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Exhibit 6.6
CANADIAN IMPERIAL BANK OF COMMERCE
- AND -
INNOFONE CANADA INC.
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BIZSMART PARTICIPATION AGREEMENT
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SEPTEMBER 21, 2000
PREPARED BY:
SMITH LYONS
SUITE 5800, SCOTIA PLAZA
40 KING STREET WEST
TORONTO, ONTARIO
CANADA M5H 3Z7
[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE SECURITIES & EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. OMITTED TEXT IS INDICATED BY
A "*".
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TABLE OF CONTENTS
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ARTICLE ONE INTERPRETATION........................................................................................2
1.1 Definitions..............................................................................................2
1.2 Construction of Agreement................................................................................5
1.3 Schedules................................................................................................6
ARTICLE TWO TERM OF THE AGREEMENT.................................................................................7
2.1 Term.....................................................................................................7
2.2 Renewals.................................................................................................7
ARTICLE THREE BIZSMART............................................................................................7
3.1 Purpose..................................................................................................7
3.2 Bizsmart Site............................................................................................7
3.3 Participants.............................................................................................7
3.4 Participant Link Page....................................................................................7
3.5 Representatives..........................................................................................8
ARTICLE FOUR THE PROGRAM..........................................................................................8
4.1 General..................................................................................................8
4.2 Suppliers................................................................................................9
4.3 Carriers.................................................................................................9
4.4 Innofone's Suppliers and Carriers of Services...........................................................10
4.5 Performance, Customer Service and Support Procedures....................................................10
4.6 Service Standards.......................................................................................10
4.7 Costs and Expenses......................................................................................11
4.8 Bizsmart Customer Authentication........................................................................11
4.9 Bizsmart Customer Termination...........................................................................12
4.10 Cancellation by Innofone................................................................................12
4.11 Financial Matters.......................................................................................12
4.12 Termination.............................................................................................13
ARTICLE FIVE CUSTOM SITE.........................................................................................14
5.1 General.................................................................................................14
5.2 Design and Development..................................................................................14
5.3 Requirements............................................................................................16
5.4 Launch of the Custom Site...............................................................................16
5.5 Operation, Maintenance and Hosting......................................................................16
5.6 Upgrades and Updates....................................................................................16
5.7 Surveys.................................................................................................16
5.8 Representatives.........................................................................................17
5.9 Costs and Expenses......................................................................................17
ARTICLE SIX PROMOTION............................................................................................17
6.1 Promotion...............................................................................................17
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6.2 Additional Promotion....................................................................................18
ARTICLE SEVEN DISCOUNTS AND CONTRIBUTIONS........................................................................18
7.1 Discounts on Services...................................................................................18
7.2 Discounts on New Services...............................................................................18
7.3 Contribution............................................................................................18
7.4 Arrangements with CIBC..................................................................................18
7.5 Targeting of Bizsmart Customers.........................................................................18
ARTICLE EIGHT CUSTOMERS, DATA AND PRIVACY........................................................................19
8.1 Ownership of Customers..................................................................................19
8.2 Use of Customer Data By Innofone........................................................................19
8.3 Notices and Consents....................................................................................20
8.4 Privacy.................................................................................................20
ARTICLE NINE REPORTS, RECORDS AND INSPECTION.....................................................................20
9.1 Contribution Reports and Payment........................................................................20
9.2 Other Reports...........................................................................................20
9.3 Records and Inspection..................................................................................21
9.4 Confidentiality of the Reports..........................................................................21
ARTICLE TEN TRADEMARKS...........................................................................................21
10.1 Grant and Term.......................................................................................21
10.2 Restriction on Grants of Licences....................................................................22
10.3 Quality Control......................................................................................22
10.4 Use..................................................................................................22
10.5 Infringement by Unauthorized Persons.................................................................23
10.6 Notice of Use........................................................................................23
10.7 Ownership............................................................................................24
10.8 Obligations on Termination...........................................................................24
ARTICLE ELEVEN OTHER BUSINESS TERMS..............................................................................24
11.1 Exclusivity..........................................................................................24
ARTICLE TWELVE NON-COMPETITION...................................................................................24
12.1 During the Agreement.................................................................................24
12.2 Following the Agreement..............................................................................25
12.3 Financial Products and/or Services...................................................................25
12.4 E-Commerce Initiatives...............................................................................25
ARTICLE THIRTEEN REPRESENTATIONS AND WARRANTIES..................................................................25
13.1 By Innofone..........................................................................................25
13.2 By CIBC..............................................................................................27
13.3 Corporate and Other Warranties by Each Party.........................................................27
13.4 No Further Warranties................................................................................28
ARTICLE FOURTEEN CONFIDENTIALITY.................................................................................28
14.1 Confidential Information.............................................................................28
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14.2 Confidentiality Obligations of Innofone..............................................................29
14.3 Injunctive Relief....................................................................................29
14.4 Legal Action.........................................................................................30
14.5 Exemption............................................................................................30
14.6 Conflicts............................................................................................30
14.7 Termination..........................................................................................30
ARTICLE FIFTEEN DISPUTE RESOLUTION...............................................................................31
15.1 Disputes.............................................................................................31
15.2 Representatives......................................................................................31
15.3 Executives...........................................................................................31
15.4 Resolution of Unresolved Disputes....................................................................31
15.5 Critical Disputes....................................................................................31
15.6 Continuity of Operation..............................................................................32
15.7 Equitable Remedies...................................................................................32
15.8 Confidentiality......................................................................................32
15.9 Types of Dispute Excluded from Private Dispute Resolution............................................32
15.10 Dispute Concerning Right of Termination..............................................................33
15.11 Disputes Arising from the Application and Interpretation of this Agreement...........................33
ARTICLE SIXTEEN TERMINATION......................................................................................33
16.1 Termination by Innofone..............................................................................33
16.2 Termination by CIBC..................................................................................33
16.3 Termination by Either Party..........................................................................34
16.4 Termination on Transfer of Control of Innofone.......................................................34
16.5 Notice of Termination................................................................................35
16.6 Liability Continues..................................................................................35
16.7 Survival.............................................................................................35
16.8 Equitable Relief.....................................................................................35
ARTICLE SEVENTEEN INDEMNIFICATION................................................................................35
17.1 Indemnification by Innofone..........................................................................35
17.2 Indemnification by CIBC..............................................................................36
17.3 Indemnification Procedures...........................................................................36
17.4 Contribution.........................................................................................36
17.5 Insurance............................................................................................37
ARTICLE EIGHTEEN DEFAULTS, TERMINATION EVENTS AND REMEDIES.......................................................37
18.1 Default by Innofone..................................................................................37
18.2 Innofone Termination Events..........................................................................38
18.3 Remedies of Innofone.................................................................................39
18.4 Default by CIBC......................................................................................40
18.5 CIBC Termination Events..............................................................................40
18.6 Remedies of CIBC.....................................................................................41
ARTICLE NINETEEN GENERAL.........................................................................................42
19.1 Relationship of Parties..............................................................................42
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19.2 CIBC as Lender or Banker.............................................................................42
19.3 Assignment...........................................................................................42
19.4 Enurement and Binding Effect.........................................................................43
19.5 Public Announcements.................................................................................43
19.6 Notices..............................................................................................43
19.7 Severability.........................................................................................45
19.8 Waiver...............................................................................................45
19.9 Entire Agreement.....................................................................................45
19.10 Force Majeure........................................................................................45
19.11 No Consequential Damages.............................................................................45
19.12 Amendments...........................................................................................46
19.13 Governing Law........................................................................................46
19.14 Third Party Beneficiaries............................................................................46
19.15 Covenant of Further Assurances.......................................................................46
19.16 Execution of Agreement...............................................................................46
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SCHEDULES:
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Schedule "A" Innofone Promotions
Schedule "B" Sale of Services
Schedule "C" Innofone Privacy Code
Schedule "D" Innofone Trade-marks
Schedule "E" Bizsmart Trade-marks
Schedule "F" Bizsmart Trade-mark Guidelines
Schedule "G" Dispute Resolution Proceedings
Schedule "H" Public Announcements
Schedule "I" Design Specifications
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BIZSMART PARTICIPATION AGREEMENT
THIS BIZSMART PARTICIPATION AGREEMENT made as of the 15th day of May,
2000,
B E T W E E N :
CANADIAN IMPERIAL BANK OF COMMERCE, a
bank chartered under the BANK ACT (Canada),
(hereinafter referred to as "CIBC")
- and -
INNOFONE CANADA INC., a corporation incorporated
pursuant to the laws of Canada,
(hereinafter referred to as "INNOFONE")
is as follows:
RECITALS
1. Bizsmart is a world wide web portal site through which will be offered
financial services and access to other products, services and business
information of interest to small businesses in Canada. (Terms capitalized in
these recitals are defined in ARTICLE ONE of this Agreement.)
2. CIBC will develop the Bizsmart Site. The Bizsmart Site will feature
links to customized, co-branded web sites or web pages developed and provided by
Participants through which Participants will offer products and/or services at
discounted prices to Bizsmart Customers.
3. Bizsmart will benefit from the common appearance and functionality of
the Participant Sites.
4. This Agreement sets out the mutual obligations of Innofone and CIBC
with respect to Bizsmart.
In consideration of the mutual covenants contained in this Agreement,
the Parties agree as follows:
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ARTICLE ONE
INTERPRETATION
1.1 DEFINITIONS
Unless the context otherwise specifies or requires, for the purposes
of this Agreement all capitalized terms set out herein shall have the meanings
set forth below:
"AFFILIATE" of a particular body corporate means another body corporate that is
affiliated with the particular body corporate, and for such purposes one body
corporate shall be deemed to be affiliated with another body corporate if one of
them is the Subsidiary of the other or both are Subsidiaries of the same body
corporate or each of them is controlled by the same Person, and if two bodies
corporate are affiliated with the same body corporate at the same time, as
determined in accordance with the foregoing, they shall be deemed to be
affiliated with each other and "AFFILIATED" has a corresponding meaning;
"AGREEMENT", "THIS AGREEMENT", "THE AGREEMENT", "BIZSMART PARTICIPATION
AGREEMENT", "HERETO", "HEREOF", "HEREIN", "HEREBY", "HEREUNDER" and similar
expressions mean this Bizsmart Participation Agreement together with all
Schedules attached hereto, as they maybe amended from time to time;
"BIZSMART" means the portal initiative to offer financial services and access to
other products, services and business information of interest to small
businesses in Canada at www.bizsmart.com;
"BIZSMART CUSTOMERS" means any Person permitted access to the restricted
portions of the Bizsmart Site by CIBC;
"BIZSMART SITE" means the web site maintained by or on behalf of CIBC at
www.bizsmart.com;
"BIZSMART TRADE-MARKS" has the meaning ascribed thereto in SECTION 10.1(b);
"BUSINESS DAY" means any day, other than a Saturday, Sunday or a statutory or
bank holiday observed in the Province of Ontario;
"CARRIER" means an underlying provider of the Services;
"CIBC" means Canadian Imperial Bank of Commerce and any successor entity as a
result of a CIBC Merger or CIBC Restructuring;
"CIBC MERGER" means a transaction or series of transactions whereby CIBC
directly or indirectly acquires, is acquired by, amalgamates with, transfers
substantially all of its assets to, acquires substantially all of the assets of,
or otherwise merges or combines with another financial products and/or services
enterprise, howsoever such merger or acquisition is effected;
"CIBC REPRESENTATIVE" has the meaning ascribed thereto in SECTION 3.5(b);
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"CIBC RESTRUCTURING" means a transaction or series of transactions whereby CIBC,
directly or indirectly, restructures its operations, including a restructuring
or transfer of the Bizsmart operations and the ownership thereof, howsoever such
restructuring is effected;
"CIBC TERMINATION EVENT" has the meaning ascribed thereto in SECTION 18.5;
"CONFIDENTIAL INFORMATION" means the confidential, secret or proprietary
information of one Party or any of its Affiliates (the "DISCLOSING PARTY"),
including data, technical information, financial information, business plans,
information relating to clients and prospective clients (but not including the
Customer Data), strategies, practices and software of the Disclosing Party which
has been or may hereafter be disclosed, directly or indirectly, to the other
Party (the "RECEIVING PARTY") either orally, in writing or in any other material
form pursuant to and in conjunction with this Agreement, and, for the purposes
hereof, this Agreement, including the terms and conditions hereof, and the
letter of intent dated May 11, 2000 between the Parties, shall be deemed to be
the Confidential Information of each of the Parties hereto;
"*" has the meaning ascribed thereto in SECTION Error! Reference source not
found.;
"CUSTOM SITE" means Innofone's custom web site co-branded with Bizsmart as
described in SECTION 5.1 hereof;
"CUSTOMER DATA" means any and all data relating to Bizsmart Customers, including
the name and address of, and any purchase information relating to, any Bizsmart
Customer;
"DEFAULT" means, in respect of Innofone, an event set out in SECTION 18.1, and
in respect of CIBC, an event set out in SECTION 18.4;
"DISCLOSING PARTY" has the meaning ascribed thereto in the definition of
"CONFIDENTIAL INFORMATION" set out herein;
"DISCOUNT" has the meaning ascribed thereto in SECTION 7.1(a);
"DISPUTE" has the meaning ascribed thereto in SECTION 15.1;
"EFFECTIVE DATE" means the date hereof;
"EVENT OF DEFAULT" means a Default, the notice and cure periods respecting
which, if any, have expired;
"EXCLUDED DISPUTE" has the meaning ascribed thereto in SECTION 15.9;
"INDEMNITEE" has the meaning ascribed thereto in SECTION 17.3;
"INITIAL TERM" has the meaning ascribed thereto in SECTION 2.1;
"INNOFONE" means Innofone Canada Inc., a corporation incorporated pursuant to
the laws of Canada;
"INNOFONE REPRESENTATIVE" has the meaning ascribed thereto in SECTION 3.5(a);
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"INNOFONE SITE" means Innofone's primary web site or web sites reached at
www.innofone.com;
"INNOFONE TERMINATION EVENT" has the meaning ascribed thereto in SECTION 18.2;
"INNOFONE TRADE-MARKS" has the meaning ascribed thereto in SECTION 10.1(a);
"INTELLECTUAL PROPERTY RIGHTS" includes all intellectual and industrial
property rights including all rights to copyrights, trade-marks, patents,
inventions and discoveries, industrial designs, design rights, trade secrets and
information of a confidential nature;
"KIOSK" means a Bizsmart kiosk located in a publicly accessible space at which
potential customers of Bizsmart will be able to subscribe for financial services
to be offered in connection with Bizsmart;
"KIOSK HOST" means the lessee or, if there is no lease, the owner, of the
publicly accessible space in which Kiosks are located;
"LAUNCH DATE" means the date on which financial services are first offered
online at the Bizsmart Site;
"LOSSES" has the meaning ascribed thereto in SECTION 17.1, and "LOSS" means any
of them;
"MORAL RIGHTS" means the rights of an author of a work in which copyright
subsists in any country, to claim authorship of the work and to object to any
distortion, mutilation or other modification of or other derogatory action in
relation to the said work, which would be prejudicial to his or her honour or
reputation, and includes all rights conferred upon authors of a work in which
copyright subsists, independent of the author's economic rights in the work
established by any act or legislation of any country;
"PARTICIPANT" means a Person who is promoted on the Bizsmart Site as a preferred
provider of products and/or services in connection with Bizsmart;
"PARTICIPANT SITES" means the Participants' custom web sites or web pages
co-branded with Bizsmart;
"PARTIES" means CIBC and Innofone and "PARTY" means either one of them;
"PERSON" means an individual, corporation, company, partnership, joint venture,
association, trust, pension fund, union, governmental agency, official, board,
tribunal, ministry, commission or department;
"PRICE" has the meaning ascribed thereto in SCHEDULE "B";
"PRIME RATE" means CIBC's rate for loans for its prime business customers, as
declared by CIBC from time to time;
"PROGRAM" means the "SmartRate" program through which Innofone shall offer the
Services to Bizsmart Customers as described in ARTICLE FOUR hereof;
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"RECEIVING PARTY" has the meaning ascribed thereto in the definition of
"CONFIDENTIAL INFORMATION" set out herein;
"RENEWAL TERM" has the meaning ascribed thereto in SECTION 2.2;
"REPRESENTATIVES" means the CIBC Representative and the Innofone Representative,
collectively;
"REPORTS" has the meaning ascribed thereto in SECTION 9.3;
"REQUIREMENTS" means the Bizsmart Trade-mark guidelines attached hereto as
SCHEDULE "F" and the design specifications attached hereto as SCHEDULE "I", as
amended by CIBC from time to time;
"SERVICES" means each of (a) residential and business long distance telephone
services, (b) calling card services, (c) cellular and PCS services, and (d)
subject to availability as of the Launch Date, home security services;
"SUBSIDIARY" of a particular body corporate means another body corporate,
wherever or howsoever incorporated, of which securities carrying more than fifty
percent (50%) of the votes that may be cast to elect directors of the body
corporate are held, other than by way of security only, by or for the benefit of
one or more Persons each of which is either the particular body corporate or a
Subsidiary thereof;
"SUPPLIER" means a supplier, partner or outsourcing party with which Innofone
has a relationship for the purposes of executing the Program;
"TERM" has the meaning ascribed thereto in SECTION 2.2;
"TRADE-MARKS" means collectively the Bizsmart Trade-marks and the Innofone
Trade-marks, and in the context of an individual Party, "TRADE-MARKS" means the
trade-marks owned or controlled by that individual Party and includes any
trade-mark, trade name, service mark, official mark, domain name, and any word,
symbol, icon, logo or other indicia of origin adopted or used in connection with
any product, service or business, whether registered or unregistered, and any
copyright in the foregoing;
"TRADE-MARK OWNER" has the meaning ascribed thereto in SECTION 10.3; and
"USING PARTY" has the meaning ascribed thereto in SECTION 10.3.
1.2 CONSTRUCTION OF AGREEMENT
In this Agreement:
(a) words denoting the singular include the plural and vice versa and
words denoting any gender include all genders;
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(b) all usage of the word "INCLUDING" or the phrase "E.G.", in this
Agreement shall mean "INCLUDING, WITHOUT LIMITATION", throughout this
Agreement;
(c) when calculating the period of time within which or following which
any act is to be done or step taken, the date which is the reference
day in calculating such period shall be excluded and if the last day
of such period is not a Business Day, the period shall end on the next
Business Day;
(d) all dollar amounts are expressed in Canadian dollars;
(e) the division of this Agreement into separate Articles, Sections,
subsections and Schedules, the provision of a table of contents and
the insertion of headings is for convenience of reference only and
shall not affect the construction or interpretation of this Agreement;
(f) words or abbreviations which have well known or trade meanings are
used herein in accordance with their recognized meanings;
(g) the terms and conditions hereof are the result of negotiations between
the Parties and the Parties therefore agree that this Agreement shall
not be construed in favour of or against any Party by reason of the
extent to which any Party or its professional advisors participated in
the preparation of this Agreement; and
(h) in the event of an inconsistency between the Schedules and the
Articles, the Articles shall prevail unless otherwise expressly
specified in any such Schedule.
1.3 SCHEDULES
The following Schedules annexed to this Agreement are integral to and
form part of this Agreement:
Schedule "A" Innofone Promotions
Schedule "B" Sale of Services
Schedule "C" Innofone Privacy Code
Schedule "D" Innofone Trade-marks
Schedule "E" Bizsmart Trade-marks
Schedule "F" Bizsmart Trade-mark Guidelines
Schedule "G" Dispute Resolution Proceedings
Schedule "H" Public Announcements
Schedule "I" Design Specifications
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ARTICLE TWO
TERM OF THE AGREEMENT
2.1 TERM
Unless earlier terminated as provided in this Agreement, this
Agreement shall be effective as of the Effective Date until midnight on the same
date as the Launch Date, 2005 (the "INITIAL TERM").
2.2 RENEWALS
The Parties may mutually agree in writing to renew this Agreement for
additional terms specified in any such renewal agreement (each, a "RENEWAL
TERM"). "TERM" shall mean the Initial Term and Renewal Term(s), if any.
ARTICLE THREE
BIZSMART
3.1 PURPOSE
Bizsmart will offer financial services and access to other products,
services and business information of interest to small businesses in Canada.
3.2 BIZSMART SITE
CIBC will develop the Bizsmart Site. CIBC agrees to operate, maintain
and host the Bizsmart Site and shall use its commercially reasonable efforts to
keep the Bizsmart Site available twenty-four (24) hours a day, seven (7) days a
week.
3.3 PARTICIPANTS
The Bizsmart Site will feature links to Participant Sites. Innofone
shall be identified as a provider of the Services on the Bizsmart Site. During
the Term of this Agreement, no other Participant will be specifically
identified, promoted, sponsored or advertised in any way, as a provider of the
Services on the Bizsmart Site. However, for greater certainty, products and/or
services similar to or the same as the Services may, during the Term, be
accessible through the Bizsmart Site from other Participant Sites or otherwise
through indirect links from the Bizsmart Site or direct or indirect links from
other Participant Sites.
3.4 PARTICIPANT LINK PAGE
CIBC may, and shall be permitted to, create and host a web page on
the Bizsmart Site which may (i) describe the Program and Innofone, the
advantages of a Bizsmart membership (including the Discount), how to access the
Discount, how to return to the Bizsmart Site and payment options, (ii) link to
one or more of Innofone's home page, various pages on the Innofone Site, the
Custom Site, other pages on the Bizsmart Site and Innofone's disclaimer,
notices, consent requests and privacy policy and (iii) include the Innofone
Trade-marks (and
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specifically the Innofone logo), the exact manner of such inclusion to be
subject to Innofone's approval.
3.5 REPRESENTATIVES
(a) Innofone designates the President or the equivalent thereof (the
"INNOFONE REPRESENTATIVE"), as its contact for this Agreement and in
connection with Innofone's participation in Bizsmart. Contact
information for the Innofone Representative is set out in SECTION 19.6
hereof.
(b) CIBC designates the Director, Small Business Customer Offers or the
equivalent thereof (the "CIBC REPRESENTATIVE"), as its contact for this
Agreement and in connection with Bizsmart. Contact information for the
CIBC Representative is set out in SECTION 19.6 hereof.
(c) The Innofone Representative and the CIBC Representative shall each have
skills and seniority appropriate to the role and functions of the
Representatives hereunder. Either Party may substitute a new
representative on thirty (30) Business Days' notice hereunder,
delivered in accordance with the provisions of SECTION 19.6 hereof.
ARTICLE FOUR
THE PROGRAM
4.1 GENERAL
(a) The Program will be provided to Bizsmart Customers by Innofone.
Bizsmart Customers who enroll in the Program will receive value and
savings on the Services.
(b) Innofone will be solely responsible for co-ordination, operation and
delivery of the Program through services provided by it and by
Suppliers and Carriers, whereas CIBC's sole responsibilities in
connection with the Program will be restricted to those set out in
this Agreement.
(c) For each month in which Services are provided to a Bizsmart Customer,
Innofone will send the Bizsmart Customer a detailed monthly account
statement setting out the Services provided, a cost calculation and
the amount payable by the Bizsmart Customer for the Services.
(d) Bizsmart Customers are entitled to enroll in any one, or more, of the
Services they select. Bizsmart Customers will have no obligation to
enroll in one Service as a condition of being provided with another
Service.
(e) The Program is and will be a CIBC branded program. CIBC owns the
"SmartRate" brand and all other brand and product names, designs,
slogans, themes, advertising concepts and other creative matter used
in or to be developed
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for the Program, including all trademark and copyright rights in same.
Innofone has registered the URL WWW.GOSMARTRATE.COM on behalf of CIBC
and Innofone hereby agrees to assign such URL to CIBC forthwith. CIBC
hereby agrees to reimburse Innofone for any costs incurred in
connection with the registration of such URL. Innofone has arranged
for the preparation of the "SmartRate" logo creative work on behalf of
CIBC and Innofone hereby agrees to assign such logo creative work to
CIBC forthwith. CIBC hereby agrees to reimburse Innofone for any costs
incurred in connection with the preparation of such logo creative
work.
(f) During the Term of this Agreement and thereafter, all toll-free
numbers provided to enrolled Bizsmart Customers will belong to CIBC.
To the extent that Innofone obtains any toll-free number on behalf of
CIBC, Innofone shall assign such toll-free number to CIBC forthwith.
CIBC shall reimburse Innofone for any costs incurred in connection
with obtaining such toll-free number.
4.2 SUPPLIERS
(a) Innofone shall select reputable and qualified Suppliers for the
purposes of the Program. Prior to the Launch Date, Innofone shall
enter into binding agreements with each of the Suppliers, which will
provide that each Supplier shall maintain high service standards in
design and maintenance of any systems operated in connection with the
Program. Innofone shall ensure that each Supplier fulfills its
obligations under its agreement with Innofone. Innofone shall also
ensure that each Supplier to which Bizsmart Customer information may
be disclosed in accordance with the terms of this Agreement will
comply with any security and confidentiality requirements communicated
by CIBC to Innofone. In the event that Innofone wishes to add or
replace a Supplier, such addition or replacement shall occur only with
the consent of CIBC, acting reasonably, and provided that the proposed
additional or replacement Supplier executes an agreement with Innofone
and the other requirements of this ARTICLE FOUR are met.
(b) Prior to the Launch Date, Innofone shall exercise its best efforts to
facilitate the execution of a direct confidentiality agreement between
CIBC and each Supplier to which Bizsmart Customer information may be
disclosed in accordance with the terms of this Agreement and in
connection therewith such confidentiality agreements will be prepared
by CIBC and provided to Innofone.
4.3 CARRIERS
(a) Prior to the Launch Date, Innofone shall enter into binding agreements
with each of the Carriers. Innofone shall ensure that each Carrier
fulfills its obligations under its agreement with Innofone. Innofone
shall be entitled to replace Carriers from time to time, provided that
each replacement Carrier provides the same or better quality and
breadth of service and has the same or better credibility in the
marketplace as the existing Carrier.
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(b) The Parties will mutually agree upon the Carrier for the home security
Service, as applicable.
4.4 INNOFONE'S SUPPLIERS AND CARRIERS OF SERVICES
During the Term of this Agreement, at the request of CIBC, Innofone
hereby agrees to enter into discussions and negotiations with any Supplier or
Carrier of underlying services similar to the Services or any new Services, as
proposed by CIBC.
4.5 PERFORMANCE, CUSTOMER SERVICE AND SUPPORT PROCEDURES
(a) Innofone is solely responsible for the quality and performance of the
Services and for receiving and handling all warranties, guarantees,
customer service calls, orders, claims and all other inquiries and
demands relating thereto. Any and all banking related and other
non-Innofone matters shall be referred to the Bizsmart toll-free
number. Innofone shall provide CIBC with telephone numbers and, if
applicable, e-mail addresses which CIBC shall be permitted to provide
to Bizsmart Customers for contact purposes in the case of any
inquiries relating to Innofone. Innofone shall duly advise CIBC of any
changes to such contact information.
(b) Innofone will ensure that Bizsmart Customers who wish to enroll in the
Program for a Service will be able to do so through the Custom Site or
by telephoning, or faxing, a telephone call centre to be staffed by
Innofone customer service representatives (including bilingual
representatives), in connection therewith. Innofone shall provide, at
no charge, customer support for the Services provided to Bizsmart
Customers, including customer support through such telephone call
centre, such customer support to be of a standard of quality and
availability that is acceptable to CIBC, that is not less than that
offered by Innofone to its customers other than Bizsmart Customers and
that encompasses, at a minimum, the service standards set out in
SECTION 4.6 hereof.
(c) Innofone shall educate its customer service representatives and other
staff who will have contact with Bizsmart Customers on the nature of
Bizsmart, the role of Innofone as a Participant and matters relating
to the Custom Site. Innofone shall provide any educational materials
prepared by CIBC regarding such matters to such customer service
representatives and other staff, as applicable.
(d) Innofone shall continue to operate its business in accordance with its
ongoing high standards of customer service and business conduct.
4.6 SERVICE STANDARDS
Prior to the Launch Date, Innofone shall exercise its best efforts to
faciliate the execution of a service standards agreement between Innofone and
each Supplier, and between Innofone and each Carrier, with respect to service
standards for matters such as Bizsmart Customer enrollment, complaint handling,
Service cancellation (by a Bizsmart Customer or CIBC or Innofone) and services
provided by Suppliers and Carriers. Such agreements will
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contain standards satisfactory to CIBC and be subject to CIBC's prior approval
and shall be diligently enforced by Innofone. Standards which will be
incorporated into such agreements will include:
(a) call centre customer service representatives ("CSRs") being bilingual;
(b) CSRs who take or make Program calls being dedicated to the Program
throughout their daily shift (although the call centre will not be
dedicated to the Program);
(c) the call centre operating Monday-Friday 8 a.m. to 10 p.m. local time
for each region and Saturday and Sunday 8 a.m. to 6 p.m. local time
for each region;
(d) telephone enrollment calls, queries or complaints by Bizsmart
Customers and outbound call promotions being conducted in accordance
with scripting approved by CIBC and being tape-recorded for
validation;
(e) welcome kits being sent to enrolling Bizsmart Customers within 48
hours after enrollment; and
(f) installation standards for the underlying Carrier of the home security
Service, if applicable, including restrictions on when/how it can
promote or sell Bizsmart Customers any additional home security
services.
4.7 COSTS AND EXPENSES
(a) Innofone shall be solely responsible for any costs and expenses
associated with the Program, including amounts payable to Suppliers
and Carriers and all contributions and levies payable in accordance
with the law with respect to the provision of the Services and all
systems and development costs for the Program, excluding those for
systems and development within CIBC.
(b) CIBC will not compensate Innofone in any way for work done by it or a
third party in regards to the Program or reimburse it or any third
party for any costs or expenses incurred by Innofone or such other
third party in respect of the development of the Program.
4.8 BIZSMART CUSTOMER AUTHENTICATION
Innofone shall be able to authenticate each Bizsmart Customer for the
purposes of enrollment in the Program either:
(a) as a result of such Bizsmart Customer reaching the Custom Site through
the WWW.GOSMARTRATE.COM URL; or
(b) through call centre authentication by (i) obtaining the Bizsmart
Customer's convenience card number, (ii) checking the first four
digits of such convenience card number, (iii) using the MOD 10
calculator tool to be provided to Innofone by CIBC to check the
legitimacy of the convenience card number and (iv) asking the
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Bizsmart Customer for a reference code which shall either be posted on
the participant link page described in SECTION 3.4 hereof or on the
Custom Site, as mutually agreed upon by the Parties.
4.9 BIZSMART CUSTOMER TERMINATION
(a) On an ongoing basis, the frequency of which will be mutually agreed
upon by the Parties, CIBC will receive a computer file from Innofone
setting out the name (and any other required identifiers) of each
Bizsmart Customer who is enrolled in the Program. CIBC shall cross
reference the information contained in such file with its Bizsmart
Customer list and advise Innofone of any customers who are enrolled in
the Program but who are no longer Bizsmart Customers.
(b) Innofone agrees that, when an Innofone customer ceases to be a
Bizsmart Customer, Innofone shall terminate the enrollment of such
customer in the Program and cease identifying the Services to such
customer as the "SmartRate" services or such other applicable trade
name. In addition, Innofone shall cease offering the Discount to such
customer. To the extent that Innofone enrolls such customer in another
program provided by Innofone, for the Term of this Agreement, Innofone
shall continue to treat such customer as an "active account" for the
purposes of the calculation and payment of the Contribution pursuant
to SECTION Error! Reference source not found. hereof and SCHEDULE "B"
hereof.
4.10 CANCELLATION BY INNOFONE
Prior to the Launch Date, the Parties shall determine jointly the
criteria for cancelling the provision of a Service to a specific Bizsmart
Customer.
4.11 FINANCIAL MATTERS
(a) Innofone shall maintain a fund which it will use for bad debts,
customer service complaints and alleged fraudulent use of Services and
in the event that such fund is not sufficient, Innofone shall cover
such costs nonetheless. At all times, the amount in such fund will be
at least equal to 2% of all amounts payable by Bizsmart Customers for
Services within the two previous calendar months. The fund will be
subject to CIBC's rights of inspection as set out in SECTION 9.3
hereof.
(b) Innofone shall respond to any reasonable inquiries of CIBC regarding
Innofone's cash and capitalization position from time to time,
including, for example, requests for copies of items such as the
annual or quarterly, audited or unaudited consolidated or
unconsolidated financial statements of Innofone or other similar items
which provide financial or capitalization information of a general
nature. The foregoing sentence shall not require that Innofone must
provide to CIBC information regarding Innofone's customers, pricing,
agreements with its customers, or other similar items, other than as
is applicable to this Agreement.
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4.12 TERMINATION
On termination of this Agreement for any reason, CIBC must elect from
one of the following two options:
(a) to terminate the Program, in which case Innofone must then choose
either:
(i) to cease providing Services to enrolled Bizsmart Customers, in
which case Innofone shall (A) at its expense notify Bizsmart
Customers that the Program has been terminated and Services will
no longer be provided, (B) at its expense take all reasonable
steps to assist Bizsmart Customers in switching to other
providers of the Services and (C) not terminate the Services
until such transition to another provider of the Services has
been successfully completed; or
(ii) to continue providing Services to enrolled Bizsmart Customers
(but without CIBC's brand or any other CIBC involvement in and
sponsorship of the Program), in which case Innofone will:
(A) pay CIBC either the Contributions pursuant to the same
structure as set out in SCHEDULE "B" hereto or a lump sum
equal to the fair market value of the customer accounts of
enrolled Bizsmart Customers (such fair market value will be
the average of the amount estimated by each of two
independent evaluators with expertise in valuing the
Services, with each Party having the right to select one
evaluator); and
(B) at its expense notify Bizsmart Customers that CIBC's
sponsorship of and involvement in the Program is ending and
amend all Program materials to remove CIBC's involvement in
same; or
(b) to continue the Program but with a new Program service provider (the
"NEW PROVIDER") to be appointed by CIBC in lieu of Innofone, in which
case:
(i) Innofone will: (A) bear the cost of amending welcome kits and
any other materials, (B) exercise best efforts to coordinate the
transfer to the New Provider in order to prevent any disruption
in Services and (C) assign to the New Provider those of its
Supplier and Carrier contracts which do not terminate
simultaneously with the migration; and in connection therewith,
CIBC or its agents shall have control over all communications
with Bizsmart Customers; and
(ii) the New Provider will pay Innofone an amount equal to the fair
market value of the customer accounts of enrolled Bizsmart
Customers (such fair market value will be the average of the
amount estimated by each of two independent evaluators with
expertise in valuing the Services, with each Party having the
right to select one evaluator, and which value will take
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into consideration the Contributions to be paid by the New
Provider to CIBC);
Notwithstanding the foregoing, if Innofone terminates this Agreement in
accordance with SECTION 16.1 hereof, Innofone shall not be responsible for the
cost of amending materials and notifying Bizsmart Customers under subsections
(a)(i), (ii)(B) or (b)(i) hereof, unless it is required by law to give notice in
which case it shall bear the cost of doing so.
ARTICLE FIVE
CUSTOM SITE
5.1 GENERAL
Innofone shall, at its sole expense, develop, provide, maintain and
upgrade the Custom Site and the links therefrom during the Term of this
Agreement in accordance with the terms and conditions in this ARTICLE FIVE.
Innofone shall create the Custom Site which will (i) be hosted by Innofone and
(ii) be accessible by Bizsmart Customers from the Bizsmart Site only. The Custom
Site will (i) be structurally designed for Bizsmart, (ii) adhere to the Bizsmart
templates including requirements for navigation, hierarchy, colour, palette and
font, as set out in the Requirements, (iii) include the Bizsmart Trade-marks
(and specifically the Bizsmart logo) in fixed locations on the Custom Site, as
mutually agreed upon by the Parties, and (iv) offer Bizsmart Customers a link
back to the Bizsmart Site from the Custom Site, as mutually agreed upon by the
Parties.
5.2 DESIGN AND DEVELOPMENT
(a) Innofone shall design and develop the Custom Site in accordance with
the Requirements and in accordance with the following general
principles:
(i) the Custom Site shall be accessible only through links from the
Bizsmart Site;
(ii) Innofone shall not, directly or indirectly, link the Custom Site
or the Innofone Site, or any other web site, to the Bizsmart
Site or any page, linked component or part thereof, without the
prior written consent of CIBC;
(iii) Innofone shall supply the required interface information to CIBC
and shall make the developers of the Custom Site available to
CIBC for reasonable consultation;
(iv) the Custom Site shall, at a minimum, have features, support and
meet standards for performance, equivalent to those maintained
by Innofone for the Innofone Site;
(v) the Custom Site shall prominently display the Bizsmart
Trade-marks and shall not display the name, marks or logos of,
or promote in any other way
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the products or services of, any provider of financial products
or services to Canadians and any Affiliate or agent thereof or
link directly (i.e. through one click) to any web site of any
such provider;
(vi) Innofone shall prepare terms of use, which shall be subject to
the approval of CIBC and shall include appropriate exclusions
from liability which, among other things, explicitly benefit
CIBC and all other Participants, and Innofone shall post the
approved terms of use on the Custom Site;
(vii) the Custom Site shall identify the Services provided through the
Custom Site as the "SmartRate" services or such other trade name
as determined by CIBC in its sole discretion, and shall
prominently display the Innofone Trade-marks so as to clearly
identify the Services as being provided by Innofone;
(viii) Innofone shall prominently display on the Custom Site the links
to Innofone's privacy policy and terms of use;
(ix) the Custom Site shall not contain any links to any web sites,
including any Participant Sites, and shall only link back to the
Bizsmart Site;
(x) navigation from the Custom Site back to the Bizsmart Site shall
be obvious to any user;
(xi) the Custom Site shall contain no advertising banners other than
banners advertising Bizsmart; and
(xii) the Custom Site shall permit Bizsmart Customers to make
purchases of the Services through the Custom Site.
(b) The Parties hereby agree to implement an automatic log-on solution for
the Custom Site, provided that both Parties are able to develop a
mutually acceptable implementation solution.
(c) Innofone shall complete the initial design and development of the
Custom Site no later than August 18, 2000. CIBC and its advisors shall
have an opportunity to review the initial design and to comment on the
initial design and "look and feel" of the Custom Site no later than
August 23, 2000. Innofone shall make changes reasonably requested by
CIBC and changes necessary to comply with the Requirements and the
terms hereof. Such changes to the initial design of the Custom Site
shall be made by Innofone no later than August 28, 2000.
(d) Each Party shall provide the other Party with the name of and contact
information for one employee or executive who will serve as the
technical/web site contact for the Bizsmart Site and the Custom Site.
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5.3 REQUIREMENTS
CIBC may make reasonable changes to the Requirements from time
to time, and Innofone shall comply with such amended Requirements within twenty
(20) Business Days from notice thereof, provided that no such amendment shall
entail any material expense for Innofone except as provided for in this
Agreement.
5.4 LAUNCH OF THE CUSTOM SITE
Innofone acknowledges CIBC's co-ordination of the Participants
will be necessary to the timing of a successful launch of Bizsmart, and CIBC
will keep Innofone advised of changes to the Launch Date. The Launch Date will
not be earlier than August 28, 2000. Innofone will use all commercially
reasonable efforts to make the Custom Site available and complete on or before
September 8, 2000.
5.5 OPERATION, MAINTENANCE AND HOSTING
From and after the Launch Date (or on such earlier date as the
Parties may agree), Innofone agrees to operate, maintain and host the Custom
Site, including the links therefrom, in compliance with the terms hereof and
shall use its commercially reasonable efforts to keep the Custom Site available
twenty-four (24) hours a day, seven (7) days a week. Such efforts shall include,
at a minimum, efforts equivalent to those used by Innofone to maintain the
Innofone Site or any other web sites or pages similar to the Custom Site
maintained by Innofone.
5.6 UPGRADES AND UPDATES
(a) Innofone may upgrade or redesign the Innofone Site during the Term of
this Agreement. During the Term of this Agreement, Innofone shall
ensure that upon completion of any upgrade, including upgrades to the
technological infrastructure, the hardware and software and the
content, of the Innofone Site, such upgrade, as is applicable and
consistent with the terms hereof, will also be made at the same time
to the Custom Site, provided that such upgrades do not entail any
additional material expense for Innofone.
(b) At any time during the Term of this Agreement, Innofone shall update
the Custom Site to reflect any change or addition to the Bizsmart
Trade-marks. Innofone shall complete such update within five (5)
Business Days of receipt of a copy of any new or changed Bizsmart
Trade-mark.
5.7 SURVEYS
(a) CIBC may conduct surveys of Bizsmart Customers and may communicate the
results of such surveys to Innofone to the extent they are applicable
to Innofone. Innofone agrees to respond constructively to any such
survey data and make any advisable changes to the Custom Site.
(b) The Bizsmart Site may include e-mail feedback opportunities for
Bizsmart Customers to send messages to Innofone. Innofone acknowledges
and consents to
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CIBC being automatically copied on all such messages addressed to
Innofone. CIBC shall in no way be responsible for responding to any
such messages.
(c) Innofone shall not conduct any customer response surveys of Bizsmart
Customers, without the prior written consent of CIBC.
5.8 REPRESENTATIVES
During the Term of this Agreement, on a quarterly basis, the
Representatives shall meet to discuss, and consult on, the Custom Site. At such
meetings, among other things, the Representatives shall consider:
(a) updating the "look and feel" of the Custom Site;
(b) updating any tools and functions available on the Custom Site;
(c) further integration of the Custom Site and the Bizsmart Site,
including enhanced information exchange and transaction processing;
(d) the sales performance of Innofone through the Custom Site, the
effectiveness of the promotions of the Parties and the Reports;
(e) any feedback or complaints received from Bizsmart Customers;
(f) any issues arising from the performance of the obligations set out in
this ARTICLE FIVE; and
(g) any issues arising from the interpretation of this Agreement and the
conduct of Bizsmart in general.
5.9 COSTS AND EXPENSES
Innofone shall be solely responsible for any costs and expenses
associated with designing, developing, operating, maintaining, hosting and
upgrading the Custom Site as set forth in this Agreement.
ARTICLE SIX
PROMOTION
6.1 PROMOTION
Innofone shall promote Bizsmart on the Custom Site, on the Innofone
Site, and as otherwise set out in SCHEDULE "A" hereto. Innofone shall submit all
promotional materials to CIBC for review and approval prior to distribution.
Innofone shall conduct such promotional efforts at its sole cost and expense
except as otherwise expressly agreed.
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6.2 ADDITIONAL PROMOTION
The Parties may, from time to time, jointly consider additional
promotional endeavours and joint marketing activities to promote the Services to
Bizsmart Customers and Bizsmart to customers of Innofone.
ARTICLE SEVEN
DISCOUNTS AND CONTRIBUTIONS
7.1 DISCOUNTS ON SERVICES
(a) From and after the Launch Date, Innofone shall offer to Bizsmart
Customers through the Custom Site, by telephone or by facsimile the
Services at a discount (the "DISCOUNT") as specified in SCHEDULE "B"
hereto.
(b) Innofone further agrees that the Discount shall be applied *.
(c) Innofone represents and warrants that *.
(d) Innofone agrees to *.
7.2 DISCOUNTS ON NEW SERVICES
Innofone further agrees that, in the event that it introduces any new
Services, Innofone shall offer such new Services on the Custom Site at the
request of CIBC at a Discount and with a Contribution to be negotiated by the
Parties. Innofone shall forthwith, upon their availability, advise CIBC of any
such new Services.
7.3 *
For each sale through the Custom Site or otherwise to a Person who is
a Bizsmart Customer, Innofone shall pay CIBC * as specified in SCHEDULE "B"
hereto. Such * shall be calculated as of *. Upon receipt of payment, *. Late
payments shall bear interest at the *.
7.4 ARRANGEMENTS WITH CIBC
In the event that Innofone negotiates a business arrangement with CIBC
or any department, division or subsidiary thereof (including CIBC VISA) with a
more favourable Discount or Contribution to CIBC than herein, CIBC shall have
the right to substitute the Discount and Contribution herein with such more
favourable Discount or Contribution.
7.5 TARGETING OF BIZSMART CUSTOMERS
Innofone agrees that it will not target any promotion or other
discount to Bizsmart Customers which could have the effect, either directly or
indirectly, of leading Bizsmart Customers to divert purchases or traffic from
the Custom Site.
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ARTICLE EIGHT
CUSTOMERS, DATA AND PRIVACY
8.1 OWNERSHIP OF CUSTOMERS
CIBC "owns" the Bizsmart Customer relationship, meaning that neither
Innofone nor any Supplier or Carrier will promote or market any product (other
than the Program as sponsored by CIBC) to Bizsmart Customers nor will it or they
disclose information about Bizsmart Customers to any third party without prior
approval by CIBC or use information about Bizsmart Customers other than for the
purpose of the Program. Once a Bizsmart Customer enrolls in a Service, however,
Innofone "owns" the Service relationship with the Bizsmart Customer, meaning
that it has the right to provide the Service to the Bizsmart Customer in
compliance with the terms of this Agreement during the Term.
8.2 USE OF CUSTOMER DATA BY INNOFONE
(a) Other than for the purposes of the preparation of the Reports as set
out in ARTICLE NINE hereto, Innofone shall not preserve or maintain
any Customer Data in any manner that permits Innofone to identify or
segregate any customer as a Bizsmart Customer. After the earlier of
the termination of the requirements under SECTION 9.3 hereof and the
termination or expiry of this Agreement, Innofone shall destroy any
and all Customer Data that it has preserved or maintained for the
purposes of the preparation of the Reports as set out in ARTICLE NINE
hereto and shall provide to CIBC a certificate attesting to the
destruction as is satisfactory to CIBC.
(b) To the extent that CIBC provides Innofone, and if necessary, Innofone
provides any of its Suppliers, with any Customer Data in connection
with Innofone's promotional obligations under this Agreement, Innofone
agrees that:
(i) such Customer Data shall be deemed to be the Confidential
Information of CIBC;
(ii) Innofone and any of its Suppliers, if applicable, shall not
disclose such Customer Data in any manner to any Person for any
purpose;
(iii) prior to CIBC providing Innofone, and if necessary, Innofone
providing any of its Suppliers, with any such Customer Data,
Innofone shall facilitate the execution of a direct
confidentiality agreement between CIBC and each Supplier to
which Customer Data may be disclosed in connection with
Innofone's promotional obligations hereunder;
(iv) such Customer Data shall only be used by Innofone and any of its
Suppliers, if applicable, for its promotional efforts as
approved in writing by CIBC; and
(v) upon completion of such approved promotional efforts, Innofone
and any of its Suppliers, if applicable, shall destroy all
Customer Data provided to
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it or them, as applicable, in connection therewith and shall
provide to CIBC a certificate attesting to the destruction as is
satisfactory to CIBC.
8.3 NOTICES AND CONSENTS
Subject to and in accordance with SECTION 8.2 hereof, during the Term
of this Agreement, Innofone shall post terms and conditions, notices and consent
requests on the Custom Site regarding the collection and use of Customer Data.
Innofone shall provide a copy of such notices and consent requests to CIBC for
CIBC's approval prior to the launch of the Custom Site. Innofone shall request
the consent of Bizsmart Customers in connection with the collection and use by
Innofone, and provision to CIBC, of Customer Data. Subject to having received
the required consents, Innofone shall provide to CIBC, on a monthly basis, all
Customer Data, including registration information, that Innofone collects
through the operation of the Custom Site.
8.4 PRIVACY
Innofone shall post its privacy code on the Custom Site and shall
abide by such privacy code and comply with any other applicable privacy laws,
rules, regulations and guidelines in all dealings relating to Bizsmart and the
Custom Site. Attached hereto as SCHEDULE "C" is a copy of Innofone's current
privacy code. Innofone represents and warrants that its privacy code, as it is
amended from time to time, shall continue to provide equivalent or better
protection as the code set out in SCHEDULE "C" hereto.
ARTICLE NINE
REPORTS, RECORDS AND INSPECTION
9.1 CONTRIBUTION REPORTS AND PAYMENT
Within twenty (20) Business Days of the end of each calendar quarter
during the Term, Innofone shall deliver to CIBC a written report setting forth
the calculations for the aggregate Contributions for such calendar quarter,
together with payment of the aggregate Contributions due, if any, to CIBC for
such calendar quarter, in accordance with SECTION Error! Reference source not
found. hereof.
9.2 OTHER REPORTS
Innofone shall, at its sole expense, provide to CIBC monthly reports
regarding usage for the Custom Site, with such information to be reported
separately for: (i) existing Bizsmart Customers collectively, and (ii) new
Bizsmart Customers only, as applicable, including without limitation:
(a) the number of Bizsmart Customers who have "clicked through" to the
Custom Site, including usage pattern by time of day, how many page
views occur during each such visit and the average duration of each
such visit;
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(b) the average number of transactions completed per visit, the
transactions completed by each Bizsmart Customer, including the names
and addresses of such Bizsmart Customers, and the aggregate number of
transactions completed;
(c) information regarding each new Bizsmart Customer registered including
name and address, and ongoing monthly reporting on each individual
Bizsmart Customer's service usage (i.e. call volumes and charges),
including the Bizsmart Customer's name and address;
(d) the number of page views in the aggregate;
(e) the up-time experience for the Custom Site;
(f) a log of any complaints received from any Person; and
(g) such other information as the Parties may agree.
9.3 RECORDS AND INSPECTION
During the Term of this Agreement and for a two (2) year period
thereafter, Innofone shall maintain complete and accurate records of all
information relating to the reports referred to in SECTIONS 9.1 and 9.2 hereof
(collectively, the "REPORTS") and the fund referred to in SECTION 4.11 hereof.
During the Term of this Agreement and for a two (2) year period thereafter, CIBC
shall have the right, upon reasonable written notice, to have its
representatives inspect such records during business hours for purposes of
verifying the Reports, the fund referred to in SECTION 4.11 hereof and
compliance with the terms of this Agreement. In the event that any inspection by
CIBC discloses that payments made by Innofone were less than the amounts due to
CIBC pursuant to this Agreement, then Innofone shall immediately pay the
difference between the payments made and the amounts due. In the event that the
payments made by Innofone were less than the amounts due to CIBC pursuant to
this Agreement by five percent (5%) or more, Innofone shall also reimburse CIBC
for the reasonable cost of its inspection.
9.4 CONFIDENTIALITY OF THE REPORTS
Notwithstanding any of the provisions contained in this Agreement,
during the Term of this Agreement and thereafter, the Reports shall be deemed to
be the Confidential Information of CIBC and for the purposes of this Agreement,
CIBC shall be deemed to be the Disclosing Party and Innofone shall be deemed to
be the Receiving Party of the Reports.
ARTICLE TEN
TRADEMARKS
10.1 GRANT AND TERM
Subject to the provisions of this Agreement:
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(a) Innofone hereby grants to CIBC a royalty-free, non-transferable,
personal, non-exclusive right, licence and privilege to use the
Trade-marks of Innofone set out in SCHEDULE "D" (the "INNOFONE
TRADE-MARKS") solely in connection with CIBC's participation in and
promotion of Bizsmart for the Term;
(b) CIBC hereby grants to Innofone a royalty-free, non-transferable,
personal, non-exclusive right, licence and privilege to use the
Trade-marks of Bizsmart set out in SCHEDULE "E" (the "BIZSMART
TRADE-MARKS") solely in connection with Innofone's participation in
and promotion of Bizsmart for the Term; and
(c) CIBC and Innofone may update their respective trade-mark Schedule from
time to time by delivering a revised Schedule to the other Party in
accordance with the provision of SECTION 19.6, and any such updated
Schedule shall be treated as the applicable Schedule hereunder.
10.2 RESTRICTION ON GRANTS OF LICENCES
Any use or display whatsoever by any Party of a Trade-mark Owner's
Trade-marks shall require the prior written consent and approval of the
Trade-mark Owner, which may be unreasonably withheld.
10.3 QUALITY CONTROL
The Parties agree that a Party who uses (a "USING PARTY") the
Trade-marks of another Party (a "TRADE-MARK OWNER") shall only use the
Trade-mark Owner's Trade-marks in association with the marketing and promotion
of Bizsmart, and in a manner which is in compliance with the policies,
procedures, standards and specifications set by the Trade-mark Owner and
communicated to the Using Party from time to time. Attached hereto as SCHEDULE
"F" are the guidelines for the use of the Bizsmart Trade-marks, which may be
amended by CIBC from time to time. Innofone agrees that any use by it of the
Bizsmart Trade-marks shall be subject to, and in accordance with, such
guidelines, as well as the terms of this Agreement.
10.4 USE
The Parties agree:
(a) that a Using Party acquires no right, title or interest in the other
Party's Trade-marks and any and all goodwill associated with a
Trade-mark Owner's Trade-marks shall enure exclusively to the benefit
of that Trade-mark Owner. A Using Party shall not in any manner
represent that it has any ownership interest in the other Party's
Trade-marks or applications or registrations thereof;
(b) not, during the Term of this Agreement or after termination or expiry
of same, to dispute or contest for any reason whatsoever, directly or
indirectly, the validity, ownership or enforceability of the other
Party's Trade-marks, nor directly or indirectly to attempt to dilute
the value of the goodwill attaching to the other Party's Trade-marks,
nor counsel, procure or assist anyone else to do any of such acts, nor
directly or indirectly oppose any application by a Party to register
that
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Party's Trade-marks in Canada, the United States or elsewhere for any
wares or services or any application to extend any registration for
that Party's Trade-marks;
(c) not, during the Term of this Agreement or after termination or expiry
of same, to use or advertise any trade-mark or trade-name which is, or
any part of which is, confusing with the other Party's Trade-marks;
(d) not, without the prior written consent of the other Party, to use any
of the other Party's Trade-marks as part of its business, trade,
corporate, partnership or other name or to permit the use of any of
the other Party's Trade-marks as part of the business, trade,
corporate, partnership or other name of any business, corporation,
partnership or other legal entity related to it or in which it has a
direct or indirect interest;
(e) not to use any word or symbol or combination thereof including any
other trade-mark or business, trade, corporate, partnership or other
name in close association with the other Party's Trade-marks or use
the other Party's Trade-marks as a verb or in the plural or in any
manner which results in the other Party's Trade-marks being
incorrectly spelled and/or depicted; and
(f) to use or display the other Party's Trade-marks only in the manner and
form approved and prescribed by such other Party and in accordance
with the standards and specifications of such other Party as
reasonably directed by such other Party and will not make any addition
to, deletion from, or other modification to the designs attached in
the applicable Schedule without the prior written consent of such
other Party.
10.5 INFRINGEMENT BY UNAUTHORIZED PERSONS
A Using Party agrees to use its best efforts to promptly notify a
Trade-mark Owner of any conflicting use or any act of infringement or passing
off which comes to its attention involving the Trade-mark Owner's Trade-marks or
any variation or imitation thereof by unauthorized Persons. A Trade-mark Owner
may, but need not, bring proceedings and take such action as it may deem
appropriate to terminate such improper use by unauthorized Persons. If the
Trade-mark Owner does take any such action or proceedings, the Using Party shall
cooperate with the Trade-mark Owner, at the expense of the Trade-mark Owner, in
such action. The Trade-mark Owner may in its sole discretion settle any dispute
with any third party at any time regarding such unauthorized uses on behalf of
the Trade-mark Owner and the Using Party without notice or compensation to the
Using Party. The Parties waive the provisions of section 50(3) of the
TRADE-MARKS ACT.
10.6 NOTICE OF USE
Each Party agrees to display any and all such notices in respect of
the use of Trade-marks as any Trade-mark Owner may reasonably request, including
notices indicating that such marks are used under licence or are registered in
the name of the Trade-mark Owner.
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10.7 OWNERSHIP
Each Party agrees that it has no ownership interest and no right other
than as expressly set out herein in any Trade-mark of the other Party and that
except as expressly set out herein all rights into the Trade-marks are expressly
reserved by each Party.
10.8 OBLIGATIONS ON TERMINATION
Upon the proper termination or expiry of this Agreement for any reason
whatsoever, each Party shall:
(a) immediately cease to use in any manner whatsoever the Trade-marks or
any name or mark similar to the Trade-marks; and
(b) remove the Trade-marks from, or deliver up to the Trade-mark Owner or
its duly authorized representatives, all materials including
documents, signs and advertising materials and any and all other
materials in its possession, custody or control upon which Trade-mark
Owner's Trade-marks appear, except as may be reasonably required for
archival purposes or as otherwise agreed to by the applicable
Trade-mark Owner. If a Using Party has paid a Trade-mark Owner for any
such materials such Trade-mark Owner shall repurchase such materials
at cost. Otherwise, such materials shall be delivered up to such
Trade-mark Owner without charge.
ARTICLE ELEVEN
OTHER BUSINESS TERMS
11.1 EXCLUSIVITY
(a) Provided that Innofone and the Card Issuing division of CIBC execute a
memorandum of understanding and a definitive agreement in connection
with the provision by Innofone of a program to the Card Issuing
division of CIBC, during the Term of this Agreement and for a period
of * thereafter (regardless of how this Agreement is terminated),
Innofone shall not (without CIBC's prior written consent) directly or
indirectly: *
(b) After the * period referred to in subsection (a) hereof, Innofone may
*.
ARTICLE TWELVE
NON-COMPETITION
12.1 DURING THE AGREEMENT
During the Term of this Agreement, Innofone and its Subsidiaries and
Affiliates shall not: *
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12.2 FOLLOWING THE AGREEMENT
For a period of * after the expiry or termination of this Agreement,
other than termination by CIBC pursuant to SECTION 16.2(a)(iii) hereof, Innofone
and its Subsidiaries and Affiliates shall not: *
12.3 FINANCIAL PRODUCTS AND/OR SERVICES
During the Term of this Agreement, if Innofone proposes to engage in,
or license the Innofone Trade-marks in connection with, the provision of any
type of financial products and/or services either solely or with another
financial products and/or services provider, in any manner, other than in the
Province of Quebec, Innofone hereby agrees to consult with CIBC and hereby
grants CIBC a first right of negotiation in connection therewith. Innofone shall
provide notice to CIBC in writing of such opportunity. CIBC shall have five (5)
Business Days to respond to such notice and to exercise such first right of
negotiation. CIBC shall be provided with a commercially reasonable period of
time to prepare for and engage in such negotiations with Innofone and Innofone
shall conduct such negotiations in good faith. Innofone shall not conduct any
negotiations with third parties relating to such matter for a period of thirty
(30) Business Days from the date of such notice.
12.4 E-COMMERCE INITIATIVES
During the Term of this Agreement, if Innofone proposes to engage in
any e-commerce initiatives that require payment processing features, other than
in the Province of Quebec, Innofone hereby agrees to consult with CIBC and
hereby grants CIBC a first right of negotiation for the provision of such
features. Innofone shall provide notice to CIBC in writing of such opportunity.
CIBC shall have five (5) Business Days to respond to such notice and to exercise
such first right of negotiation. CIBC shall be provided with a commercially
reasonable period of time to prepare for and engage in such negotiations with
Innofone and Innofone shall conduct such negotiations in good faith. Innofone
shall not conduct any negotiations with third parties relating to such matter
for a period of thirty (30) Business Days from the date of such notice.
ARTICLE THIRTEEN
REPRESENTATIONS AND WARRANTIES
13.1 BY INNOFONE
Innofone represents and warrants to CIBC, as of the Effective Date,
and acknowledges that CIBC is relying thereon, that:
(a) it is a corporation, duly organized, validly existing and in good
standing under the laws of Canada;
(b) it has the capability, including the financial resources, to (i)
provide the Services outlined in this Agreement and in particular, it
has the necessary skills, experience and personnel for program
development, marketing and communications and for
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securing and administering its Supplier and Carrier relationships for
the execution of programs such as the Program and (ii) to fulfil its
obligations outlined in this Agreement;
(c) it has obtained all licences and permits necessary and/or advisable by
law or regulation to enable it to act as a reseller of, and to
otherwise provide, the Services and it is carrying and will continue
to carry on its business and conduct the Program in accordance with
all applicable laws, regulations, guidelines, policies and
administrative rulings;
(d) it has entered into agreements in writing with the following Suppliers
for the Program:
(i) Affiliated Computer Services Inc. for billing, rating/comparing,
statement printing and mailing, systems and systems integration;
(ii) Les Services Marketing Equinox (90249574 Quebec Inc.) for call
centre requirements for Bizsmart Customer enrolment and
servicing; and
(iii) Watts Distribution Ltd.: for the preparation and provision of
welcome kits and phones for the cellular/PCS Service;
(e) it has entered into agreements in writing with the following
Carriers for the Program:
(i) Rogers AT&T for cellular/PCS;
(ii) Sprint for long distance; and
(iii) Bell Canada, for calling cards;
(f) it is and will be the legal and beneficial owner or authorized
licensee of all Intellectual Property Rights in the content contained
in the Custom Site (other than content provided by CIBC);
(g) the Custom Site is not and will not, nor will any web site to which
its posts a direct link (i.e. one click away): (i) be libelous,
slanderous, defamatory, obscene, pornographic, abusive, or otherwise
unlawful; (ii) give rise to civil liability; (iii) constitute or
encourage conduct that would constitute a criminal offence; or (iv)
otherwise fail to comply with any applicable laws, rules, regulations
or court orders;
(h) the Custom Site will not infringe upon any of the Intellectual
Property Rights or Moral Rights of any Person or otherwise breach any
other rights (including any personality, confidentiality, privacy,
equitable or statutory rights whatsoever) of any Person;
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(i) it will abide by the design specifications provided by CIBC to
Innofone as set out in SCHEDULE "I" hereto; and
(j) the Custom Site will embody and continue to adopt all reasonable
security features and monitoring procedures to limit hacker incursion
and the propagation of viruses and to ensure the integrity and
security of all transactions and information collected.
13.2 BY CIBC
CIBC represents and warrants to Innofone as of the Effective Date, and
acknowledges that Innofone is relying thereon, that:
(a) it is a bank chartered under the BANK ACT (Canada) and is duly
organized, validly existing and in good standing under the laws of
Canada;
(b) it is and will be the legal and beneficial owner or authorized
licensee of all Intellectual Property Rights in the content contained
in the Bizsmart Site;
(c) the Bizsmart Site is not and will not, nor will any web site to which
it posts a direct link (i.e. one click away): (i) be libelous,
slanderous, defamatory, obscene, pornographic, abusive, or otherwise
unlawful; (ii) give rise to civil liability; (iii) constitute or
encourage conduct that would constitute a criminal offence; or (iv)
otherwise fail to comply with any applicable laws, rules, regulations
or court orders; and
(d) the Bizsmart Site will not infringe upon any of the Intellectual
Property Rights or Moral Rights of any Person or otherwise breach any
other rights (including any personality, confidentiality, privacy,
equitable or statutory rights whatsoever) of any Person.
13.3 CORPORATE AND OTHER WARRANTIES BY EACH PARTY
Each Party represents and warrants to the other Party as of the
Effective Date, and acknowledges that the other Party is relying thereon, that:
(a) it has full power, legal right and authority to enter into this
Agreement, and to do all acts and things and execute and deliver all
other documents as are required hereunder to be done, observed or
performed by it in accordance with its terms and it has taken all
necessary corporate action to authorize the execution, delivery and
performance of this Agreement, and to observe and perform the
provisions of this Agreement in accordance with its terms;
(b) this Agreement constitutes a valid and legally binding obligation of
the Party, enforceable against it in accordance with its terms,
subject only to applicable bankruptcy, insolvency and other similar
laws affecting the enforceability of the rights of creditors
generally, the general principles of equity and that equitable
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remedies such as specific performance and injunction are available
only in the discretion of a court; and
(c) none of the authorization, creation, execution or delivery of this
Agreement, nor compliance with or performance of the terms and
conditions of this Agreement has resulted or will result in a breach
of, or constitute a default under any agreement, undertaking or
instrument to which the Party is a party or by which it or its
property or assets is bound.
13.4 NO FURTHER WARRANTIES
The warranties by the Parties set out in this Agreement are in lieu of
all other warranties or conditions, express or implied, including the implied
warranties or conditions of merchantability, merchantable quality, fitness for a
particular purpose, and infringement and those arising by statute or otherwise
in law or from the course of dealing or usage of trade.
ARTICLE FOURTEEN
CONFIDENTIALITY
14.1 CONFIDENTIAL INFORMATION
Each Party shall use the Confidential Information of the other Party
only for the purposes contemplated by this Agreement. A Receiving Party shall
use reasonable efforts, not less rigorous than it uses with respect to its own
similar confidential information, to ensure that the Confidential Information of
the Disclosing Party is not disclosed, published, released, transferred or
otherwise made available in any form to, for the use or benefit of, any Person
except as provided in this ARTICLE FOURTEEN, without such Disclosing Party's
written consent, which may be unreasonably withheld. A Receiving Party shall,
however, be permitted to disclose relevant aspects of a Disclosing Party's
Confidential Information to its officers and employees and to the officers and
employees of its Affiliates, to the extent that such disclosure is reasonably
necessary for the performance of its duties and obligations under this
Agreement; provided, however, that such Party shall take all reasonable
measures, which measures shall be at least as rigorous as those it uses with
respect to its own similar confidential information, to ensure that Confidential
Information of the other Party is not disclosed in contravention of the
provisions of this Agreement. A Receiving Party shall also be permitted to
disclose relevant aspects of a Disclosing Party's Confidential Information to
its professional advisors, sub-contractors, suppliers and agents on such terms
which are reasonable considering the sensitivity of the Confidential
Information, legal requirements and the identity of the disclosee, which terms
shall at least include the requirements set out in this SECTION 14.1, provided
that no Receiving Party shall disclose Confidential Information of a Disclosing
Party to any Person who is a competitor of the Disclosing Party or the
Affiliates of any such competitor. The obligations in this ARTICLE FOURTEEN
shall not restrict any disclosure by any Party pursuant to:
(a) any applicable law;
(b) by order of any court of competent jurisdiction or government agency
provided that the Receiving Party has first given reasonable notice
under the circumstances
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to allow the Disclosing Party to intervene in the relevant proceeding,
to close such proceedings to all Persons other than the parties
thereto or otherwise retain the confidentiality of the Confidential
Information, and the Disclosing Party has otherwise provided all
reasonably requested co-operation in connection therewith;
(c) to banking regulators in connection with their investigative and audit
functions;
(d) disclosure as is required as part of the dispute resolution process
contemplated under this Agreement;
(e) disclosure as is required in the course of judicial proceedings to
enforce rights and/or remedies under this Agreement;
(f) in respect of Innofone, the disclosure of this Agreement to its parent
corporation, Innofone.Com Incorporated for the purpose of permitting
Innofone.Com Incorporated to disclose to and file with the United
States Securities Exchange Commission (the "SEC") or other
governmental authority this Agreement and its contents if required by
and in compliance with applicable law, so long as Innofone.Com
Incorporated uses its reasonable best efforts to cause the SEC or
other governmental authority to seal or redact this Agreement or
portions thereof identified by CIBC such that this Agreement or such
portions are not available to, disclosed to or disseminated to the
public for review;
provided that the Disclosing Party shall endeavour to give prompt notice to the
Receiving Party of any such requirement to disclose; and provided that, in the
case of subsection (d), (e) and (f) above, the Receiving Party takes all steps
reasonable in the circumstances to preserve the confidentiality of such
Confidential Information; and provided further that the obligation in this
ARTICLE FOURTEEN shall not apply with respect to information that:
(g) is independently developed by the Receiving Party without use of the
Confidential Information of the Disclosing Party; or
(h) becomes part of the public domain (other than through unauthorized
disclosure by the Receiving Party).
14.2 CONFIDENTIALITY OBLIGATIONS OF INNOFONE
For greater certainty, Innofone shall not disclose
Confidential Information to any provider of financial products or services to
Canadians and any Affiliate or agent thereof or another Participant.
14.3 INJUNCTIVE RELIEF
A Receiving Party recognizes that its disclosure of Confidential
Information of the Disclosing Party may give rise to irreparable injury to the
other Party and acknowledges that remedies other than injunctive relief may not
be adequate. Accordingly, each Party has the right to seek an equitable and
injunctive remedy on an interim and interlocutory basis in the Ontario Superior
Court of Justice without complying with the dispute resolution procedures
described in
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ARTICLE FIFTEEN to prevent the unauthorized possession, use, or disclosure of
any Confidential Information.
14.4 LEGAL ACTION
No Party shall commence any legal action or proceeding solely in
respect of any unauthorized possession, disclosure or use, or attempt thereof,
of another Party's Confidential Information by any Person which action or
proceeding directly or indirectly identifies such Party or its Confidential
Information without such Party's consent.
14.5 EXEMPTION
Notwithstanding this ARTICLE FOURTEEN or any other provision of this
Agreement, the Parties may refer generally to the existence of this Agreement
and the type of commercial relationships created hereby, provided that no
disclosure of specific terms is made to any non-Affiliated third Person. The
Parties may also disclose the specific terms of this Agreement for due diligence
purposes in connection with significant transactions involving the Receiving
Party, such as acquisitions or financings, but not service contracts, to other
potential parties to such transactions or their professional advisors, provided
that such other parties: (i) shall not be permitted to retain any copies of this
Agreement or to disclose such information to any other Person; (ii) shall not be
competitors of the other Party hereto or its Affiliates; (iii) shall not be a
provider of financial products or services to Canadians and any Affiliate or
agent thereof or a Participant; and (iv) shall enter into a confidentiality
agreement acceptable to the Receiving Party, acting reasonably, the terms of
which shall be at least as stringent as the provisions of this ARTICLE FOURTEEN.
In addition, CIBC may re-use the text of this Agreement as a precedent or
template, provided that all reasonable steps are taken to remove any information
from such material that could reasonably be expected to be commercially
sensitive to Innofone or that would allow another Person to conclude that such
material originated from the relationship between the Parties.
14.6 CONFLICTS
In the event a conflict or inconsistency between this ARTICLE FOURTEEN
and the provisions of ARTICLE TEN (Trade-marks), the provisions of ARTICLE TEN
will prevail but only to the extent of the conflict or inconsistency.
14.7 TERMINATION
Subject to the terms herein, upon the expiry or termination of this
Agreement each Party forthwith shall return any Confidential Information of the
other Party in its possession or, at such other Party's request, destroy such
Confidential Information and provide a certificate attesting to the destruction
as is satisfactory to such Party.
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ARTICLE FIFTEEN
DISPUTE RESOLUTION
15.1 DISPUTES
Any dispute between CIBC and Innofone relating to this Agreement or
the matters contemplated hereunder (a "DISPUTE") shall be resolved in accordance
with the provisions of this ARTICLE FIFTEEN.
15.2 REPRESENTATIVES
Any Dispute shall initially be referred by either Party to the
Representatives. If the Representatives are unable to resolve the Dispute within
ten (10) Business Days after referral of the matter to them, the Dispute shall
be referred for resolution in accordance with SECTION 15.3.
15.3 EXECUTIVES
In the event that a Dispute cannot be resolved pursuant to SECTIONS
15.2, the Dispute shall be referred to a meeting of the Senior Vice-President,
Small Business Banking or the equivalent thereof at CIBC and the Chief Executive
Officer or the equivalent thereof at Innofone with the Representatives for
resolution. If such individuals are unable to resolve the dispute within five
(5) Business Days after referral of the matter to them, the Dispute shall be
referred for resolution in accordance with SECTION 15.4, unless another interim
process is mutually agreed upon by the Parties.
15.4 RESOLUTION OF UNRESOLVED DISPUTES
If any Dispute is not resolved pursuant to SECTION 15.3, any Party
may, within thirty (30) Business Days after the completion of the procedures set
forth in SECTION 15.3, initiate dispute resolution proceedings in accordance
with SCHEDULE "G" or the proceedings contemplated under SECTION 15.9, as
applicable.
15.5 CRITICAL DISPUTES
In the event any Party determines that the circumstances relating to a
Dispute are having, or potentially will have a material, adverse effect on the
applicable business of such Party, then such Party may provide notice thereof to
the other Party. Upon delivery of such notice, the Dispute, if it is not already
being considered or has not been considered pursuant to SECTION 15.2, will be
considered not later than five (5) Business Days from the date of such notice.
If such individuals are unable to resolve the Dispute within two (2) Business
Days, then the Dispute shall be referred for resolution in accordance with
SECTION 15.3 and, if necessary, in accordance with SECTION 15.4, provided that
the five (5) Business Day time period specified in SECTION 15.3 shall be reduced
to two (2) Business Days.
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15.6 CONTINUITY OF OPERATION
Innofone acknowledges that the provision of the Custom Site under this
Agreement is important to the business and operation of Bizsmart. Accordingly,
in the event of any Dispute hereunder, Innofone shall continue to provide the
Custom Site in accordance with and subject to the terms hereof, pending
determination of the Dispute by private dispute resolution or litigation as
provided for by SECTIONS 15.4 and 15.9, as applicable.
15.7 EQUITABLE REMEDIES
For greater certainty, nothing in this ARTICLE FIFTEEN or SCHEDULE "G"
shall delay or prevent any Party from taking, or require any Party to take, any
steps prior to taking action to seek an interim and interlocutory equitable
remedy in the Ontario Superior Court of Justice, on notice or EX PARTE, to
enforce any provision herein to protect Intellectual Property Rights or other
Confidential Information, or to require the specific performance of functions
critical to the business of the Party seeking such remedy.
15.8 CONFIDENTIALITY
The Parties agree that the existence of any Dispute being resolved
under this ARTICLE FIFTEEN and any steps or proceedings taken by the Parties in
connection therewith shall be deemed to be Confidential Information of the
Parties for the purposes of ARTICLE FOURTEEN, except to the extent that
disclosure of such information is necessary in connection with proceedings
instituted in the Ontario Superior Court of Justice in accordance with SECTIONS
15.7 or 15.9. With respect to any proceedings initiated pursuant to SECTION 15.9
or proceedings to obtain an equitable remedy as contemplated under SECTION 15.7,
the Parties shall take all reasonable steps to minimize public disclosure of the
nature of the Dispute.
15.9 TYPES OF DISPUTE EXCLUDED FROM PRIVATE DISPUTE RESOLUTION
A proceeding for adjudication of a Dispute may be commenced in the
Ontario Superior Court of Justice instead of the private dispute procedures set
out in SCHEDULE "G" if the Dispute specifically relates to the ownership,
validity or infringement of Intellectual Property Rights, breach of
confidentiality, use of intellectual property not in accordance with the terms
of a license or right to use any intellectual property, including any Dispute
relating to an intellectual property warranty or indemnity provided by a Party
(an "EXCLUDED DISPUTE"). Notwithstanding the foregoing, where a proceeding is
commenced in the Ontario Superior Court of Justice as permitted by this SECTION
15.9 and a pleading delivered by a Party in such proceeding contains a claim or
claims that do not relate to an Excluded Dispute, such claim or claims shall,
upon application by a Party to the Ontario Superior Court of Justice, be stayed
without prejudice to the right of the Party asserting the claim or claims to
seek resolution thereof through private dispute resolution in accordance with
SCHEDULE "G", provided that such claim or claims can be tried separately and
such stay does not materially increase costs (over the costs normally associated
with two separate proceedings) or create prejudice to the Party bringing the
claim. Any such claim or claims that cannot be separately adjudicated from the
claim or claims relating to an Excluded Dispute shall be adjudicated by the
Ontario Superior Court of Justice. For further certainty, where any Dispute
involves a claim for breach of contract under this Agreement and a
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claim relating to an Excluded Dispute, then the claim for breach of contract
shall be resolved through private dispute resolution in accordance with SCHEDULE
"G" and the claim relating to the Excluded Dispute shall be adjudicated by the
Ontario Superior Court of Justice.
15.10 DISPUTE CONCERNING RIGHT OF TERMINATION
Any Dispute relating to a Party's exercise of its right to terminate
this Agreement, including the validity of such exercise but excluding any
Excluded Disputes, shall be adjudicated by private dispute resolution in
accordance with SCHEDULE "G" without recourse having first been made to the
procedures set forth in SECTIONS 15.2 and 15.3 and the adjudication of such
Dispute shall not be a prerequisite to termination of this Agreement.
15.11 DISPUTES ARISING FROM THE APPLICATION AND INTERPRETATION OF THIS
AGREEMENT
If a Dispute arises concerning the application and/or interpretation
of this Agreement, including an issue as to whether a Dispute is of a type
excluded from private dispute resolution by virtue of SECTION 15.9 above, such
Dispute shall be resolved through submission of the Dispute to private dispute
resolution in accordance with SCHEDULE "G". For further certainty, however,
nothing in this SECTION 15.11 shall delay or prevent any Party from seeking any
interim or interlocutory equitable remedies in the Ontario Superior Court of
Justice as contemplated under SECTION 15.7.
ARTICLE SIXTEEN
TERMINATION
16.1 TERMINATION BY INNOFONE
Innofone may, at its option, terminate this Agreement:
(a) on at least ten (10) Business Days notice for an Event of Default by
CIBC under this Agreement; or
(b) forthwith upon the occurrence of a CIBC Termination Event.
16.2 TERMINATION BY CIBC
CIBC may, at its option, terminate this Agreement:
(a) on at least ten (10) Business Days notice:
(i) for an Event of Default by Innofone under this Agreement;
(ii) in the event that CIBC's agreement with a Kiosk Host is
terminated or a significant number of Kiosks become
unavailable or access thereto becomes restricted or
problematic;
(iii) in the event that CIBC decides to cease the operation of
Bizsmart for any other reason; or
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(iv) in the event that any other agreement between CIBC and Innofone,
its Subsidiaries or its Affiliates is terminated by CIBC as a
result of a default (the notice and cure periods respecting
which, if any, have expired) by Innofone under such agreement;
or
(b) forthwith upon the occurrence of:
(i) an Innofone Termination Event; or
(ii) CIBC is required by banking regulators to either (A) cease or
(B) substantially modify the operation of Bizsmart in such a way
which materially adversely affects CIBC or Innofone's
participation in Bizsmart; or
(c) after six (6) months from the Launch Date upon thirty (30) days prior
written notice; provided that CIBC shall refund Innofone 50% of the
Contributions received by CIBC during the 12-month period (or part
thereof) preceding the date on which notice of such termination is
given by CIBC.
16.3 TERMINATION BY EITHER PARTY
Either Party may, at its option, terminate this Agreement after * from
the Launch Date upon * provided that:
(a) *; and
(b) *.
16.4 TERMINATION ON TRANSFER OF CONTROL OF INNOFONE
During the Term of this Agreement, Innofone shall give CIBC prior
notice of any planned or proposed sale of the majority of the common shares in
the capital of Innofone. Notice must be given at least ninety (90) Business Days
prior to the closing date for such sale. No later than sixty (60) Business Days
after receipt of such notice, CIBC may, at its option, elect to terminate this
Agreement effective on a date to be selected by CIBC (but which will not be
earlier than the closing date for such sale) if CIBC determines (acting
reasonably) that:
(a) such acquisition of control could result in Innofone no longer being
able to ensure service excellence in the delivery of the Program or
could otherwise have a material adverse effect on Innofone's ability
to fulfil its obligations hereunder; or
(b) such acquisition of control could pose a competitive threat to CIBC,
in that such shares are to be acquired by a competitor of CIBC, by an
Affiliate of CIBC or by a provider of financial products or services
to Canadians or an Affiliate or agent thereof.
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CIBC acknowledges that Innofone has granted Rogers AT&T Wireless a
first right to acquire control of Innofone, however, any acquisition of control
of Innofone by Rogers AT&T Wireless will be subject to the terms of this
Agreement.
16.5 NOTICE OF TERMINATION
Any termination hereof shall be by written notice of the terminating
Party to the other Party. Such notice shall state the basis on which termination
may occur pursuant to SECTION 16.1 or 16.2, as the case may be.
16.6 LIABILITY CONTINUES
Notwithstanding the termination of this Agreement, whether as a result
of a Default or otherwise, each Party shall remain liable to the other in
accordance with the provisions hereof for any breach or Default arising
hereunder prior to such termination.
16.7 SURVIVAL
The following Articles and Sections shall survive the termination of
this Agreement: SECTION 8.2, SECTION 9.1, SECTION 9.3, SECTION 10.4, SECTION
10.7, SECTION 10.8, SECTION 12.2, SECTION 13.1(h), SECTION 13.2(d), ARTICLE
FOURTEEN, ARTICLE FIFTEEN, SECTION 16.6, ARTICLE SEVENTEEN and ARTICLE NINETEEN.
16.8 EQUITABLE RELIEF
Each Party acknowledges that damages will be an inadequate remedy for
a breach of this Agreement and agrees that the other shall be entitled to
equitable relief, including such injunction or injunctions as may be required to
prevent any breach or further breach of any provision of this Agreement and may
specifically enforce such provisions by an action instituted in any court having
jurisdiction. Each Party covenants and agrees not to contest the availability to
the other of such injunctive relief on any grounds and waives any and all
immunities from injunctive relief to which it may be entitled.
ARTICLE SEVENTEEN
INDEMNIFICATION
17.1 INDEMNIFICATION BY INNOFONE
Innofone shall indemnify CIBC and its respective officers and
directors from any losses, liabilities and damages (including taxes and related
penalties) and all related costs and expenses, including reasonable legal fees
on a solicitor and client basis, and expenses and costs of litigation,
settlement, judgment, appeal, interest and penalties ("LOSSES") arising out of
or relating to any claim:
(a) relating to the use of the Custom Site or in any way arising from the
Custom Site, including the purchase or use of any Services, liability
for any warranty or guarantee made in connection therewith and
anything incidental to any such commercial dealings;
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(b) by any third party for payment of services they allege they provided
under the Program;
(c) for the personal and bodily injury or damage to tangible personal
property received or sustained by reason of any act or omission,
whether negligent or otherwise, to the extent caused by Innofone or
any product or service of Innofone;
(d) that the Custom Site or any portion thereof infringes any Intellectual
Property Rights or Moral Rights of any Person;
(e) for any tortious or negligent acts committed by Innofone; and
(f) for a breach of this Agreement by Innofone, including a breach of any
representation and warranty by Innofone.
17.2 INDEMNIFICATION BY CIBC
CIBC shall indemnify Innofone and its respective officers and
directors from any Losses arising out of or relating to any claim:
(a) relating to the use of the Bizsmart Site or in any way arising from
the Bizsmart Site;
(b) for the personal and bodily injury or damage to tangible personal
property received or sustained by reason of any act or omission,
whether negligent or otherwise, to the extent caused by CIBC or any
product or service of CIBC;
(c) that the Bizsmart Site or any portion thereof infringes any
Intellectual Property Rights or Moral Rights of any Person;
(d) for any tortious or negligent acts committed by CIBC; and
(e) for a breach of this Agreement by CIBC, including a breach of any
representation and warranty by CIBC.
17.3 INDEMNIFICATION PROCEDURES
If any third party makes a claim covered by SECTIONS 17.1 or 17.2
against any indemnitee hereunder (an "INDEMNITEE") with respect to which such
Indemnitee intends to seek indemnification under SECTIONS 17.1 or 17.2, such
Indemnitee shall give prompt written notice of such claim to the indemnifying
Party as soon as practicable including a brief description of the amount and
basis therefor, if known. Each Party shall cooperate fully with the other Party
in its defence against any such claim.
17.4 CONTRIBUTION
Notwithstanding anything to the contrary contained in this Agreement,
each Party shall contribute to amounts paid or payable as a result of any Losses
for which indemnity is
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provided in SECTIONS 17.1 or 17.2 in such proportion as is appropriate to
reflect the relative fault of each Party in connection with actions or omissions
which resulted in such Losses.
17.5 INSURANCE
Innofone will obtain and maintain comprehensive general liability
insurance with respect to its business with a policy limit not less than $2
million per occurrence. This insurance will include riders for employee
fidelity, business interruption and contractual liability, all on a per
occurrence basis. The policy will include CIBC as an additional named insured.
Innofone will furnish to CIBC annually a certificate of insurance evidencing the
renewal of this coverage. Each certificate of insurance will contain a
stipulation that coverage will not be cancelled, reduced, or permitted to lapse
without less than 30 days prior written notice to CIBC by the insurer.
ARTICLE EIGHTEEN
DEFAULTS, TERMINATION EVENTS AND REMEDIES
18.1 DEFAULT BY INNOFONE
The occurrence of any one or more of the following events shall
constitute a Default by Innofone under this Agreement but shall not be
considered an Event of Default unless such Default is not remedied prior to the
expiry of the relevant notice period (if any) and the relevant cure period (if
any) applicable to such Default as hereinafter set out:
(a) if Innofone defaults in the payment of any amount due to CIBC under
this Agreement and such default shall continue unremedied for thirty
(30) Business Days following notice thereof to Innofone by CIBC;
(b) if any representation or warranty made by Innofone in this Agreement
or in any document or certificate required to be given pursuant to
this Agreement shall prove to have been incorrect in any material
respect when made and such incorrect representation or warranty if
capable of being remedied by Innofone, has not been remedied within
thirty (30) Business Days following notice thereof (giving particulars
of the incorrect representation or warranty in reasonable detail) from
CIBC to Innofone;
(c) if Innofone fails, in any material respect, to perform or observe any
of its material obligations under this Agreement and such failure
shall continue unremedied for a period of thirty (30) Business Days
following notice thereof (giving particulars of the failure in
reasonable detail) from CIBC to Innofone;
(d) if there is a change in the financial condition, business or affairs
of Innofone which has a material and adverse effect on the ability of
Innofone to meet its obligations under this Agreement; and
(e) if Innofone is the subject of publicity which materially negatively
affects Innofone's goodwill thereby threatening the goodwill of
Bizsmart in CIBC's sole
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judgment or in the event that customers of Innofone seek to certify a
class action against Innofone.
18.2 INNOFONE TERMINATION EVENTS
The occurrence of any one or more of the following events shall
constitute an Innofone termination event ("INNOFONE TERMINATION EVENT") if not
remedied prior to the expiry of the relevant notice period (if any) and the
relevant cure period (if any) applicable thereto as hereinafter set out:
(a) if Innofone fails in any material respect to perform or observe any of
its obligations under SECTION 8.2 (Use of Customer Data), ARTICLE TEN
(Trade-marks) or ARTICLE FOURTEEN (Confidentiality) of this Agreement;
(b) if any proceedings are commenced or taken for the dissolution,
liquidation or winding-up of Innofone or for the suspension of
operations of Innofone whether by extra-judicial means or under any
statute of any applicable jurisdiction or otherwise, unless such
proceedings have been stayed within thirty (30) Business Days of
commencement or have been withdrawn or dismissed within thirty (30)
Business Days of commencement or unless Innofone has initiated the
defence of such proceedings within thirty (30) Business Days of
commencement and any such proceedings are dismissed within thirty (30)
Business Days of the filing of such defence;
(c) if a decree or order of a court having jurisdiction is entered
adjudging Innofone bankrupt or insolvent, or proving as properly filed
a petition seeking a winding-up or arrangement or compromise of
Innofone under the COMPANIES CREDITORS ARRANGEMENT ACT (Canada), the
BANKRUPTCY AND INSOLVENCY ACT (Canada) or the WINDING UP ACT (Canada)
or any other bankruptcy, insolvency or analogous law or issuing
process or execution against Innofone, or against any substantial part
of the property of Innofone or ordering the winding-up or liquidation
of Innofone and any such decree or order continues unstayed and in
effect for a period of thirty (30) Business Days from this issuance
and is not withdrawn or discharged within thirty (30) Business Days of
issuance, or if a trustee, receiver, receiver and manager, interim
receiver, custodian or other Person with similar powers is appointed
in respect of Innofone or in respect of all or a substantial portion
of its property or assets and any such appointment continues unstayed
and in effect for thirty (30) Business Days;
(d) if Innofone becomes insolvent, admits its inability to or fails to pay
its debts generally as they become due, or otherwise acknowledges its
insolvency, makes any assignment in bankruptcy or makes any other
assignment for the benefit of creditors, makes any proposal under the
BANKRUPTCY AND INSOLVENCY ACT (Canada) or any comparable law of Canada
or the United States, seeks relief under the COMPANIES CREDITORS
ARRANGEMENT ACT (Canada), the WINDING UP ACT (Canada) or any other
bankruptcy, insolvency or analogous law of Canada or the United States
or is adjudged bankrupt, files a petition or proposal to take
advantage of
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any act of insolvency, consents to or acquiesces in the appointment of
a trustee, receiver, receiver and manager, interim receiver,
custodian, sequestrator, agent for a Person with similar powers, in
respect of Innofone or in respect of all or a substantial portion of
its property or assets, or files a petition or otherwise commences any
proceeding seeking any reorganization, arrangement, compromise,
composition, compounding, scheme, arrangement, extension of time,
moratorium or readjustment under any applicable bankruptcy,
insolvency, moratorium, reorganization or other similar law affecting
creditors' rights or consents to, or acquiesces in, the filing of such
petition or the commencement of such proceeding;
(e) any reorganization of Innofone or any consolidation, merger or
amalgamation with any other Person or Persons, or if any of them
enters into any agreement contemplating same, without the approval of
CIBC, only if (i) any such reorganization of Innofone or any
consolidation, merger or amalgamation with any other Person or Persons
would have a material adverse effect on Innofone's ability to fulfil
its obligations hereunder, or (ii) any such reorganization of Innofone
or any consolidation, merger or amalgamation with any other Person or
Persons occurs with a provider of financial products or services to
Canadians or any Affiliate thereof; and
(f) if Innofone ceases to carry on all or substantially all of its
business.
18.3 REMEDIES OF INNOFONE
(a) Upon the occurrence of an Event of Default by CIBC under this
Agreement or a CIBC Termination Event, Innofone may exercise any of
its other rights and remedies provided for hereunder or otherwise
available to it at law or in equity, as Innofone in its sole and
absolute discretion but subject to ARTICLE FIFTEEN hereof, shall
determine.
(b) Subject to ARTICLE FIFTEEN, Innofone may, in its sole discretion,
exercise any right or recourse and/or proceed by any action, suit,
remedy or proceeding against CIBC authorized hereunder or permitted by
law and may proceed to exercise any and all rights hereunder and no
remedy for the enforcement of the rights of Innofone shall be
exclusive of any other rights or remedies provided hereunder or at law
or in equity or be dependent upon any such right or remedy and any one
or more of such rights or remedies may from time to time be exercised
independently or in combination.
(c) Nothing in this SECTION 18.3 shall delay or prevent Innofone from
taking, or requiring Innofone to take, any steps prior to taking
action to seek an equitable remedy, on notice or EX PARTE, to enforce
any provision herein to protect the Intellectual Property Rights or
Confidential Information of Innofone or to require the specific
performance of functions critical to the business of Innofone.
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18.4 DEFAULT BY CIBC
The occurrence of any one or more of the following events shall
constitute a Default by CIBC under this Agreement but shall not be considered an
Event of Default unless such Default is not remedied prior to the expiry of the
relevant notice period (if any) and the relevant cure period (if any) applicable
to such Default as hereinafter set out:
(a) if any representation or warranty made by CIBC in this Agreement or in
any document or certificate required to be given pursuant to this
Agreement shall prove to have been incorrect in any material respect
when made and such incorrect representation or warranty if capable of
being remedied by CIBC, has not been remedied within thirty (30)
Business Days following notice thereof (giving particulars of the
incorrect representation or warranty in reasonable detail) from
Innofone to CIBC;
(b) if CIBC fails, in any material respect, to perform or observe any of
its material obligations under this Agreement and such failure shall
continue unremedied for a period of thirty (30) Business Days
following notice thereof (giving particulars of the failure in
reasonable detail) from Innofone to CIBC; and
(c) if there is a change in the financial condition, business or affairs
of CIBC which has a material and adverse effect on the ability of CIBC
to meet its obligations under this Agreement.
18.5 CIBC TERMINATION EVENTS
The occurrence of any one of more of the following events shall
constitute a CIBC termination event ("CIBC TERMINATION EVENT") under this
Agreement if not remedied prior to the expiry of the relevant notice period (if
any) and the relevant cure period (if any) applicable thereto as hereinafter set
out:
(a) if CIBC fails in any material respect to perform or observe any of its
obligations under ARTICLE TEN (Trade-marks) or ARTICLE FOURTEEN
(Confidentiality) of this Agreement;
(b) if any proceedings are commenced or taken for the dissolution,
liquidation or winding up of CIBC or for the suspension of operations
of CIBC whether by extra-judicial means or under any statute of any
applicable jurisdiction or otherwise, unless such proceedings have
been stayed within thirty (30) Business Days of commencement or have
been withdrawn or dismissed within thirty (30) Business Days of
commencement or unless CIBC has initiated the defence of such
proceedings within thirty (30) Business Days of commencement and any
such proceedings are dismissed within thirty (30) Business Days of the
filing of such defence;
(c) if a decree or order of a court having jurisdiction is entered
adjudging CIBC bankrupt or insolvent, or proving as properly filed a
petition seeking a winding up or arrangement or compromise of CIBC
under the COMPANIES CREDITORS
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ARRANGEMENT ACT (Canada), the BANKRUPTCY AND INSOLVENCY ACT (Canada)
or the WINDING UP ACT (Canada) or any other bankruptcy, insolvency or
analogous law or issuing process or execution against CIBC or against
any substantial part of the property of CIBC or ordering the winding
up or liquidation of CIBC, and any such decree or order continues
unstayed and in effect for a period of thirty (30) Business Days from
its issuance and is not withdrawn or discharged within thirty (30)
Business Days of issuance, or if a trustee, receiver, receiver and
manager, interim receiver, custodian or other Person with similar
powers is appointed in respect of CIBC or in respect of all or a
substantial portion of its property or assets and any such appointment
continues unstayed and in effect for thirty (30) Business Days;
(d) if CIBC becomes insolvent, admits its inability to or fails to pay its
debts generally as they become due, or otherwise acknowledges its
insolvency, makes any assignment in bankruptcy or makes any other
assignment for the benefit of creditors, makes any proposal under the
BANKRUPTCY AND INSOLVENCY ACT (Canada) or any comparable law, seeks
relief under the COMPANIES CREDITORS ARRANGEMENT ACT (Canada), the
WINDING UP ACT (Canada) or any other bankruptcy, insolvency or
analogous law or is adjudged bankrupt, files a petition or proposal to
take advantage of any act of insolvency, consents to or acquiesces in
the appointment of a trustee, receiver, receiver and manager, interim
receiver, custodian, sequestrator, agent for a Person with similar
powers, in respect of CIBC or in respect of all or a substantial
portion of its property or assets, or files a petition or otherwise
commences any proceeding seeking any reorganization, arrangement,
compromise, composition, compounding scheme, arrangement, extension of
time, moratorium or readjustment under any applicable bankruptcy,
insolvency, moratorium, reorganization or other similar law affecting
creditors' rights or consents to, or acquiesces in, the filing of such
petition or the commencement of such proceeding; and
(e) except in connection with a CIBC Merger or CIBC Restructuring, CIBC
ceases to carry on all or substantially all of its business.
18.6 REMEDIES OF CIBC
(a) Upon the occurrence of an Event of Default by Innofone under this
Agreement or an Innofone Termination Event, CIBC may exercise any of
its other rights and remedies provided for hereunder or otherwise
available to it at law or in equity, as CIBC in its sole and absolute
discretion but subject to ARTICLE FIFTEEN hereof, shall determine.
(b) Subject to ARTICLE FIFTEEN, CIBC may, in its sole discretion, exercise
any right or recourse and/or proceed by any action, suit, remedy or
proceeding against Innofone authorized hereunder or permitted by law
and may proceed to exercise any and all rights hereunder and no remedy
for the enforcement of the rights of CIBC shall be exclusive of any
other rights or remedies provided hereunder or at law or in equity or
be dependent upon any such right or remedy and any one or
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more of such rights or remedies may from time to time be exercised
independently or in combination.
(c) Nothing in this SECTION 18.6 shall delay or prevent CIBC from taking,
or requiring CIBC to take, any steps prior to taking action to seek an
equitable remedy, on notice or EX PARTE, to enforce any provision
herein to protect the Intellectual Property Rights or Confidential
Information of CIBC or to require the specific performance of
functions critical to the business of CIBC or Bizsmart.
ARTICLE NINETEEN
GENERAL
19.1 RELATIONSHIP OF PARTIES
Except as expressly provided in this Agreement, no Party shall in any
manner use the name of, or commit or act or purport to act for or as a
representative of, or assume any obligations or responsibilities on behalf of
the other Party without the prior written consent of such Party. The Parties
agree that nothing in this Agreement will create or be deemed to create any
partnership, joint venture or agency relationship between them except for such
rights and obligations as are expressly provided for herein.
19.2 CIBC AS LENDER OR BANKER
The Parties acknowledge that the transactions set out herein are
independent of and unrelated to any present or future relationship Innofone has
or may have with CIBC as its banker or as a provider of other products or
services. To the extent that Innofone has at any time during the Term of this
Agreement any indebtedness, liabilities or other obligations in favour of CIBC
(whether as lender or as agent for any other lenders) pursuant to any lending or
banking arrangements, the provisions of this Agreement shall not be interpreted
or applied so as to diminish or nullify any right or entitlement of CIBC or any
representation, warranty or covenant of Innofone under such lending or banking
arrangements or any of the documentation setting out such arrangements or
relating to such arrangements.
19.3 ASSIGNMENT
Neither Party shall, without the prior written consent of the other
Party hereto which may be arbitrarily withheld in the sole discretion of each of
them, assign or transfer its interest in this Agreement or any amounts payable
pursuant to this Agreement; provided that either Party may assign this Agreement
to its parent, a Subsidiary or an Affiliate without the prior written consent of
the other Party, provided that such assignee agrees in writing to undertake and
fully perform the obligations of the assigning Party hereunder.
Notwithstanding the foregoing, in the event of a CIBC Merger or CIBC
Restructuring, CIBC, or any successor in interest, may, without the consent or
approval of Innofone, assign or transfer its interest in this Agreement to any
Person that, as a result of such transaction, will continue to carry on all or
substantially all of the business of Bizsmart. Upon the occurrence of any such
transaction, the terms and conditions herein shall apply to any such
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successor or subsequent successor, as the case may be, as such terms and
conditions applied to CIBC originally. CIBC, or any successor in interest, shall
provide Innofone with notice in writing of any such assignment following the
completion of any such assignment.
Any purported assignment in contravention of this SECTION 19.2 shall
be void.
19.4 ENUREMENT AND BINDING EFFECT
This Agreement shall enure to the benefit of and be binding upon the
Parties hereto and their respective permitted successors and assigns.
19.5 PUBLIC ANNOUNCEMENTS
Except as otherwise specified herein and in SCHEDULE "H" hereto,
neither Party shall make, publish or distribute (whether in print,
electronically, orally or otherwise) any public announcements, press releases,
or any other statement to the press or any financial analyst, nor any
advertising, marketing, promotional or other material, that uses the other
Party's Trade-marks, URLs or other identifiers, or disclose or refer to the
existence or contents of this Agreement or the conduct of Bizsmart, without
giving notice, and obtaining the prior written consent of the other Party.
19.6 NOTICES
All notices, requests, approvals, consents and other communications
required or permitted under this Agreement shall be in writing and addressed as
follows:
(a) if to Innofone:
Innofone Canada Inc.
241 Applewood Crescent, Suite 4
Vaughan, Ontario L4K 1A8
Attn: Chief Executive Officer
Fax: (905) 761-9658
(b) and a copy to legal counsel:
Aleksandr G. Bolotenko
Barrister & Solicitor
Suite 303, 17 King Street East
Oshawa, Ontario L1H 1A8
Fax: (905) 433-0283
(c) with a copy to the Innofone Representative:
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Innofone Canada Inc.
241 Applewood Crescent, Suite 4
Vaughan, Ontario L4K 1A8
Attn: President
Fax: (905) 761-9658
(d) if to CIBC:
Canadian Imperial Bank of Commerce
6th Floor, Atrium on Bay
40 Dundas Street West
Toronto, Ontario M6G 2C2
Attn: Senior Vice-President, Small Business Banking
Fax: (416) 980-7664
(e) with a copy to legal counsel:
Canadian Imperial Bank of Commerce
Legal Division
Commerce Court West
15th Floor
Toronto, Ontario
M5L 1A2
Attn: General Counsel
Fax: (416) 980-7151
(f) and a copy to the CIBC Representative:
Canadian Imperial Bank of Commerce
6th Floor, Atrium on Bay
40 Dundas Street West
Toronto, Ontario M6G 2C2
Attn: Director, Small Business Customer Offers
Fax: (416) 980-7664
and shall be sent by fax and the Party sending such notice shall telephone to
confirm receipt. A copy of any such notice shall also be sent on the date such
notice is transmitted by fax by registered express mail or courier with the
capacity to verify receipt of delivery. Any Party may change its address or fax
number for notification purposes by giving the other Party notice of the new
address or fax number and the date upon which it will become effective in
accordance with the terms of this SECTION 19.6. A notice shall be deemed to have
been received as of the next Business Day following its transmission by fax.
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19.7 SEVERABILITY
If any provision of this Agreement is held by a court of competent
jurisdiction to be unenforceable or contrary to law, then the remaining
provisions of this Agreement, or the application of such provisions to Persons
or circumstances other than those as to which it is invalid or unenforceable
shall not be affected thereby, and each such provision of this Agreement shall
be valid and enforceable to the extent granted by law.
19.8 WAIVER
No delay or omission by any Party to exercise any right or power it
has under this Agreement or to object to the failure of any covenant of any
other Party to be performed in a timely and complete manner, shall impair any
such right or power or be construed as a waiver of any succeeding breach or any
other covenant. All waivers must be in writing and signed by the Party waiving
its rights.
19.9 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Parties
relating to the subject matter hereof, and there are no other representations,
understandings or agreements between the Parties. For further certainty, any
letters of intent or letter agreements executed by the Parties prior to the
Effective Date is hereby superseded by this Agreement. The representations and
warranties contained in this Agreement are the only representations and
warranties made by the Parties hereunder related to the subject matter hereof
including those arising by statute or otherwise in law or from a course of
dealing or usage of trade, all of which are expressly disclaimed.
19.10 FORCE MAJEURE
No Party shall be in default by reason of any failure in performance
of this Agreement if the failure arises, directly or indirectly, out of causes
reasonably beyond the direct control of the Party. Each Party shall use
reasonable commercial efforts to work around such causes.
19.11 NO CONSEQUENTIAL DAMAGES
Except for (a) the obligations of the Parties pursuant to ARTICLE
SEVENTEEN in connection with any third party claims, (b) any claims for breach
of the obligations of the Parties pursuant to ARTICLE EIGHT (Customer Data and
Privacy), (c) any claims for breach of the obligations of the Parties pursuant
to ARTICLE FOURTEEN (Confidentiality) and (d) any claims for breach of the
warranties of the Parties under SECTIONS 13.1(h) and 13.2(d) (No Infringement of
Intellectual Property Rights), in no event will a Party be liable to the other
Party hereunder for punitive damage or special, incidental, indirect or
consequential loss or damage including, but not limited to, lost business
revenue, loss of profits, and failure to realize expected profits (even if the
Party causing such loss or damage has been advised of the possibility of same).
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19.12 AMENDMENTS
No amendment to, or change, waiver or discharge of, any provision of
this Agreement shall be valid unless in writing and signed by authorized
representatives of each Party.
19.13 GOVERNING LAW
This Agreement shall be governed by the laws of the Province of
Ontario and the laws of Canada applicable therein, excluding their rules
governing conflicts of laws. Each Party hereby agrees that the courts of the
Province of Ontario or the Federal Courts of Canada, in accordance with the
extent of the jurisdiction of each or, in instances in which, and to the extent
to which, such jurisdiction may be co-extensive in respect of any particular
dispute (as determined at the time of such dispute), at the option of the
originating Party and subject to ARTICLE FIFTEEN, shall have exclusive
jurisdiction over disputes under this Agreement, and the Parties agree that
jurisdiction and venue in such courts is appropriate and irrevocably attorn to
the jurisdiction of such courts.
19.14 THIRD PARTY BENEFICIARIES
Each Party intends that this Agreement shall not benefit or create any
right or cause of action in or on behalf of any Person or entity other than the
Parties.
19.15 COVENANT OF FURTHER ASSURANCES
Each of the Parties agrees that, subsequent to the execution and
delivery of this Agreement and without any additional consideration, each of the
Parties shall execute and deliver or cause to be executed and delivered any
further legal instruments and perform any acts which are or may become necessary
to effectuate the purposes of this Agreement and to complete the transactions
contemplated hereunder.
19.16 EXECUTION OF AGREEMENT
The person executing this Agreement below hereby warrants that he or
she has the authority to bind the corporation on behalf of whom he or she signs.
IN WITNESS WHEREOF, each Party has caused this Agreement to be signed
and delivered by its duly authorized representative(s).
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CANADIAN IMPERIAL BANK OF COMMERCE
By: c/s
------------------------------------
Name: Rob Patterson
Title: S.V.P. CIBC
By: c/s
------------------------------------
Name: Carol Gray
Title: EVP Small Business Banking
INNOFONE CANADA INC.
By: c/s
------------------------------------
Name: Larry Hunt
Title: CEO
By: c/s
------------------------------------
Name: Charles Blaquiere
Title: President
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SCHEDULE "A"
INNOFONE PROMOTIONS
Innofone shall promote Bizsmart and the Bizsmart Site on the Custom Site. At
CIBC's option, Innofone shall promote Bizsmart and the Services through an
out-bound call centre promotion to each and every existing Bizsmart Customer
through the Term of this Agreement. Innofone agrees to consider preparing a
statement insert for mailing to each and every existing Bizsmart Customer
through the Term of this Agreement.
Innofone shall promote Bizsmart to its existing 2,500 small business customers
and its SOHO customers as follows:
1. through direct mail promotions;
2. through in-bound call centre promotions; and
3. through additional promotions as mutually agreed upon by the Parties.
<PAGE>
SCHEDULE "B"
SALE OF SERVICES
PRICE AND DISCOUNT:
-------------------
Innofone shall determine and compare the prices or rates charged by major
national service providers under their most competitive core offers. Bizsmart
Customers shall receive the lowest price or rate/highest value solution (the
"PRICE") for each Service they enrol in plus a Discount of 10% (5% in the case
of cellular/PCS) on the Price. From time to time, Innofone may provide
additional discounts/offers for the cellular/PCS Service.
Comparative service providers and service plans may change from time to time in
light of market competition/market offering, so that the most competitive offers
and rates are always used to determine the cost of Services to Bizsmart
Customers. Innofone shall review the Service plans and Prices of the Services on
a monthly basis to ensure that they continue to be the most competitive, that
the Prices continue to be the lowest prices and that amounts billed to Bizsmart
Customers in the preceding month accurately reflect the Prices. Innofone shall
ensure on a monthly basis that the calling plans used for such comparative
purposes are current and represent the most popular and competitive plans in
each relevant region.
*
CIBC acknowledges that Innofone will require Bizsmart Customers who enroll for
the home security service to purchase from Innofone *.
*
Innofone will pay the * to CIBC each month based on the number of active
accounts, as calculated at the end of each month, in accordance with the chart
set out below. An "active" account is one for which a usage summary was rendered
by Innofone during the prior month. The applicable Contribution rate in the
second column below is applicable to the total number of accounts at the end of
each month. For example,*.
* on other Services Innofone may provide in the future will be determined by the
Parties at such time.
<PAGE>
<TABLE>
<CAPTION>
-------------------------------------- ---------------------------------------- --------------------------------------
SERVICE NUMBER OF ENROLLED ACCOUNTS CONTRIBUTION RATE
-------------------------------------- ---------------------------------------- --------------------------------------
<S> <C> <C>
Long Distance and Calling 0-19,999 0%
Card 20,000-* 2%
* *
100,000+ 6%
-------------------------------------- ---------------------------------------- --------------------------------------
</TABLE>
<TABLE>
<CAPTION>
-------------------------------------- ---------------------------------------- --------------------------------------
SERVICE NUMBER OF ENROLLED ACCOUNTS CONTRIBUTION RATE
-------------------------------------- ---------------------------------------- --------------------------------------
<S> <C> <C>
Cellular/PCS and Home 0-19,999 0%
Security 20,000-* 1%
* *
80,000+ 4%
-------------------------------------- ---------------------------------------- --------------------------------------
</TABLE>
*
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<PAGE>
SCHEDULE "C"
INNOFONE PRIVACY CODE
<PAGE>
SCHEDULE "D"
INNOFONE TRADE-MARKS
The Innofone Trade-marks are as follows:
"Compare and Save";
"Rate and Compare"; and
"Innofone".
<PAGE>
SCHEDULE "E"
BIZSMART TRADE-MARKS
The Bizsmart Trade-marks are as follows:
(a) "bizSmart Centre";
"bizSmart";
"bizSmart.com";
"SmartRate";
"Together, making business better"; and
the associated designs as separately provided; and
(b) the bizSmart logos as set out in SCHEDULE "F" hereto - Bizsmart Trade-mark
Guidelines.
<PAGE>
SCHEDULE "F"
BIZSMART TRADE-MARK GUIDELINES
THE FOLLOWING GUIDELINES ARE THE EXISTING PROVISIONAL BIZSMART TRADE-MARK
GUIDELINES AS OF AUGUST 15, 2000 WHICH ARE CURRENTLY BEING REVISED BY CIBC.
<PAGE>
SCHEDULE "G"
DISPUTE RESOLUTION PROCEEDINGS
1. PROCEEDINGS GENERAL. Upon written notice (the Complaint as defined below)
by one Party to the other Party, a Dispute shall be finally settled by
arbitration in accordance with the ARBITRATION ACT, 1991 (Ontario) (the
"ACT") and the provisions therein. The Parties agree that they will act in
good faith to utilize the most expeditious procedures to resolve the
Dispute. An arbitration pursuant to this Agreement shall be commenced by
delivery of a written notice (the "Complaint") by one Party (the
"Applicant") to the other (the "Respondent"). The Complaint must describe
the nature of the Dispute. After written notice is given to refer any
Dispute to arbitration, the Parties will meet within 15 days of delivery of
the notice and will negotiate in good faith any changes in these
arbitration provisions or the rules of arbitration which are herein
adopted, in an effort to expedite the process and otherwise ensure that the
process is appropriate given the nature of the Dispute and the values at
risk.
2. ARBITRATOR. The arbitration tribunal shall consist of one arbitrator (the
"Arbitrator") who is qualified by education and training to pass upon the
particular matter to be decided, appointed within 10 days of delivery of
the Complaint, by mutual agreement of the Parties. In the event of failure
by the Parties to agree on an arbitrator within 10 days, either Party may
apply to the Superior Court of Justice (Ontario) under the ACT to appoint
an arbitrator.
3. TIME AND PLACE OF ARBITRATION. The arbitration shall occur on a date to be
set by the Arbitrator, which shall be not less than 90 days or no more than
180 days after the appointment of the Arbitrator. The arbitration shall be
held in Toronto, Ontario.
4. LANGUAGE. The language of the arbitration shall be English.
5. PLEADINGS.
(a) Within 15 days of the appointment of the Arbitrator, the Applicant must
deliver to the Respondent and the Arbitrator a written statement (the
"Claim") concerning the Dispute setting forth, with particularity, its
position with respect to the Dispute and the material facts upon which
it intends to rely and the relief sought.
(b) If the Applicant fails to deliver a Claim within the time limit
referred to in 5(a) above, the Arbitrator must terminate the
proceedings.
(c) Within 10 days after the delivery of the Claim, the Respondent may
deliver to the Applicant and the Arbitrator a written response (the
"Defence") setting forth, with particularity, its position on the
Dispute and the material facts upon which it intends to rely and may
also deliver to the Applicant and the Arbitrator a counter-claim (the
"Counterclaim") setting forth, with particularity, an additional
Dispute for the Arbitrator to decide, the material facts upon which it
intends to rely and the relief sought in such Counterclaim.
<PAGE>
(d) If the Respondent fails to deliver a Defence within the time limit
referred to in 5(c) above, the Arbitrator shall continue the
proceedings without treating such failure in itself as an admission of
the allegations set forth in the Applicant's Claim.
(e) Within 10 days after delivery of the Defence, the Applicant may deliver
to the Respondent and the Arbitrator a written reply (the "Reply") to
the Defence, setting forth, with particularity, its response, if any,
to the Defence.
(f) If the Applicant fails to deliver a Reply within the time limits
referred to in 5(e) above, the Arbitrator shall continue the
proceedings without treating such failure in itself as an admission of
the allegations set forth in the Respondent's Defence.
(g) Within 10 days of the delivery of a Counterclaim, the Applicant may
deliver to the Respondent and the Arbitrator a Defence to such
Counterclaim setting forth, with particularity, its position on the
additional Dispute and the material facts on which it intends to rely.
(h) If the Applicant fails to deliver a Defence to the Counterclaim within
the time period referred to in 5(g) above, the Arbitrator shall
continue the proceedings without treating such failure in itself as an
admission of the allegations set forth in the Respondent's
Counterclaim.
(i) Within 10 days after the delivery of a Defence to Counterclaim, the
Respondent may deliver to the Applicant and the Arbitrator a Reply to
such Defence to Counterclaim, setting forth, with particularity, its
response, if any, to the Defence to Counterclaim.
(j) If the Respondent fails to deliver a Reply to the Defence to
Counterclaim within the time limit referred to in 5(i) above, the
Arbitrator shall continue the proceedings without treating such failure
in itself as an admission of the allegations set forth in the
Applicant's Defence to the Counterclaim.
(k) Any Counterclaim shall be deemed a submission to the arbitration.
6. DOCUMENTARY DISCOVERY. Within 20 days after the close of pleadings, each
Party shall submit to the other an affidavit of documents pursuant to the
Ontario Rules of Civil Procedure (the "Affidavit of Documents"). Inspection
and production of the non-privileged documents listed in the Affidavit of
Documents shall be in accordance with the Ontario Rules of Civil Procedure.
Each Party shall make available to the other Party copies of any documents
set out in the Affidavit of Documents, as requested. The Arbitrator may, on
application by either Party, order a Party to produce any documents the
Arbitrator considers relevant to the arbitration which are not privileged
and which have not been produced previously, within a time the Arbitrator
specifies, and where such an order is made the other Party may inspect
those documents and make copies of them.
7. ORAL DISCOVERY. After the delivery of its Affidavit of Documents, a Party
on notice to the other Party and the Arbitrator (the "Discovery Notice"),
shall be entitled to oral discovery of the other Party in accordance with
the Ontario Rules of Civil Procedure. If the other Party also wishes oral
discovery of the first Party, the other Party shall provide a Discovery
Notice
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<PAGE>
to the first Party within 7 days of the first Party's Discovery Notice. The
Parties shall proceed expeditiously so that all oral discoveries are
completed within 30 days of the Discovery Notice first given, answers to
undertakings, if any, shall be provided within 15 days of the date of
discovery of the Party, and re-attendance, as required, within 15 days
thereafter.
8. EXPENSES OF ARBITRATION. The Parties shall bear equally the Arbitrator's
fees and other costs of arbitration such as rental of the hearing room and
costs of a court reporter, and each Party shall bear its own costs
(including legal fees) incurred in preparation for and attendance upon the
arbitration; provided, however that the Arbitrator may award Arbitrator's
fees and all other costs and legal fees, in whole or in part, to the
prevailing Party in the discretion of the Arbitrator.
9. REMEDIES GENERALLY. The Arbitrator may award any remedy in the arbitration
that might have been awarded by a judge of the Superior Court of Justice
(Ontario) were the Dispute to have proceeded to litigation in that court,
excepting that no aggravated or punitive damages shall be awarded by the
Arbitrator.
10. RULES OF ARBITRATION. Except as otherwise provided in this Agreement, the
arbitration shall be conducted in accordance with the ACT, and the
substantive and procedural law to be applied in connection with the
arbitration shall be the laws of the Province of Ontario, excluding its
conflict of laws rules. All interlocutory matters in the arbitration shall
be determined solely by the Arbitrator in his or her discretion, without
right of appeal therefrom by any Party. The Arbitrator shall be instructed
that time is of the essence in proceeding with his/her determination of the
Dispute. The Arbitrator's award shall be issued within 30 days of the
Parties' final submissions to the Arbitrator, and shall be accompanied by
written findings of fact and conclusions of law. The Arbitrator's award and
opinion shall be final and binding on all Parties and there shall be no
right of appeal from such award and opinion whatsoever, whether as a matter
of fact or law, or mixed fact and law.
11. JUDGMENT ON AWARD. Judgment upon the arbitration award may be entered in
any court having jurisdiction, or application be made to such court for a
judicial recognition of the award or an order of enforcement hereof, as the
case may be.
12. CONFIDENTIALITY. The Parties agree that the arbitration shall be kept
confidential and that the existence of the proceeding and any element of it
(including any pleadings, briefs or other documents submitted or exchanged,
any testimony or other oral submissions and any awards) shall not be
disclosed beyond the Arbitrator, the Parties (including their shareholders,
auditors and insurers), their counsel and any person necessary to the
conduct of the proceeding, except as may be required in judicial
proceedings relating to the arbitration or as otherwise may be required by
law.
13. SURVIVAL. Notwithstanding any other provision in the Agreement, this
Schedule will remain in effect and will continue to bind the Parties and
their legal representatives, successors and assigns, even if the Agreement
is or purports to be terminated.
3
<PAGE>
SCHEDULE "H"
PUBLIC ANNOUNCEMENTS
For the purposes of media interviews only, Innofone shall be permitted to make
oral statements regarding Bizsmart generally and Innofone's role as a
Participant generally. Such oral statements will only comprise information which
has been previously generally disclosed to the public through media kits and
other information prepared and disseminated by CIBC. Such oral statements shall
be presented by Innofone in a manner that reflects on Bizsmart positively.
Innofone shall not provide comment on the business results of Bizsmart or the
business results of Innofone in connection with its participation in Bizsmart in
any manner.
For the purposes of media interviews only, CIBC shall be permitted to make oral
statements regarding Innofone's role as a Participant generally. Such oral
statements will only comprise information which has been previously generally
disclosed to the public through media kits and other information prepared and
disseminated by CIBC. Such oral statements shall be presented by CIBC in a
manner that reflects on Innofone positively. CIBC shall not provide comment on
the business results of Innofone in connection with its participation in
Bizsmart in any manner.
<PAGE>
SCHEDULE "I"
DESIGN SPECIFICATIONS
[GRAPHIC OMITTED]
