DISTRIBUTION AGREEMENT
ITC LEARNING CORPORATION
- and -
INFOCAST CORPORATION
TABLE OF CONTENTS
ARTICLEI - RECITALS CORRECT...................................................1
1.01 Recitals Correct......................................1
ARTICLE II - INTERPRETATION...................................................2
2.01 Defined Terms.........................................2
2.02 Other Uses............................................3
2.03 United States Funds...................................3
2.04 Headings, etc.........................................3
2.05 Gender................................................3
2.06 Governing Law.........................................3
2.07 Time of the Essence...................................3
2.08 Schedules.............................................3
ARTICLE III - CAPACITY TO CONTRACT............................................4
3.01 Covenants of ITC......................................4
3.02 Covenants of InfoCast.................................4
ARTICLE IV - APPOINTMENT AND GRANT OF DISTRIBUTION RIGHTS TO INFOCAST........5
4.01 Grant of Appointment and Attendant Rights.............5
4.02 Conversion............................................5
4.03 Relationship of Parties...............................5
4.04 Preferred Pricing.....................................6
ARTICLE V - THE PRODUCTS......................................................6
5.01 Title to Products.....................................6
5.02 New Products..........................................6
5.03 Creation, Modification and Use of Products............6
ARTICLE VI - RESPONSIBILITIES OF ITC..........................................7
6.01 Ongoing Responsibilities of ITC.......................7
6.02 Source Code Use and Protection........................7
ARTICLE VII - CO-OPERATIVE DISTRIBUTION, MARKETING AND INFORMATION SHARING....8
7.01 Co-operative Distribution.............................8
7.02 Co-operative Marketing Commitments....................8
7.03 Sharing of Client Lists and Related Information.......9
ARTICLE VIII - FINANCIAL ARRANGEMENTS.........................................9
8.01 Distribution Rights Fee...............................9
8.02 Revenue Sharing......................................10
ARTICLE IX - ARBITRATION.....................................................11
9.01 Arbitration..........................................11
ARTICLE X - CONFIDENTIALITY PROVISIONS.......................................12
10.01 Confidentiality......................................12
ARTICLE XI - ASSIGNMENT......................................................12
11.01 Assignment...........................................12
ARTICLE XII - TERM, TERMINATION AND SURVIVAL.................................12
12.01 Term.................................................12
12.02 Termination..........................................12
12.03 Survival.............................................13
ARTICLE XIII - GENERAL CONTRACT PROVISIONS...................................13
13.01 Entire Agreement.....................................13
13.02 Severability.........................................13
13.03 Agreement Binding Upon Successors and Assigns........14
13.04 Waiver of Obligations................................14
13.05 Notices..............................................14
13.06 Counterparts.........................................15
SCHEDULE "1".................................................................17
PRODUCTS 17
SCHEDULE "2".................................................................18
REQUIRED SOURCE CODE COMPONENTS..................................18
SCHEDULE "3".................................................................19
PERMITTED ENCUMBRANCES...........................................19
DISTRIBUTION AGREEMENT
THIS AGREEMENT made as of the 12th day of March, 1999.
B E T W E E N:
INFOCAST CORPORATION, a corporation incorporated under the laws of
the State of Nevada
(hereinafter called "InfoCast")
OF THE FIRST PART
ITC LEARNING CORPORATION, a corporation incorporated under the laws
of the State of Maryland
(hereinafter called "ITC")
OF THE SECOND PART
WHEREAS the parties hereto entered into a Memorandum of
Understanding dated December 15, 1998 (the "MOU"), together with International
Goldfields Limited ("IGL"), pursuant to which such parties agreed to the terms
and principles pursuant to which ITC is willing to grant InfoCast certain
distribution rights to products developed by and licensed to ITC;
AND WHEREAS IGL will, contemporaneously with the execution of this
agreement, assign to InfoCast all rights and obligations it has under the MOU
and InfoCast has agreed to accept such assignment;
AND WHEREAS the parties hereto wish to have this agreement prescribe
the definitive terms of their commercial relationship as generally contemplated
in the MOU.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
mutual covenants and agreements herein contained and for other good and valuable
consideration (the receipt and sufficiency of which is hereby acknowledged) the
parties hereby agree as follows:
ARTICLE I - RECITALS CORRECT
1.1 Recitals Correct
The parties hereby acknowledge and declare that the foregoing
recitals are true and correct in substance and in fact.
ARTICLE II - INTERPRETATION
2.01 Defined Terms
In this agreement, any amendment to this agreement or any schedule
to this agreement, unless the context indicates the contrary:
(1) "agreement" means this agreement between InfoCast and
ITC;
(2) "Electronic Distribution" means electronic distribution
effected by InfoCast via any electronic delivery medium,
including the InfoCast delivery engine, through any
distribution infrastructure including, without
limitation, intranets, the internet, cable networks
(excluding public television broadcasting), telephone
networks, wireless telecommunications and satellite;
(3) "Electronically Convert" or "Electronically Converted"
means the conversion by InfoCast of Products into an
electronic format capable of Electronic Distribution;
(4) "End User" means an individual learner/user of a
Product;
(5) "License Agreement" means an agreement between InfoCast
and licensees of Electronically Converted Products
disseminated by InfoCast via Electronic Distribution
which shall be consistent with industry standards and
satisfactory to both ITC and InfoCast;
(6) "Licensed Purchasers" means those End Users to whom
Products are distributed by InfoCast, ITC or their
authorized distribution agents via Electronic
Distribution;
(7) "person" means and includes an individual, body
corporate, sole proprietorship, partnership, firm, joint
venture, trust, trustee, government agency or board or
commission or instrumentality or authority and any other
form of entity or organization, whether or not
incorporated;
(8) "Preferred Pricing" means pricing at the best discounted
rate charged by a party to its most favoured customer
excluding the General Services Administration of the
United States Government;
(9) "Products" means the entire existing curriculum of
products offered by ITC which have either been created
by ITC or are under licence owned by ITC with
restrictions as listed in Schedule A1" hereto and all
future products developed or licensed by ITC from time
to time;
(10) "Source Code" mean those properties listed in Schedule
"2";
(11) "Territory" means everywhere in the world; and
(12) "User Licenses" means non-transferrable and
non-exclusive licences of the Products disseminated by
InfoCast via Electronic Distribution as prescribed in
the form of License Agreement.
2.2 Other Uses
References to "this agreement", "the agreement", "hereof", "herein",
"hereto" and like references refer to this Distribution Agreement and to all
schedules hereto.
2.3 United States Funds
All dollar amounts referred to in this agreement shall be in United
States funds.
2.4 Headings, etc.
The division of this agreement into articles, sections, subsections
and schedules and the use of headings are interpretation or construction of this
agreement.
2.5 Gender
All words and personal pronouns relating thereto shall be read and
be construed as the number and gender of the party or parties referred to in
each case required and the verb shall be construed as agreeing with the prior
word and/or pronoun.
2.6 Governing Law
This agreement shall be construed by the laws of the State of
Delaware and the parties hereby irrevocably attorn to the jurisdiction of the
courts of said state.
2.7 Time of the Essence
Time shall be of the essence of this agreement and in every part
hereof and no extension or variation of this agreement shall operate as a waiver
of this provision.
2.8 Schedules
The following are the schedules attached to and incorporated in this
agreement by reference and deemed to be a part hereof:
Schedule Description of Schedule
-------- -----------------------
"1" Products
"2" Required Source Code Components
"3" Permitted Encumbrances
ARTICLE III - CAPACITY TO CONTRACT
3.1 Covenants of ITC
ITC hereby covenants, represents and warrants that:
(a) it is entitled to grant to InfoCast the rights granted
herein;
(b) it is not a party to or subject to any other agreement
in conflict with this agreement;
(c) the execution and delivery by it of this agreement has
been duly authorized; and
(d) the execution and delivery by it of this agreement and
the fulfilment of the terms and conditions hereof do not
and will not result in the breach of any of the terms,
conditions, provisions of its constating documents, as
amended, by-laws or resolutions of the directors or
shareholders of it or any license, permit, contract,
agreement, instrument, order, decree or writ issued to
it or to which it is a party or by which it is bound or
constitute a default (or would with the passage of time
or the giving of notice, or both, constitute a default)
under any contract, agreement or instrument to which it
is a party or by which it is bound.
3.2 Covenants of InfoCast
InfoCast hereby represents, covenants and warrants that:
(a) it is not a party to or subject to any agreement in
conflict with this agreement;
(b) the execution and delivery by it of this agreement has
been duly authorized; and
(c) the execution and delivery by it of this agreement and
the fulfilment of the terms and conditions hereof do not
and will not result in the breach of any of the terms,
conditions, provisions of its constating documents, as
amended, by-laws or resolutions of the directors or
shareholders of it or any license, permit, contract,
agreement, instrument, order, decree or writ issued to
it or to which it is a party or by which it is bound or
constitute a default) under any contract, agreement or
instrument to which it is a party or by which it is
bound.
ARTICLE 4 - APPOINTMENT AND GRANT
OF DISTRIBUTION RIGHTS TO INFOCAST
4.1 Grant of Appointment and Attendant Rights
Subject to the terms and conditions set forth herein, ITC appoints
InfoCast as a non-exclusive distributor to market and sell the Products in their
current format (CD ROM platform) ("Non-converted Products"). ITC further grants
to InfoCast and InfoCast hereby accepts a non-exclusive perpetual license to use
the Products, after they have been Electronically Converted as contemplated in
section 4.02 hereof, in the Territory for an unlimited term. ITC hereby grants
InfoCast the perpetual rights to effect Electronic Distribution of the Products,
for an unlimited term, in the Territory to Licensed Purchasers subsequent to
conversion of the Products by InfoCast as contemplated in Section 4.02 hereof.
InfoCast hereby accepts said appointment and agrees that all electronic
conversion and Electronic Distribution of Products and all sales of
Non-converted Products by it shall be effected in accordance with the terms and
conditions of this agreement.
4.2 Conversion
(a) ITC hereby grants InfoCast the unrestricted right to
Electronically Convert all the Products. InfoCast and
ITC agree that any Products Electronically Converted by
InfoCast may be electronically distributed in perpetuity
by both InfoCast and ITC and that revenues generated
therefrom shall be shared in accordance with Article
VIII hereof.
(b) ITC may have a third party other than InfoCast (the
"third party") electronically convert certain Products
provided ITC gives written notice to Infocast, within
ten (10) days of engagement of the Third Party
confirming its engagement of a Third Party and stating
which Products the Third Party will be electronically
converting. Any such engagement of a Third Party by ITC
does not relieve ITC of its obligation hereunder to
provide InfoCast all the Products for electronic
conversion during the term of this agreement.
Furthermore, ITC will use it best efforts to ensure that
any Products electronically converted by a Third Party
during the term of this agreement shall be made
available to InfoCast for Electronic Distribution and
revenues generated therefrom shall be shared between
InfoCast and ITC in the manner prescribed in Section
8.02(b).
4.3 Relationship of Parties
The relationship of InfoCast to ITC under this agreement is that of
an independent contractor. This agreement shall in no way constitute InfoCast a
partner, joint venturer, agent, servant, employee or legal representative of
ITC. The parties shall have no authority to bind, obligate or incur any
liability on behalf of one another in any way whatsoever and shall be solely
responsible for its own obligations and liabilities and shall have no right to
indemnity or contribution from the other in respect thereof.
4.4 Preferred Pricing
InfoCast and ITC agree that they shall offer each other Preferred
Pricing in connection with the sale of goods and services to each other.
ARTICLE 5 - THE PRODUCTS
5.1 Title to Products
(a) ITC hereby represents and warrants that it has full
title and right to possession of all the Products, as
described and subject to the restrictions listed in
Schedule "I", free and clear of any interest, lien,
encumbrance or claim of any person and that there are no
impediments to ITC granting to InfoCast Electronic
Distribution rights in respect of the Products as
contemplated by this agreement other than as disclosed
in Schedule A3" hereof.
(b) ITC and InfoCast agree that all Products Electronically
Converted by InfoCast shall, upon completion of such
conversion, become a new product that is a derivative of
certain intellectual property contributed by each of ITC
and InfoCast (the "Derivative Product"). Notwithstanding
that InfoCast will have certain intellectual property
rights in the Derivative Product, InfoCast hereby
acknowledges and agrees that (other than the perpetual
license granted herein to use the Products) it has no
interest in or claims to any intellectual property
rights specific to the Products which InfoCast
acknowledges and agrees are the exclusive rights of ITC.
All revenue derived from the sale/licensing of
Electronically Converted Products effected via
Electronic Distribution shall be shared in accordance
with Section 8.02(b) and such revenue sharing
arrangements shall survive the term of this agreement.
5.2 New Products
Any new products developed from time to time by ITC shall be added to the list
of Products in respect of which InfoCast has Electronic Distribution and
conversion rights in accordance with this agreement.
5.3 Creation, Modification and Use of Products
The parties agree that:
(a) InfoCast shall use its best efforts to maintain the
integrity of all the intellectual property of all
Products which it electronically converts for the
purpose of effecting Electronic Distribution thereof;
(b) ITC shall promptly disclose to InfoCast all particulars
of any improvement or further invention applicable to
any of the Products which is made or discovered by ITC
or any of its employees or which comes to ITC's
knowledge; and
(c) ITC shall at all time supply to InfoCast new or updated
Products which have been modified, altered or improved
in any manner whatsoever.
ARTICLE 6 - RESPONSIBILITIES OF ITC
6.1 Ongoing Responsibilities of ITC
ITC agrees that it will:
(a) provide upon execution of this agreement Products as
defined in Schedule 1 to InfoCast for the purpose of
being electronically Converted; and
(b) provide Source Code for the Products as defined in
Schedule 1, including any updated Source Code for
Products previously delivered under the parties December
15, 1998 MOU, which shall be delivered to InfoCast upon
execution of this agreement. Source Code shall consist
of, but not necessarily limited to the items defined in
Schedule 2 ; and
(c) make available and provide to InfoCast without delay all
Source Code for all Products for the purpose of being
Electronically Converted when requested by InfoCast; and
(d) refer to InfoCast all inquiries relating to Electronic
Distribution of the Products from Licensed Purchasers.
6.2 Source Code Use and Protection
(a) ITC acknowledges and agrees that all Source Code
provided to InfoCast is provided and granted to InfoCast
for the purpose of being Electronically Converted by
InfoCast and InfoCast cannot be compelled by ITC or its
successors or assigns to return any ITC Source Code in
InfoCast's possession until the earlier of:
(i) the effective date of termination of this
agreement; or
(ii) the date upon which the Source Code has been
Electronically Converted by InfoCast.
(b) All Source Code provided to InfoCast by ITC in respect
of the Products shall be treated as confidential and
restricted material by InfoCast and shall be used by
InfoCast only in connection with its conversion into a
format capable of Electronic Distribution and shall be
disclosed to employees and agents of InfoCast only on a
"need to know" basis. InfoCast shall not alter the
intellectual property of the Products without the prior
written consent of ITC. InfoCast will protect all ITC
Source Code provided to it with the same level of
confidentiality as would be provided for very sensitive
material. Precautions shall include, but not be limited
to the following:
(i) document tracking system;
(b) secure data storage on InfoCast servers;
(c) secure location of servers inaccessible from
outside the building housing such servers;
(d) secure, restricted access to any room in which
InfoCast servers are stored.
All Source Code created by InfoCast and provided to ITC shall be
afforded similar protections.
ARTICLE VII - CO-OPERATIVE DISTRIBUTION, MARKETING AND
INFORMATION SHARING
7.1 Co-operative Distribution
InfoCast and ITC agree that the distribution of all Electronically
Converted Products is beneficial to both parties hereto. In recognition thereof,
InfoCast will not charge ITC any fee in respect of storage of Electronically
Converted Products of any servers owned or licensed by InfoCast.
7.2 Co-operative Marketing Commitments
InfoCast and ITC agree to use their reasonable best efforts to
support each other's marketing efforts with respect to Electronically Converted
Products.
7.3 Sharing of Client Lists and Related Information
Each of ITC and InfoCast will maintain databases ("Product Related
Databases") containing details of all persons to whom the Products are licensed
or sold via Electronic Distribution and all prospective licensees or purchasers
identified by the parties. ITC and InfoCast agree to provide each other with
access to their respective Product Related Databases for the purpose of
facilitating the marketing and promotion of the Products.
Each party's respective customers shall remain their property and
primary account. However, joint marketing efforts by ITC and InfoCast may be
made to such customers from time to time and, if agreed in writing to be a joint
marketing initiative as contemplated in Section 8.02(d), all revenues generated
from such joint marketing efforts will be shared in the manner prescribed in
Section 8.02(d).
7.4 Protection of Key Relationships
ITC recognizes the critical relationship that has been developed
among InfoCast, AT&T Canada Corp. ("AT&T") and Sun Microsystems Inc. ("Sun") in
connection with the development, implementation and commercial roll out of the
AT&T Learning Partner Program (the "LPP"). ITC hereby undertakes and covenants
not to deal directly with AT&T or Sun or their affiliated or related companies
(other than in circumstances where ITC has an existing contractual relationship
as of the date of this agreement with any such entity) in connection with the
Electronic Distribution of any of the Products.
ARTICLE VIII - FINANCIAL ARRANGEMENTS
8.1 Distribution Rights Fee
(a) In consideration of the distribution rights hereby
granted to InfoCast by ITC, InfoCast hereby agrees to
pay ITC $1,000,000 in accordance with the payment terms
prescribed in paragraph (b) of this Section 8.01. In the
event InfoCast effects Electronic Distribution of any of
the Products to more than 150,000 Licensed Purchasers
(such Licensed Purchasers in excess of the first 150,000
being referred to herein as "Additional Licensees"),
InfoCast and ITC shall share revenue generated therefrom
in accordance with Section 8.02.
(b) Payment by InfoCast of the fees contemplated in
paragraph (a) of this Section 8.01 shall be made by
certified cheque, bank draft or electronic wire transfer
as follows:
(i) $250,000 on March 5, 1999 and $250,000 on
March 12, 1999 in accordance with the terms
and conditions generally contemplated in the
MOU and more specifically prescribed herein;
and
(ii) $500,000 on May 31, 1999.
(c) ITC and InfoCast acknowledge and agree that, as of the
date of this agreement, InfoCast and its legal counsel
have not yet been afforded the opportunity to review the
documentation pursuant to which certain licensors to and
creditors of ITC have certain rights or security
interests in the Products. ITC agrees to provide to
InfoCast within seven (7) days from the date of this
agreement, for review by its legal counsel:
(i) all material documents relating to those
Products licensed to ITC by third parties
that may contain provisions restricting ITC
from granting InfoCast rights to use the
Products as contemplated herein; and
(ii) all material documents in connection with
security interests of any third party over
the Products specifically or over all of the
assets of ITC generally (all material
documents referred to in the preceding
paragraph (I) and this paragraph (ii) being
called the "Encumbering Documents")
In the event legal counsel, in its reasonable
professional opinion, is of the view that the provisions
of any of the Encumbering Documents materially prejudice
or could reasonably be anticipated to materially
prejudice InfoCast=s rights under the agreement
(including, without limiting the generality of the
foregoing, materially prejudicing InfoCast=s perpetual
right to use and commercially exploit the Products
subsequent to them being Electronically Converted),
InfoCast shall give ITC written notice of the
determination of its legal counsel and termination of
the agreement and ITC shall, within 10 days of receipt
of such written notice from InfoCast, return by
certified cheque or bank draft all money advanced to ITC
pursuant to Section 8.01. All Encumbering Documents
will, after successful review by InfoCast's legal
counsel, be added to Schedule "3" of the agreement.
8.2 Revenue Sharing
(a) InfoCast and ITC acknowledge and agree that the payment
of $1,000,000 to ITC in accordance with Section 8.01(a)
represents payment in full to ITC in respect of the
first 150,000 User Licenses sold by InfoCast. ITC will
not be entitled to any revenue participation in respect
of the sale by InfoCast of the first 150,000 User
Licenses.
(b) All revenue generated from licensing Products
Electronically Converted by InfoCast to Additional
Licensees (such term being defined in Section 8.01(a)
hereof) shall be shared between ITC and InfoCast. The
gross revenue generated from the licensing of an
Electronically Converted Product shall be the amount
actually received by InfoCast or ITC in respect of a
particular User Licence(the "Gross Revenue"). The Gross
Revenue in respect of each Product licensing transaction
shall be allocated 75% to whichever of ITC or InfoCast
consummated the licensing transaction and 25% to the
other party. All licensing transactions shall be
monitored and tracked by both ITC and InfoCast. The
Gross Revenue allocations from licensing transactions
shall be compiled and agreed to by each of ITC and
InfoCast each month and distributed in accordance with
the agreed allocations as soon as practicable
thereafter.
(c) All revenue generated from the sale and/or licensing of
Non-converted Products by InfoCast to End Users shall be
shared between ITC and InfoCast. The gross revenue
generated from the sale and/or licensing of
Non-converted Products (the "NCP Gross Revenue") shall
be the amount actually received by InfoCast in respect
of a particular sale or licensing of Non-converted
Product. The NCP Gross Revenue determined in respect of
the sale or licensing by InfoCast of each Non-converted
Product shall be allocated 30% to InfoCast and 70% to
ITC. NCP Gross Revenue allocated to ITC shall be
distributed to ITC within thirty (30) days of receipt
thereof by InfoCast.
(d) All revenue generated from the sale and/or licensing of
Electronically Converted Products resulting from
marketing initiatives agreed in advance and in writing
by ITC and InfoCast to be joint marketing initiatives
will be allocated equally among ITC and InfoCast and
distributed immediately following receipt by any one of
ITC and InfoCast.
ARTICLE IX - ARBITRATION
9.1 Arbitration
If any dispute or controversy shall occur between the parties hereto
relating to the interpretation or implementation of any of the provisions of
this agreement, such dispute shall be resolved by arbitration. Such arbitration
shall be conducted by a single arbitrator. The arbitrator shall be appointed by
agreement between the parties or, in default of agreement, such arbitrator shall
be appointed by a Judge of appropriate jurisdiction in the State of Delaware
upon the application of any of the said parties and such Judge shall be entitled
to act as such arbitrator, if he so desires. Any such arbitration shall be held
in the State of Delaware. The procedure to be followed shall be agreed by the
parties or, in default of agreement, determined by the arbitrator. The
arbitrator shall have the power to proceed with the arbitration and to deliver
his award notwithstanding the default by any party in respect of any procedural
order made by the arbitrator. The arbitration shall proceed in accordance with
the provisions of applicable arbitration laws of the State of Delaware. It is
further agreed that such arbitration shall be a condition precedent to the
commencement of any action at law. The decision arrived at by the arbitrator
shall be final and binding and no appeal shall lie therefrom. Judgment upon the
award rendered by the arbitrator may be entered in any court having
jurisdiction.
ARTICLE X - CONFIDENTIALITY PROVISIONS
10.1 Confidentiality
InfoCast and ITC shall treat as confidential and appropriately
safeguard both during the life of this agreement and thereafter and all
technical information pertaining to the Products including any and all Source
Code materials and all information pertaining to their respective business or
assets. To the extent warranted each party hereto may, from time to time, grant
to the other non-exclusive licenses to utilize such knowhow and other
information pertaining to the Products in furtherance of marketing, selling and
distribution of Products as agreed upon hereunder.
ARTICLE XI - ASSIGNMENT
11.1 Assignment
Except as expressly provided herein, neither party to this agreement
shall be entitled to assign its rights and obligations hereunder without the
prior written consent of the party hereto, which shall not be unreasonably
withheld. Notwithstanding the foregoing, nothing contained herein shall prevent
InfoCast from effecting an assignment of this agreement and/or a transfer of all
or any of the shares to an affiliated, related or associated company of that
party (as such terms are used in the income tax legislation of the United States
of America or Canada) without the prior written consent of ITC.
ARTICLE XII - TERM, TERMINATION AND SURVIVAL
12.01 Term
The term of this Agreement commences on the date of this agreement
first written above and terminates on the third year anniversary thereof or
until it is terminated by one of the parties in accordance with this agreement.
12.02 Termination
(a) This agreement may be terminated immediately upon the
commencement or happening of any occurrence connected
with the insolvency, bankruptcy, dissolution or
liquidation of ITC or InfoCast (the "Insolvent Party")
by written notice of termination to the Insolvent Party
by the other party.
(b) In the event of a material default by a party hereto
(the "Defaulting Party") in the performance of its
obligations under this agreement, the other party
hereunder (the "Non-defaulting Party") shall give the
Defaulting Party detailed written notice of the alleged
default (the "Default Notice"). In the event the
Defaulting Party is of the view that it is not in
default of a material obligation under the agreement,
the matter shall be arbitrated in accordance with
Section 9.01 hereof and the Defaulting Party shall give
the Non-Defaulting Party written notice thereof
("Arbitration Notice") within five (5) days of receipt
of the Default Notice. If an Arbitration Notice is not
given to the Non-Defaulting Party within the five (5)
day period, the Defaulting Party shall be deemed to have
acknowledged the alleged default and shall have sixty
(60) days from the date of receipt of the Default Notice
to remedy the default. If the default is not remedied
within the sixty (60) day period, the Non-Defaulting
Party may give written notice ("Termination Notice")
that the agreement is terminated and termination shall
be effective on the date of receipt by the Defaulting
Party of the Termination Notice.
(c) This agreement may be terminated by InfoCast in the
manner and under the restricted circumstances
contemplated in Section 8.18 hereof.
(d) Without prejudice to any other rights of either party
under this agreement, if this agreement is terminated
pursuant to paragraph (a), (b) or 8 above, all amounts
owing by one party hereunder to another shall
immediately become due and payable.
12.03 Survival
Notwithstanding termination of this agreement for any reason, the
rights and obligations of the parties prescribed in Section 4.01 and Sections
8.02(b) and (d) shall survive this agreement indefinitely.
ARTICLE XIII - GENERAL CONTRACT PROVISIONS
13.1 Entire Agreement
This agreement constitutes the entire agreement between and parties
and supercedes all previous agreements and understandings between the parties in
any way relating to the subject matter hereof. It is expressly understood and
agreed that no representations, inducements, promises or agreements between the
parties, oral or otherwise, not embodied herein shall be of any force or effect.
13.2 Severability
If any covenant or other provision of this agreement is invalid,
illegal or incapable of being enforced by reason of any rules of laws or public
policy, all other conditions and provisions of this agreement shall,
nevertheless, remain in full force and effect.
13.3 Agreement Binding Upon Successors and Assigns
Subject to the restrictions on assignment herein contained, this
agreement shall enure to the benefit of and be binding upon the parties and
their respective successors and permitted assigns.
13.4 Waiver of Obligations
Either party hereto may be written instrument unilaterally waive any
obligation of or restriction imposed upon the other party under this agreement.
No failure, refusal or neglect of either party hereto to exercise any right
under this agreement or to insist upon full compliance by the other party with
its obligations hereunder shall constitute a waiver of any provision of this
agreement.
13.5 Notices
All notices, requests, demands or other communications by the terms
hereof required or permitted to be given by one party to another shall be given
in writing by personal delivery or by registered mail, postage prepaid,
addressed to the other party or delivered to such other party as follows:
To InfoCast Corporation: 1 Richmond Street West
Suite 901
Toronto, Ontario
M5H 3W4
Attention: A. T. Griffis
Fax: (416) 867-8160
To ITC: 13515 Dulles Technology Drive
Herndon, Virginia
20171
Attention: Carl Stevens
Fax: (703) 713-0065
or at such other address as may be given by either of them to the other in
writing from time to time, and such notices, requests, demands and other
communications shall be deemed to have been received when delivered, or if
mailed, forty-eight (48) hours after 12:01 a.m. on the date of mailing hereof,
provided that if any such notice, request, demand or other communication shall
have been mailed and if registered mail service shall be interrupted by strikes
or other irregularities on or before the second business day after the mailing
thereof, on or before the second business day after the mailing thereof, such
notices, requests, demands and other communications shall be deemed to have been
received forty-eight (48) hours after 12:01 a.m. on the date of resumption of
registered mail service.
13.6 Counterparts
This agreement may be executed in several counterparts, each of
which so executed being deemed to be an original, and such counterparts together
shall constitute but one and the same instruments.
IN WITNESS WHEREOF:
INFOCAST CORPORATION
Per: /s/ (signature is illegible)
ITC LEARNING CORPORATION
Per: /s/ Carl D. Stevens