Exhibit 10.03
THIS AGREEMENT is made the
9th day of April, 2002
__________________________________________________________
BETWEEN:
SOTA INSTRUMENTS INC.
OF THE FIRST PART
AND:
ESSENTIAL INNOVATIONS ASIA LIMITED
OF THE SECOND PART
AND:
ESSENTIAL INNOVATIONS TECHNOLOGY CORPORATION
OF THE THIRD PART
__________________________________________________________
INTERNATIONAL MARKETING AGREEMENT
__________________________________________________________
▇▇▇▇▇ ▇. ▇▇▇▇
Gibraltar Law Group
Gibraltar Building
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
DJG:dew
INTERNATIONAL MARKETING AGREEMENT
THIS AGREEMENT is made the 9th day of April, 2002:
BETWEEN:
SOTA INSTRUMENTS INC., a company incorporated pursuant to the
laws of the Province of British Columbia and having its head
office and chief place of business situate at ▇.▇. ▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇;
(herein called "Sota")
OF THE FIRST PART
AND:
ESSENTIAL INNOVATIONS ASIA LIMITED, a company incorporated
pursuant to the laws of Hong Kong and having its head office
and chief place of business situate at 1805 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇:
(herein called "El Asia")
OF THE SECOND PART
AND:
ESSENTIAL INNOVATIONS TECHNOLOGY CORPORATION, a company
incorporated pursuant to the laws of the state of Nevada and
having its head office and chief place of business situate at
#▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
(herein called "E.I. Tech")
OF THE THIRD PART
RECITALS:
A. WHEREAS Sota, a private company engaged in the business of manufacturing and
marketing, on both a retail and wholesale basis, proprietary health care
products, including integrated microcurrent devices and other products based
upon electricity, for the natural health market (known collectively as "Sota
Products"), wishes to increase and develop its business in the global
marketplace by establishing and enhancing a network of dealers;
B. AND WHEREAS El Asia, a private company engaged in the international marketing
of natural health products, possesses the requisite expertise, through the
office of its President, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, to assist Sota in achieving these
objectives;
C. AND WHEREAS Sota is prepared to grant El Asia the opportunity to earn the
right to exclusively market the Sota Products in countries, other than Canada
and the United States of America, in which stipulated sales targets are achieved
and maintained within a certain timeframe as set out herein;
D. AND WHEREAS the parties intend, through this Agreement, to record their
respective rights and responsibilities in the establishment and development of
an international network of dealers for Sota Products;
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration
of the premises and covenants, agreements, representations, warranties and
payments hereinafter set out, the parties hereto covenant and agree as follows:
1. DEFINITIONS:
1.01. In this Agreement, the following terms have the following
ascribed meanings:
(a) "Dealer" means an authorized seller of Sota Products who has
signed an Authorized Dealer Agreement with Sota or a Master
Dealer;
(b) "Effective Date" shall mean the date this Agreement is signed;
(c) "Inclusion Date" shall mean, respectively, for each
Participating Country, that date on which the name of such
country is added to the List of Participating Countries
appended as Schedule "A" to this Agreement;
(d) "Master Dealer" shall mean that Dealer for each Participating
Country which El Asia, with the written consent of Sota, has
appointed as a Master Dealer and which has concluded a Master
Dealer Agreement with Sota;
(e) "Net Sales," with respect to sales to Dealers in a
Participating Country, shall mean gross sales at established
Master Dealer Pricing Levels for such Participating Country
less returns, discounts, allowances, bad debts and such other
adjustments as may be made in calculating net sales consistent
with generally accepted accounting principles;
(f) "Participating Country" means a country, other than Canada or
the United States of America, which El Asia elects, by the
appointment of a Master Dealer, to add to the countries which
are subject to this Agreement by adding the name of such
country to the List of Participating Countries attached hereto
as Schedule "A";
(g) "Unit" shall mean a single Sota Device, with the exception of
any of Sota's devices manufactured with the intent of
marketing in third world countries.
2. SCOPE:
2.01. Sota has, prior to the date hereof, developed the Sota Products
and established a business enterprise involving the manufacture and marketing of
Sota Products directly, as well as through a network of distributors,
principally in Canada and the United States of America. This existing business
enterprise, except as may be specifically addressed herein, is not the subject
of this Agreement. This Agreement addresses the creation, development and
operation of an international network of Dealers for Sota Products in countries
other than Canada and the United States of America.
2.02. Except as may be specifically limited by the terms of this
Agreement, Sota is to retain full autonomy and responsibility for the operation
and development of the pre-existing business enterprise.
2.03 is acknowledged and agreed by both Sota and E. I. Asia that the
international network of Dealers for Sota Products established under this
Agreement shall not be used by either, independently, to promote or advance the
sale of products or services other than the Sota Products.
3. PREMISE:
3.01. This Agreement is premised upon the personal relationship between
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President of Sota, and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, President of El Asia,
and is founded upon the understanding that ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ will be and remain
the person in charge of the development, operation and management of an
international network of Dealers for Sota Products. Should ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ leave
his employ with El Asia or cease to be the person so in charge, El Asia shall
propose a suitable person to assume responsibility for the development,
operation and management of the international network of Dealers and, with the
consent of Sota such person shall assume those responsibilities. If, after the
appointment of such person, Sota is dissatisfied with that person's performance
Sota will then give written notice outlining the reasons Sota is dissatisfied.
For a period of ninety (90) days from receiving written notice, El Asia will
have the opportunity to satisfy Sota's concerns. If after ninety (90) days Sota
is still dissatisfied, then Sota will have the right to terminate this Agreement
upon providing thirty (30) days written notice.
4. DEVELOPMENT OF INTERNATIONAL NETWORK OF DEAL:
4.01. El Asia agrees to endeavour to establish an international network
of Dealers.
4.02. The procedure to be employed by El Asia in endeavouring to
establish an international network of Dealers shall be:
(a) when El Asia has selected a Master Dealer for a country and
such Master Dealer has concluded a Master Dealer Agreement
with Sota, such country shall be added to Schedule "A" as a
Participating Country;
(b) the Master Dealer will recruit and engage other Dealers who
will each sign an Authorized Dealer Agreement with its Master
Dealer;
(c) Sota and El Asia will develop a Master Dealer Price List of
Sota Products for that Participating Country which shall be
provided to the Master Dealer and shall govern the prices at
which Sota Products shall be provided by Sota to the Master
Dealer. Sota reserves the right to change the Master Dealer
Price List if its cost of producing and delivering Sota
Products warrant a change. Sota agrees to provide thirty (30)
days written notice to El Asia before implementing price
changes.
Sota and El Asia acknowledge and agree that, with respect to
certain third world countries, the Master Dealer prices may
have to be established, initially, at levels which are at or
near the delivered cost of Sota Products to Sota. In order for
this to happen, both Sota and El Asia must jointly agree. In
these circumstances, Sota and El Asia agree that it may be
necessary to renegotiate, with respect to sales concluded in
that Participating Country, the rates at which El Asia's
commission is to be calculated and paid.
(d) Sota agrees to provide Sota Products to the Master Dealer at
the prices set out in the Master Dealer Price List for that
Participating Country, and the Master Dealer and Sota shall
each maintain records of the amount of Sota Products provided
to the Master Dealer and the price paid for all Sota Products
on a monthly basis;
(e) the Master Dealer and other Dealers shall market and sell Sota
Products in their Participating Country only.
5. SOTA'S RIGHTS AND RESPONSIBILITIES:
5.01. Sota shall be free to continue to market Sota Products globally
in such manner as it sees fit.
5.02. Should Sota be approached by a person or company wishing to be
appointed as a Master Dealer in a certain country, Sota shall refer such person
or company to El Asia for consideration.
5.03. Sota agrees, to the best of its liabilities, to fill orders
received from Master Dealers, and to provide product and technical support,
marketing and promotional materials, and current information respecting Sota
Products. Sota's responsibilities to provide such support, information and
materials shall be limited to providing English language support, information
and materials. El Asia, Master Dealers and Dealers, shall be entitled to use
marketing and promotional materials published and provided by Sota and to
represent themselves as authorized sellers of Sota Products in their
Participating Countries, but, in so doing, shall respect and honour Sota's
intellectual property rights in the Sota Products and copywrited materials,
trademarks and trade names. Nothing herein, however, shall grant El Asia, its
Master Dealers, or Dealers, any right, title, or interest in Sota's trademarks,
trade names or other intellectual property. At no time during or after the term
of this Agreement shall El Asia, Master Dealers or Dealers challenge or assist
others to challenge Sota's trademarks, trade names or other intellectual
property or the registration thereof, or attempt to register any trademarks,
marks or trade names confusingly similar to those of Sota.
5.04. Should El Asia or any of its Master Dealers or Dealers develop
marketing and promotional materials for use in advertising and promoting the
Sota Products, such marketing and promotional materials must be specifically
approved by Sota before they are published or distributed.
6. COMMISSION:
6.01. Sota shall first become obligated to pay El Asia commissions on
the sale of Sota Products to Master Dealers in a Participating Country on the
earlier of the date of the first sale of Sota Products to a Master Dealer or
that day which is six months from the Inclusion Date for the Participating
Country (which date, for each Participating Country, shall be called the "Start
Date".)
6.02. Sota agrees to pay El Asia commission based upon Net Sales in a
Participating Country at the following rates:
(a) 20% of Net Sales for the first year following the Start Date;
(b) 15% of Net Sales for the second year following the Start Date;
and
(c) 5% of Net Safes after the end of the second year following the
Start Date.
6.03. Sota shall have the right to set forth cash discounts, to make
such allowances and adjustments, to accept such returns from its customers, and
to write off as bad debts such overdue customer accounts as it deems advisable.
Sota shall be entitled to charge back to El Asia any amounts previously paid or
credited as commission with respect to such cash discounts, allowances,
adjustments, returned items or bad debts. Sota, however, agrees that the amount
of any cash discount provided to a customer and charged back to El Asia's
commission, shall not exceed 5% of the sale price.
6.03. Sota agrees to pay El Asia commission based upon Net Sales of
7.5% for orders with a minimum of 50 of anyone of Sota's devices in countries
other than Participating Countries of 7.5% on such sales that El Asia initiates.
6.04. Upon El Asia meeting, and while it continues to meet, all
requirements set out in subparagraph 8.02(d), Sota shall pay El Asia a
commission based upon Net Sales for orders in countries other than Canada, the
United States of America and Participating Countries of 5%.
7. PAYMENT OF COMMISSION:
7.01. Sota agrees to pay El Asia commissions earned for each month
within thirty (30) days of the end of such month.
7.02. Within thirty (30) days of the end of each month, Sota shall
deliver to El Asia its calculation of Net Sales for each Participating Country
for such month showing both the gross revenue received from the sale of Sota
Products and all costs, expenses and adjustments appropriately particularized,
deducted in arriving at Net Sales for such month, together with its cheque,
payable to El Asia, for the commission earned.
7.03. For a period of sixty (60) days following receipt of such
calculation, El Asia shall have the right to question Sota's calculation by
delivering to Sota written notice that it is questioning the calculation. Upon
receipt of such notice, Sota will provide to El Asia copies of all transaction
records, invoices and other documents supporting its calculation. Should El Asia
not deliver written notice within such sixty (60) day period, Sota's calculation
shall be deemed to be correct, and may not, thereafter, be challenged.
7.04. Should El Asia notify Sota that it continues to question Sota's
calculations upon a review of the documents from Sota, Sota's calculations of
Net Sales for the Participating Country or Countries questioned, together with
copies of all transaction records, invoices and other supporting documents,
shall be submitted to an independent chartered accountant acceptable to both
Sota and El Asia, whose assessment and ultimate determination of Net Sales for
the said Participating Country or Countries, shall be final and binding.
7.05. Should the determination of such independent chartered accountant
be within 5% of Sota's calculation of Net Sales, the cost of his review will be
for the account of El Asia; otherwise, it will be paid by Sota.
8. EXCLUSIVE MARKETING RIGHTS:
8.01. In a Participating Country:
(a) In order to earn the exclusive right to market Sota Products
in a Participating Country, El Asia, the Master Dealer and
Dealers must sell at least 10,000 Units over any six (6) month
period within eighteen (18) months of the Start Date for that
Participating Country;
(b) in order to continue to enjoy the Exclusive right to market
Sota Products in a Participating Country, El Asia, the Master
Dealer and Dealers, must continue to sell at least 10,000
Units over every six (6) month period, after the six (6) month
period in which such right was earned;
(c) Upon El Asia establishing a new Participating Country, and
while El Asia and the Master Dealer meet, and while they
continue to meet, all requirements set out in subparagraph
8.01(a), Sota shall instruct its own dealers and customers in
that Participating Country to place all future orders through
the Master Dealer.
8.02. Globally:
In order to earn the exclusive right to market Sota Products in all
countries, except Canada and the United States of America. El Asia must:
(a) within eighteen (18) months of the Effective Date, earn and
maintain the exclusive right to sell Sota Products in at least
one Participating Country;
(b) within two (2) years of the Effective Date, earn and maintain
the exclusive right to sell Sota Products in at least three
(3) Participating Countries;
(c) within three (3) years of the Effective Date, earn and
maintain the exclusive right to sell Sota Products in at least
five (5) Participating Countries; and
(d) within five (5) years of the Effective Date, earn and maintain
the exclusive right to sell Sota Products in at least ten (10)
Participating Countries.
8.03. Upon El Asia meeting, and while it continues to meet, all
requirements set out in subparagraphs 8.02(a), (b), (c) and (d), El Asia will
have earned the exclusive right to market Sota Products in all countries except
Canada and the United States of America, and shall maintain such exclusive right
as long as it continues to satisfy the requirements of paragraph 8.02(d).
9. SOTA'S SHARE PURCHASE OPTION:
9.01. As consideration for the rights and opportunities granted to it
by Sota hereunder, E.I. Tech, El Asia's parent corporation hereby grants to
Sota, while this Agreement persists, an option to purchase all or any portion of
200,000 common shares of E.I. Tech from treasury at the price of $0.25 U.S. per
share according to the following timetable:
(a) after one (1) year from the Effective Date, Sota may purchase
up to 50,000 shares of E.I. Tech;
(b) after two (2) years from the Effective Date, Sota may purchase
up to an additional 50,000 shares of E.I. Tech; and
(c) after three (3) years from the Effective Date, Sota may
purchase up to an additional 100,000 shares of E.I. Tech.
9.02. This option is exercisable by Sota providing notice in writing to
E.I. Tech accompanied by a certified cheque in favour of E.I. Tech for the full
amount of the purchase price, in U.S. dollars, of the shares being then
purchased. When such payment is received, E.I. Tech covenants and agrees to
issue and deliver to Sota share certificates in the name of Sota for the number
of shares so purchased.
9.03. This option shall not be transferable or assignable by Sota.
9.04. In the event of any subdivision, consolidation or other change in
the share capital of E.I. Tech while any portion of this option is outstanding,
the number of shares under option to Sota and the price therefore shall be
adjusted in accordance with such subdivision, consolidation or other change in
the share capital of E.I. Tech.
9.05. E.I. Tech covenants and agrees that it will reserve in its
treasury sufficient shares to permit the issuance and allotment of shares to
Sota in the event this option is exercised.
9.06. Should this Agreement be terminated, the share purchase option
herein granted shall also immediately terminate.
10. TERMINATION:
10.01. Target Default:
Should El Asia fail to achieve any of the targets set out in paragraphs
8.02.(a), (b), (c) and (d) within the time limits therein specified, Sota shall
be entitled to terminate this Agreement provided that:
(a) it shall have first given to El Asia a Notice of Default
containing particulars of the target which El Asia has failed
to meet; and
(b) El Asia does not, within thirty (30) days following the
delivery of such Notice, provide Sota with verification that
it has achieved such target.
10.02. Other Default:
The parties hereto agree that if either of them is in default with
respect to any of the other provisions of this Agreement, the Non-Defaulting
Party may give notice to the Defaulting party specifically designating such
default, and within sixty (60) days after its receipt of such notice, the
Defaulting Party shall either:
(a) cure such default, or commence proceedings to cure such
default and prosecute the same to completion without undue
delay; or
(b) give the Non-Defaulting Party notice that it denies such
default has occurred and is submitting the question to
arbitration as herein provided.
If arbitration is sought, a party shall not be deemed in default until
the matter shall have been determined finally by appropriate arbitration under
the provisions of paragraph 12 hereof.
If:
(a) the default is not so cured or a commencement made on
proceedings to cure it, and
(b) arbitration is not so sought; or the Defaulting Party is found
in arbitration proceedings to be in default, and fails to cure
it or commence proceedings to cure it within sixty (60) days
after tile rendering of the arbitration award;
the Non-Defaulting Party shall be entitled to seek any remedy it may have on
account of such default.
10.03. El Asia's Termination:
El Asia shall be entitled to terminate this Agreement by providing Sota
with thirty (30) days written notice of its intention to do so.
10.04. Termination for Insolvency:
This Agreement shall terminate, without notice:
(a) upon the institution by or against either El Asia or Sota of
insolvency, receivership or bankruptcy proceedings or any
other proceedings for the settlement of debts; and
(b) upon either El Asia or Sota making an assignment for the
benefit of its creditors; and
(c) upon the initiation of dissolution proceedings respecting
either El Asia or Sota.
10.05. Consequences of Termination:
Following termination, El Asia shall no longer have the exclusive right
to market Sota Products in any country. El Asia shall, however, continue to be
entitled to receive a commission equal to 5% of the net sales in a Participating
Country in which Master Dealers recruited and engaged by El Asia continue to
sell at least 10,000 Units over every six (6) month period after the six (6)
month period in which at least 10,000 Units were originally sold or as long as
Sota chooses to continue selling to the Master Dealer.
10.06. Return of Materials:
Upon termination, El Asia shall no longer represent itself as an
authorized seller of Sota Products and shall immediately return to Sota all
marketing and promotional materials previously used in advertising and promoting
Sota Products. El Asia shall not make or retain any copies of any confidential
items, materials or information that may have been entrusted to it, and shall
cease to use all trademarks, marks and trade names of Sota.
10.07. Limitation on Liability:
In the event of termination by either party in accordance with any of
the provisions of this Agreement, neither party shall be liable to the other
because of the termination for compensation, reimbursement or damages on account
of the loss of prospective profits or anticipated sales or on account of
expenditures, investments, leases or commitments made in connection with the
business or goodwill of Sota or El Asia. Sota's sole liability, under the terms
of this Agreement shall be for any unpaid commissions under sections 6 and
10.05.
11. CANADIAN AND UNITED STATES MARKETS -El ASIA'S RIGHT OF FIRST REFUSAL:
11.01. Although this Agreement and the relationship created between
Sota and El Asia concerns the creation, development and operation of an
international network of Dealers for Sota Products in countries other than
Canada and the United :States of America, Sota agrees that should El Asia earn
and maintain the exclusive right to market Sota Products in all countries except
Canada and the United States of America as described in subparagraph 8.03(c)
hereof, Sota will grant to El Asia a Right of First Refusal respecting the
acquisition of the exclusive right to market Sota Products in Canada and the
United States of America.
11.02. El Asia's Right of First Refusal shall be exercised upon the
following terms:
(a) if Sota should receive a bona fide offer from an independent
third party (the "Proposed Purchaser") dealing at ,arm's
length with Sota to purchase the right to exclusively market
Sota Products in Canada and the United States of America
(herein called "Marketing Rights") which offer Sota desires to
accept, or if Sota intends to sell the Marketing Rights, Sota
shall first offer (the "Offer") the Marketing Rights in
writing to El Asia upon terms no less favourable than those
offered by the Proposed Purchaser or intended to be offered by
Sota as the case may be. The Offer shall specify the price and
terms and conditions of sale, the name of the Proposed
Purchaser, which terms shall, in the case of an intended offer
by Sota, mean the person or persons to whom Sota intends to
offer the Marketing Rights, and, if the Offer received by Sota
from the Proposed Purchaser provides for any consideration
payable to Sota otherwise than in cash, the Offer shall
include Sota's good faith estimate of the cash equivalent of
the non-cash consideration;
(b) if, within a period of thirty (30) days of the receipt of the
Offer, El Asia notifies Sota in writing that it will accept
same, Sota shall be bound to sell such Marketing Rights to El
Asia (subject as hereinafter provided with respect to price)
on the terms and conditions of the Offer. If the Offer so
accepted by El Asia contains Sota's good faith estimate of the
cash equivalent consideration as aforesaid, and if El Asia
disagrees with Sota's best estimate, El Asia shall so notify
Sota at the time of acceptance, and shall, in such notice,
specify what it considers, in good faith, to be the fair cash
equivalent and the resulting total purchase price. If El Asia
so notifies Sota, the acceptance by El Asia shall be effective
and binding upon Sota, and El Asia, and the cash equivalent of
any non-cash consideration shall be determined by binding
arbitration under the Commercial Arbitration Act of British
Columbia pursuant to paragraph 12, and shall be payable to
Sota, subject to prepayment as hereinafter provided, within
ten (10) days following its determination by arbitration. El
Asia shall, in such case, pay to Sota, against receipt of an
absolute transfer of the Marketing Rights, the total purchase
price which is specified in its notice to Sota, and such
amount shall be credited to the amount determined following
arbitration of the cash equivalent of any non-cash
consideration;
(c) if El Asia fails to notify Sota before the expiration of the
time limited therefor that it will purchase the Marketing
Rights offered, Sota may sell and transfer such Marketing
Rights to the Proposed Purchaser at the price and on the terms
and conditions specified in the Offer for a period of sixty
(60) days, PROVIDED that the terms of this paragraph shall
again apply to such Marketing Rights if the sale to the
Proposed Purchaser is not completed within the said sixty (60)
days.
12. DISPUTE RESOLUTION:
12.01. Mediation:
Should any dispute, other than a dispute respecting the calculation of
Net Sales which shall be resolved in accordance with the procedure established
in paragraph 7, arise between Sota and El Asia respecting the interpretation or
application of any provision of this Agreement or the relationship between Sota
and El Asia hereby established, the parties agree to first attempt to resolve
the dispute by participating, in good faith, in a mediation of the contentious
matter conducted by a professional mediator acceptable to both. The appointment
of such professional mediator, and the conduct of the mediation, shall occur as
soon as practicable.
12.02. Arbitration:
Should such mediation fail to resolve the outstanding dispute between
Sota and El Asia, the parties agree to submit such dispute for the determination
of a single arbitrator, whose appointment shall be mutually agreed upon. Sota
and El Asia each agree to bear their own legal and other costs of such
arbitration, and further agree that the determination and award of the
arbitrator shall be accepted and respected as final and binding.
13. CONFIDENTIALITY AND NON-COMPETITION:
13.01. El Asia acknowledges that, by reason of its relationship to Sota
hereunder, it will have access to certain information and materials concerning
Sota's Products, technology, business plans and customers which is confidential
and of substantial value to Sota, which value would be impaired if such
information were disclosed to third parties. El Asia agrees that it shall not
use, in any way, for its own account or the account of any third party, nor
disclose to any third party, any such confidential information revealed to it by
Sota. El Asia shall not publish any technical description of the Sota Products
beyond the description published by Sota. During the term of this Agreement and
upon termination of this Agreement, El Asia shall neither use nor disclose any
confidential information of Sota, nor shall it manufacture or assist another to
manufacture any devices, components or assemblies using Sota's patents,
inventions, copyrights, know-how, trade secrets or other intellectual property.
At no time during the term of or after the termination of this Agreement shall
El Asia challenge or assist others to challenge Sota's trademarks or the
registration thereof or attempt to register any trademarks, marks or trade names
confusingly similar to those of Sota.
14. STATUS OF PARTIES:
14.01. El Asia enters into this contract and undertakes its
responsibilities hereunder as an independent contractor, and nothing contained
in this Agreement shall be construed to:
(a) give either party the power to direct and control the
day-to-day activities of the other;
(b) constitute the parties as partners, joint venturers, co-owners
or otherwise, or
(c) allow El Asia to create or assume any obligation on behalf of
Sota for any purpose whatsoever. El Asia, Master Dealers and
Dealers hereunder are not employees of Sota, and El Asia shall
be responsible for paying all income taxes and other taxes
charged to El Asia on amounts earned hereunder. All financial
and other obligations associated with El Asia's business are
the sole responsibility of El Asia.
15. LIMITATION OF LIABILITY:
15.01. In the event of termination by either party in accordance with
any of the provisions of this Agreement, neither party shall be liable to the
other, because of the termination, for compensation, reimbursement or damages on
account of the loss of prospective profits or anticipated sales or on account of
expenditures, investments, leases or commitments in connection with the business
or goodwill of Sota or El Asia.
16. INDEMNIFICATION:
16.01. Indemnification by El Asia:
El Asia shall indemnify and hold Sota free and harmless from any and
all claims, damages, charges, expenses, suits or actions arising out of the
negligence or misrepresentation of El Asia.
16.02. Indemnification of Sota:
Sota shall indemnify and hold El Asia, free and harmless from any and
all claims, damages, charges, expenses, suits or actions arising out of defects
in the Sota Products caused by Sota or failure of Sota to provide any Sota
Products to a customer that has properly ordered through a Master Dealer or
Dealer, or its negligence or misrepresentation.
17. NOTIFICATION OF MATERIAL CHANGES:
17.01. Both El Asia and Sota shall promptly advise the other of any
material changes in their status, organization, personnel, including any changes
in the key personnel and status of the relationship with any major customers of
either of them, and any political, financial, legislative, industrial or other
events which could effect the mutual business interests of Sota and El Asia,
whether harmful or beneficial.
18. AMENDMENTS:
18.01. If, at any time during the currency of this Agreement, the
parties hereto shall both consider it necessary or expedient to make any
amendment or addition to this Agreement, they shall do so by means of a
supplemental written Agreement between them, executed in the same manner as this
Agreement.
19. ASSIGNMENT:
19.01. Neither Sota nor El Asia shall have the right to assign any of
their respective rights or obligations under this Agreement to any other party
without first having obtained the written consent of the other.
20. FORCE MAJEURE:
20.01. Neither of the parties hereto shall be deemed to be in default
in respect of non-performance of obligations or responsibilities hereunder if
and so long as its non-performance is due to any cause beyond its control. Lack
of finances, however, shall in no event be deemed to be a cause beyond a party's
control. Any party prevented from carrying out any obligation by force majeure
shall promptly give the other party notice of the force majeure, including
reasonably full particulars thereof. A party shall use reasonable diligence to
remedy a force majeure and complete its obligations or responsibilities
hereunder as conscientiously as possible.
21. HEADINGS:
21.01. Headings used in this Agreement are provided for convenience
only, and shall not be used to construe meaning or intent.
22. ENTIRE AGREEMENT:
22.01. This Agreement sets forth the entire agreement and understanding
of the parties relating to the subject matter herein, and supersedes any prior
discussions or agreements between them. No modification of or amendment to this
Agreement, nor any waiver of any rights under this Agreement, shall be effective
unless in writing signed by the party to be charged.
23. WAIVER:
23.01. The failure of Sota to exercise its right to terminate this
Agreement when entitled to do so hereunder shall not be construed as a waiver of
the circumstances giving it the right to so terminate, nor shall it restrict, in
any way, the right of Sota to subsequently terminate this Agreement while those
circumstances persist or in the event other circumstances giving Sota the right
to terminate this Agreement should arise subsequently.
24. SEVERABILITY:
24.01. If any provision of this Agreement is held to be invalid, the
remaining provisions shall nevertheless remain in full force and effect.
25. NOTICE:
25.01. Any notice required or permitted hereunder shall be sufficiently
given if delivered or sent by registered mail, postage prepaid to the parties
hereto at the address above indicated or such other address as the parties may
from time to time designate for themselves in writing, and such notice so
delivered by hand or cabled, telegrammed, telegraphed, telefaxed or mailed shall
be deemed to have been received at the time of delivery or at the latest on the
business day following the cabling, telegramming, telegraphing or telefaxing, or
on the fourth business day following the mailing thereof.
26. COUNTERPARTS:
26.01. This Agreement may be signed in counterparts. Copies of this
Agreement, each signed by one or more of the parties hereto, shall, together
with copies signed by all other parties, constitute a complete Agreement.
27. APPLICABLE LAW:
27.01. This Agreement shall be interpreted and construed in accordance
with the laws of the Province of Alberta and the laws of Canada applicable
therein.
28. TIME OF ESSENCE:
28.01. Time shall be of the essence of this Agreement.
IN WITNESS WHEREOF the parties hereto have executed this Agreement on
the day and year first above written.
The Corporate Seal of Sota Instruments Inc. )
was hereunto affixed in the presence of: )
)
/s/ (unintelligible) ) C/S
------------------------------------- )
Authorized Signatory )
)
/s/ (unintelligible) )
------------------------------------- )
Authorized Signatory )
The Corporate Seal of Essential Innovations )
Asia Limited was hereunto affixed in the presence )
of: )
)
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ) C/S
------------------------------------- )
Authorized Signatory )
)
)
Authorized Signatory )
The Corporate Seal of Essential Innovations )
Technology Corporation was hereunto )
affixed in the presence of: )
)
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ) C/S
------------------------------------- )
Authorized Signatory )
)
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ )
------------------------------------- )
Authorized Signatory )
SCHEDULE "A"
LIST OF PARTICIPATING COUNTRIES