ESSENTIAL INNOVATIONS CORPORATION & ENERFLO GEOTHERMAL TECHNOLOGIES LTD.
SOLE EXCLUSIVE RIGHTS AND DISTRIBUTION AGREEMENT
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This Agreement of (18) pages was signed: on 30th day of June, 2005.
BETWEEN:
ESSENTIAL INNOVATIONS CORPORATION: Incorporated under the Canada Business
Corporations Act
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(Hereinafter referred to as "Essential Innovations" or "EIC")
AND:
ENERFLO GEOTHERMAL TECHNOLOGIES LTD: An Alberta Corporation
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(Hereinafter referred to as "EGT")
WHEREAS Essential Innovations Corporation has developed the EI Elemental line of
innovative Geoexchange products. EIC is now focused on manufacturing and
distribution strategies for it's proprietary EI Elemental Family of Products,
which exclusively utilizes geoexchange technology, R410A refrigerant and
specialized artificial intelligence controls. EIC is now actively seeking
execution of product licensing and distribution agreements for its EI Elemental
Heat Energy System throughout the World.
AND WHEREAS Essential Innovations is to be introduced to associates, affiliates,
colleagues, branches, subsidiaries or other contacts of EGT in the Territory (as
hereinafter defined) by EGT.
AND WHEREAS EGT wishes to enter into a sole exclusive distribution and agency
agreement with Essential Innovations whereby EGT would take on sole
responsibility for the distribution, marketing and sale of the Product (as
hereinafter defined) throughout the Territory (as hereinafter defined). EGT
through its associates, affiliates, colleagues, branches, or subsidiaries wishes
to undertake responsibilities for the evaluating, distribution, marketing and
sale of the Product(s) (as hereinafter defined) on a sole exclusive basis
throughout the Territory (as hereinafter defined) on the terms and conditions
contained herein;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the mutual
covenants in this Agreement, the Parties agree as follows:
1. DEFINITIONS
Definitions
As used in this Agreement, the following words and phrases shall have the
following meanings:
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ESSENTIAL INNOVATIONS CORPORATION & ENERFLO GEOTHERMAL TECHNOLOGIES LTD.
SOLE EXCLUSIVE RIGHTS AND DISTRIBUTION AGREEMENT
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"Term" means the term of this Agreement as provided in subsection 3(1) including
any renewal provided hereunder.
"Trade-Xxxx" means the trademark or trademarks of all products manufactured by
Essential Innovations and its affiliates.
1. "Territory" means the Provinces of "Alberta, Saskatchewan, Manitoba,
and the Yukon Territory" ONLY
"Future Territory" means the Provinces of "Ontario, Quebec, Nova Scotia, New
Brunswick, Xxxxxx Xxxxxx Island, Nunivat and the Northwest Territories" ONLY
"Product" means EI Elemental Geothermal Heat Pumps manufactured by Essential
Innovations Corporation
"Parties," means Essential Innovations Corporation and Enerflo Geothermal
Technologies Ltd..
"Unit or Units," means any one individual EI Elemental Geothermal Heat Pump (of
any size)
2. APPOINTMENT AND TERRITORY
(a) Appointment
Essential Innovations hereby grants EGT sole exclusive rights to
market, distribute and sell the Product(s) within the Territory and
hereby appoints EGT as its sole distributor in the Territory for this
purpose subject to the terms and conditions herein.
(b) Territory
EGT shall be granted Sole Exclusive Rights to market, distribute and
sell the Product(s) exclusively in the "Territory".
(c) Sub-Distribution
EGT shall have the right to appoint sub-distributors, provided that, as
a condition of such appointment such sub-distributor shall be entitled
to distribute and promote the Product(s) only within the Territory and
subject to and in accordance with the terms of this Agreement,
including the requirement that the sub-distributor must undergo and
take part in a training program to be provided in conjunction with
Essential Innovations and EGT at the sole cost of EGT.
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ESSENTIAL INNOVATIONS CORPORATION & ENERFLO GEOTHERMAL TECHNOLOGIES LTD.
SOLE EXCLUSIVE RIGHTS AND DISTRIBUTION AGREEMENT
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(d) First Right of Refusal
It is hereby agreed under the terms of this Agreement that at such
future date when Exclusivity is to be granted for the "Future
Territory" as defined herewith, then EGT shall have the "First Right of
Refusal" to obtain such Exclusive Distribution should they wish to
exercise such right subject to similar terms and conditions as set
forth in this Agreement for the Exclusive Distribution Rights to the
Territory.
(e) Restriction on Sales of the Product
Subject to the terms of this Agreement, during the Term, Essential
Innovations shall not, directly or indirectly, sell, assign or grant to
any other person, entity, firm or organization, the right to, market,
sell or distribute the Product within the Territory unless with written
approval from EGT.
(f) Referrals
Essential Innovations agrees to refer to EGT all inquiries, orders or
requests for all Products originating from or intended for delivery
within the Territory.
3. TERMS AND RENEWAL
(a) Term
This Agreement shall become effective upon its execution by both EIC
and EGT hereto and shall remain in effect for a period of one (1) year
from the date of such execution (the "Initial Term") subject to the
terms and conditions herein.
(b) Renewal
After the Initial Term period, this Agreement will be automatically
extended to a further three (3) year consecutive period, under the same
conditions and terms within this Agreement, providing that EGT has
complied with all the terms of this Agreement up to and including the
time of renewal (except for applicable annual increases in the purchase
quotas and volume requirements).
4. PRICE
(a) Sale Price
(i) Essential Innovations shall, from time to time, provide EGT
with price-lists with respect to the Product quoted FOB
(Vancouver, Canada).
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ESSENTIAL INNOVATIONS CORPORATION & ENERFLO GEOTHERMAL TECHNOLOGIES LTD.
SOLE EXCLUSIVE RIGHTS AND DISTRIBUTION AGREEMENT
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(ii) Essential Innovations shall send a written notice to EGT, one
month in advance, of any changes in the price list.
(iii) Once Essential Innovations has quoted EGT with a price for the
Product, the price shall be valid until completion of the deal
(order) and may not vary until such time that the order is
completed, provided the order is completed within the quoted
period and under the quoted terms. This does not, however,
relate to a "new order" that may be placed during the same
time period and may be subject to different pricing should the
price list have been amended during the specific ordering
period.
(b) Payment
(i) Standard payment terms Net 45 days from shipment date in
accordance with the terms and conditions of The Canadian
Construction "Standard Construction Document CCDC 2 progress
payment terms.
(ii) For special circumstances, should EGT initiate in writing any
direct sales between Essential Innovations and buyers in the
Territory, Essential Innovations will invoice the buyer
through EGT. In that case a wire transfer or money order shall
be used to make payment directly to Essential Innovations.
(c) Price List
EGT shall have the right to establish its own pricelist for the
Product(s) within the Territory.
(d) Sales and Marketing
The determination of sales and marketing strategies and selling prices
for the Product(s) within the Territory shall be the sole
responsibility of EGT.
(e) Registration of the Product
Should the Product(s) need to be registered, the official fees for the
registration (if any) of the Product within the Territory shall be
borne by EIC should it be necessary.
5. TERMS AND CONDITIONS
The Parties agree that during the term of this Agreement Essential Innovations
shall:
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a) Provide EGT with all requested information presently
available in order to assist EGT in the preparation of
sales promotional material relating to the Product(s) and
in order to facilitate advertising and sale of the
Product(s);
b) Replace, at its own cost, any Product(s) delivered by
Essential Innovations to EGT / EGT's buyer in a defective
or un-merchantable state due to improper shipping;
c) Properly maintain the registration of the Trade-Xxxx;
d) Essential Innovations shall not deal directly with any
person, entity, firm or organization in the Territory and
shall go through EGT unless with the knowledge and a
written consent from EGT.
e) Bear all liabilities for matters arising out of the
manufacture and quality of the Product(s) in accordance
with the standard manufacturer warranty and/or the
manufacturer extended warranty, if applicable;
f) Permit EGT to hold itself out as an authorized sole
distributor of the Product(s) within the specified
Territory;
g) Package and label the Product in accordance with
applicable standards and in compliance with the law of the
jurisdiction of the ultimate sale. Such standards shall be
identified by EGT and communicated to Essential
Innovations in Writing
6. WARRANTIES AND REPRESENTATIONS
(a) Representations and Warranties of EIC. EIC represents and
warrants to EGT that the statements made in this Agreement are
true and correct in all material respects and do not contain
any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances
under which they were made, not misleading. EIC further agrees
that at the Start Date to this Agreement, the representations
and warranties of EIC set forth in this Agreement will be
deemed to have been remade as of the Start Date and shall
survive the End Date for the applicable period of limitations.
EIC warrants and represents to EGT as follows:
(i) EIC is a corporation duly incorporated, validly
existing and in good standing under the Federal laws
of the Country of Canada, and has all requisite
corporate power and authority to carry on its
business in all material respects.
(ii) EIC has all requisite corporate power and authority
to enter into and deliver this Agreement and any
other agreement or document necessary to perform this
Agreement and to perform its obligations hereunder.
The execution of this Agreement and such other
agreements and instruments by EIC, and the
performance of their terms by EIC, have been duly and
validly authorized by the Board of Directors of
Essential Innovations Technology Corporation
("EITC"), parent Company to EIC, and no further
corporate action or authorization on behalf of EIC is
required.
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ESSENTIAL INNOVATIONS CORPORATION & ENERFLO GEOTHERMAL TECHNOLOGIES LTD.
SOLE EXCLUSIVE RIGHTS AND DISTRIBUTION AGREEMENT
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(iii) This Agreement is legal, valid and binding upon and
enforceable against EIC in accordance with its terms
(except as the enforceability thereof may be limited
by any applicable bankruptcy, reorganization,
insolvency or other laws affecting creditors' rights
generally or by general principles of equity,
regardless of whether such enforceability is
considered in equity or at law).
(iv) EIC has developed the EI Elemental Geothermal Heat
Pump Technology and owns, possesses and has title to
such and all documentation, designs, flow sheets and
related materials free and clear of all liens,
charges and encumbrances;
(v) EIC has not granted or agreed to grant any license or
right or entered into any other agreement whereby EIC
is obliged to give any other person, firm or
corporation any rights to utilize or sell the EI
Elemental Geothermal Heat Pump Technology in the
Territory; and
(vi) To EIC's knowledge: (1) EIC has complied in all
material respects with all laws and regulations of
Governmental Bodies applicable to the business and
operations of EIC and has filed with the proper
authorities all material statements and reports
required by all applicable laws and regulations; and
(2) EIC has not received notice of any violation of
any laws and regulations applicable to the business
or operations of EIC.
(b) Representations and Warranties of EGT. This Agreement requires
information, representations and warranties to enable EIC to
determine whether to accept EGT as the Sole Exclusive
Distributor in the Territory. EGT therefore represents and
warrants as follows: EGT's information, representations and
warranties set forth herein are true and complete and may be
relied upon by EIC.
EGT warrants and represents to EIC as follows:
(i) If, before the Start Date, there is any material
change with respect to EGT's affairs that would
affect EGT's information, representations or
warranties set forth herein, EGT will promptly notify
EIC of that change.
(ii) EGT is a company duly incorporated under the laws of
Alberta in good standing in accordance with the laws
of such jurisdiction and shall remain so during the
term of this Agreement.
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ESSENTIAL INNOVATIONS CORPORATION & ENERFLO GEOTHERMAL TECHNOLOGIES LTD.
SOLE EXCLUSIVE RIGHTS AND DISTRIBUTION AGREEMENT
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(iii) It shall use its best and reasonable efforts to
utilize and exploit the EI Elemental Geothermal Heat
Pump Technology in accordance with the terms and
conditions of this Agreement.
(iv) It shall comply with all applicable laws, orders and
regulations relating to the utilization of the EI
Elemental Geothermal Heat Pump Technology and, where
required by applicable laws, become registered or
licensed in such jurisdiction(s) as may be necessary.
7. EXCLUSIVE DISTRIBUTION
(a) Essential Innovations grants EGT sole exclusive
distribution rights in the Territory for the Product(s) during
the Term of this Agreement subject to EGT committing to the
following minimum annual volume and purchase quotas defined as
follows:
For the Territory of "Alberta, Saskatchewan, Ontario,
Manitoba, and Yukon Territory" in the first year of the
agreement.
= 150 units in Year One
(Special Note: For the 1st year of the Agreement, the start
date for the fulfillment of the 1st years' minimum annual unit
purchase commitment will begin 3 months from the date of the
actual execution date of this Agreement, making it initially a
15 month term;
On the 1st day of the 4th month, being the first day of the
12-month initial term, EGT agrees it will then place a
purchase order with EIC for a minimum of at least 5 units of
any product size or model at that date and no less than 5
units in any subsequent month during the Term of the Agreement
while working to achieve the 150 unit minimum annual quota.)
There will be a 25% purchase increase per annum for each year
of Renewal assuming the Contract is extended for an additional
3-year term as defined below:
Year Two: 188 units in the Territory
Year Three: 235 units in the Territory
Year Four: 294 units in the Territory
(i) At such time that EIC decides to offer
Exclusivity in the "Future Territory" and then EGT
may decide to exercise it's First Right of Refusal
for Exclusivity in the "Future Territory" of "Quebec,
Nova Scotia, New Brunswick, Xxxxxx Xxxxxx Island, and
the Northwest Territories", the Year One annual
volume and purchase quota is as follows:
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ESSENTIAL INNOVATIONS CORPORATION & ENERFLO GEOTHERMAL TECHNOLOGIES LTD.
SOLE EXCLUSIVE RIGHTS AND DISTRIBUTION AGREEMENT
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For the "Future Territory" of "Quebec, Nova Scotia,
New Brunswick, Xxxxxx Xxxxxx Island, and the
Northwest Territories": = Such annual quota will be
determined at that time
As with the Territory the same annual % increase will
apply for Renewal in the "Future Territory".
(b) Essential Innovations will inform EGT of any direct or
indirect contacts or any attempts of purchase from any buyers,
entities, groups or organizations within the Territory or
deliveries to be made in the Territory.
(i) Essential Innovations will not get involved with
any buyers/entities in the Territory without the
knowledge and written consent of EGT and in the case
EIC is directly involved, EGT will be given such
agreed commission/collectable profit afforded an
Exclusive Distributor mentioned in this Agreement for
each sale whether it is directly involved or not.
(c) At such time and date that this Agreement may be renewed after
1 year, Essential Innovations will again notify EGT in writing
as to what are to be the minimum purchase quotas, as defined
in (b) above, for the three (3) year renewal term if EGT
wishes to obtain the available extension.
(i) In addition to the minimum quota
requirements that must be agreed to and met
for any further renewal to the contract to
occur, in such case that EGT is unwilling or
incapable of meeting the expected minimum
quota requirements, then Essential
Innovations shall have the right to
terminate the contract extension prior to
the renewal, or at any time during the
renewal period where EGT may fail to meet
the required quotas.
(d) Training
During the first 3 month period of the Agreement from the date
of signing, a training program is to be implemented with EGT
sending such number of team members as appropriate to the EIC
manufacturing facility to become expertly trained in the
installation and operation of the EI Elemental Family of
Geothermal Heat Pump(s), in particular, with the operation of
the units as it relates to the proprietary AICD (Artificial
Intelligence Controls Diagnostics). EGT will pay to EIC
$325.00 per man for the training program.
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ESSENTIAL INNOVATIONS CORPORATION & ENERFLO GEOTHERMAL TECHNOLOGIES LTD.
SOLE EXCLUSIVE RIGHTS AND DISTRIBUTION AGREEMENT
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(e) Support Materials and Additional Documentation
EIC will provide to EGT such equivalent number of Spec Sheets
as is appropriate for such number of units to be supplied.
Marketing materials will be provided to EGT at no cost up to a
certain number (to be determined), with additional marketing
materials to be provided at a nominal charge.
8. TERMINATION
Each of Essential Innovations and EGT have the right to terminate this
Agreement (except for those provisions which by their nature survive
termination), upon the occurrence of breach of any terms and conditions
of this Agreement, such termination to be effective after two months of
receiving a written termination letter explaining the faults or breach
of any of the provisions which can be disputed until proven. Therefore,
this Agreement may be terminated according to this provision by any of
the Parties by two months after the receipt of a written notice given
by one party to the other, only if any of the Parties are in breach of
terms and conditions of this Agreement which can be disputed until
proven.
(a) Target Default
Should EGT fail to achieve any of the targets set out as
within the time limits therein specified, EIC shall be
entitled to terminate this Agreement provided that:
(i) It shall have first given to EGT a Notice of Default
containing particulars of the target which EGT has
failed to meet; and
(ii) EGT does not, within thirty (30) days following the
delivery of such Notice, provide EIC with
verification that it has achieved such target.
(b) 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:
(i) Cure such default, or commence proceedings
to cure such default and prosecute the same
to completion without undue delay; or
(ii) 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 as defined
herein.
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ESSENTIAL INNOVATIONS CORPORATION & ENERFLO GEOTHERMAL TECHNOLOGIES LTD.
SOLE EXCLUSIVE RIGHTS AND DISTRIBUTION AGREEMENT
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If:
(i) The default is not so cured or a
commencement made on proceedings to cure it,
and
(ii) 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 the rendering
of the arbitration award;
the Non-Defaulting Party shall be entitled to seek any remedy it may have on
account of such default.
(c) Consequences of Termination
Following termination, EGT shall no longer have the exclusive right to
distribute EIC Products in the Territory and shall instruct all of its
Dealers to place all future orders through EIC directly.
(d) Return of Materials
Upon termination, EGT shall no longer represent itself as an authorized
seller of EIC Products and shall immediately return to EIC all
marketing and promotional materials previously used in advertising and
promoting EIC Products. EGT 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 EIC.
(e) 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 EIC or EGT.
9. INDEMNIFICATION
(a) Indemnification by EIC
EIC shall indemnify and hold EGT free and harmless from any
and all claims, damages, charges, expenses, suits or actions
arising out of the negligence or misrepresentation of EIC.
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ESSENTIAL INNOVATIONS CORPORATION & ENERFLO GEOTHERMAL TECHNOLOGIES LTD.
SOLE EXCLUSIVE RIGHTS AND DISTRIBUTION AGREEMENT
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(b) Indemnification by EGT
EGT shall indemnify and hold EIC, free and harmless from any
and all claims, damages, charges, expenses, suits or actions
arising out of defects in the EIC Products caused by EIC or
failure of EIC to provide any EIC Products to a customer that
has properly ordered through a Distributor or Dealer, or its
negligence or misrepresentation
10. TRADEMARK
Essential Innovations hereby grants EGT the right to sell the
Product(s) bearing the Essential Innovations Trademark and in
connection with the use of such Trademark, the Parties agree as
follows:
a) EGT shall notify Essential Innovations promptly of any
suspected infringement or passing off or any pending or
threatened litigation or other proceedings concerning the
Trademark which may come to its attention;
b) Essential Innovations shall use its best efforts to prosecute,
defend and conduct at its own expense all suits involving the
Trademark including, without limitation, actions involving
infringement or passing off and will undertake any actions or
litigate any proceedings reasonably necessary for the
protection of the Trademark and EGT shall provide every
assistance to Essential Innovations in such defences at the
cost of Essential Innovations.
11. ASSIGNMENT
Non-Assignability
The Parties covenant and agree that none of the Parties shall, without
the prior written consent of the other, transfer the whole or any part
of this Agreement or any of its interest, rights or obligations
hereunder.
12. CONFIDENTIALITY
(a) Pricing Specificity
Essential Innovations, shall not discuss the Purchase Multiplier of EGT
with any other entity or person under any circumstances, unless with
written approval from EGT. All details of the Purchase Multiplier of
EGT are confidential and must remain between Essential Innovations and
EGT only, unless with written approval from EGT. All Purchase
Multiplier details between EGT and Essential Innovations are to be
discussed either in person or by telephone only. This section/provision
shall survive the termination of this Agreement.
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ESSENTIAL INNOVATIONS CORPORATION & ENERFLO GEOTHERMAL TECHNOLOGIES LTD.
SOLE EXCLUSIVE RIGHTS AND DISTRIBUTION AGREEMENT
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(b) General
For purposes of this Agreement, the term Confidential Information
includes any information in any form or medium, including without
limitation written records, documents, computer-readable disks, tapes,
printouts, sound recordings, photographs, reproductions, sketches,
notes, or copies or excerpts of them, or other documents or materials,
that EIC considers confidential, whether or not marked as confidential.
Confidential Information includes inventions (as defined below),
software, source code, object code, algorithms, procedures, databases,
compilations, technical data, formulas, theories, methods, equipment,
samples, designs, data, specifications, drawings, blueprints,
prototypes, models, business plans, customer lists, contacts and
information, sales and marketing reports, proposals, prices, costs,
personnel and payroll records, mailing lists, accounting records, and
other trade secrets and information concerning the businesses and other
ventures which EIC now operates or may operate in the future. For
purposes of this Agreement, "Inventions" shall include but not be
limited to ideas, improvements, or other Confidential Information,
whether or not patentable and whether or not reduced to practice, made
or conceived by EIC (whether made during the period of his
employment/engagement with EIC, which relate in any manner to the
actual or demonstrably anticipated business, work or research and
development of EIC or its subsidiaries, or result from or are suggested
by any task assigned to EGT or any work performed by him for or on
behalf of EIC or its subsidiaries or ventures. For purposes of this
Agreement, the terms "contractor," and derivatives thereof include
without limitation "consultant" and "independent contractor," and use
of the terms "contractor" or derivatives shall not be deemed to create
an employer-employee relationship between EIC and the undersigned. In
regard to the above, EGT agrees as follows:
(i) During the engagement by EIC, EGT will not disclose
or make use of any Confidential Information except as
necessary for the performance of it's duties as an
Exclusive Distributor of EIC or as authorized in
writing by EIC;
(ii) After the engagement by EIC has terminated for any
reason, EGT will not disclose or make use of any
Confidential Information for any purpose, either on
it's own behalf or on behalf of another person,
entity, or business;
(iii) During the engagement with EIC, EGT will not provide
to EIC or make use of any trade secrets or other
confidential information belonging to another
employer or other third party without the express
approval of both EIC and such other employer or other
third party.
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ESSENTIAL INNOVATIONS CORPORATION & ENERFLO GEOTHERMAL TECHNOLOGIES LTD.
SOLE EXCLUSIVE RIGHTS AND DISTRIBUTION AGREEMENT
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(iv) EGT represents that it is not subject to any
confidentiality, non-competition, or other agreement
with any other employer or other third party that
would conflict with this Agreement or prevent him
from performing all his assigned duties as a
contractor of EIC.
(v) Upon demand by EIC or upon termination of EGT's
engagement for any reason, EGT will immediately
assemble all property and records of EIC in it's
possession or under it's control, including all
copies, excerpts, derivations and duplications
thereof, and return them promptly and unconditionally
to EIC; and
(vi) EGT agrees that during it's engagement, and for a
period of one (1) year after the termination of it's
engagement for any reason, EGT will not knowingly,
either directly or indirectly, for itself or for any
or entity, hire, solicit or induce (other than to the
extent of normal advertising of positions open) any
employee, independent contractor or consultant of EIC
to leave their employment or engagement or to cease
doing business with EIC.
13. ARBITRATION
If there is any disagreement between the parties hereto with respect to
the terms of this Agreement or the interpretation thereof, the same
will be referred to a single arbitrator pursuant to the Commercial
Arbitration Act in the Country of Canada and in the Province of British
Columbia and any amendments thereto, and the determination of such
arbitrator will be final and binding upon the parties hereto.
14. GENERAL CONTRACT PROVISIONS
(a) Entire Agreement
This Agreement constitutes the entire agreement between the
Parties with respect to all matters herein contained, and its
execution has not been induced by, nor do any of the Parties
hereto rely upon or regard as material, any representations or
writings whatsoever not incorporated herein and made a part
hereof. This Agreement shall not be amended, altered or
qualified except by an instrument in writing, signed by the
Parties hereto and any amendments, alterations or
qualifications hereof shall not be binding upon or affect the
rights of any Party who has not given its consent in writing.
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ESSENTIAL INNOVATIONS CORPORATION & ENERFLO GEOTHERMAL TECHNOLOGIES LTD.
SOLE EXCLUSIVE RIGHTS AND DISTRIBUTION AGREEMENT
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(b) Heading
The division of this Agreement into articles and sections is
for convenience of reference only and shall not affect the
interpretation or construction of this Agreement.
(c) Severability
In the event that any of the covenants herein contained shall
be held unenforceable or declared invalid for any reason
whatsoever, such unenforceability or invalidity shall not
affect the enforceability or validity of the remaining
provisions of this Agreement and such unenforceable or invalid
portion shall be severable from the remainder of this
Agreement.
(d) Governing Law
This Agreement shall be governed by and construed in
accordance with the laws of the Province of British Columbia
and any court of competent jurisdiction in the Province of
British Columbia shall have jurisdiction to adjudicate any
matter arising out of this Agreement.
(e) Interpretation
(i) Each provision of this Agreement is declared to
constitute a separate and distinct covenant and will
be severable from all other such separate and
distinct covenants.
(ii) If any covenant or provision is determined to be void
or unenforceable, in whole or in part, it will not be
deemed to affect or impair the enforceability or
validity of any other covenant or provision of this
Agreement or any part thereof.
(iii) The headings in this Agreement form no part of the
agreement between the parties and will be deemed to
have been inserted for convenience only and will not
affect the construction hereof.
(f) Notices
All notices, requests, demands or communications made pursuant
to the terms hereof or required or permitted to be given by
one party to another shall be given by personal delivery or by
registered mail, addressed to such other party or delivered to
such party as follows:
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ESSENTIAL INNOVATIONS CORPORATION & ENERFLO GEOTHERMAL TECHNOLOGIES LTD.
SOLE EXCLUSIVE RIGHTS AND DISTRIBUTION AGREEMENT
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o To Essential Innovations at:
ESSENTIAL INNOVATIONS CORPORATION
Xx. Xxxxx Xxxxxxx, President/CTO
#101 - 0000 000xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxx, X0X 0X0
o To EGT at:
Enerflo Geothermal Technologies Ltd.
#000 - 000 0xx Xxxxxx XX
Xxxxxxx, XX.
Xxxxxx X0X 0X0
or at such other address as may be given by any of them to the
other from time to time and such notices, requests, demands or
other communications shall be deemed to have been received
when delivered, or, if mailed two (2) weeks following the date
of mailing thereof provided that if any such notices,
requests, demands or other communications shall have been
mailed regular mail service. Shall such mail service be
interrupted by strikes or other irregularities, such notices,
requests, demands or other communications shall be deemed to
have been received two (2) weeks after the day following the
resumption of normal mail service. In any case of
irregularities the party mailing such requests, demands or
communications should inform the other party of such
irregularities via telephone.
(g) Time
Time shall be of the essence.
(h) Further Assurance
The Parties agree to sign such other instruments, cause such
meeting to be held, resolutions passed and by-laws enacted,
exercise their votes and influence, do and perform and cause
to be done and performed such further and other acts and
things as may be necessary or desirable in order to give full
effects to this Agreement.
(i) Successor and Assigns
This Agreement shall endure to the benefit of and be binding
upon the Parties hereto and their respective successors and
assigns.
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Handwritten initials SW and VL
ESSENTIAL INNOVATIONS CORPORATION & ENERFLO GEOTHERMAL TECHNOLOGIES LTD.
SOLE EXCLUSIVE RIGHTS AND DISTRIBUTION AGREEMENT
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(j) Non-Waiver
There shall be no waiver by either Party of any breach by the
other Party of any of its covenants, obligations or agreement,
nor shall any forbearance to seek a remedy for any breach, be
considered a waiver of any rights and remedies with respect to
such or any subsequent breach.
(k) Changes
(i) This Agreement shall remain binding and valid in the
event that either Party decides to relocate its head
office to any other country.
(ii) This Agreement supersedes all verbal and written
agreements prior to this date. This Agreement also
supersedes all other verbal and written agreements
that contradict with this Agreement.
(l) Contact Information
EGT and Essential Innovations contact information are as
follow:
o Essential Innovations Corporation Contact Information:
Address: #000 - 0000 000xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxx, X0X 0X0
Contact Name & Title: Xx. Xxxxx Xxxxxxx, CTO
Telephone: (000) 000 0000
Facsimile: (000) 000 0000
E-mail: xxxxxxxx@xxxxxxxxxx.xxx
o EGT Contact Information:
Address: #406 - 000 0xx Xxxxxx
Xxxxxxx, XX.
Xxxxxx X0X 0X0
Contact Name: Xxxx Xxxxxxxx
Telephone: 000 000 0000
Facsimile: 000 000 0000
E-mail: xxxxx@xxxxxxx.xxx
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Handwritten initials SW and VL
ESSENTIAL INNOVATIONS CORPORATION & ENERFLO GEOTHERMAL TECHNOLOGIES LTD.
SOLE EXCLUSIVE RIGHTS AND DISTRIBUTION AGREEMENT
--------------------------------------------------------------------------------
(m) Counterparts
This Agreement may be executed in counterparts, each of which
will be deemed an original, but all of which together will
constitute one and the same instrument.
IN WITNESS WHEREOF the Parties have executed this Agreement as of the day and
year first above written.
ESSENTIAL INNOVATIONS CORPORATION:
ESSENTIAL INNOVATIONS CORPORATION Authorized Signatory:
/s/ Xxxxx Xxxxxxx
Name in Print of ESSENTIAL INNOVATIONS CORPORATION Authorized Signatory:
Xxxxx Xxxxxxx President/CTO
The above signature for ESSENTIAL INNOVATIONS CORPORATION was signed in the
presence of witness:
Signature: /s/ Xxxx Xxxxxx
Name of Witness: Xxxx Xxxxxx
ENERFLO GEOTHERMAL TECHNOLOGIES LTD.:
ENERFLO GEOTHERMAL TECHNOLOGIES LTD. Authorized Signatory:
/s/ Xxxx Xxxxxxxx June 28/05
Name in Print of ENERFLO GEOTHERMAL TECHNOLOGIES LTD. Authorized Signatory:
Xxxx Xxxxxxxx President
The above signature for ENERFLO GEOTHERMAL TECHNOLOGIES LTD. was signed in the
presence of witness:
Signature: /s/ Xxxxx Xxxxxxxx
Name of Witness: Xxxxx Xxxxxxxx
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Handwritten initials SW and VL
ESSENTIAL INNOVATIONS CORPORATION & ENERFLO GEOTHERMAL TECHNOLOGIES LTD.
SOLE EXCLUSIVE RIGHTS AND DISTRIBUTION AGREEMENT
--------------------------------------------------------------------------------
Schedule "A"
Required "Territory" Exemptions
It is agreed, understood and noted between the Parties that prior to
the execution of this "Agreement", EIC already had certain "project
opportunities" with specific groups or individuals within the
"Territory" as defined herein, that would precede the start date of the
Agreement, and therefore such "project opportunities" must be exempt
from the terms of the Sole Exclusive Distribution Agreement heretofore.
Such projects are as follows:
(1) Direct relationship with a project developer, New Future
Building Group working on the Regina Renaissance Retirement
Residence in Regina, Saskatchewan where EIC has already
provided equipment and engineering quotation(s).
(2) Direct relationship with Sprung Structures based in Calgary,
Alberta, whereby EIC intends to be involved in the direct
supply of product for their domestic (which may fall within
the Territory), and international project developments.
(3) EIC has a Finder's Agreement with Xxxxx and Associates/CENSAR
("Finder") in Winnipeg, Manitoba, providing fees to such
Finder for sourcing to EIC projects in that Province. In this
case, EIC will make an introduction for EGT to Finder, so that
collective work can be done there as Finder has some unique
political connections in Manitoba.
END OF CONTRACT
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Handwritten initials SW and VL
