EXHIBIT 10.2
AGREEMENT FOR PERFORMANCE OF SERVICES BY INDEPENDENT CONTRACTOR
THIS AGREEMENT is made the day of June 2000
BETWEEN: AQUADYNE INC, a company organised and existing under the laws
of the United States of America, ("AquaDyne")
AND: GLOBAL POWER & WATER INC, a company organised and existing
under the laws of the United States of America ("Global")
WHEREAS:
A. AquaDyne is the owner of an invention called "the JetWater System".
B. Global has special and unique expertise in relation to the JetWater
System, including: (a) research, development and commercialisation; and
(b) training and technical assistance and support in regard to
individual commercial applications.
C. AquaDyne wishes to engage Global as an independent contractor to
perform services comprising its areas of its special and unique
expertise in relation to the JetWater System.
D. This Agreement sets out the terms of the engagement of Global, by
AquaDyne, as an independent contractor, to perform services in relation
to the JetWater System.
NOW THE PARTIES AGREE as follows:
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A. INTERPRETATION
ARTICLE 1 DEFINITIONS AND INTERPRETATIONS OF WORDS
1.1 Unless the context otherwise requires, the following expressions shall
have the meanings now ascribed to them:
"AGREEMENT" means this agreement for the performance of services under
which Global is engaged by AquaDyne as an independent contractor in
relation to the JetWater System and any amendments hereto and any other
instrument expressed to be supplemental to this agreement and all
amendments thereto.
"CHANGE IN CONTROL" means in relation to the Contractor, that there is
such a change in the shareholders of the Contractor, or such a change
in the composition of the Board of Directors of the Contractor which,
in the opinion reasonably held of AquaDyne, has the effect of taking
control of the Contractor away from its existing Board of Directors or
puts the Contractor under the control, direct or indirect, of persons
or companies different from those in control at the latter of the date
hereof and the date on which AquaDyne last consented in writing to
particular changes in the shareholders or Board of Directors of the
Contractor.
"CONFIDENTIAL INFORMATION" means any and all confidential information
(including trade secrets) relating to the JetWater System and shall
include all client lists, formulae, notes, correspondence, drawings and
other written material or software associated with the JetWater System
and shall also include all that information, advice and know-how of a
proprietary nature owned by AquaDyne in relation to the JetWater System
or comprised in or represented by the Intellectual Property to the
extent that the same has not already been publicly disclosed by
AquaDyne.
"COPYRIGHT" means all those rights of copyright in respect of the
JetWater System or the Intellectual Property, throughout the World, now
existing, granted or recognised.
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"DESIGN RIGHTS" means all those rights of registered design granted, in
respect of the JetWater System or the Intellectual Property, throughout
the World, now existing, granted or recognised.
"FUTURE RIGHTS" means, jointly and severally, all those rights
(statutory and otherwise) comprised in the definition of Copyright,
Design Rights, Patent Rights or Trade Xxxx Rights, throughout the
World, which may in the future be granted, recognised, created or
acquired.
"IMPROVEMENTS" means any method or approach which can be adapted to the
JetWater System which would make it cheaper, more effective, in any way
easier to use, or more useful or valuable, or in any way preferable as
a commercial article, system or process, in any part of the World and
which has been or is ever developed or acquired.
"INTELLECTUAL PROPERTY" means, jointly and severally, the Copyright,
Future Rights, the Patent Rights, the Design Rights and the Trade Xxxx
Rights and any other rights that may at any time exist in relation to
the JetWater System or the Intellectual Property.
"JETWATER SYSTEM" means a distillation method water purification
system, that utilizes an afterburner to heat water containing effluent
from commercial and other applications to temperatures greatly
exceeding those achieved by existing water distillation systems,
reduces solids down to submicron size, extracts them and discharges
clear and sterile water, and in relation to which the Patent
Application has been made and which is more fully described in such
application, together with the Improvements.
"NOMINATED PERSON" means the person to be nominated by the Contractor,
from time to time, and approved by AquaDyne, who is to be primarily
responsible for providing the Services.
"PARTIES" means the parties to this Agreement, being Global and
AquaDyne.
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"PATENT APPLICATION" means International Patent Application No. PQ5402,
filed under the PCT and given an international filing date of 2
February 2000.
"PATENT RIGHTS" means, jointly and severally, all patents and
applications relating to the JetWater System, including the Patent
Application, filed in any country in the world, and all divisions,
continuation, continuation in part, supplemental disclosure and
reissues thereof, and without limiting the generality of the foregoing,
those patent rights pursuant to the Commonwealth Patents Xxx 0000 in
relation to the JetWater System and the right to register patents in
relation to the JetWater System throughout other countries of the
World.
"PCT" means the Patent Cooperation Treaty signed at Washington on 19
June 1970.
"RESTRAINT AREAS" means each country of the World in which the JetWater
System is patented or an application for a patent has been or is ever
lodged, or such application or patent is recognised, and each country
of the World in which any other form of Intellectual Property in
relation to the JetWater System is registered or has been applied for
or granted, or is recognised.
"RESTRAINT PERIOD" means in relation to each Restraint Area, the period
during which any Patent Rights or other Intellectual Property Rights
shall remain registered or recognised, as the case may be and shall not
have expired within that Restraint Area.
"SERVICES" means the services to be provided by the Contractor in
relation to the JetWater System, which are set out in Article 2.
"TRADE XXXX RIGHTS" means those rights in the trade nominations
developed or acquired by AquaDyne, which might describe the JetWater
System or such other names in respect of the JetWater System, which are
capable of protection under any law in any country throughout the
World.
"WORLD" means, jointly and severally, all territories and countries of
the World.
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1.2 GENERAL Unless the context otherwise requires, a reference to:
1.2.1 a person includes a body corporate;
1.2.2 the singular number includes the plural number and vice versa;
1.2.3 one gender includes all other genders;
1.2.4 a statute, regulation, section, or provision of a statute or
regulation ("a Statutory Provision") includes:
(a) that Statutory Provision as amended or re-enacted
from time to time; and
(b) a statute, regulation or provision enacted in
replacement of that Statutory Provision, or
incorporating any of its provisions.
1.3 All monetary amounts are in United States dollars, unless otherwise
stated.
1.4 If a party consists of more than one person, this Agreement binds them
jointly and each of them severally.
1.5 Headings are for convenience only and do not affect the interpretation,
or form part of, this Agreement.
1.6 "Any" shall include one, more than one, and all occurrences of the
matters or things referred to.
1.7 "Including" and similar expressions are not words of limitation.
1.8 Where an expression is of the form "a or b" it shall include "a or b
and both a and b".
1.9 Where a word or expression is given a particular meaning, other parts
of speech and grammatical forms of that word or expression have a
corresponding meaning.
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B. OBLIGATIONS OF CONTRACTOR
ARTICLE 2 SERVICES TO BE PERFORMED BY CONTRACTOR
The Contractor will perform engineering and technical support services in
relation to the JetWater system, for and on behalf of AquaDyne, including:
(a) research and development of the JetWater System, including
design and construction thereof (and the Contractor undertakes
to use its best efforts, diligently applied, to advance and
improve the JetWater System).
(b) technical assistance, training and support in regard to
JetWater Systems deployed and operating in commercial
applications, including giving advice on the technical
characteristics of the JetWater System and preparing and
providing operating manuals and other technical literature for
the JetWater System; and
(c) doing and performing those services, acts or things which in
the reasonable opinion of AquaDyne are necessary, desirable or
advisable in relation to the JetWater System and fall within
the Contractor's areas of expertise.
ARTICLE 3 EMPLOYMENT OF SUBCONTRACTORS, EMPLOYEES AND AGENTS
The Contractor may employee or retain such subcontractors, employees, agents or
assistants as shall be necessary or desirable for the performance of the
Services, provided that each such appointment shall be first approved by the
Board of Directors of AquaDyne and provided further that each such person, which
includes the Nominated Person, shall, prior to commencing work for the
Contractor in relation to the Services, execute an agreement with AquaDyne under
which they shall be bound by the provisions contained in Articles 9,11,12 and 13
any other provisions of this Agreement as AquaDyne shall in its reasonable
opinion deem necessary in order to protect its title and interests in the
Confidential Information, the Intellectual Property, the JetWater System or its
business.
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ARTICLE 4 METHOD OF PERFORMING THE SERVICES
Except as expressly provided to the contrary in this Agreement, the Contractor
shall determine the method, details and means of performing the Services.
ARTICLE 5 AMOUNT OF TIME CONTRACTOR TO SPEND PERFORMING THE SERVICES
The Contractor shall devote a sufficient number of hours in each week as shall
be necessary to perform the Services at a high standard.
ARTICLE 6 HOURS AND LOCATION WHERE SERVICES TO BE PERFORMED
6.1 The Contractor shall perform the Services during regular business hours
and on the Contractor's own premises (provided that such facility is
first approved by the Board of Directors of AquaDyne, in view of the
confidential nature of its business), at locations where JetWater
Systems are deployed and at such other locations as AquaDyne may
reasonably require taking into account the nature of the Services to be
performed by the Contractor and the location of the JetWater Systems.
It is expressly agreed by the Contractor that as directed by AquaDyne,
it shall perform the Services at all locations, wherever they may be in
the World, where AquaDyne has customers or other involvement in
relation to the JetWater System.
6.2 All reasonable expenses incurred by the Contractor in travelling to or
remaining at locations other than its own premises in order to perform
the Services shall be reimbursed to it by AquaDyne.
ARTICLE 7 TOOLS AND EQUIPMENT
The Contractor will at its own cost provide its own business premises,
personnel, tools and other equipment and instrumentalities required to perform
its Services.
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ARTICLE 8 REPORTS AND SUPPLY OF INFORMATION AND DOCUMENTS
8.1 The Contractor shall in good faith, promptly and regularly, and
forthwith after receiving any request for the same from AquaDyne,
provide to AquaDyne:
(a) reports on the nature and extent of the Services rendered
covering the period of time between that report and the
previous report;
(b) full details of all Improvements to the JetWater System,
including designs and drawings, project models, development
drawings, prototypes, production drawings and other
developments, trade secrets and matters relating to the
JetWater system, which the Contractor or its subcontractors,
employees, agents or assistants have developed, acquired or
become aware since the previous occasion on which it provided
such information to AquaDyne.
ARTICLE 9 FURTHER DEVELOPMENTS OF THE JETWATER SYSTEM
9.1 The ownership of and sole right to any Improvements developed or
acquired by Global anywhere in the World, shall be vested in AquaDyne
and Global hereby expressly undertakes to notify AquaDyne that it has
developed or acquired such Improvements forthwith upon doing so and
shall describe the nature of the same and do all things as may be
necessary or appropriate in the opinion of AquaDyne to vest absolutely
in, or transfer to AquaDyne, or its nominee, any Future Rights
available in respect of the Improvements and all objects comprising,
describing, or in any way referring to the Improvements shall forthwith
be delivered to AquaDyne after being acquired or developed by Global.
9.2 Global hereby expressly agrees to treat all Improvements as
confidential and secret, whether or not the Improvement is capable of
protection by Future Rights, and hereby expressly undertakes to refrain
from:
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(a) disclosing to any person the nature of any Improvements or any
documents or other information acquired in the course of
creating the Improvements; and
(b) using any object, document or other information for any
purpose other than the ongoing commercialisation and
exploitation of the Intellectual Property by or on behalf of
AquaDyne.
ARTICLE 10 CONTRACTOR RESPONSIBLE FOR ITS TAXATION OBLIGATIONS
It is agreed and understood by the parties that AquaDyne has engaged the
Contractor to perform the Services under this Agreement as an independent
contractor and that it is the Contractor's sole responsibility and obligation to
pay to the Federal, State and local governments, any and all taxes that may
become due as a result of the compensation paid to the Contractor under this
Agreement. In this regard the Contractor acknowledges that it may have an
obligation to make estimated tax payments. AquaDyne shall issue and file with
the appropriate government authorities, a form 1099 reflecting the compensation
paid to the Contractor.
ARTICLE 11 CONFIDENTIAL INFORMATION AND PROTECTION OF AQUADYNE'S BUSINESS
11.1 The Contractor acknowledges that during the term of this Agreement and
in the course of discharging its duties hereunder, the Contractor shall
have access to and become acquainted with information concerning the
business operations of AquaDyne and in particular its Confidential
Information, and that this information is confidential and comprises
trade secrets.
11.2 The Contractor agrees and undertakes that it and its subcontractors,
employees, agents or assistants shall not misuse, misappropriate, or
disclose any Confidential Information, directly or indirectly, to any
other person, or use any Confidential Information in anyway either
during the term of this Agreement or at any time thereafter, except as
is required in the course of the performance of the Services.
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11.3 The Contractor acknowledges and agrees that the sale or unauthorised
use or disclosure of any of the Confidential Information obtained by
the Contractor during the course of this Agreement, including
information concerning AquaDyne's current or any future or proposed
work services, JetWater System improvement or development, and the fact
that any such work services or JetWater System improvement or
development are planned, under consideration or have been incorporated
in the JetWater System, as well as any descriptions thereof, constitute
a misuse of AquaDyne's Confidential Information and wrongful and unfair
competition. The Contractor promises and agrees not to engage in, cause
or permit any unfair competition with AquaDyne, during the term of this
Agreement or at any time thereafter.
11.4 The Contractor shall not cause or permit anything which may damage or
endanger the Intellectual Property, or AquaDyne's title or interest in
the Intellectual Property, or assist or allow others to do so.
11.5 The Contractor agrees that all Confidential Information and all
equipment and any other tangible or intangible property relating to the
business of AquaDyne, or its Intellectual Property, and whether or not
prepared, created or provided by the Contractor or any other person,
are and shall remain the exclusive property of AquaDyne and shall only
be removed from the premises of AquaDyne with its prior consent.
ARTICLE 12 NO COMPETITIVE ACTIVITIES
12.1 Global shall not, without having first obtained the consent of
AquaDyne, which AquaDyne shall be entitled to grant or refuse as it
sees fit:
(a) during the Restraint Period within any of the Restraint Areas
conduct or carry on, on its own account, in partnership, joint
venture or otherwise be concerned or interested, directly or
indirectly, and whether as trustee, principal, agent,
employee, shareholder, unit holder, independent contractor,
consultant, adviser, or in any other capacity whatsoever, in
any business or activity of a nature that is in competition
with the business of AquaDyne or its Intellectual Property, or
in any way canvas or solicit orders in competition with the
business of AquaDyne or its Intellectual Property; and
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(b) after the conclusion of the Restraint Period, use to their own
advantage, or to the detriment of AquaDyne, or except on
compulsion of law disclose to any person, or cause or permit
to be so used or disclosed, any information which has come to
their knowledge or which they have otherwise acquired during
their association with AquaDyne or the JetWater System.
12.2 Global hereby expressly accepts the restraints set out in this Article
12 and expressly agrees that these restraints are entirely reasonable
and acceptable in the circumstances of this Agreement.
ARTICLE 13 INDEMNIFICATION FOR NEGLIGENCE OR MISCONDUCT
Global will and at all times hold AquaDyne and its employees, representatives,
officers, directors and assigns, harmless from and indemnified against any loss,
costs, damage, injury to persons or property, actions, claims, demands,
expenses, judgments, court orders or other liabilities arising directly or
indirectly out of or in connection with the misconduct, negligence or
recklessness, or intentional acts or omissions of the Contractor or the
Contractor's employees, subcontractors, representatives, agents or assistants,
or related in any manner to the performance or failure to perform the Services
by the Contractor or its employees, subcontractors, representatives, agents or
assistants.
ARTICLE 14 WORKERS COMPENSATION INSURANCE AND INDEMNIFICATION
The Contractor agrees to provide worker's compensation insurance for its
employees and agents and agrees to hold harmless from and indemnify AquaDyne for
any loss, damage, liability or claim (whether civil or criminal) including legal
fees and costs incurred, arising out of the injury, disability, or death of any
of the Contractor's employees or agents.
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ARTICLE 15 FURTHER UNDERTAKINGS AND REPRESENTATIONS BY CONTRACTOR
15.1 The Contractor has not knowingly done or omitted to do, or permitted
any other to do or omit to do, any act or thing whatsoever by which the
due performance of this Agreement shall be hindered or prevented in any
way whatsoever.
15.2 Neither the execution of this Agreement nor the performance of its
obligations hereunder will cause the Contractor to be in breach of any
agreement to which it is party or otherwise subject
C. OBLIGATIONS OF AQUADYNE
ARTICLE 16 COMPENSATION
16.1 As compensation for the Services to be performed hereunder, AquaDyne
shall pay the Contractor a fee which shall initially be calculated on
an annual rate per annum of USD 80,000.00 ("the annual compensation
rate") payable in equal monthly instalments in arrears, on the first
day of each month, during the term of this Agreement.
16.2 The annual compensation rate shall be increased by USD20,000.00 as soon
as the Contractor has produced a working prototype of the JetWater
System that has satisfied the tests required pursuant to the
contemporaneous contract entered into between the parties under which
all the intellectual property relating to the JetWater System was
assigned to AquaDyne by the Contractor and the production of working
models of the JetWater System to be deployed in commercial applications
has commenced.
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16.3 The annual compensation rate shall be further increased by a further
USD20,000.00 as soon as AquaDyne has achieved its first commercial
contract for the supply of the JetWaterSystem.
16.4 In addition to the increases in the annual compensation rate set out in
Articles 16.1-16.3, the annual compensation rate shall be increased on
each anniversary of this Agreement by a further amount to reflect the
prevailing rate of inflation in the United States of America during the
previous year of the Agreement, but shall not be reduced in the case
that there has been deflation.
16.5 In addition to the increases in the annual compensation rate set out in
Articles 16.1-16.4 the annual compensation rate will be reviewable
annually on each anniversary of the execution of this Agreement, but
may only be increased or maintained at the prevailing rate.
16.6 Notwithstanding Articles 16.1-16.5, in the event that AquaDyne at any
time requires an expansion of the Services to be provided by the
Contractor, whether as to the nature of the Services or the amount of
time to be spent in their performance, then the parties will forthwith
negotiate an increase in the annual rate to reflect the increased
Services being provided.
16.7 AquaDyne shall pay to the Contractor all anticipated out of pocket
expenses. Out of pocket expenses which the Contractor shall be entitled
to be paid in advance shall be those expenses specified under the
heading "Office Expenses" in the cash flow projections prepared
quarterly by Global and agreed to by AquaDyne.
16.8 The Contractor shall provide AquaDyne with a monthly invoice in respect
of the Monthly Fee and any out of pocket expenses.
16.9 AquaDyne agrees to comply with all requests of the Contractor that are
reasonably necessary for the performance of the Services, or fair and
equitable in the context of this Agreement and the Services to be
performed hereunder.
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D. GENERAL PROVISIONS
ARTICLE 17 UNIQUENESS OF CONTRACTOR'S SERVICES
The Contractor hereby represents and agrees that the Services to be performed
under this Agreement are of a special, and unique, unusual, extraordinary or
intellectual character that gives them a particular value to AquaDyne, the loss
of which cannot be reasonably or adequately compensated in damages in an action
at law. The Contractor agrees that AquaDyne may possess and shall be entitled to
injunctive and other equitable relief, in addition to remedy at law for damages,
to prevent or remedy any breach of this Agreement by the Contractor.
ARTICLE 18 NO ASSIGNMENT BY CONTRACTOR
Neither this Agreement, nor any obligations under this Agreement may be assigned
by the Contractor, except as permitted hereunder or consented to in advance by
AquaDyne, as it is understood and agreed that the Contractor is uniquely
qualified to perform the Services.
ARTICLE 19 NATURE OF THIS AGREEMENT AND STATUS OF THE CONTRACTOR
The Contractor is and shall be an independent contractor and not the servant of
AquaDyne under this Agreement. This Agreement does not constitute a partnership,
joint venture or any other similar type of relationship. The Contractor has no
authority to enter into or make him commitments, agreements, contracts or create
obligations of any sort on behalf of AquaDyne.
ARTICLE 20 MUTUAL COOPERATION AND GOOD FAITH OF THE PARTIES
In entering into this Agreement, the parties recognise that it is impracticable
to make provision for every contingency which may arise in the course of its
performance. Accordingly the parties declare that they enter into this Agreement
in a spirit of mutual cooperation, good faith and fairness and that it is their
intention that this Agreement shall operate between them with fairness and
without detriment to the interests of either of them and if in the course of the
performance of this Agreement unfairness to any party is disclosed or
anticipated, then the parties shall use their best endeavours to agree upon such
equitable action as may remove the cause or causes of the same.
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ARTICLE 21 COMMENCEMENT AND TERMINATION OF THIS AGREEMENT
21.1 This Agreement shall commence on the date of execution by both parties
and will continue for a period of five years, after which time the
parties may agree upon a further term for the continuance of this
Agreement, unless terminated pursuant to the termination provisions of
Article 21.2.
21.2 This Agreement may be terminated forthwith by a party ("the first
party") should any of the following events involving the other party
("the other party") occur:
(a) an order is made, or a resolution passed, for the winding up
or dissolution without winding up of the other party, unless
the winding up is for the purpose of reconstruction or
amalgamation and the scheme for reconstruction or amalgamation
receives the prior written consent of the first party;
(b) the other party enters into an arrangement, reconstruction or
composition with its creditors or any of them, without the
prior written consent of the first party;
(c) the other party suspends payment of its debts or becomes
insolvent within the meaning of any relevant legislation or
law;
(d) a receiver is appointed to the other party;
(e) pursuant to the provisions of any relevant legislation the
other party is placed under official management or an
inspector is appointed to investigate its affairs;
(f) the other party has made persist and substantial default in
the performance of any of its obligations under this
Agreement, provided that where such default is capable of
remedy such default is not remedied within 30 days;
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(g) the other party, being the Contractor, shall have done or
permitted any act by which AquaDyne's rights in the
Intellectual Property or its business may be prejudiced or put
in jeopardy;
(h) the other party, being the Contractor, shall have failed for a
period of 30 days to provide a Nominated Person, approved by
AquaDyne, provided that such approval was not unreasonably
withheld;
(i) there is a Change in Control of the other party, being the
Contractor, without the prior consent of AquaDyne;
(j) the other party, being AquaDyne, shall have failed to make
payment of any sum due to Global under the terms of this
Agreement within 10 days of the due date on at least three
occasions.
ARTICLE 22 EFFECTS OF TERMINATION
22.1 Upon the termination of this Agreement for any reason whatsoever:
(a) the Contractor shall forthwith deliver up to AquaDyne all
property belonging to AquaDyne, including all Confidential
Information and other property whatsoever comprising or
relating to the Intellectual Property, the JetWater System or
AquaDyne's business, which is in its possession, or under its
control, or in the possession or under the control of its
servants, subcontractors, agents, assistants or any other
persons that it has similar authority over; and
(b) AquaDyne shall pay to the Contractor all sums due and owing to
it by way of compensation and out of pocket expenses as at the
date this Agreement is terminated.
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22.2 The termination of this Agreement shall not affect any rights or
remedies which may have accrued to either party in respect of any
breach prior to the date of such termination and each party shall be
and remain liable to perform all outstanding obligations under this
Agreement notwithstanding that the other party may have exercised one
or more of the rights and remedies against it.
22.3 Any right or remedy to which either party is or may become entitled
under this Agreement, or in consequence of the other party's conduct,
may be enforced from time to time separately or concurrently with any
right or remedy given by this Agreement, or now or afterwards provided
for and arising by operation of law, so that such rights and remedies
are not exclusive of the other or others but are cumulative.
22.4 Articles 9,10, 11, 12 and 13 of this Agreement shall continue in force
notwithstanding the termination of this Agreement.
ARTICLE 23 FORCE MAJEURE
The parties shall be released from their respective obligations under this
Agreement in the event of national emergency, war, prohibitive government
regulation, or if any other cause beyond the reasonable control of the parties,
or either of them, renders the performance of this Agreement impossible, this
Agreement will be treated as terminated and the provisions in Article 22 shall
apply.
ARTICLE 24 STAMP DUTY, CHARGES AND LEGAL COSTS
24.1 All stamp duty and other government charges (if any) payable in respect
of this Agreement shall be paid by AquaDyne.
24.2 The parties shall be liable for and shall pay their own legal costs and
disbursements of and arising from this Agreement.
ARTICLE 25 ATTORNEY'S FEES AND COSTS IN CASE OF COURT ACTION
If any action at law or in equity is necessary to enforce or interpret the terms
of this Agreement, the prevailing party shall be entitled to reasonable
attorney's fees, costs and necessary disbursements in addition to any other
relief to which that party may be entitled.
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ARTICLE 26 NOTICES
26.1 Each notice hereunder shall be in writing and shall be given by any one
of the following means:
26.1(a) by delivering it to the address of the party on a business day
during normal business hours; or
26.1(b) by sending it to the address of the party by registered mail.
26.2 The address and facsimile numbers (and telephone numbers) of the
parties shall, in the absence of notice to the contrary, be as follows:
GLOBAL:
Address: Xxxxx 000
0000 Xxxx Xxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx
XXX
Facsimile: x0-000-000-0000
Telephone: x0-000-000-0000
AQUADYNE:
Address: Xxxxx 000
0000 X. Xxxxxx Xx.
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 0000000
Telephone: (000) 0000000
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26.3 Each of the parties shall give notice to the other of any change in any
address, facsimile or telephone number at the earliest possible
opportunity, but in any event within 48 hours of such change taking
place.
ARTICLE 27 RIGHTS CUMULATIVE
All rights granted to the parties hereunder shall be cumulative and no exercise
by either party of any right under this Agreement shall restrict or prejudice
the exercise of any other right granted by this Agreement, or otherwise
available to that party.
ARTICLE 28 MODIFICATIONS, AMENDMENTS AND CONSENTS
28.1 Any modification or amendment of this Agreement will be effective only
if it is in writing signed by or on behalf of the party to be charged.
28.2 Any consent by a party shall be of no force or effect unless it is in
writing and signed by or on behalf of the party to be charged.
ARTICLE 29 WAIVER
29.1 A party's failure or delay to exercise a power or right does not
operate as a waiver of that power or right.
29.2 The exercise of a power or right does not preclude either its exercise
in the future or the exercise of any other power or right.
29.3 A waiver is not effective unless it is in writing and signed by the
party to be charged.
29.4 The waiver of a power or right is effective only in respect of the
specific instance to which it relates and for the specific purpose for
which it is given.
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ARTICLE 30 SEVERABILITY
If any provision of this Agreement is declared by any judicial or other
competent authority to be void, voidable, illegal or otherwise unenforceable, or
indications to that effect are received by either of the parties from any
competent authority, the parties shall use their best efforts to amend that
provision so as to overcome the same in such manner as most nearly achieves the
original intention of the parties in entering into this Agreement, provided
however that should it not be possible to amend the provision in this way then
such provision shall be severed from this Agreement unless the effect of
severance would be to significantly reduce the benefits to be received by or to
make it more onerous for either or both of the parties hereunder, in which case
such party or parties shall be entitled to terminate this Agreement by 30 days
notice to the other party.
ARTICLE 31 ENTIRE AGREEMENT
This Agreement contains the entire agreement of the parties and supersedes any
prior written or oral agreements between them concerning the subject matter
contained herein. There have been and are no representations, agreements,
arrangements, or understandings, oral or verbal, between and among the parties
hereto, relating to the subject matter contained in this Agreement, which are
not fully expressed herein.
ARTICLE 32 ARBITRATION
All disputes or differences which shall at any time arise between the parties,
whether during the term of this Agreement or afterwards, touching or concerning
this Agreement, or its construction or effect, or the rights, duties or
liberties of the parties under or by virtue of it, or concerning any matter in
any way connected with or arising out of the subject matter of this Agreement,
shall on the written request of either party served on the other, be submitted
to a non-binding arbitration. The arbitration shall comply with and be governed
by the provisions of the appropriate Arbitration legislation in the State of
Delaware. The party prevailing in the arbitration shall be entitled to attorneys
fees together with other costs and necessary disbursements incurred on its
behalf in relation to the arbitration.
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ARTICLE 33 APPLICABLE LAW AND JURISDICTION
33.1 This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware and the United States of America.
33.2 Each party irrevocably and unconditionally submits to the non-exclusive
jurisdiction of the courts of the State of Delaware and waives any
immunity or any objection it may have to any action in those courts and
to a claim that any action in those courts has been brought in an
inconvenient forum or to those courts not having jurisdiction.
THIS AGREEMENT WAS EXECUTED on the date first hereinbefore written, by:
THE COMMON SEAL OF THE COMMON SEAL of
GLOBAL WATER & POWER INC was AQUADYNE INC.
hereunto affixed in accordance with its was hereunto affixed in accordance
By-laws in the presence of: with its By-laws in the presence of:
------------------------ -------------------------------
Director Director
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