21
19.1. Amendment.....................................................21
19.2. Entire Understanding..........................................21
19.3. Further Assurance.............................................21
19.4. Legal Costs and Expenses......................................21
19.5. Stamp Duty....................................................21
19.6. Waiver and Exercise of Rights.................................22
19.7. Assignment....................................................22
19.8. Time of the Essence...........................................23
19.9. No Relationship...............................................23
19.10. Survival of Indemnities.......................................23
19.11. Rule of Construction..........................................23
20. NOTICES..................................................................23
20.1. Service of Notice.............................................23
20.2. Particulars for Service.......................................23
20.3. Particulars for Service.......................................24
20.4. Time of Service...............................................24
21. INTERPRETATION...........................................................24
21.1. Governing Law and Jurisdiction................................24
21.2. Persons 24
21.3. Joint and Several.............................................25
21.4. Legislation...................................................25
21.5. This Agreement, clauses and Headings..........................25
21.6. Severance.....................................................25
21.7. Counterparts..................................................25
21.8. Currency 25
21.9. Business Day..................................................26
21.10. ACT Right of Setoff...........................................26
21.11. Number and Gender.............................................26
ANNEXURE A.............................................................27
1
THIS LICENCE AND DISTRIBUTION AGREEMENT is made on 2000
BETWEEN
ADVANCED COMMUNICATIONS TECHNOLOGIES (AUSTRALIA) PTY LTD ACN 086856 617
of Xxxxx 00, 000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx, 0000, Xxxxxxxxx
("ACT")
AND
ADVANCED COMMUNICATIONS TECHNOLOGIES, INC.
a corporation incorporated in Florida, United States of America with
its registered address at 00000 Xxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxx,
XX 00000, Xxxxxx Xxxxxx of America
("ADVC")
RECITALS
A. ACT has developed the Product.
B. ACT wishes to appoint ADVC to distribute the Product in the Territory.
C. ADVC has agreed to accept the appointment on the terms and conditions
of this Agreement, and to distribute the Product in the Territory.
THE PARTIES AGREE AS FOLLOWS:
1. DEFINITIONS
In this document unless a contrary intention appears:
ALTER means alter, modify, adapt, disassemble, reverse engineer or
amend, and ALTERATION has a corresponding meaning.
AUTHORISED REPLICATOR means a person authorized and notified by ACT to
ADVC in writing to undertake manufacture of the Product for the
purposes of this Document.
BANKRUPTCY CODE means the bankruptcy statutes of the United States,
designated as Title 11 of the United States Code.
BUSINESS DAY means a day on which the Commonwealth Bank of Australia is
open for business in Victoria, Australia.
2
BUSINESS HOURS means from 9.00 am to 5.00 pm on a Business Day.
CALENDAR QUARTER means successive periods of three months ending 31
March, 30 June, 30 September and 31 December and any part thereof.
CHANGE CONTROL EVENT means, in relation to a party, any event where a
person having Control of that party on the date of this document,
ceases to have such Control.
COMMISSION means an amount to be agreed between the parties, having
regard to industry standards after the final pricing for the Product is
established.
CONFIDENTIAL INFORMATION means all trade secrets, ideas, know-how,
concepts and information whether in writing or otherwise relating in
any way:
(a) to either party's sub-licensees, employees or End users;
(b) the Product;
(c) Intellectual Property Rights, Promotional Materials or the
Marketing Plan;
(d) Commission payable under this document;
(e) a party's affairs or businesses, sales, marketing or
promotional information;
(f) the terms of this document,
but that does not include information that:
(g) is, or becomes part of, the public domain otherwise than by
breach of this document by either party;
(h) is lawfully obtained by either party from another person
without any restriction as to use and disclosure; or
(i) was in either party's possession prior to disclosure to it by
the other party.
CONTROL means, in relation to a party, a person:
(a) controlling the composition of that party's board; or
(b) being in a position to case, or control the casting of, more
than one-half of the maximum number of votes that might be
cast at a general meeting of that party; or
(c) holding more than on-half of the issued share capital of that
party (excluding any part of that issued share capital that
carries no right to participate beyond a specified amount in a
distribution of either profits or capital).
CORPORATIONS LAW means the Corporations Law of Victoria, Australia.
3
DEFAULTING PARTY means a party who has breached a rule in this
Agreement.
EFFECTIVE DATE means 6 April 1999.
END USERS means any persons who purchases the Products for end use.
EXCLUSIVE TERRITORY means the United States of America, the North
American and South American continents.
FORCE MAJEURE means events or occurrences beyond the reasonable control
of a party, such as:
(a) war, revolution, insurrection, riot or invasion;
(b) earthquake, aircraft damage, fire, cyclones, lightning, winds
or other acts of God:
(c) industrial relations problems and strikes affecting the party;
or
(d) airport closure, airline strikes or airline industrial
problems, tourist restrictions, or grounding of types of
aircraft used to transport passengers domestically.
GROSS RECEIPTS means the total of all sums paid to, or payable to, or
other financial benefit received, or to be received, by either ACT or
ADVC from the distribution of the Product within the Territory and
which arises from or as a result of this document.
INEFFECTIVE means void, illegal or unenforceable.
INSOLVENCY EVENT means, in relation to a party, any of the following
events:
(a) the party assigns any of its property for the benefit of
creditors or any class of them;
(b) the party's interest in or under this document or in the
subject matter of this document becomes attached or taken
in execution or under any legal process;
(c) an encumbrance takes any step towards taking possession or
takes possession of any assets of the party or exercises
any power of sale;
(d) the party ceases, suspends or threatens to case or suspend the
conduct of a majority of its business, or disposes of or
threatens to dispose of its assets, except for the purposes of
a solvent reconstruction or amalgamation previously approved
by the other party;
(e) any security interest becomes enforceable or is enforced
against the party;
(f) a distress, attachment or other execution is levied or
enforced against the party in excess of $1,000.00;
4
(g) the party takes any step to obtain protection or is granted
protection from its creditors under any applicable
legislation;
(h) a resolution is passed by the party to appoint an
administrator or an administrator of the party is appointed;
(i) an order is made that the party be wound up;
(j) an order is made appointing a liquidator or a provisions
liquidator of the party;
(k) the party resolves to wind itself up or otherwise dissolve
itself, or gives notice of its intention to do so, except for
the purposes of a solvent reconstruction or amalgamation
previously approved by the other party, or is otherwise wound
up or dissolved:
(l) an order is made or a resolution is passed for the party to
enter into any arrangement, compromise or composition with or
assignment for the benefit of its creditors or any class of
them, except for the purposes of a solvent reconstruction or
amalgamation previously approved by the other party;
(m) the party is, or states that it is, or under applicable
legislation is taken to be, unable to pay its debts (other
than as a result of a failure to pay a debt or claim the
subject of a dispute in good faith) or stops or suspends or
threatens to stop or suspend payment of all or a class of its
debts;
(n) a receiver, receiver and manager, administrator, controller or
similar officer of any of the assets or the whole or any part
of the undertaking of the party is appointed:
(o) the party is or makes a statement from which it may be
reasonably deduced by the other party that the party is the
subject of an event described in section 459C(2) of the
Corporations Law;
(p) the commencement of bankruptcy proceedings against the party
under the Bankruptcy Code; or
(p) any event that is analogous or having a substantially similar
effect to any of the events specified in this definition,
whether under the laws of Australia or any other country.
INTELLECTUAL PROPERTY RIGHTS means all intellectual property and
proprietary rights (whether registered or unregistered) wherever
subsisting used in or forming party of the Product including, without
limitation:
(a) the name "SPECTRUCELL" and any other names under which the
Products are distributed;
5
(b) all confidential Information, trade secrets, know-how,
scientific, technical, product and marketing information
used in or forming part of the Product; and
(c) all copyright, computer programs, logos, patents, designs,
design rights, trademarks, drawings, discoveries, inventions,
improvements and similar industrial or intellectual property
rights used in or forming part of the Product.
LICENSE TERMS means the licence terms set out in Annexure A, or such
other licence terms as may be determined by ACT from time to time by
notice in writing to ADVC.
MARKETING PLAN means the marketing plan specifying the publicity,
advertising and marketing strategies of the Product in the Territory
together with associated costs set out in Annexure B, or such other
plan as may be agreed between the parties from time to time.
MINIMUM GUARANTEE AMOUNT means, in respect of each Calendar Quarter, an
amount to be agreed between the parties, having regard to industry
standards after the final pricing for the Product is established.
NON-DEFAULTING PARTY means a party who is not a Defaulting Party.
NON-EXCLUSIVE TERRITORY means the territory to be agreed in writing
between the parties, being a territory other than the Exclusive
Territory.
PRODUCT means the wireless or terrestrial, multi-protocols
communication network technology known as SPECTRUCELL, incorporating
the Software and related hardware forming part of the base station
controller which processes and transits mobile communications protocols
such as AMPS, CDMA, TDMA, GSM, W-CDMA, UMTS, 3G and Voice IP.
PROMOTION MATERIALS means the materials about the Products that will be
delivered to ADVC to assist ADVC in the distribution of the Products,
which may be delivered to ADVC electronically in an electronic medium.
SOFTWARE means the software forming an integral part of the Product
which enables the Product to perform to its specifications, consisting
of a set of instructions or statements in machine readable medium, and
any enhancement, modification of that software.
SUSPENSION PERIOD means a period of up to 90 days.
RECORDS means all proper books, records and accounts relating to the
distribution of the Product.
REPORT means the report described in clause 8.5.
TERRITORY means the Exclusive Territory and the Non-Exclusive
Territory.
6
TERM means the term of this Agreement as set out in clause 2.
TERMINATION EVENT means:
(a) an Insolvency Event; or
(b) a warranty in clause 10 made by the other party proving to
have been false, incorrect or misleading when made; or
(c) an event specified in clauses 10.5, 13.3 or 16.2.2; or
(d) a Force Majeure Event which continues for more than 28
business Days; or
(e) a Change Control Event.
WHOLESALE UNIT PRICE means the price for which ADVC sells the Product.
2. TERM
2.1. EFFECTIVE DATE
The agreement recorded in this document takes effect from the
Effective Date.
2.2. INDEFINITE TERM
The agreement recorded in this document continues indefinitely
until it is terminated under the terms of this document.
The agreement recorded in this document continues indefinitely
until it is terminated under the terms of this document.
3. APPOINTMENT
3.1. APPOINTMENT OF ADVC
ACT appoints ADVC to distribute the Product throughout the
Territory for the Term on the terms and conditions set out in
this document. ADVC accepts such appointment.
3.2. EXCLUSIVE APPOINTMENT IN THE TERRITORY
Subject to clause 16, ACT agrees not to appoint any other
person to distribute the Product in the Exclusive Territory
during the Term, without the prior written consent of ADVC.
3.3. LICENCE
For the purposes of the appointment referred to in clause 3.1,
ACT grants to ADVC a license for the Territory during the
Term:
7
3.3.1. to reproduce, advertise and publicise the names,
photographs, and likeness of any authors, producers,
creators or other persons associated with the
development or production of the Product, but only in
the manner as directed by ACT; and
3.3.2. to display the Product to prospective End Users in
the course of reasonable promotion and marketing of
the Product.
4. LICENCE OF SOFTWARE
4.1. ACT TO LICENCE
At ADVC's request, ACT must grant a licence to an End User to
use the Software in conjunction with the Product, on the
Licence Terms.
4.2. ACT MAY PERMIT ADVC TO SUB-LICENCE
ACT may, during the Term, grant a licence to ADVC to:
4.2.1. use the Software; and
4.2.2. sub-licence the use of the Software to an End User,
and
4.2.3. reproduce the Software for the purpose of
sub-licensing the use of the Software to an End user.
in conjunction with the Product, on the Licence Terms.
5. PROMOTIONAL MATERIALS AND ORDERING OF PRODUCT
5.1. PROMOTIONAL MATERIALS
ACT may from time to time, but is not required t, deliver the
Promotional Materials to ADVC
5.2. ORDER ONLY FROM ACT OR AUTHORISED REPLICATOR
ADVC must only purchase the Product from:
5.2.1. ACT; or
5.2.2. the Authorised Replicator in accordance with the
replicator's standard terms and conditions.
6. OBLIGATIONS OF ADVC
6.1. PROMOTION OF PRODUCT
6.1.1. to promote and market the Product in accordance with
the Marketing Plan;
8
6.1.2. to distribute the Product in the Territory;
6.1.3. to be competent and knowledgeable in and conversant
with all aspects of the Product;
6.1.4. to ensure that any notices relating to Intellectual
Property Rights appearing on the Product or
literature relating to the Product or pack again of
the Product are not Altered or removed;
6.1.5. to inform Act of any matter which may affect or
assist the promotion and marketing of the Product in
the Territory;
6.1.6. to act in good faith at all times towards ACT and
provide assistance and cooperation as practicable on
request by ACT;
6.1.7. to furnish to ACT, within seven business days of
ACT's request, any information sought by ACT
regarding the promotion and distribution of the
Product in the Territory;
6.1.8. to fulfil all orders for the Product within 14 days
of receipt of such
6.1.9. to consult on an ongoing basis with ACT with
respect to significant aspects of the distribution of
the Product;
6.1.10. to not make any representations or claims
inconsistent with the Marketing Plan; and
6.1.11. to not make any false, misleading or deceptive
statements with respect to the Product.
6.2. NO EXPORT
ADVC must not, without the prior written consent of ACT:
6.2.1. directly or indirectly, export the Product from the
Territory;
6.2.2. directly or indirectly, distribute the Product to any
person outside the Territory; or
6.2.3. directly or indirectly, distribute the Product to any
person in the Territory whom ADVC knows or should
reasonable know intends to distribute such copies
outside the Territory or export such copies from the
Territory.
6.3. MINIMUM SALES REQUIREMENTS
ADVC must:
6.3.1. commercially distribute the Product in the Territory;
and
9
6.3.2. meet or exceed the Minimum Guarantee Amount in
respect of each Calendar Quarter during the Term.
7. NO MODIFICATION OR BUNDLING
7.1. NO MODIFICATIONS
ADVC must not, without the prior written consent of ACT, Alter
the Product or any of the Promotional Materials in any way.
7.2. ADVC'S NAME AND LOGO
ADVC may, with the prior written approval of ACT, affix ADVC's
name and logo on the Product in the manner approved by ACT.
7.3. NO BUNDLING
ADVC must not bundle, package or otherwise distribute the
Product with or as part of, any other product or collection of
products without the prior written approval of ACT.
7.4. LICENCE TERMS
ADVC must not remove the Licence Terms from the Product or
otherwise amend or modify the Licence Terms embodied in the
Product or otherwise attached to the Product.
8. PAYMENTS
8.1. ENTITLEMENT
ADVC may at the request of ACT collect and to retain the
Commission,
8.2. ACT TO REMIT
If, during a Calendar Quarter, ACT receives money form or on
behalf of an End User on account of a Gross Receipt, then
within 30 days after the end of the Calendar Quarter, Act must
remit to ADVC, the Gross Receipt less an amount equal to the
Commission payable upon the Gross Receipt received by ACT.
8.3. ADVC TO REMIT
If, during the Calendar Quarter, ADVC receive money form or on
behalf of an End User on account of a Gross Receipt, then
within 30 days after the end of that Calendar Quarter, ADVC
must remit to ACT, an amount equal to the Commission payable
upon the Gross Receipt received by ADVC.
10
8.4. MINIMUM GUARANTEE AMOUNT
8.4.1. If, during the Calendar Quarter, the total Gross
Receipt provides less than the Minimum Guarantee
Amount to ACT, then despite clauses 8.2 and 8.3, ADVC
must pay to ACT an amount equal to the Minimum
Guarantee Amount.
8.4.2. If, during the Calendar Quarter, the total Gross
Receipt is equal to or more than six times the
Minimum Guarantee Amount, then the rule in clause
8.4.1 will not apply for the three consecutive
Calendar Quarters immediately following that Calendar
Quarter.
8.5. REPORTS
Within 30 days of the end of each Calendar Quarter during the
Term, ADVC must furnish to ACT a report detailing:
8.5.1. the number and Wholesale Unit Price of the Products
distributed by ADVC during the preceding Calendar
Quarter;
8.5.2. the Gross Receipts for that Calendar Quarter;
8.5.3. a computation of the Commission payable by ACT; and
8.5.4. if requested by ACT, copies of all invoices and other
documents necessary to enable ACT to verify ADVC's
statement of Gross Receipts.
8.6. ADVC TO ACCOUNT TO ACT AFTER TERMINATION
Subject to the termination of this document, however, caused,
ADVC must continue to account to ACT in accordance with the
provisions of this clause 8 for as long as ACT continues to
receive Gross Receipts in respect of the distribution of the
Product during the Term.
8.7. TAXES
ADVC is responsible for obtaining all of the necessary
government or other official permission for the release of any
amounts payable under this Agreement to ACT.
9. ACCOUNTS, AUDITS AND INSPECTIONS
9.1. ADVC TO KEEP RECORDS
ADVC must keep the Records, and must retain such Records for a
period of seven years after the termination of this document.
11
9.2. ACT'S RIGHT TO INSPECT RECORDS
9.2.1. ACT is entitled, on five Business Days' prior notice
in writing to ADVC, to attend (or appoint an
independent accountant to attend) ADVC's premises and
inspect such of ADVC's Records as may be reasonably
necessary to verify the information contained in any
Report delivered by ADVC under clause 8.5.
9.2.2. ADVC must use all of its reasonable endeavours to
elicit ACT (or its agents) to carry out such
inspection.
9.3. ACT'S RIGHT TO INSPECT FOR 7 YEARS
ADVC may exercise the right of inspection in accordance with
this clause 9 at any time up to seven years after termination
of this document
9.4. PAYMENT OF ANY DIFFERENCE REVEALED BY INSPECTION
9.4.1. If an inspection under clause 9.2 reveals that the
total amount payable to ACT in respect of any
Calendar Quarter is a sum greater than the amount
specified in the relevant Report or Reports, then
ADVC must pay to ACT the difference within 14 days of
demand in writing by ACT which demand must be
accompanied by a copy of any accountant's report.
9.4.2. If the amount payable to ACT under this clause 9.4
exceeds the amount specified in the relevant Report
or Reports by 5% or more, then ADVC:
9.4.2.1. must pay the costs and expenses of that
inspection; and
9.4.2.2. must pay interest on the moneys paid at the
rate charged or chargeable by ACT bankers
on an overdraft facility of $100,000.00
and ACT may terminate this Agreement.
9.5. IF REPORTS NOT DELIVERED
9.5.1. If ADVC fails to deliver a Report or Reports within
the time required by clause 8.5, ACT may appoint an
independent accountant to examine the Records of ADVC
for the purpose of ascertaining the amount payable to
ADVC for the relevant Calendar Quarter.
9.5.2. ADVC must permit that accountant to inspect ADVC's
Records.
9.5.3. The amount certified by the accountant to be payable
in respect of any Calendar Quarter together with the
costs and expenses of that inspection are payable by
ADVC within 14 days of demand by ACT for that amount,
such demand to be in writing and accompanied by a
copy of the accountant's report.
12
9.5.4. A failure by ADVC to deliver a Report within the time
required by clause 8.5 will not be considered a
breach of this document unless;
9.5.4.1. ACT has given a written notice to ADVC
requiring ADVC to deliver such Report
within 30 days; and
9.5.4.2. ADVC fails to deliver such Report during
that time
9.6. INSPECTION OF ADVC'S FACILITIES
In addition to the foregoing rights of inspection, ACT may
during regular business hours on not less than 5 Business
Days' prior written notice inspection ADVC's premises and
facilities in order to verify ADVC's compliance with any terms
of this document.
10. WARRANTIES
10.1. GENERAL WARRANTIES
Each party warrants that:
10.1.1. it has authority to enter and to perform its
obligations under this document; and
10.1.2. it has the ability to perform its obligation under
this document.
10.2. WARRANTIES BY ACT
ACT represents and warrants to ADVC that the use of the
Product in accordance with this document will not infringe the
rights, including the Intellectual Property Rights, of any
person.
10.3. ACT DOES NOT WARRANT
ACT does not represent and does not warrant to ADVC that:
10.3.1. the Product is error free or virus free;
10.3.2. the use of the Product will be uninterrupted; or
10.3.3. the Product will provide any function not designated
in any Product specification.
10.4. WARRANTIES BY ADVC
ADVC represents and warrants to ACT that:
13
10.4.1. subject to clause 10.5, it is authorized by all
necessary government and other agencies and
authorities to distribute the Product in the
Territory, and will continue to be so authorized
throughout the Term;
10.4.2. it will not Alter the Product without the prior
approval of ACT, which approval may be withheld by
ACT in its absolute discretion; and
10.4.3. the information provided to ACT in relation to the
subject matter of this document before its entry into
this document is true and correct.
10.5. AMENDMENT
Subject to anything to the contrary, if compliance with the
warranty specification in clause 10.4 or any other term of
this document would require an amendment, variation or
modification to the Product, then no such amendments,
variations or modifications are to be made without the prior
approval of ACT, which approval may be withheld in its
absolute discretion. If such approval is withheld, such an
event will constitute a Termination Event.
10.6. INTELLECTUAL PROPERTY RIGHTS OF ALTERATION
In respect of any Alteration made to the Product or the
Promotional Material (whether in accordance with this document
or in breach of it) ADVC acknowledges that it holds all
Intellectual Property Right in the altered Product or
Promotional Materials on trust on behalf of ACT and must at
the direction of ACT forthwith transfer or assign all such
rights to ACT.
10.7. ACKNOWLEDGEMENT
ADVC acknowledges and accepts that it does not, as a result of
entering into this document, acquire any Intellectual Property
Rights in the Product or the Promotional Materials or in any
of their copies.
11. SCOPE OF LIABILITY
11.1. ACT'S INDEMNITY
ACT must at all times indemnify and keep indemnified ADVC and
its sub-distributors and both their respective officers,
employees and agents (in this clause 11.1 referred to as
"those indemnified") from and against any loss (including
reasonable legal costs and expenses) or liability incurred by
any of those indemnified arising from any claim, demand, suit,
action or proceeding by any person against any of those
indemnified where such loss or liability arose out of:
11.1.1. any breach of this document by ACT, excluding any
breach of the warranties referred to in clause 10.2:
14
11.1.2. any breach of the warranties referred to in clause
10.2; and
11.1.3. any infringement or alleged infringement of the
rights, including the Intellectual Property Rights of
any person occurring by the use of the Product in
accordance with this document.
11.2. ADVC'S INDEMNITY
ADVC must at all times indemnity and keep indemnified ACT its
officers, employees and agents (in this clause 11.2 referred
to as "those indemnified") from an against any loss (including
reasonable legal costs and expenses) or liability incurred by
any of those indemnified arising from any claim, demand, suit,
action or proceeding by any person against any of those
indemnified where such loss or liability arose out of:
11.2.1. any use of the Product by ADVC and the
sub-distributors otherwise than in accordance with
this document; and
11.2.2. any other breach of this document by ADVC.
11.3. EXCLUSION OF LIABILITY
11.3.1. ACT acknowledges and accept that, to the extent
permitted by law, ADVC will be under no liability to
ACT whosoever, whether in:
11.3.1.1. contract or tort (including, without
limitation, negligence);
11.3.1.2. breach of statute; or
11.3.1.3. any other legal or equitable obligation
in respect of any loss or damage referred to in
clause 11.3.2.
11.3.2. The loss or damage referred to in clause 11.3.1 is
loss or damage (including loss of profit or savings)
howsoever caused, which may be:
11.3.2.1. suffered or incurred or which may arise
directly or indirectly in respect of any
infringement by any End User or other
person of the Intellectual Property
Rights of ACT or any other right of ACT
in or in relation to the Product; or
11.3.2.2. which may be caused directly or
indirectly by any act or omission of any
End User or any other person who may
access the Product,
except to the extent that ADVC has knowledge of,
authorized or otherwise permitted such infringement,
act or omission.
15
11.4. LIABILITY LIMIT
Except as provided in clauses 11.1.1 and 11.1.2 the total
liability of each party arising out of any particular breach
of this document for damages regardless of the cause of
action, whether contract, tort (including, without limitation,
negligence) or breach of statute or any other legal or
equitable obligation is limited to four times the Minimum
Guarantee Amount.
11.5. NOTIFICATION OF CLAIMS
ADVC must notify ACT in writing as soon as practicable and in
any event within 2 Business Days of any claim or demand made,
or action, suit or proceeding threatened or brought, against
ADVC arising from any breach of the warranties referred to in
clause 11.1.1 or from the infringement or alleged infringement
referred to in clause 11.1.2.
11.6. KEEP ACT INFORMED
After notice has been given under clause 11.5 and upon ACT
admitting its obligations under the indemnity in clause 11.1.1
or 11.1.2 and, where requested by ADVC, lodging security in a
reasonable amount with ADVC, ADVC must:
11.6.1. continue to keep ACT informed of all developments;
and
11.6.2. to the extent permitted by law, act in accordance
with the reasonable directions of ACT in respect of
those developments including in relation to
application for leave to withdraw from the litigation
and in relation to the settlement of claims or
demands that do not result in litigation.
11.7. ACT TO CONDUCT LITIGATION
Where litigation is commenced against ADVC in respect of any
matter involving any breach of the warranties referred to in
clause 11.1.1 or any infringement or alleged infringement
referred to in clause 11.1.2, ADVC must, on leave being
granted, withdraw from the litigation and ACT must, in its own
name and its own expense, conduct the litigation.
11.8. CONDUCT OF LITIGATION
11.8.1. Where leave is not granted to ADVC to withdraw from
the litigation and for ACT to conduct litigation in
its own name, ADVC must:
11.8.1.1. upon ACT admitting its obligations under
the indemnity in clause 11.1.1 or 11.1.2;
and
11.8.1.2. to the extent that it is permitted by
law,
16
defend, arbitrate, appeal, settle or otherwise
conduct the litigation as ACT may from time to time
reasonable direct.
11.8.2. For the purpose of clause 11.8.1 ACT, must lodge
security in a reasonable amount with ADVC to offset
ADVC's cost of conducting the litigation at ACT's
direction.
11.8.3. For the purpose of clause 11.8.1 ACT must lodge
security in a reasonable amount with ADVC to offset
ADVC's cost of conducting the litigation at ACT's
direction.
11.9. PAYMENT OF JUDGMENT AGAINST ADVC
If a final judgment or aware is made against ADVC in the
litigation referred to in clause 11.8, or if a settlement is
reached with the Plaintiff, which has been approved by ACT,
(In a situation where ACT is providing an indemnity under
clause 11.1.1 or 11.1.2), ACT must:
11.9.1. not less than 5 business days before the date on
which ADVC must pay the amount referred to in the
judgment, award or settlement; or
11.9.2. if no date for payment is fixed by that judgment,
award or settlement, within 5 business days of
receipt of a notice in writing from ADVC that it
intends to pay the amount referred to in that
judgment, award or settlement, pay to ADVC by bank
cheque a sum equal to the sum that ADVC is required
to pay.
11.10. CONSENT TO SETTLEMENT
ACT's approval to the settlement referred to in clause 11.9
must not be unreasonably withheld.
11.11. CONSENT TO SETTLEMENT
ACT's approval to the settlement referred to in clause 11.9
must no be unreasonably withheld.
11.12. PAYMENT OF SUMS UNDER INDEMNITY
ACT must pay to ADVC all other sums required to be paid under
the indemnity provided under clause 11.1 within 5 business
days of receipt by ACT of a notice from ADVC requiring payment
of those sums.
17
12. MARKETING AND PROMOTION
12.1. MARKETING PLAN
12.1.1. ADVC must comply with the Marketing Plan in relation
to the publicity, advertising and marketing
strategies of the Product in the Territory.
12.1.2. Any variations to the Marketing Plan must be agreed
in writing by the parties.
12.2. ACT TO APPROVE ALL MARKETING MATERIAL
ADVC must submit all advertising, sales promotion and public
relations material used from time to time by ADVC and relating
to the Product for ACT's prior written approval. Subject to
clause 23.3, no such material may be used in conjunction with
the promotion of the Production without ACT's express
approval.
12.3. ACT'S APPROVAL
12.3.1. ACT must notify ADVC within 20 business days
following receipt of the material referred to in
clause 12.2 whether it approves, disapproves or
requires any Alteration.
12.3.2. If no notification is received within the said
period, ACT will be deemed to have given its
approval.
12.3.3. ACT must not unreasonably exercise its rights to
disapprove or require Alterations.
13. WITHDRAWAL OF PRODUCT
13.1. SUSPENSION OF DISTRIBUTION
ACT may direct ADVC in writing to suspend the distribution of
the Product (and ADVC must comply with that direction) for the
Suspension Period if:
13.1.1. the Product is defective; or
13.1.2. if ACT is advised by its legal advisers that the
Product infringes or may infringe the Intellectual
Property Rights of any person.
13.2. ADVC TO NOTIFY
13.2.1. If ADVC becomes aware of any of the matters described
in clauses 13.1.1 or 13.1.2, ADVC must immediately
notify ACT in writing and request ACT to issue a
direction under clause 13.1.
13.2.2. ACT will not be obliged to issue any such direction.
18
13.3. IF ACT IS UNABLE TO RECTIFY THE PRODUCT
If ACT is unable to rectify the Product within the Suspension
Period, such an event will constitute a Termination Event.
13.4. IF ACT IS ABLE TO RECTIFY THE PRODUCT
If ACT is able to rectify the Product within the Suspension
Period (or any extension thereof agreed by the Parties), ADVC
must resume distribution of the Product.
14. SUB-DISTRIBUTORS
14.1. ADVC MAY APPOINT SUB-DISTRIBUTORS
14.1.1. ADVC may appoint such sub-distributors as agreed in
writing by ACT to distribute the Product throughout
the Territory, but only under a written agreement
approved in writing by ACT.
14.1.2. ADVC must provide a copy of any such propose
agreement to ACT before execution and must allow ACT
at least 3 business days in order to approve such
agreement. If ACT approves the agreement, ADVC may
proceed to execute it (but only the approved form)
and must provide ACT with a copy of the executed
agreement within 3 business days of execution.
14.2. ADVC LIABLE FOR SUB-DISTRIBUTORS
14.2.1. ADVC must ensure that each sub-Distributor complies
with its sub-distribution agreement.
14.2.2. Subject to the appointment any sub-Distributor and
ACT's consent to such appointment, ADVC is liable,
and will remain liable, for the performance of all of
ADVC's obligations under this document.
14.3. PAYMENTS TO SUB-DISTRIBUTORS
Any commissions payable to sub-distributors of ADVC must be
payable by ADVC from the Commission.
15. CONFIDENTIALITY
15.1. CONFIDENTIAL INFORMATION
ADVC acknowledges that ADVC, its employees or agents, may be
given access to Confidential Information of ACT in the course
of negotiating or performing this document.
19
15.2. NO DISCLOSURE
ADVC must keep the Confidential Information confidential and
must not disclose it to any third party or use it otherwise
than:
15.2.1. for the purposes of this document;
15.2.2. as authorized in writing by ACT;
15.2.3. as required by any law, judicial body or government
agency; or
15.2.4. by way of disclosure to that party's professional
advisers who have agreed to keep the Confidential
Information confidential.
15.3. NO UNAUTHORISED COPYING
ADVC must not copy any document containing Confidential
Information except as necessary to perform this document.
15.4. RETURN OF MATERIALS
On termination of this document, ADVC must return all
documents or copies of documents containing information which
is, at the date of termination, Confidential Information to
ACT.
15.5. RESPONSIBILITY FOR EMPLOYEES, AGENTS ETC.
ADVC must ensure that its employees, agents, contracts and
other Persons within its control comply with this clause 15.
15.6. PUBLICITY
The parties must not make any public announcement or make any
representation to any media representative about:
15.6.1. this document;
15.6.2. the performance of this document by any party;
15.6.3. any matter related to this document; or
15.6.4. any other party,
without the prior written consent of each of the other parties
to this document.
20
16. WITHDRAWAL OF EXCLUSIVITY
16.1. APPLICATION OF RULE
The rule in this clause 16 applies if the moneys paid by ADVC
to ACT would but for clause 8.4.1, be less then the Minimum
Guarantee Amount for two successive Calendar Quarters.
16.2. WITHDRAWAL OF EXCLUSIVITY
If the circumstance set out in clause 16.1 applies, then Act
may at its option:
16.2.1. notify ADVC in writing that the exclusivity given
to ADVC under clause 3.2 be withdrawn, and that all
references in this document to the `Exclusive
Territory' will be regarded as references to
`Non-Exclusive Territory'; or
16.2.2. treat the circumstance as a Termination Event.
17. TERMINATION
17.1. TERMINATION FOR BREACH
17.1.1. If a party is in breach of this Agreement, the
Non-Defaulting Party may give a notice to the
Defaulting Party:
17.1.1.1. specifying the breach;
17.1.1.2. requiring the Defaulting Party to rectify
the breach;
17.1.1.2.1. where it is a financial breach,
within 30 days; or
17.1.1.2.2. otherwise where it is capable
of remedy within a period
specified by ACT as being
reasonable (such date not to
exceed 180 Business Days of the
date the Defaulting Party
received the notice).
17.1.2. The Non-Defaulting Party may terminate this Agreement
if after the expiry of the notice, the Defaulting
Party has not rectified the breach specified in the
notice.
17.2. IMMEDIATE TERMINATION
This Agreement may be terminated by a party immediately by
notice to the other party if a Termination Event occurs.
21
17.3. ACCRUED RIGHTS
The termination of this Agreement is without prejudice to any
rights which have accrued to a party before the date of
termination.
18. RELATIONSHIP OF THE PARTIES
18.1. NO PARTNERSHIP
This Agreement does not create any partnership, joint venture
or agency relationship between the parties.
18.2. NO REPRESENTATIONS OF AUTHORITY
ADVC may not enter into any agreements or incur any
liabilities on behalf of ACT without ACT's prior written
consent and may not represent to any person that it has any
authority to do so.
19. GENERAL
19.1. AMENDMENT
This Agreement may only be varied or replaced by a Agreement
duly executed by the parties.
19.2. ENTIRE UNDERSTANDING
This Agreement contains the entire understanding between the
parties as to the subject matter contained in it. All previous
agreements, representations, warranties, explanations and
commitments, expressed or implied, affecting this subject
matter are superseded by this Agreement and have no effect.
19.3. FURTHER ASSURANCE
Each party must promptly execute and deliver all Agreements
and take all other action necessary or desirable to effect,
perfect or complete the transactions contemplated by this
Agreement.
19.4. LEGAL COSTS AND EXPENSES
Each party must pay its own legal costs and expenses in
relation to the negotiation, preparation and execution of this
Agreement and other Agreements referred to in it, unless
expressly stated otherwise.
19.5. STAMP DUTY
ADVC must pay all stamp duty (including all fines and
penalties except those arising from the default of another
party) on this Agreement and any Agreement executed under it.
22
19.6. WAIVER AND EXERCISE OF RIGHTS
19.6.1. A single or partial exercise or waiver of a right
relating to this Agreement does not prevent any other
exercise of that right or the exercise of any other
right.
19.6.2. No party will be liable for any loss or expenses
incurred by another party caused or contributed to by
the waiver, exercise, attempted exercise, failure to
exercise or delay in the exercise of a right.
19.7. ASSIGNMENT
19.7.1. A party must not:
19.7.1.1. sell, transfer, delegate, assign,
licence; or
19.7.1.2. mortgage, charge or otherwise encumber
any right or obligation under this Agreement to any
person ("Proposed Assignee"), without the prior
written consent of the other parties to this
Agreement ("Other Parties").
19.7.2. The Other Parties must not unreasonably withhold
consent under this clause.
19.7.3. The assigning party must pay all fees and expenses
(including legal fees on a solicitor/own client
basis) incurred by the Other Parties in connection
with the proposed assignment and the investigation of
the Proposed Assignee, whether or not consent is
granted.
19.7.4. The assigning party must deliver to the Other
Parties:
19.7.4.1. the name, address and occupation of the
Proposed Assignee;
19.7.4.2. two written references as to financial
circumstances of the Proposed Assignee;
19.7.4.3. an agreement in a form approved by the
Other Parties, executed by the Proposed
Assignee, in which the Proposed Assignee
agrees to perform the obligations of the
assigning party under this Agreement; and
19.7.4.4. if required by the Other Parties, a
guarantee in a form approved by the Other
Parties executed by persons approved by
the Other Parties, guaranteeing the
performance of the Proposed Assignee's
obligations.
23
19.8. TIME OF THE ESSENCE
Time is of the essence as regards all dates, periods of time
and times specified in this Agreement.
19.9. NO RELATIONSHIP
No party to this Agreement has the power to obligate or bind
any other party. Nothing in this Agreement will be construed
or deemed to constitute a partnership, joint venture or
employee, employer or representative relationship between any
of the parties. Nothing in this Agreement will be deemed to
authorize or empower any of the parties to act as agent for or
with any other party.
19.10. SURVIVAL OF INDEMNITIES
Each indemnity in this Agreement is a continuing obligation,
separate and independent from the other obligations of the
parties and survives termination of this Agreement.
19.11. RULE OF CONSTRUCTION
In the interpretation of this Agreement, no rule of
construction applies to the disadvantage of the party
preparing this Agreement on the basis that it put forward this
Agreement or any part of it.
20. NOTICES
20.1. SERVICE OF NOTICE
A notice or other communication required or permitted, under
this Agreement, to be served on a person must be in writing
and may be served:
20.1.1. personally on the person;
20.1.2. by leaving it at the person's current address for
service;
20.1.3. by posting it by prepaid post addressed to that
person at the person's current address for service;
or
20.1.4. by facsimile to the person's current number for
service.
20.2. PARTICULARS FOR SERVICE
20.2.1. Any party may change the address or facsimile number
for service by giving notice to the other parties.
20.2.2. If the person to be served is a company, the notice
or other communication may be served on it at the
company's registered office.
24
20.3. PARTICULARS FOR SERVICE
20.3.1. Any party may change the address or facsimile number
for service by giving notice to the other parties.
20.3.2. If the person to be served is a company, the notice
or other communication may be served on it at the
company's registered office.
20.4. TIME OF SERVICE
A notice or other communication is deemed served:
20.4.1. if served personally or left at the person's address,
upon service;
20.4.2. if posted within Australia to an Australian address,
two Business Days after posting and in any other
case, seven Business Days after posting;
20.4.3. if served by facsimile, subject to the next
sub-clause, at the time indicated on the transmission
report produced by the sender's facsimile machine
indicating that the facsimile was sent in its
entirety to the addressee's facsimile;
20.4.4. if received after 6.00pm in the place of receipt or
on a day which is not a Business Day, at 9.00am on
the next Business Day.
21. INTERPRETATION
21.1. GOVERNING LAW AND JURISDICTION
This Agreement is governed by and is to be construed in
accordance with the laws of Victoria. Each party irrevocably
and unconditionally submits to the non-exclusive jurisdiction
of the courts of Victoria and waives any right to object to
proceedings being brought in those courts.
21.2. PERSONS
In this Agreement, a reference to:
21.2.1. a person includes a firm, partnership, joint venture,
association, corporation or other corporate body;
21.2.2. a person includes the legal personal representatives,
successors and permitted assigns of that person; and
21.2.3. any body which no longer exists or has been
reconstituted, renamed, replaced or whose powers or
functions have been removed or transferred to another
body or agency, is a reference to the body which most
closely serves the purposes or objects of the
first-mentioned body.
25
21.3. JOINT AND SEVERAL
If a party consists of more than one person, this Agreement
binds them jointly and each of them severally.
21.4. LEGISLATION
In this Agreement, a reference to a statute includes
regulations under it and consolidations, amendments,
re-enactments or replacements of any of them.
21.5. THIS AGREEMENT, CLAUSES AND HEADINGS
In this Agreement:
21.5.1. a reference to this or other Agreement includes the
Agreement as varied or replaced regardless of any
change in the identity of the parties;
21.5.2. a reference to a clause, schedule, appendix or
annexure is a reference to a clause, schedule,
appendix or annexure in or to this Agreement all of
which are deemed part of this Agreement;
21.5.3. a reference to writing includes all modes of
representing or reproducing words in a legible,
permanent and visible form; and
21.5.4. headings and sub-headings are inserted for erase of
reference only and do not affect the interpretation
of this Agreement.
21.6. SEVERANCE
21.6.1. If a provision in this Agreement is held to be
illegal, invalid, void, voidable or unenforceable,
that provision must be read down to the extent
necessary to ensure that it is not illegal, invalid,
void, voidable or unenforceable.
21.6.2. If it is not possible to read down a provision as
required in this clause, that provision is severable
without affecting the validity or enforceability of
the remaining part of that provision or the other
provisions in this Agreement.
21.7. COUNTERPARTS
This Agreement may be executed in any number of counterparts
all of which taken together constitute one instrument.
21.8. CURRENCY
In this Agreement, a reference to "$" or "dollars" is a
reference to Australian dollars.
26
21.9. BUSINESS DAY
If a payment or other act is required by this agreement to be
made or done on a day which is not a Business Day, the payment
or act must be made or done on the next following Business
Day.
21.10. ACT RIGHT OF SETOFF
ACT may, without any demand or notice, setoff and apply any
and all indebtedness at any time owing by ACT to ADVC against
any and all other monies or indebtedness which is immediately
due and payable.
21.11. NUMBER AND GENDER
In this Agreement, a reference to:
21.11.1. the singular includes the plural and vice versa; and
21.11.2. a gender includes the other genders.
27
EXECUTED by the parties as an agreement.
EXECUTED by ADVANCED COM- )
MUNICATIONS TECHNOLOGIES )
(AUSTRALIA) PTY LTD CAN 086 856 )
617 by being signed by those persons who )
are authorised to sign for the company: )
/s/ GRABME XXXXXXX XXXXXXX. Director
---------------------------
/s/ GRABME XXXXXXX XXXXXXX. Full name
---------------------------
/s/ 0 Xxxx Xxxxx, Xxxxxxxx Xxx. 3121 Usual address
------------------------------------
Australia
------------------------------------
/s/ Exec VP - Director Director (or Company Secretary)
------------------------------------
Full name
------------------------------------
Usual address
------------------------------------
EXECUTED by ADVANCED COM- )
MUNICATIONS TECHNOLOGIES, )
INC. by being signed by those persons )
who are authorized to sign for the )
company: )
/s/ XXXXX X. MAY Director[/s/ \ CEO]
------------------------------------
/s/ XXXXX X. MAY Full name
------------------------------------
/s/ 0000 Xxxxxxxxx Xxx #407 Usual address
------------------------------------
/s/ Chairman/CEO Director (or Company Secretary)
------------------------------------
Full name
------------------------------------
Usual address
------------------------------------
28
ANNEXURE A
LICENCE TERMS
LICENCE: The SpectruCell Software (comprising software, data and documentation)
is provided to you on the basis of a non-exclusive and no-transferable licence
for your own personal use only on a single computer accessible by only one user
at a time. The licence commences on payment of the licence fee and continues
perpetually unless terminated by notice from ADVANCED COMMUNICATIONS
TECHNOLOGIES (AUSTRALIA) PTY LTD CAN 000 000 000 (OWNER) if you breach these
Licence Terms or become subject to any form of insolvency administration.
LICENCE RESTRICTIONS: You will not sell, loan, rent, transfer or sublicence the
SpectruCell Software or your rights under these Licence Terms without the prior
written consent of the Owner. You will not use the SpectruCell for any third
party's benefit by way of a service bureau of otherwise. You will not allow
access to the SpectruCell by multiple users at any one time through networking
arrangements or otherwise. You will not allow access to the SpectruCell by
multiple users at any one time through networking arrangements or otherwise. You
will not use the SpectruCell Software other than for your own personal use.
To protect the Owner's intellectual property rights in the SpectruCell Software
you will not, and will not allow or cause a third party, to decompile,
dissemble, reverse engineer, copy or modify the SpectruCell Software or use the
whole or any part of the SpectruCell Software to assist in the development of a
similar or competitive product or otherwise use the SpectruCell Software except
as provided in these Licence Terms.
You may make one copy of the SpectruCell Software for backup or archival
purposes. You will take appropriate measures to prevent unauthorized use or
access to the SpectruCell Software.
LIABILITY: To the extent permitted by law, the Owner excludes all warranties and
representations relating to the SpectruCell Software. Nothing in these Licence
Terms will exclude, restrict or modify any condition, warranty, right or remedy
implied or imposed by any statute or regulation to the extent that it cannot be
lawfully excluded, restricted or modified. If any condition or warranty is
implied into this licence under a statute or regulation and cannot be excluded,
the liability of the Owner for a breach of the condition or warranty will be
limited to the replacement of the product or the supply of the services again.
Except to that extent, the Owner will not be liable in contract or in tort
(including negligence) or otherwise for any loss or damage (including indirect
or consequential loss or damage) however caused, which may be suffered, or
incurred or which may arise directly or indirectly in respect of the use of, or
inability to use, the SpectruCell Software.
29
ANNEXURE B
MARKETING PLAN
(To be agreed in writing between the parties)
