MUTUAL RELEASE AND SETTLEMENT AGREEMENT
This Mutual Release and Settlement Agreement hereinafter
("RELEASE") is made and entered into as of June 12, 2000.
Greenwood & Hall, a division of PCS Link, Inc.
National Boston Medical, Inc. (NBM)
Infotopia, Inc. (IFTP)
Daniel J. Hoyng. (Hoyng)
PARTIES shall mean G&H, NBM, IFTP and HOYNG.
UNDERLYING MATTER taken out.
This RELEASE is made and entered into by and among G&H, NBM,
IFTP, and HOYNG.
RECITALS
The UNDERLYING MATTER is based that Greenwood & Hall contends
that NBM / Infotopia have breached various contracts. NBM,
IFTP, and HOYNG have contended that G&H negligently
performed in the execution of their contract.
It is the desire of the PARTIES to this RELEASE to resolve
any and all differences between them, to settle and terminate any
dispute which now exists between them with regard to any and all
claims which the PARTIES may have against each other.
Now, therefore, in consideration of the mutual promises
contained herein, and in order to resolve all disputes arising
from the UNDERLYING MATTER, the sale of and for good and valuable
consideration, receipt of which is hereby acknowledged, it is
agreed as follows:
1. Consideration. In consideration for this RELEASE, the
PARTIES agree as follows:
1. IFTP shall pay to G&H the sum of $ 131,500 payable as
outlined in Exhibit A. IFTP shall pay approximately $ 50,000 of
this balance no later than 6 June 2000 via bank wire or cashier's
check.
2. Greenwood & Hall shall ship all remaining merchandise to
IFTP' within five (5) days of receiving payment, however,
shipping will not commence until three (3) days after such time
as IFTP provides Greenwood & Hall with a clean database of
customers that should no longer be shipped to due to order
cancellation and/or consumer initiated chargeback. This database
will be based on the joint efforts of all parties. In
consideration of the Greenwood & Hall's decision to settle this
matter for significantly less than contract value and actual
damages Greenwood & Hall incurred, IFTP shall not be entitled to
any service credits and/or refunds for services that no longer
need to be rendered due to order cancellations and/or customer
initiated chargebacks.
a. Greenwood & Hall shall ship IFTP product(s) to customers
via the least cost shipping method and shall assume no liability
or responsibility for items that are lost/damaged in transit to
customers and/or for customer returns.
b. A complete list of inventory, customer shipment log and IC
Verify will be submitted to NBMX & IFTP.
c. Second payment will be made after shipping documents of past
and present shipment that were made by Greenwood and Hall or any
other agent that was used for shipping.
3. Upon Greenwood & Hall's completion of shipping for IFTP,
IFTP will at its sole cost pick-up all inventories remaining at
Greenwood & Hall's location within seven (7) days of such
completion. In the event IFTP does not retrieve said inventory or
is unable to due to disputes with Media Funding Corporation; IFTP
shall pay a storage fee of $ 35.00 per pallet per month starting
June 1, 2000. This fee shall be charged in one-month increments
and shall not be prorated. If IFTP fails to prepay these fees
within fifteen (15) days of receiving an invoice, Greenwood &
Hall shall have the right to liquidate IFTP inventory at no
further notice to IFTP
4. Upon execution of this document from IFTP, IFTP will
provide notice from it's attorney that all payments will be made
to as per Exhibit A to Greenwood & Hall and Greenwood & Hall
shall return the two (2) returned checks presented by Daniel
Hoyng to IFTP's attorney. All parties acknowledge that Greenwood
& Hall is releasing the returned checks in good faith and has
decided to do so based solely on the representations of NBM,
IFTP, and HOYNG that IFTP will fulfill its entire payment
obligation to Greenwood & Hall as specified in Exhibit A of this
Agreement.
5. The PARTIES agree to keep the terms of this RELEASE
confidential and will not comment on the UNDERLYING MATTER,
except where required to do so by subpoena or other proceeding
where testimony is compelled by law.
2. Release. G&H hereby generally and specifically release,
acquit and forever discharge, indemnify and hold harmless NBM,
IFTP, and HOYNG and their agents, servants, successors,
predecessors, heirs, executors, administrators, assigns,
subsidiaries, business affiliates, officers, directors,
shareholders, employees, representatives, guarantors,
accountants, and attorneys from any and all claims, demands,
liabilities, actions, causes of actions, damages, expenses and
obligations whatsoever whether known or unknown, suspected or
claimed, as well as all issues within and which could have been
raised in the UNDERLYING MATTER.
1. NBM, IFTP and HOYNG hereby generally and specifically
releases, acquits, forever discharges indemnifies and holds
harmless G&H and their agents, servants, successors,
predecessors, heirs, executors, administrators, assigns,
subsidiaries, business affiliates, officers, directors,
shareholders, employees, representatives, guarantors,
accountants, and attorneys, from any and all claims, demands,
liabilities, actions, causes of action, damages, expenses and
obligations whatsoever, whether known or unknown, suspected or
claimed, including all issues as described and alleged in the
UNDERLYING MATTER, as well as all issues within and which could
have been raised in the UNDERLYING MATTER.
3. Waiver. This agreement is a full, mutual and general
release and constitutes a full and final accord and satisfaction,
extending to all claims of any nature that may exist between the
PARTIES whether known or unknown, suspected or anticipated by
them to exist in their favor and regardless of whether any
unknown, unsuspected or unanticipated claim would materially
affect settlement and compromise of each of the matters mentioned
herein. The PARTIES to this RELEASE hereby expressly,
voluntarily and knowingly waive, relinquish and abandon each and
every right, protection and benefit to which they would be
entitled now or at any time hereafter under Section 1542 of the
Civil Code of California, which provides as follows:
"A general release does not extend to claims
which the creditor does not know or suspect
to exist in his favor at the time of
executing the release, which if known by him
must have materially affected his settlement
with the debtor."
4. Final Settlement. In making this voluntary express
waiver of the protection of Section 1542 of the Civil Code of
California, the PARTIES to this RELEASE acknowledge that they may
discover claims or facts in addition to or different from those
which they know or believe to exist with respect to the matters
mentioned herein. It is their intention to fully and forever
settle and release any and all of such matters, claims and
disputes, whether known or unknown, suspected or unsuspected,
anticipated or unanticipated, incident to such intention between
the PARTIES. This RELEASE is and shall remain a full and
complete general release notwithstanding the discovery or
existence of any such additional or different claims or facts.
5. No Assignment. The PARTIES represent and warrant that
they have not heretofore collectively or individually assigned,
transferred, or hypothecated or purported to have assigned or
transferred or hypothecated or will in the future assign,
transfer or hypothecate to anyone any debt, judgment, claim,
liability, demand, action, cause of action, or any interest
therein, based upon or arising out of or pertaining to or
concerning or connected with any matter, fact, event,
circumstance, or thing released herein.
6. No Admissions. Each party acknowledges that this
RELEASE effects the settlement of claims which are denied by the
PARTIES to the action and that nothing contained herein shall be
construed as an admission of liability by or on behalf of either
party by whom liability is expressly denied. Neither this
RELEASE nor any of its terms shall be admissible in any
proceeding between the PARTIES except in any proceeding to
interpret or enforce its terms.
7. Authorization. To further the interest of the PARTIES
in this RELEASE, each party warrants that it has the power to
settle and release fully and completely all claims causes of
action, demands, charges, and liabilities against the other party
to this RELEASE. Each signatory signing this RELEASE on behalf
of a party warrants that he or she is duly authorized and
empowered to sign this RELEASE on that party's behalf.
8. No Inducement. The PARTIES declare and represent that
no promises, inducements, or agreements not expressly contained
herein were made, that this RELEASE contains the entire agreement
between the PARTIES, and that the terms of this RELEASE are
contractual and not recitals only.
9. Binding Effect. The provisions of this RELEASE will be
binding upon and inure to the benefit of the heirs, executors,
administrators, personal representatives, predecessors-in-
interest, successors-in-interest and assigns of the respective
PARTIES hereto. The PARTIES, on the other hand, agree to forever
refrain and forebear from commencing, instituting or prosecuting
any such arbitration, action or other proceeding against one
another based on, arising out of, or in connection with any
claim, debt, liability, demand, obligation, cost, expense, action
or cause of action that is released and discharged by reason of
this RELEASE.
10. Further Documents. The PARTIES agree to sign all
papers and to execute and deliver such additional documents as
are required to effectuate each of the terms of this RELEASE.
11. Representation. The PARTIES represent and
acknowledge that they have conferred with and are represented by
counsel of their own selection with respect to this RELEASE and
all matters covered by it. Each party represents that he, she or
it was fully advised by counsel with respect to all rights, which
are affected by this RELEASE.
12. No Modification. This document sets forth the
entire agreement between the PARTIES and may not be altered,
amended or modified in any respect except by writing duly
executed by the party to be charged. All earlier understandings
and oral agreements are expressly superseded and are of no
further force and effect.
13. Attorney's Fees. Each PARTY shall bear their
attorney's fees and costs with respect to the UNDERLYING MATTER.
14. Headings. Headings are used herein for
convenience only and shall have no force or effect in the
interpretation or construction of this RELEASE. As used in this
Agreement, the singular shall include the plural, and the
masculine shall include the feminine and neuter gender.
15. California Law. The laws of the State of
California shall govern this RELEASE. In the event that any
provision of this RELEASE is held to be ineffective or invalid,
the remaining provisions will nevertheless be given full force
and effect.
16. Construction. This RELEASE shall be construed
without regard to who drafted same, and shall be construed as
though all PARTIES hereto participated equally in the drafting of
the RELEASE. The PARTIES further agree that any dispute arising
from interpretation of this agreement is to be mediated by Judge
William Dodds. Judge Dodds shall also have the discretion to
shift the costs and fees associated with mediating the dispute to
the losing party.
17. Counterparts. For the convenience of the PARTIES,
this document, consisting of eight (9) pages, including Exhibit
A, may be executed in counterparts, which shall together
constitute the agreement of the PARTIES as one and the same
document
18. Specific Enforcement. This Settlement Agreement shall
be specifically enforceable.
WE HAVE EXECUTED THIS AGREEMENT AND RELEASE ON THE DATE
BELOW WRITTEN, EFFECTIVE UPON EXECUTION BY ALL PARTIES.
Dated: June 12, 2000
_____________________________________
for GREENWOOD & HALL, a division of
PCS Link, Inc.
Dated: June 12, 2000 /s/ Barry McFarland
Barry McFarland
for NATIONAL BOSTON MEDICAL, INC.
Dated: June 12, 2000 /s/ Daniel J. Hoyng
Daniel J. Hoyng
for INFOTOPIA, INC.
Dated: June 12, 2000 /s/ Daniel J. Hoyng
Daniel J. Hoyng
For Daniel J. Hoyng
APPROVED AS TO FORM AND CONTENT
/s/ Howard Mark Becker
Howard Mark Becker, Esq.
Attorney for Greenwood & Hall
___________________________________
Attorney for IFTP, NBM, HOYNG
