MUTUAL DISSOLUTION
of
INTERNATIONAL MASTER FRANCHISE AGREEMENT
Between
ACCESS POWER, INC.,
a Florida corporation
and
APC TELECOM INC., (aka APC Telecom)
a Canadian Federal corporation
Dated: December 11, 1998
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MUTUAL DISSOLUTION
of
INTERNATIONAL MASTER FRANCHISE AGREEMENT
This Mutual Dissolution of International Master Franchise Agreement is
signed on December 11, 1998, between ACCESS POWER, INC., a Florida
corporation and ACCESS POWER CANADA, INC., Canadian Federal
corporation;
Whereas ACCESS POWER CANADA INC. (herein "APCI") was incorporated
pursuant to a Certificate of Incorporation under the Canada Business
Corporations Act dated April 24 ,1998;
Whereas APCI amended its legal corporate name to APC TELECOM INC.
pursuant to a Certificate of Amendment under the Canada Business
Corporations Act dated June 19,1998;
Whereas both parties hereto have discussed and agreed that the
Franchisor and Master Franchisee relationship (Franchise Relationship)
established by the International Master Franchise Agreement (and all
exhibits thereto) dated April 26, 1998 (IMFA) is no longer in the best
interest of either party, both parties agree that:
1. Dissolution
As of December 3, 1998 (Effective Date) all future rights and
obligations resulting from the IMFA, except as otherwise
specifically provided herein, are no longer applicable to either
party to this Agreement. In addition, subsequent to the
Effective Date, no business or contracts shall be engaged in by
either party which may require continuation of the IMFA. All
undertakings and existing agreements contrary to this Agreement
between the parties are repealed and this Agreement shall take
their place.
2. Amounts Owed
As of the Effective Date and by agreement of the parties hereto,
neither party owes the other party any sums of money related to
activities associated with the establishment of, operation of,
or this dissolution of the IMFA.
Any amounts which may be in any Marketing Fund referred to under
the IMFA shall be reimbursed on a percentage contributed basis
among the parties. (A party contributing 25% of the Funds total
contributions over the life of the Fund shall be entitled to 25%
of the remaining amounts in the Fund as of the Effective Date of
this Agreement.)
3. Waiver of Claims
Except with respect to amounts owed and any other matters
provided for in this agreement as set forth in this Agreement,
neither party shall be liable to the other party under any and
all causes of action with regard to activities undertaken or not
undertaken prior to the Effective Date of this Agreement,
regardless of whether any obligation was undertaken by either
party in reliance upon the Franchise Arrangement established in
the IMFA.
By executing this Agreement, both parties forever release and
discharge the other party and its affiliates, its Designees,
franchise sales brokers, if any, or other agents, and their
respective officers, directors, representatives, employees and
agents, from any and all claims of any kind, whether presently
known or unknown, in law or in equity, which may exist as of the
Agreement Date relating to, in connection with, or arising under
this Agreement or any prior agreement between the parties.
4. Confidentiality
Neither party shall, for a period of 2 (two) years from the
Effective Date, either directly or indirectly, divulge, disclose,
or communicate to any person or firm, any confidential
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information of any kind concerning any matters affecting or
relating to the business of the other party or its affiliates,
which such party may have acquired in the course of or as
incident to its involvement with the other party as a result of
the IMFA.
For the purposes of this section, confidential information shall
mean any oral or written information and data of a confidential
nature, including but not limited to proprietary, technical,
development, marketing, sales, operating, performance, cost,
know-how, business and process information, agreements, lists,
reports, computer programming techniques, and all record bearing
media containing or disclosing such information and techniques,
which has been or will be disclosed by one party to the other
party under this or any prior agreement between the parties
hereto.
5. Proprietary Marks and Property
All proprietary marks revert back to the party which initially
had any claim, regardless of country, to such proprietary xxxx
and each party agrees not to infringe upon or attempt to take in
any territory a proprietary xxxx belonging to the other. Neither
party shall, directly or indirectly, commit an act of
infringement or contest or aid in contesting the validity or
right of the Proprietary Property of the other, or take any other
action in derogation of such rights.
APC TELECOM INC .,may continue, indefinitely, to use and
advertise under the specific name "APC Telecom" if it so chooses.
Access Power, Inc. will not challenge the use of that name.
However, that allowance does not include the use of the service
xxxx and logo of Access Power or Access Power Advanced
Communications.
6. Exclusivity and Competition
The parties hereto shall not be limited, based upon any time
frame of non-competition nor any territory/location, from
competing with one another. However, nothing herein shall
preclude the parties from reaching any future agreement which may
incorporate market exclusivity and/or non-competition provisions.
7. Termination Activities
The following activities shall be carried out, as applicable:
Both parties shall execute any documents reasonably required
by to wind up the Franchisor-Master Franchisee affairs.
At the earliest practical opportunity both parties shall
notify any third party or parties of the winding up of the
Franchisor - Master Franchisee relationship.
Both parties agree to return any loaned materials to the other
party at the request and expense of such other party.
The servers belonging to APC TELECOM INC. shall be removed
from the Access Power, Inc. Gateway Server Network., forthwith
after execution of this agreement.
Access Power Canada, Inc. shall: (i) cease selling Franchises
pursuant to the IMFA; (ii) cease using all advertising materials,
forms and other materials bearing Access Power, Inc. Proprietary
Marks; and (iii) cease holding itself out as a sales representative
of Access Power Inc.
Both parties agree to maintain complete and accurate books and
records of its IMFA operations with respect to the period of
time in which the IMFA was in effect, for at least 6 (six)
years from their preparation.
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Access Power Inc .agrees to provide to APC TELECOM INC. ,
three (3) ADTRAN T1 C. S. U. ACE units within ten (10) days
of execution of this agreement .
8. Indemnification ---Intentionally deleted
9. Third Party Beneficiaries
Nothing in this Agreement, whether express or implied, is
intended to confer any rights or remedies under or by reason of
this Agreement on any persons other than the parties and their
respective personal representatives, other legal representatives,
heirs, successors and permitted assigns. Further, nothing in
this Agreement is intended to relieve or discharge the obligation
or liability of any third party to any party to this Agreement.
10. Arbitration
Any disputes related to this agreement shall be arbitrated under
the commercial arbitration rules of the American Arbitration
Association, with a single arbiter.
Any arbitration proceedings shall take place in a reasonable
location (including the home area of the selecting party)
selected by the party that is not initiating the arbitration
proceeding.
Any judgment upon an arbitration award may be entered in any
court having competent jurisdiction and shall be binding, final
and non-appealable. Both parties waive to the fullest extent
permitted by law, any right to or claim for any punitive or
exemplary damages against the other and agree that in the event
of a dispute between them each shall be limited to the recovery
of any actual damages sustained by it.
In the event either party fails to appear at any properly noticed
arbitration proceeding, an award may be entered against such
party by default or otherwise notwithstanding such failure to
appear.
Each party shall be responsible for its own costs in pursuing or
defending an arbitration proceeding under this Agreement.
The only exception to the obligation to arbitrate herein shall be
with respect to claims relating to the Proprietary Property of
either party or requests for restraining orders, injunctions or
other procedures in a court of competent jurisdiction to obtain
specific performance when deemed necessary by such court to
preserve the status quo or prevent irreparable injury pending
resolution by arbitration of the actual dispute between the
parties.
11. Entirety
This Agreement represents the entire understanding and agreement
between the parties with respect to the subject matter of this
Agreement, and supersedes all other negotiations, understandings
and representations, if any, made by and between the parties. No
representations, inducements, promise or agreements, oral or
otherwise, if any, not embodied in this Agreement shall be of any
force and effect.
This Agreement shall remain valid and in effect to the fullest
extent possible between the two parties with respect to the
subject matter hereof and to the extent the provisions hereof are
not superseded by subsequent agreements between the two parties.
12. Non-Enforcement
A party's failure at any time to enforce any of the provisions
of this Agreement or any right with respect thereto, will not be
construed to be a waiver of such provision or right, nor to
affect the validity of this Agreement. The exercise or non-
exercise by a party of any right under the terms or covenants
herein shall not preclude or prejudice the exercising thereafter
of the same or other rights under this Agreement.
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13. Severability
If any provision of this Agreement is contrary to, prohibited by,
or deemed invalid under applicable law or regulation, such
provision shall be inapplicable and deemed omitted to the extent
so contrary, prohibited or invalid, but the remainder of this
Agreement shall not be invalidated thereby and shall be given
full force and effect so far as possible.
14. Governing Law and Jurisdiction
Unless otherwise required under specific laws of the United
States, this Agreement shall be governed by, construed, and
enforced in accordance with the laws of the State of Florida ,and
the country of Canada.
15. Modifications
This agreement may only be modified in writing, signed by duly
authorized representatives of the each party hereto.
16. Notices
All notices, requests, consents and other communications required
or permitted under this Agreement shall be in writing and shall
be hand delivered by messenger or courier service, or mailed
(airmail if international) by registered or certified mail
(postage prepaid), return receipt requested, addressed to:
If to Access Power, Inc.: If to APC TELECOM INC.:
Access Power, Inc. APC Telecom, Inc.
Xxxxx 000 Xxxxx 0
10033 Sawgrass Drive West 000 Xxxxxxxxx Xxxxxxx
Xxxxx Xxxxx Xxxxx, XX 00000 Xxxxxxx, Xxxxxxx X0X0X0
Attn: Xxxxx Xxxxx, President Attn: Xxxxx Xxxx, President
17. Execution - Counterparts
This Agreement may be executed by the parties in separate
counterparts each of which when so executed and delivered
shall be an original and all such counterparts shall together
constitute one and the same instrument. The parties hereto
agree that this agreement may be executed and delivered and
transmitted by means of facsimile or other electronic means
and the parties hereto agree to accept and rely upon such
documents as if the same bore original signatures.
IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement.
Witnesses:
APC TELECOM INC.
By:__________________________________
Xxxxx Xxxx, President A.S.O.
ACCESS POWER, INC.
By:__________________________________
Xxxxx Xxxxx, President
STATE OF FLORIDA
COUNTY OF ST. XXXXX
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