Exhibit 10.19 - Revised License Agreement between us and Compte De Sierge
PROPRIETARY TECHNOLOGY USAGE
LICENSE AGREEMENT - AMENDED
PREAMBLE
This Agreement made effective this 10th day of September, 1999, is made
and entered into by and between POWER DIRECT, INC., a corporation incorporated
in the State of Delaware, USA, having an office at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Power") and COMPTE DE SIERGE ACCOMODATIVE
CORPORATION, a corporation incorporated in Panama City, Panama ("Compte"),
whereby Compte at the direction of its directors shall license Power to utilize
certain Proprietary Technology in connection with the ▇▇▇▇▇▇▇▇▇▇.▇▇▇.
ARTICLE I TITLE
This Agreement is an Amendment to the "Greeting Card Lotto(TM)
Proprietary Technology Usage" Agreement made effective on the 28th of April,
1999, entered into by and between POWER DIRECT, INC., and COMPTE DE SIERGE
ACCOMODATIVE CORPORATION.
This Amended Proprietary Technology Usage License Agreement entered into
by and between Compte and Power may hereinafter be referred to as the "Amended
Agreement".
ARTICLE 2 RECITALS
A. WHEREAS, Power (Power Direct, Inc.) is a public company participating on
the OTC Bulletin Board with its primary business in investment and joint
ventures; and,
B. WHEREAS, Compte (Compte De Sierge Accomodative Corporation) is a private
company specializing in designing software systems for the
▇▇▇▇▇▇▇▇▇▇.▇▇▇ web site to be operated on the Internet; and,
C. WHEREAS, Power will have a worldwide exclusive license in perpetuity to
the Proprietary Technology, however with no legal right to any sub
license, unless with consent of Compte and on similar terms and
conditions to the terms and conditions contained in this Amended
Agreement, and;
D. WHEREAS, Compte is ready, willing and able to license the Proprietary
Technology Usage to Power, upon the basis that Compte will be providing
the Proprietary Technology to produce the ▇▇▇▇▇▇▇▇▇▇.▇▇▇ web site; and,
E. WHEREAS, Power, having had the opportunity to evaluate the potential of
the Proprietary Technology, along with having had the opportunity to
evaluate the potential for meeting the profit objectives, desires a
License be granted by Compte.
NOW THEREFORE, in consideration of the premises, other good and valuable
consideration, the receipt and sufficiency is hereby acknowledged by the
parties, and the mutual covenants and agreements recited hereinafter, the
parties hereto agree as follows:
Section 2.1 Definitions
In this Amended Agreement, the Preamble, Recitals, this Section and the
Schedules hereto, unless the context otherwise requires:
2.1.1 "Amended Agreement" means this Amended Agreement and all Schedules
attached hereto;
2.1.2 "Power" means Power Direct Inc., a publicly traded corporation formed in
the State of Delaware, USA, their successors and assigns;
2.1.3 "Compte" means COMPTE DE SIERGE ACCOMODATIVE CORPORATION, a corporation
formed in Panama City, Panama;
2.1.4 "Business Day" means a day other than a Saturday, Sunday, statutory
holiday or day that is declared by any governmental authority to be a
civic holiday in the jurisdiction in which an event contemplated hereby
is to take place;
2.1.5 "Proprietary Technology" means the proprietary software and systems
owned and developed by Compte;
2.1.6 "License Fee" means the portion of gross sale revenue, defined as five
percent (5%) of the gross revenue paid to Compte by Power as licensee of
the said Proprietary Technology;
2.1.7 "External Audit" means the annual audit to be conducted by an
independent Certified Public Accountant firm selected by Power at its
expense;
2.1.8 "Sweepstakes" means, including, without limitation, the following:
(a) production and communication of the ▇▇▇▇▇▇▇▇▇▇.▇▇▇ web site,
utilizing all or any portion of the Proprietary Technology;
(b) organization of secure accounting of virtual sweepstakes
tickets, processing of sweepstakes winners;
(c) the development, planning and operation of one or more
sweepstakes to be operated and such other business opportunities
as may arise pursuant to the Proprietary Technology in
accordance with this Agreement;
(d) all other permitted sweepstakes activities pursuant to
applicable law and permits and licenses derived thereunder for
each jurisdiction;
2.1.9 "Country of Domicile" means Panama including all geographical territory
under the control of the Sovereignty of the country of Panama or any
other suitable alternatives.
2.1.10 "Sweepstakes Parameters" shall refer to Sweepstake design and procedures
which establish and define the prize structure, sweepstakes rules and
all other parameters;
2.1.11 "Gross Revenue" shall mean any and all gross revenue from the
Sweepstakes due and/or paid, from whatever source derived, to Compte
without duplication, which can be attributed in any manner to some
portion of the Proprietary Technology; i.e., the Proprietary Technology
forms at least a part of the consideration, whether expressly recited or
not, for the revenue paid.
Specific examples of Gross Revenue, without intending to limit the scope
of its definition, include the gross ticket (Sweepstakes) dollar volume,
etc.
2.1.12 "Internal Audit" means the quarterly audit to be conducted by a auditor
appointed by Compte at its expense;
2.1.13 "Startup Budget" means the approved startup budget with respect to
Sweepstakes as Attached in Schedule "A" hereunder;
2.1.14 "Person" means any individual, partnership, limited partnership,
syndicate, sole proprietorship, company or corporation with or without
share capital, unincorporated association, trust, trustee, executor,
administrator or other legal personal representative, regulatory body or
agency, government or governmental agency, authority or entity however
designated or constituted.
2.1.15 "Proprietary System(s)" shall by definition, and by agreement of the
parties hereto, also include:
(a) The Proprietary Technology Software as described in this Amended
Agreement dated effective the 10th day of September, 1999,
between Power and Compte;
(b) Any device, system, system component, method or process that may
be used for purchasing the product on the ▇▇▇▇▇▇▇▇▇▇.▇▇▇ web
site.
2.1.16 "Proprietary Technology" means all technology and confidential
information considered by Power/Compte to be proprietary technology
(including without limitation, Proprietary Systems) and all other
information and/or know how of any kind whatsoever, however developed,
acquired or used by Power, and/or Compte, used to operate the
▇▇▇▇▇▇▇▇▇▇.▇▇▇ web site excluding any information already known to the
public and in the public domain;
2.1.17 "Operation Center" means the Sweepstakes command and control
center located in the appropriate location to be determined;
2.1.18 "$" means currency of the United States of America.
Section 2.2 Capitalized Terms.
Subsequent capitalized terms not defined heretofore are defined in the
specific sections in which they are referenced.
Section 2.3 Interpretation.
The captions and the emphasis of the defined terms have been inserted
for convenience and do not define the scope of any provision.
Section 2.4 Compliance with Laws.
The parties shall conduct their affairs in strict accordance with all
applicable laws and regulations, and that such policies will govern
their conduct with respect to the transaction contemplated by this
Amended Licensing Agreement in all respects.
Section 2.5 Time of the Essence of the Agreement.
Unless otherwise specifically provided in this Amended Agreement, time
will be of the essence of this Amended Agreement and of the transactions
contemplated by this Amended Agreement.
REPRESENTATIONS AND WARRANTIES AND GRANT OF LICENSE FOR PROPRIETARY TECHNOLOGY
AND GRANT OF RIGHT OF FIRST REFUSAL:
Section 3.1 Representations and Warranties of POWER.
POWER warrants and represents to Compte, and acknowledges that in
reliance thereon Power may warrant and represent to Compte and/or their
Related Entities the following:
3.1.1 POWER is a corporation in good standing under the laws of USA;
3.1.2 POWER has full authority and capacity to execute this Amended Agreement;
3.1.3 POWER is authorized to enter into this Amended Agreement, and to carry
out its terms to the full extent required.
Section 3.2 Representations and Warranties of Compte.
COMPTE warrants and represents to Power, and acknowledges that in
reliance thereon Compte may warrant and represent to Power and/or their
Related Entities the following:
3.2.1 Compte has the power and capacity to provide the Proprietary Technology
for the production of ▇▇▇▇▇▇▇▇▇▇.▇▇▇ web site as contemplated herein;
3.2.2 Compte is authorized to enter into and execute this Amended Agreement on
behalf of itself;
3.2.3 Compte is authorized to carry out the terms of this Amended Agreement to
the full extent in respect to the granting of license rights herein;
3.2.4 Neither the execution and delivery of this Amended Agreement, nor
granting of exclusive license rights contemplated herein will violate
any of the terms and provisions of the memorandum or bylaws or articles
of incorporation of Compte, or its Related Entities, or any order,
decree, statute, by-law, regulation, covenant, and agreement;
3.2.5 Compte and its employees shall, at all times, conduct the development of
the Proprietary Technology in accordance with all applicable laws
worldwide.
Section 3.3 GRANT OF LICENSE FOR PROPRIETARY TECHNOLOGY
3.3.1 Grant of Exclusive Licenses.
Subject to the terms and conditions of this Amended Agreement, Compte
grants an exclusive use only license, in perpetuity, worldwide, to Power
to the extent necessary to conduct the ▇▇▇▇▇▇▇▇▇▇.▇▇▇ web site.
3.3.2 Grant of Exclusive Sub-Licenses.
Subject to the terms and conditions of this Amended Agreement, Power may
with the consent of Compte grant sublicenses to third parties with new
terms agreeable to Compte in respect to the Proprietary Technology, to
the extent necessary to produce the ▇▇▇▇▇▇▇▇▇▇.▇▇▇ web site in
accordance with the Sweepstakes Parameters.
3.3.3 Proprietary Technology.
Save and except for the technology associated with ▇▇▇▇▇▇▇▇▇▇.▇▇▇ that
is and shall remain proprietary to Compte, to the extent that Compte,
will expend time, effort, money to make enhancements to the Proprietary
Technology, that involve the use or enhancement of the Proprietary
Technology resulting in new technology, the parties hereby acknowledge
that such new technology shall not extinguish or derogate from the
original Proprietary Technology of Compte and that all proprietary
right, title, and interest in and to the new technology and enhanced
Proprietary Technology shall be the properties of Compte.
3.3.4 Preservation of Data.
All data compiled in connection with the Proprietary Technology will be
copied or otherwise preserved and archived on storable media by Compte
to ensure that all Proprietary Technology in the form of data is backed
up in the case of any loss or damage to the original data for the
benefit of the parties and delivered from time to time upon request by
any party.
3.3.5 Grant of Right of First Refusal to Acquire Proprietary Technology.
Compte shall not sell, assign, transfer, convey, encumber or other
hypothecate the Proprietary Technology to any Person except as specified in this
Sub Section 3.3.5. In the event Compte desires to sell, assign, transfer,
convey, encumber or otherwise hypothecate the Proprietary Technology, or any
portion thereof, to any Person, Compte shall give first to Power notice
(Hereinafter described) of Compte's desire to sell, assign, convey, encumber or
otherwise hypothecate the Proprietary Technology, or any part thereof, and Power
shall have the right to purchase such Proprietary Technology, on the terms and
subject to the conditions specified in this Sub Section 3.3.5.
(a) Notice shall be given by Compte to Power and shall consist of an
offer to sell to Power the Proprietary Technology, or portion
thereof, that Compte then desires to sell, assign, transfer,
convey, encumber or otherwise hypothecate, to which shall be
attached a statement of intention to sell, assign, transfer,
convey, encumber or otherwise hypothecate, as the case may be;
the name and address of any prospective purchaser, assignee,
transferee, or mortgagee, as the case may be; and the terms and
conditions of such sale, assignment, transfer, conveyance,
encumbrance, or other hypothecation ("Notice").
(b) Power shall have the option for sixty (60) days after receipt of
the Notice to purchase all or any portion of the Proprietary
Technology that Compte then desires to sell, assign, transfer,
convey, encumber or other hypothecate, at the price and on the
terms and subject to the conditions specified in the Notice.
Within twenty (20) business days after receipt of Notice, Power
shall deliver to Compte a written election to purchase such
Proprietary Technology.
(c) The purchase price of the Proprietary Technology that Compte
desires to sell, assign, transfer convey, encumber or otherwise
hypothecate shall be the lesser of
(1) that purchase price specified in the Notice or
(ii) that purchase price as specified in Paragraph (f) of
this Section 3.3.5.
(d) In the event the Proprietary Technology which Compte desires to
sell, assign, transfer, convey, encumber or otherwise
hypothecate is not purchased by Power pursuant to the option
specified in Paragraph (c) of this Section 3.3.5, Compte shall
have no obligation to sell any of the Proprietary Technology to
Power; but, rather Compte may dispose of such Proprietary
Technology in any lawful manner on the terms and conditions as
specified in the Notice; provided, however, Compte shall not
sell, assign, transfer, convey, encumber or otherwise
hypothecate any Proprietary Technology to any other person or
persons on terms and conditions different than those specified
in the Notice without first giving Power the option for that
period specified in Paragraph (b) of this Section 3.3.5.
(e) The closing of any purchase and sale of the Proprietary
Technology pursuant to the provisions of this Section 3.3.5
shall take place at the principal office of Power at such date
designated by Power, which date shall not be later than the last
day of the sixty (60) day option period described in Paragraph
(b) of this Section 3.3.5.
(f) Purchase Price.
(i) The purchase price for the Proprietary Technology sold
pursuant to this Agreement shall be "fair market value"
as determined pursuant to Paragraph (f) as of the date
of the event causing the purchase and sale.
(ii) The "fair market value" of the Proprietary Technology
shall be determined by an independent appraiser selected
jointly by the parties. The determination of fair
market value by that appraiser shall obligate, and be
conclusive for, all parties to this Agreement.
(iii) If the parties are unable to agree on the selection of
an appraiser within thirty (30) days after the event
causing purchase and sale, each party shall select an
independent appraiser within twenty (20) days after
expiration of that thirty (30) day period. The two (2)
appraisers so selected shall each independently appraise
the Proprietary Technology and, if the difference in
those two (2) appraisals does not exceed five percent
(5%) of the lower of those two (2) appraisals, the fair
market value shall be conclusively deemed to equal the
average of those two (2) appraisals. If either party
fails to select and independent appraiser within the
time required by this Paragraph (f), the fair market
value of the Proprietary Technology shall be
conclusively deemed to equal the appraisal of the
appraiser timely selected by the other party.
(iv) If the difference between the two (2) appraisals
referred to above exceeds five percent (5%) of the lower
of those two (2) appraisals, the two (2) appraisers
selected shall select a third (3rd) appraiser who shall
also independently appraise the Proprietary Technology
and whose appraisal shall be conclusively deemed to be
the fair market value of the Proprietary Technology.
(v) The parties shall share and pay equally the fees and
expenses of any appraiser named jointly, but each party
shall be responsible for the fees and expenses of any
appraiser named solely by that party. Each party shall
bear and pay that party's expenses in presenting
evidence to the appraisers.
(vi) In determining that purchase price, the appraisers
appointed pursuant to this Agreement shall consider all
opinions and relevant evidence submitted to them by the
parties, or otherwise obtained by them, and shall
specify their determination in writing together with
their opinions and the considerations on which their
opinions are based, with a signed counterpart to each
party, within sixty (60) days after commencing the
appraisal.
Section 3.4 Bankruptcy or Insolvency of Compte.
In the event Compte files for bankruptcy or similar protection pursuant
to the bankruptcy laws of the United States of America or any other
jurisdiction, not withstanding the provisions of Paragraph 7.1 of this
agreement, such event shall be considered conclusively by all parties as
the delivery by Compte to Power of the Notice, and in which event Power
shall have the right to purchase the Proprietary Technology on the terms
and conditions subject to the provisions specified in Section 3.3.5 of
this Agreement.
ARTICLE 4 REVENUE STREAM
Section 4.1 Revenue Stream.
The parties agree that in consideration for the foregoing licenses,
Power shall agree that a non-refundable running License Fee shall be
payable by Power directly to Compte on the basis of a Revenue Stream
from the operations of the ▇▇▇▇▇▇▇▇▇▇.▇▇▇ web site.
An amount of five percent (5%) Gross Revenue shall be paid to Compte,
including, without limitation, revenue derived from any and all things
of value (paid directly or indirectly), for the right to support,
sponsor or play the Sweepstakes, and for the right to use in any way
Proprietary Systems or any other portion of the Proprietary Technology.
Section 4.2 Payment Terms.
The parties agree that the applicable amount payable shall be tendered
to Power in successive weekly payments by close of business within the
next five (5) Business Days (excluding any statutory holiday) of each
and every week in which payment is being calculated and received in the
Power bank account, and remitted to such bank designated by Power in
accordance with Power's instructions and in U.S. Dollars at the bank
information to be specified by written notice.
Section 4.3 Statement of Ticket Sales.
Each remittance shall be accompanied by a weekly statement of Gross
Revenue and Gross Receipts for each Sweepstake, which shall be subject
to verification by Power's designated accountants and, which statement
shall disclose the total Gross Revenue and total Net Revenue, the method
used to calculate the ticket sales, other non-sweepstakes revenue and
payment, and the amount due Power. All such statements shall be in a
form determined in accordance with generally accepted accounting
principles and acceptable to Power (See also Comprehensive Audit and
Accounting Procedures in Article 9 below).
ARTICLE 5 NO ABATEMENT
Section 5.1 No Abatement.
The parties hereto agree that there shall be no abatement or reduction
of the monies due from the Power to Compte for any reason.
Section 5.2 Access to Business and Records.
At all times during the subsistence of this Amended Agreement the duly
authorized representatives of Compte shall, at their sole risk and
expense and at reasonable intervals and times, have access to Power and
to all records and other data and information relating to the
▇▇▇▇▇▇▇▇▇▇.▇▇▇ web site which is in the possession of the Power.
Section 5.3 Notice of Disputes.
Either party shall provide the other party with written notice of any
material dispute or matter as between Power or Compte.
Section 5.4 Non-disclosure Except as Required by Law.
All information and data concerning or derived from the Operation of the
▇▇▇▇▇▇▇▇▇▇.▇▇▇ web site shall be kept confidential and, except to the
extent required by law or by regulation or policy of any securities
commission, stock exchange or other regulatory body, shall not be
disclosed to any person in strict confidence without the prior consent
of both parties, which consent shall not unreasonably be withheld.
ARTICLE 6 ACQUISITION OF REVENUE STREAM
Section 6.1 Cash Payments.
6.1.1 A total cash payment in Canadian Currency of $300,000.00 is to be paid
to Compte by Power as partial payment for the purchase of a license.
6.1.2 These payments are to be made in three equal installments with the time
as shown herein:
(a) 1st Payment paid upon signing of the Agreement made effective
on 28th of April, 1999.
(b) 2nd Payment paid upon completion of Alpha Testing.
(c) 3rd Payment due upon the completion of the Beta Testing.
Section 6.2 Stock Payments.
A stock payment of 6,000,000 Shares (Six Million Shares) of power common
restricted stock with a one year hold period in two equal installments
with 3,000,000 shares to be paid upon signing of the Agreement made
effective on 28th of April, 1999, and the remaining 3,000,000 shares to
be paid upon commencing operations.
ARTICLE 7 TERMINATION AND RELATED MATTERS
Section 7.1 Termination for Insolvency.
Any entry by Power into an agreement and/or general assignment for the
benefit of creditors, voluntary or involuntary, or in the event Power does not
exercise its option to purchase the Proprietary Technology granted by the
provisions of Section 3.5 of this Amended Agreement, any petition by Compte for
reorganization or other relief under the bankruptcy laws of the United States of
America, or any other jurisdiction, shall result in an immediate termination of
all rights granted, licensed or assigned hereunder, from Compte to Power,
without cost to or further consideration from Power.
Section 7.2 Termination for Material Default.
Subject to Article 13 (FORCE MAJEUR), a non-defaulting party may
terminate this Amended Agreement upon the occurrence of any material default or
breach by the defaulting party of any as follows:
7.2.1 The non-defaulting party will notify the defaulting party in writing of
the occurrence of a material default of this Amended Agreement;
7.2.2 The defaulting party will have a period of ten (10) days from delivery
of the written notice in which to either:
(a) correct or remedy the material default of this Amended Agreement
in a manner satisfactory to the non-defaulting party acting
reasonably;
(b) the default of this Amended Agreement which is acceptable to the
non-defaulting party acting reasonably;
Section 7.3 Right to Cure Material Default.
Subject to Article 12 (Arbitration) below, if the defaulting party fails
to correct or remedy the material default of this Amended Agreement or
provide the non-defaulting party with an acceptable plan for the remedy
or the correction of the material default of this Amended Agreement, the
non-defaulting party may terminate this Amended Agreement upon ten (10)
days written notice to the defaulting party.
Section 7.4 Surrender in Case of Termination.
Should a termination take effect, Power shall within twenty (20)
Business Days promptly return to Compte all documents and other material
containing or in any way relating to Proprietary Technology.
Section 7.5 Survival of Obligations.
In the event of any termination, all obligations of the parties existing
prior to termination and all obligations, whether known or unknown at
the time of termination, stemming from the act or omissions of a given
party while this Agreement was in force and effect, shall remain an
obligation of the given party until discharged.
ARTICLE 8 SUBLICENSING/ASSIGNMENT/LIENS/ENCUMBRANCES
Section 8.1 No Charge or Encumbrance.
Power agrees not to, or not to purport to, assign, pledge, cause any
lien, encumbrance or more generally any cloud of title whatsoever to affect all
or any part of the Proprietary Technology. The parties hereto agree and
understand that the purpose of this clause is to insure that in case of any
termination of rights licensed hereunder, as provided herein, title to the
licensed rights respecting the Proprietary Technology will be free and clear of
any cloud on title.
ARTICLE 9 REPORTING / ACCOUNTING / AUDIT / PAYMENTS
Section 9.1 Monthly Reporting.
Power shall make daily online and monthly written report, as provided
herein, available to Compte stating as to each period including but not limited
to the amount of Gross Revenue, and the amount due to Compte for the License Fee
under the terms of this Amended Agreement.
Section 9.2 Audit and Records.
Power shall keep true and accurate records and books of account, in
sufficient detail to enable the fees payable to Compte hereunder to be
determined, showing the annual audited summary of Gross Revenue including a
summary of amounts paid pursuant to Article 4 hereof during the course of this
Amended Agreement, which records and books of account shall be open for
inspection and independent audit by the other parties, or a duly appointed agent
of a party upon reasonable advance notice and during Power's usual business
hours. In the event a party has such independent audit performed and it reveals
that Power has underpaid Compte by at least $10,000 (Ten Thousand Dollars), then
Power shall reimburse the party that undertook such audit for the reasonable
costs of such audit.
Section 9.3 Certification of Reports.
Each monthly report contemplated herein shall be accompanied by a
written certification from an authorized officer of Power as to the accuracy of
the report.
Section 9.4 Nil Report.
Should no sums be due, a report shall nevertheless be rendered to
document the facts and circumstances surrounding the no sums due situation.
Section 9.5 Report Due Date.
All monthly reports due hereunder shall be filed within 20 days after
the close of each month.
ARTICLE 10 TERM
Unless earlier terminated according to the provisions herein, this
Amended Agreement shall continue in force and effect in perpetuity.
ARTICLE 11 CONFIDENTIALITY
Section 11.1 Non-disclosure.
All information disclosed or furnished by one party to the other,
whether orally or in writing, in connection with the transaction contemplated
hereunder shall be deemed to be proprietary and confidential information of the
disclosing party, save and except to the extent that such confidential
information must be disclosed by law. The receiving party agrees that for the
term of this Amended Agreement plus a period of seven (7) years after the date
of earlier termination of this Amended Agreement, it shall not disclose any
proprietary and confidential information to any third party nor use the
information for any purpose other than acting in the best interest of and to
protect the interest of each party hereto.
Section 11.2 Permitted disclosure.
The provisions of Section 11.1 notwithstanding, the receiving party may
disclose any such information without the prior written consent of the other
party, if such disclosure is required lawfully by any governmental agency, court
of competent jurisdiction or is otherwise required to be disclosed by law, but
only to the extent of such requirement; provided, however, that before making
any such disclosure, such party will provide to the other party prior written
notice of such contemplated disclosure and an adequate opportunity to interpose
objections to such disclosure or to take such other action as is necessary to
assure the confidential nature of such information.
ARTICLE 12 ARBITRATION/CONSTRUCTION/APPLICABLE LAW
Section 12.1 AAA
Any controversy or claim arising out of or relating to this Amended
Agreement, or breach thereof, shall be settled by arbitration in accordance with
the International Arbitration Rules of the American Arbitration Association, in
Seattle, Washington, or such other jurisdiction neutral to both parties within
the United States that the parties shall in writing agree, and judgment upon the
award rendered by the arbitrator may be entered in any court having jurisdiction
thereof.
Section 12.2 Attornment.
By the execution of this Amended Agreement each of the parties
irrevocably and unconditionally, with respect to any matter or thing arising out
of or pertaining to this Amended Agreement, hereby attorns and submits to the
jurisdiction of the arbitration hearing to be conducted under the International
Arbitration Rules of the American Arbitration Association, in Seattle,
Washington, by this reference thereto.
Section 12.3 Selection of Arbitrators.
The arbitration shall be before three neutral arbitrators all of whom
shall be of the State Bar of Washington, actively engaged in the practice of law
for at least ten (10) years to be selected in accordance with the International
Arbitration Rules of the American Arbitration Association and shall proceed
under the expedited procedures of the said Rules, irrespective of the amount in
dispute.
Section 12.4 Choice of Law and Attornment.
The parties further agree to be bound by the laws of the State of
Washington, but are hereby deemed to have submitted to the said jurisdiction of
the American Arbitration Association in Seattle, Washington, by this reference
thereto, which shall apply the laws of the State of Washington in the
interpretation of this Amended Agreement.
Section 12.5 Remedies.
12.5.1 Authority.
The arbitrators shall have the authority to award any remedy or relief
that a court of the State of Washington could order or grant, including, without
limitation, specific performance of any obligation created under this Amended
Agreement, the awarding of punitive damages, the issuance of an injunction, or
the imposition of sanctions for abuse or frustration of the arbitration process.
12.5.2 Damages Inadequate.
Each of the parties confirm that damages at law may be an inadequate
remedy for a breach or threatened breach of this Amended Agreement and agrees
that in the event of a breach or threatened breach of any provision the
respective rights and obligations hereunder shall be enforceable by specific
performance, injunction pending an arbitration hearing, or other equitable
remedy that may be granted pending an arbitration hearing to maintain the status
quo.
12.5.3 Escrow
Pending the outcome of the arbitration, the parties shall place in
escrow with the American Arbitration Association as escrow agent the monies or
subject matter in dispute. The escrow agent shall be entitled to release such
monies or subject matter in dispute as directed by the arbitrators in the award,
unless the parties agree otherwise in writing.
ARTICLE 13 FORCE MAJEURE
Each party shall be excused from any breach or default with respect to
this Amended Agreement to the extent that the party was prevented from
performance by reason of anything beyond the party's control and not reasonably
avoidable such as a strike or other labor disturbance, act of any governmental
authority or agency, fire, flood, wind, storm or any act of God, or the act or
omission of any party not controlled by that party. No party shall be liable to
the other party for any delay in or failure of performance under this Agreement
due to a Force Majeure. Any such delay in or failure of performance shall not
constitute default or give rise to any liability for damages. The existence of
such causes of delay or failure shall extend the period of performance to such
extent as is mutually determined by the parties to be necessary to enable
complete performance by a party if reasonable diligence is exercised after the
causes or delay or failure have been removed.
ARTICLE 14 NOTICES
Section 14.1 Notice Requirements.
14.1.1 All notices for the purpose of this Amended Agreement shall be deemed to
be properly served when in writing and sent by tele-copier or facsimile,
to the other party at the address set forth in the opening paragraph of
this Amended Agreement, or to such substitute address as such party may
from time to time designate in writing to the other.
14.1.2 Each party shall cause all notices which may in any way affect the
obligations and responsibilities of the other party to be directed or
forwarded to that other party as the case may be and agrees to forward
all notices effecting the Proprietary Technology that may be received
from third parties to the other party.
14.1.3 An accidental omission in the giving of, or failure to give, a notice
required by this Amended Agreement will not invalidate or affect in any
way the legality of any meeting or other proceeding in respect of which
such notice was or was intended to be given.
14.1.4 A party may change its address by giving written notice of such change
to the other.
14.1.5 A document sent by telex or facsimile will be deemed to be received on
the first Business Day after valid transmission.
ARTICLE 15 INDEMNITY FOR MATERIAL BREACH
Section 15.1 Mutual Indemnities.
Each party shall indemnify, defend and hold the other harmless from and
against all claims, demands, losses, costs, expenses, obligations, liabilities,
damages, recoveries and deficiencies, including interest, penalties and
reasonable attorney's fees, that the other may incur as a result of any material
breach by the other of any terms, representations or warranties hereof.
ARTICLE 16 NON-WAIVER
Section 16.1 No Waiver.
The failure by either party to enforce at any time any of the provisions
of this Amended Agreement, or any rights in respect thereto, or to exercise any
election herein provided, shall in no way be considered to be a waiver of such
provisions, rights or elections, or in any way to affect the validity of this
Amended Agreement. The exercise by a party of any of its rights herein or any
of its elections under the terms of covenants herein shall not preclude or
prejudice that party from exercising the same or any other right it may have
under this Amended Agreement or law, irrespective of any previous action or
proceeding taken by that party hereunder.
ARTICLE 17 INVALIDITY/ILLEGALITY OF PART AGREEMENT
Section 17.1 Entire Agreement/Written Modification.
This Amended Agreement sets forth the entire intent of and understanding
between the parties hereto with respect to the subject matter hereof, supersedes
all prior discussions, negotiations and Agreements between them, and may be
amended only by a written agreement signed by both parties.
Section 17.2 Partial Invalidity / Severability.
If any provision of this Agreement or any part of any provision (in this
section called the "Offending Provision") is declared or becomes unenforceable,
invalid or illegal for any reason whatsoever including, without limiting the
generality of the foregoing, a decision by any competent courts, legislation,
statutes, bylaws or regulations or any other requirements having the force of
law, then the remainder of this Amended Agreement will remain in full force and
effect as if this Amended Agreement has been executed without the Offending
Provision, but amended so as to be capable of being interpreted in a manner that
is most consistent with the original intention of the parties as stated herein.
ARTICLE 18 FURTHER ASSURANCES
The parties hereby covenant and agree to do the things, to attend the
meetings and to execute the further documents, Agreements, and assurances that
may be deemed necessary or advisable from time to time in order to carry out the
terms and conditions of this Amended Agreement in accordance with their true
intent.
ARTICLE 19 INTERPRETATION
Section 19.1 Interpretation of Amended Agreement.
For all purposes of this Amended Agreement, except as otherwise
expressly provided or as the context otherwise requires:
19.1.1 The headings will be considered as provided for convenience only and as
not forming a part of this Amended Agreement, and will not be used to
interpret, define or limit the scope, extent or intent of this Amended
Agreement or any of its provisions;
19.1.2 The word "including", when following any general term or statement, is
not to be construed as limiting the general term or statement to the
specific items or matters set forth or to similar items or matters, but
rather as referring to all other items or matters that could reasonably
fall within the broadest possible scope of the general term or
statement;
19.1.3 Accounting terms not otherwise defined have the meanings assigned to
them in accordance with generally accepted U.S. GAAP;
19.1.4 A reference to a statute includes every regulation made pursuant
thereto, all amendments to the statute or to any such regulation in
force from time to time, and any statute or regulation which supplements
or supersedes such statutes or any such regulation;
19.1.5 A reference to an entity includes any entity that is a successor to such
entity;
19.1.6 Words importing the masculine gender include the feminine or neuter,
words in the singular include the plural, and for greater certainty, End
Users includes all its Related Entities formed at the relevant time, and
vice versa.
ARTICLE 20 EXECUTION
Section 20.1 Counterparts.
This Amended Agreement may be executed in one or more counterparts
and/or via one document exchanged between the parties and/or their attorneys,
Federal Express or facsimile machine. Each part or facsimile shall for all
purposes be deemed an original.
IN WITNESS WHEREOF, the parties have caused this Amended Agreement to be
executed at Vancouver, British Columbia and Panama City, Panama, effective as of
the date first written above.
COMPTE DE SIERGE ACCOMODATIVE CORPORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ Barguil
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▇▇▇▇▇ ▇▇▇▇▇▇ Barguil, Esquire, Director
POWER DIRECT, INC.
By: /s/ ▇▇▇▇ Sha
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▇▇▇▇ Sha, President
By: /s/ Ferdinand Marehard
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Ferdinand Marehard, Secretary Treasurer
