EXHIBIT 10.58
DATED 24 SEPTEMBER, 2002
DWEER TECHNOLOGY LTD.
-AND-
DESALCO LIMITED
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Distributorship Agreement
relating to
DWEER Products
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[CAMPBELLS logo]
4th Floor, Scotiabank Building
P.O. Box 884GT
Grand Cayman
Cayman Islands
THIS DISTRIBUTORSHIP AGREEMENT is made on 24 September, 2002
BETWEEN:
(1) DWEER TECHNOLOGY LTD., a Cayman Islands exempted company, the
registered office of which is c/o Campbell Corporate Services Limited,
4th Floor, Scotiabank Building, P.O. Box 268GT, Grand Cayman, Cayman
Islands (hereinafter "DWEER-TECH"); and
(2) DESALCO LIMITED, a Cayman Islands company duly incorporated in the
Cayman Islands, the registered office of which is c/o Campbell
Corporate Services Limited, 4th Floor, Scotiabank Building, P.O. Box
268GT, Grand Cayman, Cayman Islands (hereinafter "DESALCO").
WHEREAS:
(A) DWEER-Tech manufactures, markets and sells an energy recovery system
for desalination plants under the trademarks "DWEER" and "LinX" and
holds, inter alia, certain patents and patent applications in relation
thereto.
(B) DesalCo wishes to have the exclusive right to sell and distribute
"DWEER" and "LinX" products in the Territory (as defined below).
NOW IT IS HEREBY AGREED as follows:-
1. INTERPRETATION
1.1 In this Agreement, save where otherwise provided or where the
context otherwise requires or admits, the following terms and
expressions shall have the meaning set out below:
"AFFILIATE" means at any time during the term of
this Agreement or extension thereof
with respect to a person, another
person that directly, or indirectly
through one or more intermediaries,
controls, or is controlled by, or is
under common control with, such
person;
"PRODUCTS" means the work-exchanger (also
called pressure-exchanger)
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energy-recovery systems, components
and sub-components thereof for use
for water desalination using the
reverse osmosis process manufactured
and sold by DWEER-Tech;
"DWEER
INTELLECTUAL
PROPERTY" any patent, copyright, registered or
unregistered design, trade mark, or
other industrial or intellectual
property right subsisting worldwide
in respect of the Products, and any
applications for the same;
"PERSON" includes an individual, partnership,
firm, company, association,
unincorporated association or
organisation or any entity or body
of whatsoever nature including a
governmental, quasi governmental,
judicial or regulatory entity or any
department, agency, or political
subdivision thereof;
"TERRITORY" means:
(a) all countries, territories and
protectorates in or bordering
on the Gulf of Mexico and the
Caribbean Sea excluding,
except as provided for in
sub-clause (c) hereof, the
mainland of Mexico, Belize,
Guatemala, Honduras,
Nicaragua, Costa Rica, Panama,
Columbia and Venezuela; and
(b) the Bahamas, Barbados, and the
Turks and Caicos Islands; and
(c) the mainland territory within
30 miles of the Gulf of Mexico
or Caribbean Sea coasts of
Mexico, Belize, Guatemala,
Honduras, Nicaragua, Costa
Rica, Panama, Columbia and
Venezuela
save that the continental United
States and associated United States
coastal islands (e.g. Florida Keys,
but not the U.S. Virgin Islands or
Puerto Rico) are specifically
excluded;
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"TRADE MARKS" the trademarks "DWEER" and
"LinX" and all other names, symbols,
trade and service marks (whether
registered or unregistered) used by
DWEER-Tech in connection with or in
relation to the Products from time
to time.
1.2 In this Agreement, save where otherwise provided or where the
context otherwise requires or admits:
(a) references to any law or provision of law shall
include a reference to any law or provision of any
law which amends or replaces, or has amended or
replaced, it;
(b) references to this Agreement or any other agreement
or document shall be construed as a reference to this
Agreement as the same may from time to time be
amended, varied or supplemented;
(c) a "clause" or "schedule" is a reference to a clause
hereof or schedule hereto;
(d) a "sub-clause" is a reference to a sub-clause of the
clause in which the reference appears;
(e) any word, term or expression (including defined terms
and expressions) that imports any gender shall
include all genders and words and terms (including
defined terms and expressions) importing the singular
shall include the plural and vice versa.
1.3 In this Agreement the headings are inserted for convenience
only and shall not affect the construction hereof.
1.4 The schedules hereto form part of this Agreement and shall
have effect as if set out herein. Any reference to this
"Agreement" shall include the schedules.
2. DISTRIBUTION OF PRODUCTS IN THE TERRITORY
2.1 For the period set out in clause 9 below, DWEER-Tech hereby
grants DesalCo the exclusive right to distribute and sell the
Products in the Territory, and DesalCo agrees to act in such
capacity, subject to and upon the terms and conditions of this
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Agreement. For the avoidance of doubt, DesalCo may sell and/or
deliver the Products inside or outside of the Territory,
provided that such Products are to be installed and used
within the Territory.
2.2 For the period that DesalCo has the exclusive right to
distribute and sell the Products in the Territory, DWEER-Tech:
(a) shall not appoint any other person as a distributor
or agent for the Products in the Territory;
(b) shall not supply the Products to any person other
than DesalCo or, at the request of DesalCo,
Affiliates of DesalCo, who, to the knowledge of
DWEER-Tech, intends to use or install such Products
in the Territory or intends to resell such Products
to any person who intends to use or install such
Products in the Territory without the prior written
consent of DesalCo; and
(c) shall obtain a written undertaking, from all persons
to whom it sells the Products (other than DesalCo and
Affiliates of DesalCo which it supplies at the
request of DesalCo) that they (1) shall not use or
install such Products within the Territory and (2)
shall not resell such Products to any person who
intends to use or install such Products inside the
Territory.
2.3 DesalCo and its Affiliates shall during the term of this
Agreement:
(a) not obtain the Products for resale from any person
other than DWEER-Tech;
(b) not obtain any goods which compete with the Products;
(c) not be concerned or interested, either directly or
indirectly, in the design, manufacture, distribution,
marketing or sale of any goods which compete with the
Products;
(d) not sell the Products to any person who, to the
knowledge of DesalCo or its Affiliates, intends to
use or install such Products in any country which is
outside the Territory or intends to resell such
Products to any person who intends to use or install
such Products outside the Territory; and
(e) obtain a written undertaking from all persons to whom
it sells the Products that they (1) shall not use or
install such Products outside the Territory and (2)
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shall not resell such Products to any person who
intends to use or install such Products outside the
Territory.
2.4 Any energy-recovery devices (including pressure-exchangers or
work-exchangers) for water desalination using the reverse
osmosis process to be installed on reverse osmosis
desalination units with a brine flowrate of less than 880 US
gallons per minute (200 m3/hour) shall be deemed to be goods
which do not compete with the Products.
2.5 DesalCo shall be entitled to describe itself as DWEER-Tech's
"authorised exclusive distributor" for the Products in the
Territory but it shall not hold itself out as DWEER-Tech's
agent for sales of the Products or as being entitled to bind
DWEER-Tech in any way.
2.6 DesalCo shall not without the express written permission of
DWEER-Tech sell through a sales agent or to a sub-distributor
any Products which it purchases from DWEER-Tech.
2.7 Nothing in this Agreement shall entitle DesalCo to;
(a) any priority of supply in relation to the Products as
against DWEER-Tech's other distributors or customers;
(b) any right or remedy against DWEER-Tech if any Product
is sold, installed, or used in the Territory by any
person other than DesalCo or its Affiliates, provided
that DWEER-Tech can show that it has obtained the
written undertaking required by sub-clause 2.2(c)
above and further provided that DWEER-Tech shall, at
the request and expense of DesalCo, take all such
steps as DesalCo may reasonably require to assist
DesalCo in preventing the installation, use or resale
of such Products in the Territory.
2.8 DWEER-Tech shall not have any right or remedy against DesalCo
if any Product is sold, installed or used outside the
Territory by any person to whom DesalCo or its Affiliates have
supplied Products, provided that DesalCo can show that it has
obtained the written undertaking required by clause 2.3(e)
above and further provided that DesalCo shall, at the request
and expense of DWEER-Tech, take all such steps as DWEER-Tech
may reasonably require to assist DWEER-Tech in preventing the
installation, use or resale of such Products outside the
Territory.
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3. SUPPLY OF PRODUCTS
3.1 DWEER-Tech shall use its reasonable endeavours to supply the
Products to DesalCo in accordance with DesalCo's orders from
time to time and to deliver the same in accordance with
DesalCo's directions.
3.2 DWEER-Tech shall not be under any obligation to continue the
manufacture of all or any of the Products, and shall be
entitled to make such alterations to the specifications of the
Products as it may think fit from time to time and may, as it
thinks fit from time to time, change, amend or replace any
trademark used in relation to the Products (including, without
limitation, the Trade Marks).
3.3 The prices for each order of Products to be supplied under
this Agreement shall be at least as good as and shall not be
more than the lowest price charged by DWEER-Tech for
comparable orders of Products by other persons.
3.4 Each order for Products by DesalCo shall be in writing and
shall constitute a separate contract and payment for such
Products shall be made by DesalCo without deduction or
set-off. The standard terms and conditions of sale of
DWEER-Tech from time to time shall apply to all sales of the
Products to DesalCo except to the extent that any of the same
is inconsistent with any of the provisions of this Agreement,
in which case the latter shall prevail, and subject to any
modifications thereto agreed to in writing between DesalCo and
DWEER-Tech.
3.5 Prior to acceptance of an order, DesalCo shall provide
DWEER-Tech with comprehensive accurate drawings and plans
showing the manner in which Products will be incorporated into
and installed in the relevant desalination plant. DesalCo
shall give due regard to any observations or comments made by
DWEER-Tech in relation thereto provided that DWEER-Tech shall
not thereby incur any liability to DesalCo. DWEER-Tech's
observations and comments shall be limited to compatibility of
the Products with the relevant desalination plant. Save as
agreed in writing by DWEER-Tech, DWEER-Tech shall not be
liable or responsible for the design, operation or functioning
of any desalination plants.
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4. MARKETING AND USE OF THE PRODUCTS
4.1 DesalCo shall use its best endeavours to promote the sale and
use of the Products throughout the Territory and to satisfy
market demand therefor.
4.2 DesalCo shall be entitled, subject to the terms of this
Agreement, to promote and market the Products in the Territory
in such manner as it may think fit, and in particular shall be
entitled to resell the Products to its customers on such terms
and at such prices as it may determine.
4.3 DesalCo shall maintain such stocks of parts for the Products
as may be necessary to meet its customers' requirements.
4.4 In connection with the promotion, marketing and the sale of
the Products, DesalCo shall:
(a) make clear, in all dealings with its customers and
prospective customers, that it is acting as
distributor of the Products and not as agent of
DWEER-Tech;
(b) comply with all legal requirements from time to time
in force relating to the storage and sale of the
Products;
(c) use only such advertising, promotional, and selling
materials as are approved in writing by DWEER-Tech;
(d) provide an after sale service for customers in
relation to the Products on terms to be agreed from
time to time between DesalCo and DWEER-Tech; and
(e) advise DWEER-Tech of projected sales of Products as
early as reasonably possible.
4.5 DWEER-Tech shall, from time to time, provide DesalCo with such
samples, catalogues, brochures, and up to date information
concerning the Products as DWEER-Tech may consider reasonably
appropriate in connection with the sale of the Products in the
Territory, and DWEER-Tech shall endeavour to answer as soon as
practicable any technical enquiries concerning the Products
which are made by DesalCo or its customers.
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4.6 DesalCo shall use its best endeavours to enable DWEER-Tech to
conduct testing and experimentation of Products on plants
owned or operated by DesalCo or its Affiliates at which
Products are installed provided that DWEER-Tech shall
indemnify and save harmless DesalCo from any costs, expenses,
loss or damage, of whatever type and howsoever caused arising
from or relating to such tests or experiments.
5. INTELLECTUAL PROPERTY
5.1 DWEER-Tech hereby authorises DesalCo to use the Trade Marks in
the Territory on or in relation to the Products for the
purposes only of exercising its rights in performing its
obligations under this Agreement and DWEER-Tech shall not so
authorise any other person, firm or company provided that
DWEER-Tech may prohibit by notice in writing to DesalCo any
particular use of the Trade Marks which in the opinion of
DWEER-Tech damages the goodwill of DWEER-Tech in such Trade
Marks.
5.2 DesalCo shall ensure that each reference to and use of any of
the Trade Marks by DesalCo is in a manner, from time to time,
approved by DWEER-Tech and, if requested, accompanied by an
acknowledgement, in a form approved by DWEER-Tech, that the
same is a trade mark (or registered trade mark as the case may
be) of DWEER-Tech.
5.3 DesalCo shall not:
(a) make any unauthorised modifications to the Products;
(b) alter, remove, or tamper with any Trade Marks,
numbers or other means of identification used on or
in relation to the Products;
(c) use any of the Trade Marks in any way that might
prejudice their distinctiveness or validity;
(d) use in relation to the Products any trade marks other
than the Trade Marks without first obtaining the
prior written consent of DWEER-Tech; or
(e) use in the Territory any trade marks or trade names
so resembling any Trade Marks or the trade names of
DWEER-Tech as to be likely to cause confusion or
deception.
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5.4 Except as provided in clause 5.1, DesalCo shall have no rights
in relation to any of the Trade Marks or the goodwill
associated therewith, and DesalCo hereby acknowledges that,
except as expressly provided in this Agreement, it shall not
acquire any rights in respect thereof and that all such rights
and goodwill are, and shall remain, vested in DWEER-Tech, and
that all rights and benefits arising from the use of the Trade
Marks by DesalCo shall accrue to and be for the benefit of
DWEER-Tech.
5.5 DesalCo shall, at the request and expense of DWEER-Tech, take
all such reasonable steps as DWEER-Tech may reasonably require
to assist DWEER-Tech in maintaining the validity and
enforceability of any DWEER Intellectual Property during the
term of this Agreement.
5.6 DesalCo shall, at the request and expense of DWEER-Tech,
execute such agreements or licences in respect of the use of
the Trade Marks in the Territory as DWEER-Tech may reasonably
require, provided that the provisions thereof shall not be
more onerous or restrictive than the provisions of this
Agreement.
5.7 DesalCo shall not, during the term of this Agreement,
challenge the validity of any DWEER Intellectual Property.
5.8 DesalCo shall not do or authorise any third party to do any
act which would or might invalidate or be inconsistent with
any DWEER Intellectual Property and shall not omit or
authorise any third party to omit to do any act which, by its
omission, would have that effect or character.
5.9 DesalCo shall promptly and fully notify DWEER-Tech of any
actual threatened or suspected infringement in the Territory
of any DWEER Intellectual Property which comes to DesalCo's
notice, and of any claim by any third party so coming to its
notice that the importation of the Products into the
Territory, or their sale therein, infringes any rights of any
other person, and DesalCo shall at the request and expense of
DWEER-Tech do all such things as may be reasonably required to
assist DWEER-Tech in taking or resisting any proceedings in
relation to any such infringement or claim.
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6. CONFIDENTIALITY
6.1 Except as provided by clauses 6.3 and 6.4 below, DesalCo and
any Affiliate thereof shall at all times during the
continuance of this Agreement and thereafter:
(a) use its best endeavours to keep all Restricted
Information (as defined below) confidential and
accordingly shall not disclose any Restricted
Information to any other person; and
(b) not use any Restricted Information for any purpose
other than the performance of its obligations under
this Agreement.
6.2 "Restricted Information" means any information:
(a) which is disclosed to DesalCo by DWEER-Tech pursuant
to or in connection with this Agreement (whether
orally or in writing); or
(b) which relates to the Products and which comes into
the knowledge, possession or control of DesalCo
pursuant to this Agreement;
regardless of whether or not such information is expressly
stated to be confidential or marked as such.
6.3 Notwithstanding clauses 6.1 and 6.2 above, any Restricted
Information may be disclosed by DesalCo to:
(a) any customers or prospective customers;
(b) any governmental or other authority or regulatory
body;
(c) any employees or Affiliates of DesalCo;
to the extent only as is required for the purposes
contemplated by this Agreement, or as is required by
law and subject in each case to DesalCo using its
best endeavours to ensure that the person in question
keeps the same confidential and does not use the same
except for the purposes for which the disclosure is
made.
6.4 Any Restricted Information may be used by DesalCo or its
Affiliates for any purpose, or disclosed by DesalCo to any
other person, to the extent only that it is, at the date
hereof, or hereafter, is or becomes public knowledge through
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no fault of DesalCo or its Affiliates (provided that in doing
so DesalCo and its Affiliates shall not disclose any
Restricted Information which is not public knowledge).
6.5 Any press releases, learned papers or similar publications
made by DWEER-Tech or Dr. William T. Andrews that make
reference to DesalCo or its Affiliates or plants owned or
operated by DesalCo or its Affiliates shall be approved in
advance by DesalCo provided that such approval shall not be
unreasonably withheld and shall be given in a sufficiently
timely manner.
7. REPRESENTATIONS, WARRANTIES AND LIABILITY
7.1 Subject as herein provided DWEER-Tech warrants to DesalCo
that:
(a) all the Products supplied hereunder shall be of
satisfactory quality and shall comply with any legal
or other specification, agreed for them;
(b) it is not aware of any rights of any third party in
the Territory which would or might render the sale of
the Products, or the use of any of the Trade Marks on
or in relation to the Products, unlawful.
7.2 In the event of any breach of DWEER-Tech's warranty in clause
7.1 above (whether by reason of defective materials,
production faults or otherwise) DWEER-Tech's liability shall
be limited to:
(a) replacement of the Products in question; or
(b) at DWEER-Tech's option, repayment of the purchase
price therefor (where this has been paid).
7.3 Notwithstanding anything to the contrary in this Agreement,
DWEER-Tech shall not be liable to DesalCo by reason of any
representation or implied warranty, condition or other term or
any duty at common law, or under the express terms of this
Agreement, for any consequential loss or damage (whether for
loss of profit or otherwise and whether occasioned by the
negligence of DWEER-Tech or its employees or agents or
otherwise) arising out of or in connection with any act or
omission of DWEER-Tech relating to the manufacture or supply
of the Products, their resale by DesalCo or their use by any
customer.
7.4 Each party hereto represents and warrants to the other that:
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(a) It is a validly existing company in good standing
under the laws of its jurisdiction of incorporation
and is duly qualified as necessary to carry on its
business in the jurisdictions in which such business
is carried on; and
(b) this Agreement has been duly authorised, executed and
delivered by it and is a valid and legally binding
obligation of it enforceable in accordance with its
terms.
8. FORCE MAJEURE
8.1 If either party's performance of this Agreement is affected by
Force Majeure (as defined below) it shall forthwith notify the
other party of the nature and extent thereof.
8.2 Neither party shall be held to be in breach of this Agreement,
or otherwise be liable to the other, by reason of any delay in
its performance, or non performance, of any of its obligations
under this Agreement to the extent that such delay or non
performance is due to Force Majeure of which it is notified to
the other party, and the time for performance of such
obligations shall be extended accordingly.
8.3 If the Force Majeure in question prevails for a continuous
period in excess of 180 days, the parties shall enter into
bona fide negotiations with a view to alleviating its effects,
or to agreeing such alternative arrangements as may be fair
and reasonable, and if no agreement is reached between the
parties with respect thereto within 30 days, then either party
may upon giving written notice to the other, terminate this
Agreement without prejudice to any rights, remedies or
obligations which have accrued prior to termination.
8.4 "Force Majeure" means, in relation to either party, any
circumstances beyond the reasonable control of that party
(including, without limitation, acts of god, war, strike, lock
out, go slow, work to rule or other form of industrial action,
fire, flood, civil disturbance, or government intervention or
government failure to act).
9. DURATION AND TERMINATION
9.1 This Agreement shall come into force on the date of this
Agreement and, subject as provided in clauses 9.2, 9.3 and 9.4
below, shall continue in force until 31st October, 2009
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whereupon it shall terminate unless previously renewed or
extended by the mutual written agreement of the parties
hereto.
9.2 DWEER-Tech shall be entitled to terminate this Agreement if:
(a) DesalCo fails to diligently promote the sale of and
the use of the Products throughout the Territory
provided that DesalCo does not have to offer to sell
or sell the Products to competitors that are bidding
in connection with the construction or expansion of
desalination projects in the Territory in connection
with which DesalCo or any of its Affiliates is also
bidding (but DesalCo may do so at its sole and
absolute discretion); or
(b) DesalCo at any time challenges the validity of all of
any of the DWEER Intellectual Property;
provided that DesalCo fails to remedy the same within 30 days
after receipt of written notice giving full particulars of the
breach and requiring it to be remedied.
9.3 DesalCo may, at any time, terminate this Agreement upon one
(1) month's prior written notice to DWEER-Tech.
9.4 Either party shall be entitled forthwith to terminate this
Agreement by written notice to the other (subject to clause
3.4 above) if:
(a) that other party commits any material breach of any
of the provisions of this Agreement and, in the case
of a breach capable of remedy, fails to remedy the
same within 30 days after receipt of a written notice
giving full particulars of the breach and requiring
it to be remedied;
(b) an encumbrancer takes possession or a receiver is
appointed over any of the property or assets of that
other party;
(c) that other party makes any voluntary arrangement with
its creditors or goes into winding up or liquidation
(except for the purposes of amalgamation or
reconstruction and in such manner that the company
resulting therefrom effectively agrees to be bound by
or assume the obligations imposed on that other party
under this Agreement);
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(d) anything analogous to any of the foregoing under the
law of any jurisdiction occurs in relation to that
other party; or
(e) that other party ceases, or threatens to cease, to
carry on business.
9.5 For the purposes of clause 9.4 above, a breach shall be
considered capable of remedy if the party in breach can comply
with the provision in question in all respects other than as
to the time of performance (provided that time of performance
is not of the essence).
9.6 Any waiver by either party of a breach of any provision of
this Agreement shall not be considered as a waiver of any
subsequent breach of the same or any other provision thereof.
9.7 The rights to terminate this Agreement given by this clause 9
shall be without prejudice to any other right or remedy of
either party in respect of the breach concerned (if any) or
any other breach.
10. CONSEQUENCE OF TERMINATION OR EXPIRATION
Upon termination of this Agreement for any reason:
10.1 the terms of this Agreement shall continue in full force for
so long as is required and to the extent and insofar as is
necessary to allow DesalCo to complete any binding contracts
for the sale of the Products in effect at the date of
termination and any bids, offers, quotations and/or proposals
made by DesalCo to other persons prior to termination of this
Agreement which have been accepted before termination of this
Agreement or are capable of being accepted after termination
of this Agreement provided that, for the avoidance of doubt
and notwithstanding the foregoing, the provisions of clauses
2.1, 2.2 and 2.5 above shall cease to apply forthwith upon
termination of this Agreement;
10.2 DesalCo shall cease to promote, market or advertise the
Products or to make any use of the Trade Marks other than for
the purpose of selling existing stock consisting of the
Products and for such purpose only and to such extent the
provisions of this Agreement shall continue in full force and
effect;
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10.3 the provisions of clause 6, and any other clauses which are
intended to survive the termination of this Agreement, shall
continue in force in accordance with their respective terms
notwithstanding termination of this Agreement;
10.4 DesalCo shall have no claim against DWEER-Tech for
compensation for loss of distribution rights, loss of goodwill
or any similar loss;
10.5 subject to as otherwise provided herein and to any rights,
remedies or obligations which have accrued prior to
termination, neither party shall have any further obligation
to the other under this Agreement.
11. MISCELLANEOUS PROVISIONS
11.1 DWEER-Tech may assign this Agreement and its rights hereunder
to any purchaser or transferee of the DWEER Intellectual
Property and any such assignee shall serve on DesalCo an
instrument in writing agreeing to be bound by the relevant
provisions of this Agreement whereon DWEER-Tech and DesalCo
shall be released from their respective obligations hereunder
and their respective rights hereunder shall be cancelled,
DesalCo shall assume and acquire obligations and rights in
relation to such assignee identical to those from which
DesalCo was released and which were cancelled by DesalCo as
aforesaid and the assignee shall assume and acquire
obligations and rights in relation to DesalCo identical to
those from which DWEER-Tech was released and which were
cancelled by DWEER-Tech as aforesaid.
11.2 DWEER-Tech shall be entitled to perform any of the obligations
undertaken by it and to exercise any of the rights granted to
it under this Agreement through any Affiliate and any act or
omission of any such Affiliate shall for the purposes of this
Agreement be deemed to be the act or omission of DWEER-Tech.
11.3 DesalCo may assign this Agreement to any Affiliate, but
otherwise DesalCo may not without the prior written consent of
DWEER-Tech assign, mortgage, charge (otherwise than by
floating charge) or dispose of any of its rights hereunder, or
subcontract or otherwise delegate any of its obligations
hereunder.
11.4 Nothing in this Agreement shall create or be deemed to create
a partnership or relationship of principal and agent or
employer and employee between the parties.
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11.5 This Agreement contains the entire agreement between the
parties with respect to the subject matter hereof, supersedes
all previous agreements and understandings between the parties
with respect hereto, and may not be modified except by an
instrument in writing signed by the duly authorised
representatives of the parties.
11.6 Each party acknowledges that in entering into this Agreement
it does not do so on the basis of, and does not rely on, any
representation, warranty or other provision except as
expressly provided herein, and all conditions, warranties, or
other terms implied by statute or common law are hereby
excluded to the fullest extent permitted by law.
11.7 If any provision of this Agreement or any agreement entered
into pursuant hereto is or becomes illegal, invalid or
unenforceable in any jurisdiction, that shall not affect:-
(a) the validity or enforceability in that jurisdiction
of any other provision of this Agreement or such
other agreement; or
(b) the validity or enforceability in other jurisdictions
of that or any other provision of this Agreement or
such other agreement.
12. JURISDICTION
This Agreement shall be governed by and construed in all respects in
accordance with the laws of the Cayman Islands and each party hereby
submits to the non-exclusive jurisdiction of the Cayman Islands Courts.
13. NOTICES
All notices or other communications required or permitted to be given
hereunder shall be in writing and shall be served by delivering the
same by hand or by sending the same by facsimile or reputable courier
service and shall be deemed given, if sent by hand, when delivered, if
sent by facsimile, upon the date stated in the transmission report or,
if sent by courier service, on delivery by the relevant courier
service, in each case, to the address set out below or such other
address as is notified by the relevant person from time to time,
provided that a notice given in accordance with the above but received
on a non-working day or after business hours in the place of receipt
shall only be deemed to be given on the next working day in that place:
17
13.1 if to DWEER-Tech:
48 Par-la-Ville Road, Suite 381
Hamilton HM 11, Bermuda
Attention: Managing Director
Facsimile No:+1 (441) 292-2024
13.2 if to DesalCo
48 Par-la-Ville Road, Suite 381
Hamilton HM 11, Bermuda
Attention: Managing Director
Facsimile No:+1 (441) 292-2024
AS WITNESS whereof the parties have hereto set their hands the day and year
first before written.
SIGNED FOR AND ON BEHALF OF )
DESALCO LIMITED by )
William T. Andrews, Managing Director )
in the presence of: )
/s/ WILLIAM ANDREWS
--------------------------------------
William T. Andrews, Managing Director
/s/ DONNA STAMPER
- ----------------------------------
Witness
Witness name: Donna Stamper
Address: 95 South Road, Paget, Bermuda
Occupation: Administration Manager
SIGNED FOR AND ON BEHALF OF )
DWEER TECHNOLOGY LTD. by )
Margaret D. Andrews, Director )
in the presence of: )
/s/ MARGARET ANDREWS
--------------------------------------
Margaret D. Andrews, Director
/s/ DEREK WOOLLEY
- ----------------------------------
Witness
Witness name: Derek Woolley
Address: 32 Bostock Hill East, Paget, Bermuda
Occupation: Engineering Manager
18