Exhibit 10.17
DISTRIBUTION AGREEMENT
This Distribution Agreement (the "Agreement") dated for reference the 6th of
November, 2000.
BETWEEN:
CYBERBANK CORP.
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a Korean Corporation having its head office
at 18th Floor. Mirae Bldg., ▇▇▇▇-▇
▇▇▇▇▇▇-▇▇▇▇, ▇▇▇▇▇▇-▇▇, ▇▇▇▇▇, ▇▇▇▇▇ 137-070
Fax: ▇▇-▇-▇▇▇▇-▇▇▇▇
(the "Company")
OF THE FIRST PART
AND:
PC-EPHONE LTD., a
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Bermuda Corporation having its head office
at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(the "Distributor")
OF THE SECOND PART
WHEREAS:
A. The Company has developed a handheld device/terminal that can be used to
perform multiple functions on a CDMA, GSM or other wireless application
protocol system (the "Multipalm").
B. The Distributor wishes to acquire the United States and Canada rights to
market and distribute the Multipalm on a sole and exclusive basis on the
terms and conditions contained herein.
C. The Distributor wishes to acquire the worldwide (other than the United
States and Canada) rights to market and distribute the Multipalm on a
non-exclusive basis on the terms and conditions contained herein.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the mutual
covenants and agreements contained herein, the parties hereto agree as follows:
1. DEFINITIONS
In this Agreement, the following words and phrases shall have the following
meanings:
(A) "Confidential Information of the Company" means all business plans,
trade secrets, design concepts, knowledge, information, production
technology, processes, know how, business projections, customer lists
and intellectual property concerning or relating to the business of the
* Confidential Treatment Requested
Company and the Products, including the Manufacturing Information, which
may be communicated to, acquired by, or learned of by the Distributor
from the Company, whether or not such information is subject to
proprietary protection at law;
(B) "Confidential Information of the Distributor" means all customer lists,
sales marketing contacts and information, business plans, trade secrets,
knowledge, information, know how, business projections, computer software
programs and intellectual property concerning or relating to the business
of the Distributor which may be communicated to, acquired by, or learned
of by the Company from the Distributor, whether or not such information
is subject to proprietary protection at law;
(C) "Exclusive Territory" means the United States of America and Canada;
(D) "Future Products" means any future products developed by the Company of a
similar or like nature, or using the same technology as the Multipalm
(including accessories);
(E) "Manufacturing Information" means all information, technology, data and
trade secrets relating to the manufacture of the Products;
(F) "Non-exclusive Territory" has the meaning assigned to it by section 2.3;
(G) "Patents" means any patents underlying the Products which are owned or
may be owned by the Company or licensed or which may be licensed to the
Company;
(H) "Products" means the personal digital assistant products marketed by the
Company under the current trade name "Multipalm" (including all necessary
accessories to maintain the functionality of the Product including, but
not limited to, a Bluetooth stylus, a battery charger, and an adaptor).
(I) "Reference Date" means the later of (a) December 31, 2001 and (b) one
year after approval of the Products by the US FCC;
(J) "Term" has the meaning described in Section 12.1 of this Agreement;
(K) "Trade Name" means the trade name "Multipalm", or any other trade name
for the Product or Future Products, and the trademark "Multipalm", or any
other trademark for the Product or Future Products, in the event that the
Company is granted trademark protection by the United States Patent and
Trademark Office.
2. Exclusive Distribution Rights and Non-exclusive Distribution Rights
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2.1 Subject to the terms and conditions of this Agreement, the Company
hereby grants to the Distributor the exclusive right to market, distribute and
sell the Products within the Exclusive Territory (the "Distribution Rights").
The Distribution Rights will include the following rights:
(A) the right to market, distribute and sell the Products;
(B) the right and license to use the Trade Name in connection with the
marketing, distribution and sale of the Products.
* Confidential Treatment Requested
2.2 The Distribution Rights will extend to the right and license to use the
trademark "Multipalm" or any other trademark relating to the Products or Future
Products in the event that the Company's application to the United States Patent
and Trademark Office for the registration of "Multipalm" or any other trademark,
if any, is approved. The Distributor acknowledges that there is no assurance
that trademark protection will be granted by the United States Patent and
Trademark Office.
2.3 The Distributor will, from time to time, deliver notice to the Company
that requests non-exclusive distribution rights for certain territories outside
of the Exclusive Territory (the "Non-exclusive Territory"). The Company and the
Distributor shall have fifteen (15) days to discuss and reach an agreement on
such request. Failure to reach an agreement on such a request shall be deemed
to be a rejection of such request by the Company. If granted, such non-
exclusive distribution rights shall be for a period of one year from the date of
delivery of the request by the Distributor to the Company. The terms and
conditions of such non-exclusive distribution rights shall be governed by the
terms and conditions of this Agreement but may be modified or amended subject to
a separate agreement by the Company and the Distributor.
2.4 In consideration of the Company granting the Distribution Rights to the
Distributor, the Distributor agrees to issue to the Company 3,500,000 common
shares of Newlands Oil & Gas Inc. (PC-EPhone, Inc.) for no additional charge
within 20 days from signing the Distribution Agreement.
3. [ * ]
* Confidential Treatment Requested
3. [ * ]
4. Limitations on the Distribution Rights
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4.1 The Distributor shall not knowingly distribute or sell any Products for
re-sale to any person or company in any market outside: (a) the Exclusive
Territory and (b) the Non-exclusive Territory where the Distributor has
non-exclusive rights as granted by virtue of section 2.3.
4.2 The Distributor will not, directly or indirectly, sell, assign or grant
to any other person, firm or corporation, the right to sell, or distribute the
Products within the Exclusive Territory and the Non-exclusive Territory, except
as set forth in Article 5.
* Confidential Treatment Requested
4.3 The Distributor will not market, distribute or sell any products similar
to or competitive with the Products during the Term of this Agreement without
the written consent of the Company.
4.4 Nothing in this Agreement shall be deemed in any way to constitute any
transfer or assignment by the Company of any Patents, Trade Name or Confidential
Information to the Distributor or to give the Distributor any right, title or
interest in or to any Patents, Trade Name or Confidential Information. The
Distributor acknowledges that all patents pertaining to the Products or
Confidential Information are and shall remain the exclusive property of the
Company.
4.5 The Distributor will not purchase Products from any person other than
the Company.
5. Sub-Distributors
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5.1 The Distributor will have the right to appoint sub-distributors within
the Exclusive Territory and the Non-exclusive Territory, provided that each
sub-distributor is appointed on the following terms and conditions:
a) each sub-distributor will enter into a sub-distributorship agreement
with the Distributor on terms and conditions acceptable to the Company
and which will bind the sub-distributor to the terms and conditions set
forth in this Agreement, except that section 4.3 of this Agreement
shall not be applicable to the sub-distributor; and
b) the Distributor shall provide the Company a copy of each executed sub-
distributorship agreement within 10 days of execution in order that the
Company can verify compliance of the sub-distributorship agreement with
the terms and conditions of this Agreement.
5.2 In the event of restructuring of the Distributor so that separate
companies are used to sell Products in different countries within the Exclusive
Territory and the Non-exclusive Territory, such separate companies shall
collectively be considered to be parties to this Agreement in place and stead of
the Distributor named herein, without the necessity of any further
documentation, except that section 4.3 of this Agreement shall not be
applicable.
6. Additional Covenants of the Distributor
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6.1 The Distributor will throughout the term of this Agreement:
(A) purchase and maintain a sufficient liability insurance policy with
reputable insurance companies in those jurisdictions in which the
Distributor markets, distributes and sells the Products;
(B) ensure that any advertising or promotional efforts undertaken by the
Distributor will be conducted in compliance with advertising and
marketing guidelines established by the Company in order to ensure a
consistent marketing and brand recognition of the Products;
(C) comply with all applicable laws and regulations regarding the
distribution, marketing and sale of the Products within the Exclusive
Territory and the Non-exclusive Territory.
* Confidential Treatment Requested
(D) The Distributor will not enter into any business that is unrelated to
telecommunications without the prior written consent of the Company.
(E) The Distributor shall not represent itself as an agent and/or legal
representative of the Company.
(F) The Distributor shall not challenge the Company for the Company's
Patents, Trade Name and/or other intellectual properties.
(G) The Distributor shall not give information on and guarantee the
performance and efficiency of the Products and Future Products unless
otherwise confirmed by the Company's written consent.
6.2 Execution and delivery of this Agreement by the Distributor has been
duly authorized. The person executing this Agreement on behalf of the
Distributor has full and proper authorization to execute same, and this
Agreement is a valid and binding agreement of the Distributor and is enforceable
against the Distributor in accordance with its terms.
7. Additional Covenants of the Company
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7.1 The Company will during the term of this Agreement:
(A) provide the Distributor with such information as the Company considers
appropriate in order to assist the Distributor in the preparation of
sales promotion material and shall provide the Distributor with its sales
promotional material relating to the Products in order to facilitate
advertising of the Products within the Exclusive Territory and the Non-
exclusive Territory;
(B) ensure all the Products meet the Company's specifications for the
applicable Products;
(C) ensure that in addition to any warranty requirements pursuant to the
terms of this Agreement, all Products supplied by the Company and its
manufacturers shall meet any and all U.S. governmental standards
applicable to such Products. The Distributor shall have the right,
through its duly appointed representative, to examine, inspect and/or
test any and all of the Products supplied by the Company, and the
production lines, production facilities and storage facilities. The
Company warrants that the goods delivered in accordance with this
Agreement shall measure up to the same standard as the sample Products
previously submitted to Distributor.
(D) permit the Distributor and its sub-distributors to hold themselves out as
authorized distributors of the Products within the Exclusive Territory
and the Non-exclusive Territory;
(E) assist the Distributor in obtaining all applicable US FCC and Industry
Canada approvals in order that the Products can be distributed in the
Exclusive Territory and the Non-exclusive Territory.
(F) furnish to the Distributor in a timely manner product information
regarding the Products, which product information shall accurately
* Confidential Treatment Requested
describe the nature, character and prescribed use of the Products, which
information shall be appropriate for distribution to consumers in the
discretion of the Distributor. The product information shall not
misrepresent or in any way internationally mislead Distributor, or
consumers with respect to the products. Distributor may incorporate such
product information in its sales and advertising and promotional
literature and materials (the "Sales Materials"). Said product
information utilized shall not be deemed as Confidential Information as
set forth in this Agreement.
(G) ensure that the Company has the right to supply and distribute the
Products and all components thereof, and the Products shall not and do
not, constitute any known infringement of any license, trademark,
copyright, patent or similar proprietary interest of any third party.
(H) The Company will not directly, or indirectly, sell Products to any
customers in the Exclusive Territory and, furthermore, will refer those
customers to the Distributor.
(I) The Company will not directly, or indirectly, sell Products to any
customers in the Non-exclusive Territory where the Distributor has non-
exclusive distribution rights and, furthermore, will refer those
customers to the Distributor.
7.2 The Company represents it has the capability to supply the Products
necessary to meet the anticipated sales of the Distributor for the duration of
this Agreement.
7.3 Execution and delivery of this Agreement by the Company has been duly
authorized. The person executing this Agreement on behalf of the Company has
full and proper authorization to execute same, and this Agreement is a valid and
binding agreement of the Company and is enforceable against the Company in
accordance with its terms.
8. Indemnification
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8.1 Each of the parties agrees to indemnify and hold harmless the other
party from any liability arising out of the act or omission of the indemnifying
party, its servants, agents and representatives.
8.2 The Company shall not be responsible for any claim and loss arising out
of the marketing, sales and distribution process of the Distributor and the
sub-distributors.
8.3 The Distributor shall be responsible for the losses and claims arising
out of the Distributor's and the sub-distributors' conduct, non-performance and
misrepresentations. Furthermore, the Distributor shall defend itself and shall
indemnify and hold harmless the Company from any liability arising therefrom.
8.4 The maximum liability of the Company arising out of and relating to the
Distribution Agreement shall not exceed the Order Price of the Products
delivered.
9. Right of First Refusal for Future Products
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9.1 The Distributor will have a right of first refusal to acquire the
marketing, distribution and sales rights for (a) Future Products on an exclusive
basis for the Exclusive Territory and (b) Future Products on a non-exclusive
basis for the Non-exclusive Territory where non-exclusive distribution rights
have been granted pursuant to section 2.3.
* Confidential Treatment Requested
10. Confidential Information
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10.1 The Company acknowledges that the Confidential Information of the
Distributor is the property of the Distributor and the success, profitability
and competitive position of the Distributor requires that the Confidential
Information of the Distributor be maintained in confidence by the Company.
Accordingly, the Company covenants and agrees with the Distributor, subject to
Sections 10.2 and 10.3 of this Agreement, that:
(A) the Company will at all times keep all Confidential Information in the
strictest confidence;
(B) the Company will not use the Confidential Information for any purpose
other than for performing its obligations pursuant to this Agreement;
(C) the Company will not at any time publish or in any way participate or
assist in the publishing of any Confidential Information;
(D) the Company will not disclose or assist in the disclosure of any
Confidential Information to any person, firm, corporation or other
entity.
10.2 The Company may disclose the Confidential Information of the
Distributor in confidence to its lawyers, accountants and other professional
advisors in connection with the performance of the business arrangements between
the Company and the Distributor, each of whom shall be advised of the
confidential nature of such confidential information.
10.3 The Company may disclose the Confidential Information of the
Distributor only to the extent necessary in order that the Company may comply
with all applicable laws and regulations.
10.4 The Distributor acknowledges that the Confidential Information of the
Company is the property of the Company and the success, profitability and
competitive position of the Company requires that the Confidential Information
of the Company be maintained in confidence by the Distributor. Accordingly, the
Distributor covenants and agrees with the Company, subject to Sections 10.5 and
10.6 of this Agreement, that:
(A) the Distributor will at all times keep all Confidential Information in
the strictest confidence;
(B) the Distributor will not use the Confidential Information for any
purpose other than for performing its obligations pursuant to this
Agreement;
(C) the Distributor will not at any time publish or in any way participate
or assist in the publishing of any Confidential Information;
(D) the Distributor will not disclose or assist in the disclosure of any
Confidential Information to any person, firm, corporation or other
entity.
10.5 The Distributor may disclose the Confidential Information of the
Company in confidence to its lawyers, accountants and other professional
advisors in connection with the performance of the business arrangements between
the Company and the Distributor.
* Confidential Treatment Requested
10.6 The Distributor may disclose the Confidential Information of the
Company only to the extent necessary in order that the Distributor may comply
with all applicable laws and regulations, including compliance with the
Distributor's obligations as a reporting issuer under the United States
Securities Exchange Act of 1934.
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10.7 No waiver by either party of its rights pursuant to the confidentiality
agreements or any consent to any release of confidential information shall be
effective unless expressed in writing, and no such waiver or consent shall apply
beyond the specific facts in respect of which the waiver of consent was given.
10.8 This confidentiality agreement of each party does not apply to
information that is or becomes publicly available or is lawfully received by the
other party other than by breach of this confidentiality agreement.
11. Modifications
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11.1 The Distributor will not make any modifications to any Products or in
any way vary or change the specifications or content of the Products purchased
from the Company. The Distributor will use its reasonable efforts to ensure
that its sub-distributors, dealers, agents, or customers do not make any
modifications to, or in any way vary, the specifications or content of any
Products.
12. Term and Termination
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12.1 The term of this Agreement (the "Term") will commence on the date of
signing of this Agreement and will continue until the earlier of December 31,
2007 or until the date on which this Agreement is terminated in accordance with
the provisions of this Agreement. However, the Term of this Agreement will
automatically renew from year to year after the initial Term provided the
Company has not given 60 days advance notice of termination in writing.
12.2 Each of the Distributor and the Company shall have the right to
terminate this Agreement upon the occurrence of any of the following events,
such termination to be effective immediately upon the receipt or deemed receipt
by the other party of notice to that effect and the expiry of any applicable
period for remedy of the default:
(A) if a party is in default of any of the material terms or conditions of
this Agreement and fails to remedy such default within 60 days of
written notice thereof from the other party;
(B) if the other party becomes bankrupt or insolvent, makes an assignment
for the benefit of its creditors or attempts to avail itself of any
applicable statute relating to insolvent debtors;
(C) if the other party winds-up, dissolves, liquidates or takes steps to do
so or otherwise ceases to function as a going concern or is prevented
from reasonably performing its duties hereunder; or
(D) if a receiver or other custodian (interim or permanent) of any of the
assets of the other party is appointed by private instrument or by court
order or if any execution or other similar process of any court becomes
* Confidential Treatment Requested
enforceable against the other party or its assets or if distress is made
against the other party's assets or any part thereof.
12.3 It is a condition of this Agreement that nominees of the Company will
have been appointed to the board of directors of PC-EPhone, Inc. by no later
than February 28, 2001 and that the nominees will represent a minimum of forty
percent (40%) of the directors on the board of directors of PC-EPhone, Inc. upon
appointment and throughout the Term of this Agreement. In the event that the
Company's nominees on PC-EPhone Inc.'s board of directors constitute less than
the minimum of forty percent (40%) of PC-EPhone Inc.'s board of directors, other
than by reason of resignation of the Company's nominees or the failure of the
Company to provide nominees, for a continuous period of more than sixty (60)
days during the period from February 28, 2001 to the end of the term of this
Agreement, then the Company will be entitled to terminate this Agreement upon
written notice to the Distributor. The Company will throughout the term of this
Agreement vote all shares in PC-EPhone, Inc. owned by the Company, including the
shares issued pursuant to this Agreement, in favour of the nominees proposed by
the Company as directors of the Distributor. In the event that the Company does
not vote its shares in PC-EPhone, Inc. in accordance with the terms of this
Agreement, then the Company will have no rights to terminate this Agreement
pursuant to this section 12.3.
12.4 Upon termination of this Agreement for any reason whatsoever, the
following shall apply:
(A) those rights and obligations of each of the Company and the Distributor
which are expressly stated to survive termination of this Agreement will
survive termination and will continue in full force and effect;
(B) all rights and privileges granted by the Company to the Distributor
pursuant to this Agreement, including the rights to market, distribute
and sell Products, will immediately terminate and be relinquished by the
Distributor, and thereafter the Distributor shall take no action that
would make it appear to the public that the Distributor is still
supplying Products;
(C) the Distributor shall return to the Company all advertising,
informational or technical material given to the Distributor by the
Company;
(D) the Distributor shall cease using the Trade Names and thereafter refrain
from holding itself out as an authorized distributor of the Products;
(E) the Distributor will retain in confidence all information regarding the
business and property of the Company and the Products;
(F) all sub-distributorship agreements entered into by the Distributor will
terminate.
The provisions of this Section 12.4 will survive the termination of this
Agreement.
13. Assignment
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13.1 Except as provided by Section 5 of this Agreement, the rights granted
by this Agreement may not be sold, assigned, sub-licensed or otherwise
transferred by the Distributor without the prior written consent of the Company,
which consent may not be unreasonably withheld by the Company.
14. After-sales Support
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14.1 The Company shall be responsible for the cost of all warranties,
repairs and similar claims by customers of the Products. The Distributor shall
be responsible for customer and call-center support services. However, the
Company shall provide training and technical assistance to the Distributor in
the United States and Canada for a period of three (3) months after the date of
this Agreement in order to facilitate customer and call-center support services.
* Confidential Treatment Requested
15. Miscellaneous Provisions
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15.1 Entire Agreement
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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 all 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.
15.2 Interpretation
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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.
15.3 Severability
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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.
15.4 Force Majeure
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In the event of an inability or failure by the Company to manufacture, supply or
ship any of the Products herein by reason of any fire, explosion, war, riot,
strike, walk-out, labour controversy, flood, shortage of water, power, labour
transportation facilities or necessary materials or supplies, default or power
failure of carriers, breakdown in or the loss of production or anticipated
production from plant or equipment, act of God or public enemy, any law, act or
order of any court, board, government or other authority of competent
jurisdiction, or any other direct cause (whether or not of the same character as
the foregoing) beyond the reasonable control of the Company, then the Company
shall not be liable to the Distributor and will not be deemed to be in default
during the period and to the extent of such inability or failure. Deliveries
omitted in whole or in part while such inability remains in effect shall be
canceled.
15.5 Notices
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Any notice required or permitted to be given hereunder shall be in writing and
shall be effectively given if:
(a) Delivered personally;
(b) Sent by prepaid courier service or mail; or
(c) Sent prepaid by telecopiers, fax telex or other similar means of
electronic communication
addressed to the "President" at the address/fax number shown for the Distributor
or the Company, as the case may be, at the beginning of this Agreement.
* Confidential Treatment Requested
Any notice so given shall be deemed conclusively to have been given and received
when so personally delivered or, if sent by telex, fax, telecopier or other
electronic communication (other than e-mail), on the first business day
thereafter, or if sent by courier on the third business day thereafter or if
sent by mail on the tenth business day thereafter. Any party may change any
particulars of its address/fax number for notice by giving notice to the other
party in the manner above described.
For determining the date on which any notice shall have been received, the date
of delivery will be the date in Los Angeles, California at the time of delivery.
15.6 Time of the Essence
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Time shall be of the essence.
15.7 Further Assurances
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The parties agree to sign such other instruments, cause such meetings to be
held, resolutions passed and by-laws enacted, exercise their vote 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 effect to this
Agreement.
15.8 Successors and Assigns
----------------------
This Agreement shall enure to the benefit of and be binding upon the parties
hereto and their respective successors and permitted assigns.
15.9 Non-Waiver
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No waiver by any party of any breach by any other party of any of its covenants,
obligations and agreements hereunder shall be a waiver of any subsequent breach
of any other covenant, obligation or agreement, nor shall any forbearance to
seek a remedy for any breach be a waiver of any rights and remedies with respect
to such or any subsequent breach.
15.10 Arbitration
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All disputes in relation to this Agreement, other than a dispute regarding the
non-payment of any monetary amount required by this Agreement, be referred to
and finally resolved by Arbitration, under the rules of the British Columbia
International Commercial Arbitration Center (the "Rules"), which Rules are
deemed to be incorporated by reference into this Article. The tribunal shall
consist of One (1) Arbitrator. The Parties will endeavour within twenty-one
(21) days of the matter being referred to Arbitration to agree upon an
Arbitrator, failing which the Arbitrator shall be appointed in accordance with
the Rules. The place of Arbitration shall be Surrey, British Columbia. The
language of the Arbitration shall be English. The parties agree that the
Arbitrator shall be requested to make his award within sixty (60) days following
the later of the conclusion of the Arbitration hearings or any exchange of final
written submissions by the Parties and further agree that the word of the
Arbitrator shall be final and binding and without appeal.
15.11 Governing Law
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This Agreement shall be governed by and construed in accordance with the laws of
the Province of British Columbia.
* Confidential Treatment Requested
IN WITNESS WHEREOF the parties hereto have executed this Agreement and as of the
date and year first above written.
CYBERBANK CORP.
by its authorized signatory
/s/ ▇.▇. ▇▇▇
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Signature of Authorized Signatory
▇.▇. ▇▇▇
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Name of Authorized Signatory
President/CEO
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Position of Authorized Signatory
PC-EPHONE LTD.
by its authorized signatory
/s/ ▇▇▇▇▇▇▇ ▇▇▇
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Signature of Authorized Signatory
▇▇▇▇▇▇▇ ▇▇▇
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Name of Authorized Signatory
President
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Position of Authorized Signatory
* Confidential Treatment Requested
Appendix 3.10
Terms and Conditions of Initial Orders
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* Confidential Treatment Requested
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* Confidential Treatment Requested
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* Confidential Treatment Requested