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Exhibit 10.44
DATED FEBRUARY 26, 2004
CALDER AG
-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
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THIS DISTRIBUTORSHIP AGREEMENT is made on
February 26, 2004
BETWEEN:
(1)
CALDER AG, a Swiss company, the registered office of which is
Binzenholzstrasse 447, Industrie Nord, Ch-5704 Egliswil,
Switzerland (hereinafter "CALDER"); and
(2)
DESALCO LIMITED, a Cayman Islands company duly incorporated in
the Cayman Islands, the registered office of which is Trafalgar
Place, 1428A West Bay Road, Grand Cayman, Cayman Islands
(hereinafter "DESALCO").
WHEREAS:
(A)
Pursuant to and upon the terms of a Distributorship Agreement
dated 24 September 2002 between DWEER Technology Ltd., a Cayman
Islands company ("DWEER-Tech") and DesalCo (the " Original
Distributorship Agreement"), DWEER-Tech appointed DesalCo as
its
exclusive distributor for Products in the Territory (both terms
as defined in this Agreement) and gave DesalCo the exclusive
right to sell and distribute the Products in the Territory.
(B)
Pursuant to and upon the terms of a Technology Licence relating
to the manufacturing, marketing and sale of DWEER and LinX
products, work exchangers and related products dated 30 April
2003 between DWEER-Tech and Calder ("the Technology Licence")
DWEER-Tech granted Calder the exclusive right to, inter alia,
design, manufacture and sell, inter alia, the Products
worldwide,
excluding the rights granted to DesalCo under the Original
Distributorship Agreement which were reserved to DWEER-Tech.
(C)
By virtue of the fact that Calder has the exclusive right to
manufacture the Products worldwide pursuant to the Technology
Licence and will, during the term of the Technology Licence, be
manufacturing and supplying Products on a worldwide basis,
DWEER-Tech and the parties hereto wish to suspend the Original
Distributorship Agreement and enter into this Agreement, in
order
to enable DesalCo to deal directly with Calder with respect to
the distribution of Products in the Territory so long as the
Technology Licence is in effect.
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(D)
Concurrent with the execution of this Agreement, the Technology
Licence has been amended to remove the exclusion of rights
mentioned in recital B above and so as to permit and enable
Calder and DesalCo to enter into this Agreement.
(E)
Concurrent with the execution of this Agreement, the Original
Distributorship Agreement has been suspended for so long as the
Technology Licence is in effect, on the basis that, inter alia,
all clauses thereof that are intended to survive termination
(e.g. 6.5 - Confidentiality) remain in effect, that DWEER-Tech
undertakes to immediately inform DesalCo of termination of the
Technology Licence, and that the suspension is to be lifted
immediately upon termination of the Technology Licence.
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;
"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;
"ORIGINAL
DISTRIBUTORSHIP
AGREEMENT"
means the Original Distributorship
Agreement as defined in the recitals
hereto.
"PERSON"
includes an individual, partnership,
firm, company, association,
unincorporated association or
organisation or
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any entity or body of whatsoever
nature including a governmental,
quasi governmental, judicial or
regulatory entity or any department,
agency, or political subdivision
thereof;
"PRODUCTS"
means the work-exchanger (also
called pressure-exchanger)
energy-recovery systems, components
and sub-components thereof for use
for water desalination using the
reverse osmosis process manufactured
and sold by Calder pursuant to the
Technology Licence;
"TECHNOLOGY
means the Technology Licence as
LICENCE"
defined in the recitals hereto.
"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,
Colombia 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, Colombia 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;
"TRADE
MARKS" the trademarks "DWEER" and
"LinX" and all other names, symbols,
trade and service marks (whether
registered or unregistered) used by
DWEER-Tech or Calder in
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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.
2.
DISTRIBUTION OF PRODUCTS IN THE TERRITORY
2.1 For the
period set out in clause 9 below, Calder 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
Agreement. For the avoidance of doubt, DesalCo may sell and/or
deliver the Products purchased under this Agreement 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, Calder:
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(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
Calder, 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 from any person other than
Calder for use or installation inside the Territory;
(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 purchased from Calder under
this Agreement 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 purchased from Calder under
this Agreement that they (1) shall not use or install
such Products outside the Territory and (2) shall not
resell such
Products to any person who intends to use
or install such Products outside the Territory.
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2.4 For so
long as this Agreement is in force:
(a) in the
event that DesalCo wishes to purchase any
Products from Calder for use or installation outside
the Territory, it shall place an order for such
Products with Calder stating that such Products are
intended for use or installation outside the
Territory and stating where such Products are
intended to be used, or installed; and
(b) in the
event that Calder agrees to supply such
Products, DesalCo may purchase such Products for use
or installation outside the Territory, free of any of
the
restrictions contained in this Agreement, and the
provisions of this Agreement shall not apply to any
Products so purchased by DesalCo or any Affiliate
thereof Provided That, notwithstanding this, clause 6
of this Agreement shall apply to all information
disclosed to DesalCo by DWEER-Tech or Calder or which
relates to the Products and which comes into the
knowledge, possession or control of DesalCo whether
pursuant to or in connection with this Agreement or
pursuant to or in connection with the Original
Distributorship Agreement, and the provisions of
clauses 5.4 5.5, 5.7 and 5.8 of this Agreement shall
also apply outside the Territory.
2.5 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.
2.6 DesalCo
shall be entitled to describe itself as the
"authorised exclusive distributor" for the Products in the
Territory but it shall not hold itself out as DWEER-Tech's or
Calder's agent for sales of the Products or as being entitled
to bind DWEER-Tech or Calder in any way.
2.7
DesalCo
shall not without the express written permission of
Calder sell through a sales agent or to a sub-distributor any
Products which it purchases from Calder under this Agreement.
2.8 Nothing in
this Agreement shall entitle DesalCo to;
(a) any
priority of supply in relation to the Products as
against Calder's other distributors or customers;
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(b) any right
or remedy against Calder if any Product
supplied by Calder or its Affiliates is sold,
installed, or used in the Territory by any person
other than
DesalCo or its Affiliates, provided that
Calder can show that it has obtained the written
undertaking required by sub-clause 2.2(c) above from
the person to whom Calder supplied the Product and
further provided that Calder 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.
2.9 Calder
shall not have any right or remedy against DesalCo if
any Product supplied by DesalCo or its Affiliates is sold,
installed or used outside the Territory by any person other
than DesalCo or its Affiliates, provided that DesalCo can show
that it has obtained the written undertaking required by
clause 2.3(e) above from the person to whom DesalCo supplied
the Product and further provided that DesalCo shall, at the
request and expense of Calder, take all such steps as Calder
may reasonably require to assist Calder in preventing the
installation, use or resale of such Products outside the
Territory.
3.
SUPPLY OF PRODUCTS
3.1 Calder
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 Calder
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 Calder 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 Calder
from time to time shall apply to all sales of the Products to
DesalCo under this
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Agreement 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
Calder.
3.5 Prior to
acceptance of an order, DesalCo shall provide Calder
with comprehensive accurate drawings and plans showing the
manner in which Products will be incorporated into a
