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Exhibit 6.5
July 7, 2000
Mr. Larry Hunt
CEO
Innofone Canada Inc.
Vaughan, Ontario
L4K 4E6
MEMORANDUM OF UNDERSTANDING
Dear Mr. Hunt:
This is to follow up on our recent discussions regarding the
involvement of Innofone Canada Inc. ("INNOFONE") in the roll-out of Canadian
Imperial Bank of Commerce's ("CIBC") Guaranteed Proof program to merchants for
which CIBC acquires Visa and/or debit transactions (such roll-out is referred to
as the "MERCHANT PROGRAM").
The parties acknowledge and agree that the first part of this
memorandum reflects our mutual understanding on the points set out in it, but
that these do not, and are not intended to, create legally binding obligations.
The parties also agree that once both of them have signed this memorandum, they
will work towards the execution of a binding contract which reflects these and
further details of the Merchant Program (the "DEFINITIVE AGREEMENT"), but should
the Definitive Agreement not be prepared and executed for any reason, neither
party has any liability to the other based on or arising from these non-binding
provisions.
NON-BINDING PROVISIONS
1. OVERVIEW OF MERCHANT PROGRAM:
The Merchant Program will be for all merchants for which CIBC acquires
Visa and/or debit transactions ("MERCHANTS").
[*] = 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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Merchants who enroll in the Merchant Program will receive value and
savings on a bundle of services (the "SERVICES"). These may include long
distance, calling card, cellular/PCS, Internet and such other services as the
parties may agree on from time to time.
The Merchant Program will determine and compare the rates charged by
major national service providers under their most competitive core offers.
Merchants will receive the lowest rate/highest value solution for each Service
they enroll in plus a 10% discount (5% in the case of cellular/PCS). From time
to time, Innofone may provide additional discounts/offers for the cellular/PCS
Service.
For each month in which Services are provided to a Merchant, Innofone
will send the Merchant a detailed statement of Services provided, cost
calculation and amount payable by the Merchant for the Services. The parties
will implement systems to enable amounts payable to be deducted as
pre-authorized debits from Merchants' CIBC current accounts. Such systems will
be implemented as soon as possible after launch; until they are, however,
Merchants must pay Innofone directly (by cheque or otherwise). As soon as
possible after launch, the parties will also implement systems whereby the total
monthly cost of Services will be shown for informational purposes on Visa
statements sent by CIBC to Merchants.
Comparative service providers and service plans will change from time
to time in light of market competition/product offerings, so that the most
competitive offers and rates are always used to determine the cost of Services
to Merchants. Each month, Innofone will review the service plans and rates to
ensure they are still the most competitive and that amounts billed to Merchants
in the preceding month accurately reflect the rates.
Merchants are entitled to enroll in any one, or more, of the Services
they select. For example, Merchants have no obligation to enroll in LD as a
condition of getting another Service.
Unless the parties agree otherwise, each Merchant which enrolls for the
cellular/PCS Service must buy a digital/analog phone that Innofone will obtain
from the provider of that Service (the "CARRIER") and sell to such Merchants at
the phone's regular/market price; they must also pay the regular/market system
access fee, charged on a monthly basis. The cellular/PCS cost to be rated and
compared will not include charges for long distance or roaming; enrolled
Merchants who use these will be charged the regular rates paid by customers of
the Carrier.
The parties are presently investigating the feasibility of offering,
and the features of, an Internet Service. If an Internet Service is offered, the
monthly charges for it will be rated and compared as per other Services, and a
10% discount applied.
2. INNOFONE AS MERCHANT PROGRAM COORDINATOR AND FACILITATOR:
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Innofone represents to CIBC that Innofone has core competencies in
program development, marketing and communications and in securing/administering
partnership/supplier/outsourcing ("SUPPLIER") relationships for the execution of
programs, such as the Merchant Program. It also represents that 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.
Innofone also represents that it has established the following Supplier
arrangements for the Merchant Program:
- Affiliated Computer Services Inc.: billing, rating/comparing,
statement printing and mailing, systems and systems integration
- Les Services Marketing Equinox (90249574 Quebec Inc.): call
centre for Merchant enrolment and service.
- Watts Distribution Ltd.: Fulfillment of welcome kits and phones
for cellular/PCS
- Marketing: DKY or other mutually agreed agencies from time to
time.
Innofone will deliver the Merchant Program to CIBC on a turn-key, third
party basis, meaning that Innofone will be solely responsible for co-ordination,
operation and delivery of the Merchant Program through services provided by it
and by Suppliers, whereas CIBC's sole responsibilities in connection with the
Merchant Program will be restricted to those set out in this Memorandum and the
Definitive Agreement.
No later than the execution of the Definitive Agreement, Innofone will
enter into binding contracts with all Suppliers which incorporate clauses
obliging Suppliers to proactively seek solutions to any systems challenges that
may arise. Innofone will ensure that each Supplier fulfills its obligations to
the Merchant Program, including under the Supplier's contract with Innofone.
Innofone will also ensure that all Suppliers to which Merchant information may
be disclosed will comply with security and confidentiality requirements
communicated by CIBC to Innofone and/or the Supplier. If Innofone should wish to
change a Supplier, a company may become the new/replacement Supplier only at the
consent of CIBC, acting reasonably, and provided that the company executes a
contract with Innofone and the other requirements of this section are met.
No later than the execution of the Definitive Agreement, there must be
a direct confidentiality agreement between CIBC and each such Supplier to which
Merchant information may be disclosed. The agreement will be drafted by CIBC;
Innofone will exercise best efforts to facilitate execution by such Suppliers
(since, as for any bank customer, Merchant information must be kept strictly
confidential).
Innofone will ensure that, no later than Merchant Program launch,
Service Level Agreements will also be executed between Innofone and Suppliers,
and between Innofone and Carriers, with respect to service standards for matters
such as Merchant enrollment, complaint handling, Service cancellation (by
Merchant or CIBC/Innofone) and services provided by Suppliers and Carriers. Such
Agreements must contain standards satisfactory to CIBC and be diligently
enforced by Innofone.
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Key standards will include: call centre CSRs to be bilingual; although
the call centre is not dedicated to the CIBC Guaranteed Proof program, CSRs who
take or make Merchant Program calls will be dedicated to the CIBC Guaranteed
Proof program throughout their daily shift; call centre to operate Monday-Friday
8 a.m. to 10 p.m. local time for each region and Saturday and Sunday 8 am to 6
p.m. local time; telephone enrollment calls by Merchants be conducted in
accordance with scripting approved by CIBC and be tape-recorded for validation;
and welcome kits must be sent to enrolling Merchants within 48 hours after
enrollment.
3. CARRIERS:
For launch, the following companies will be Carriers: Rogers AT&T, for
cellular/PCS; Sprint, for LD; and Bell Canada, for calling card. The Carrier for
the Internet Service has yet to be mutually agreed on by the parties. Innofone
is entitled to change 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.
4. LAUNCH:
The parties will exercise best efforts to launch the Merchant Program
in October, 2000. Detailed work-back schedules will be developed by a project
manager to be appointed by Innofone for the Merchant Program and will include
timelines, tasks and responsibilities.
5. MERCHANT PROGRAM COSTS:
(a) GENERAL: CIBC's sole costs for the Merchant Program are those
referred to in points 5(a)(i) and (ii). All other Merchant Program costs are
Innofone's responsibility, including but not limited to amounts payable to
Suppliers and Carriers and all contributions and other levies payable in
accordance with law with respect to the provision of the Services. Innofone will
give CIBC an indemnity against all costs, including claims by any third party
for payment for services they allege they provided under the Merchant Program.
Without limiting the foregoing:
(i) All systems and development costs for the Merchant Program,
excluding those for systems and development within CIBC, are Innofone's
responsibility.
(ii) All costs of promoting the Merchant Program to Merchants
("MARKETING COSTS") will be borne by Innofone, except that from time to
time, CIBC will allow inserts into Card statements at no charge to
Innofone (providing inserts do not exceed reasonable size/weight
requirements; inserts to be produced at Innofone's cost). CIBC will
also provide Innofone at no cost (but subject to confidentiality
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and security restrictions) data base analysis of the Merchant base to
facilitate outbound telemarketing by the Merchant Program call centre.
In addition, CIBC's independent Merchant sales organization (ISO) will
promote the Merchant Program when soliciting merchants to become
Merchants, provided that Innofone and the ISO agree on the compensation
which Innofone will pay it for same.
(b) FURTHER RE MARKETING: Marketing will be done in accordance with a
marketing plan to be developed by Innofone each Year, subject to CIBC approval,
acting reasonably. Innofone will not distribute or use, or allow to be
distributed or used, any Merchant Program advertising material or scripting
which has not first received CIBC's written approval, acting reasonably. There
will be quarterly meetings between representatives of each party with respect to
marketing plan implementation. At the meetings, representatives will also review
reports to be prepared each month by Innofone on matters such as enrollments,
cancellations, complaints, activity rates and spend (overall and per Service).
6. COST RECOVERY AND OTHER MATTERS:
COST RECOVERY: To compensate CIBC for its costs in establishing and
maintaining the Merchant Program, Innofone will make monthly payments to CIBC. A
separate payment will be made in respect of each Service, and will equal *.
CASH MANAGEMENT: Innofone acknowledges that before pre-authorized
debits may be made from Merchants CIBC current accounts, it must enter into
arrangements with CIBC's cash management area with respect to such debits and
respecting fees to be paid by Innofone in that regard. The parties will comply
with the Canadian Payment Association rules for pre-authorized debits.
RISK MANAGEMENT: Before a Merchant will be enrolled in any Service by
Innofone, Innofone will obtain advice from CIBC as to whether it is a Merchant
in "good standing" or not. "Good standing" will be determined in accordance with
a series of credit criteria to be set jointly by the parties and reviewed by
them each quarter; Merchants who do not meet such criteria will not be enrolled.
Once a Card account is enrolled, Innofone assumes all credit risk; charges for
Services will be posted to Card accounts only if authorized by CIBC's
authorization centre. To mitigate credit risk to Innofone, the parties will
develop a system under which Innofone will receive periodically (daily or
weekly) information about the CIBC Visa credit status of enrolled Card accounts.
Prior to launch, the parties will determine jointly the criteria for terminating
Service to specific Merchants on the basis of lack of good standing or
otherwise.
BAD DEBT/FRAUD/CUSTOMER SERVICE FUND: Innofone will maintain a fund
which it will use for bad debts, customer service complaints and alleged
fraudulent use of Services (if the fund is not sufficient, Innofone will cover
such costs nonetheless). At all times, the amount in the Fund must at least
equal 2% of all amounts payable by
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Merchants for Services in the two previous calendar months. The fund is subject
to CIBC audit.
7. TERM AND TERMINATION:
(a) TERM OF AGREEMENT: The Definitive Agreement will be for a term of
five years and will terminate automatically at the end of its term unless
renewed by agreement of both parties.
(b) INSUFFICIENT CUSTOMERS: Either party may terminate the Definitive
Agreement by notice sent to the other party within 30 days after the second
anniversary of Merchant Program launch if:
(i) by the first anniversary of launch, there are not at least 5,000
Merchants enrolled in the Merchant Program; OR
(ii) by the second anniversary of launch, there are not at least an
additional 5,000 Merchants enrolled in the Merchant Program (net of
cancellations).
For monitoring purposes, the parties will meet to review volumes and targets
every six months. Termination will be effective no earlier than 60 days after
the end of the second Year.
(c) "MATERIAL BREACH": Either party will be able to terminate the
Definitive Agreement before the end of its initial or any renewal term if the
other commits a "material breach" of the Definitive Agreement as to be there
defined. In that event, the party not in default will notify the other party
that a "material breach" has occurred and that the Definitive Agreement will
terminate on the date set out in the notice (which cannot be less than 60 day
from receipt of notice) if the breach is not fixed to the satisfaction of the
notifying party, acting reasonably, within 30 days from receipt of notice.
(d) SALE OF INNOFONE: Innofone must give CIBC prior notice of any
planned or proposed sale of the majority of the common shares in Innofone which
may occur while the Definitive Agreement is in effect; notice must be given at
least 90 days prior to the closing of such sale. No later than 60 days after
receipt of that notice, CIBC may elect to terminate the Definitive Agreement
effective on a date to be selected by CIBC (but which cannot be earlier than the
closing) if CIBC determines (acting reasonably) that:
(i) as a result of the transfer of control in Innofone, it will no
longer be able to ensure service excellence in the delivery of the
Merchant Program; or
(ii) the sale poses a competitive threat to CIBC including if shares
are to be purchased by a competitor of CIBC or of a CIBC affiliate.
CIBC acknowledges that Rogers holds a right of first refusal with respect to the
sale or other transfer of the majority of Innofone common shares and agrees that
the termination
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right in this paragraph 9(c) will not apply to such sale or transfer to Rogers,
should same occur.
8. "OWNERSHIP" OF MERCHANTS; OPTIONS ON TERMINATION:
(a) "OWNERSHIP OF MERCHANTS": CIBC "owns" the Merchant relationship,
meaning that neither Innofone nor any Supplier or Carrier will promote or market
any product (other than the Merchant Program as sponsored by CIBC) to Merchants
nor will it or they disclose information about Merchants to any third party
without prior approval by CIBC or use information about Merchants other than for
the purpose of the Merchant Program. Once a Merchant enrolls in a Service,
however, Innofone "owns" the Service relationship with the Merchant, meaning
that it has the right to provide the Service to the Merchant in compliance with
the terms of the Definitive Agreement during its term; Innofone's rights
following the termination of the Definitive Agreement are as set out in
paragraph 8(b).
(b) OPTIONS ON TERMINATION: On termination of this Agreement under
section 7, CIBC must elect from one of the following two options:
1. to terminate the Merchant Program, in which case Innofone must
then choose either:
(A) to cease providing Services to enrolled Merchants, in which
case Innofone must at its expense notify Merchants that the
Merchant Program has been terminated and Services will no
longer be provided and take all reasonable steps to assist
Merchants in switching to other providers of the Services;
or
(B) to continue providing Services to enrolled Merchants (but
without CIBC's brand or any other CIBC involvement in and
sponsorship of the Merchant Program), in which case Innofone
will:
- pay CIBC either the cost recovery at the same structure as
set out in point 6 above OR a lump sum equal to the value of
same (as determined by an expert valuator jointly selected
by the parties); and
- notify Merchants that CIBC's sponsorship of and involvement
in the Merchant Program is ending and amend all Merchant
Program materials to remove CIBC's involvement in same.
or
2. to continue the Merchant Program but with a new Merchant Program
service provider (the "NEW PROVIDER") to be appointed by CIBC in lieu
of Innofone, in which case:
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(A) Innofone will: bear the cost of amending welcome kits and any
other materials and, if required by regulation, of notifying
Merchants about the change; exercise best efforts to coordinate
the transfer to the New Provider in order to prevent any
disruption in Services; and assign to the New Provider those of
its Supplier and Carrier contracts which do not terminate
simultaneously with the migration; and
(B) the New Provider will pay Innofone an amount equal to the
fair market value of the right to provide Services to enrolled
Merchants (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 into
consideration the commissions and merchant fees to be paid by the
New Provider to CIBC);
Despite the above, if termination is due to material breach by CIBC, Innofone
will not be responsible for the cost of amending materials and notifying
Merchants under paragraphs 8(b)(1)(A), 8(b)(1)(B) or 8(b)(2)(A) unless it is
required by law to give notice in which case it must bear the cost of doing so.
9. TRADEMARKS, ETC.: The Merchant Program will be a CIBC branded program. CIBC
owns the "Guaranteed Proof" brand and all other brand and product names,
designs, slogans, themes, advertising concepts and other creative used in or to
be developed for the Merchant Program, including all trademark and copyright
rights in same. Innofone will obtain for CIBC all creative ownership rights from
all ad agencies which may develop same for the Merchant Program.
All toll-free numbers provided to enrolled customers belong to CIBC,
including after termination unless CIBC otherwise agrees.
The parties will enter into a licence agreement respecting Innofone's
use of the Guaranteed Proof trademark in advertising and customer materials used
for the Merchant Program.
10. ASSIGNMENT: Innofone and CIBC are collectively referred to in this
memorandum of understanding as the "parties". While it is recognized that the
Definitive Agreement must be between legal entities and that CIBC Merchant Card
Services ("CIBC MCS") is only a division of CIBC, the parties intend to the
extent possible that the responsibilities and obligations of CIBC be limited to
CIBC MCS, as if it were a legal entity. If at any time CIBC transfers all or
substantially all of the business of CIBC MCS to an entity which is an
"affiliate" or "substantial investment" of CIBC (as defined in the Bank Act),
CIBC may assign this memorandum of understanding and the Definitive Agreement to
such entity and as a result be released from CIBC's obligations under this
memorandum of understanding and the Definitive Agreement.
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BINDING PROVISIONS
1. DEFINITIVE AGREEMENT: The parties will make all reasonable efforts to
negotiate and draft a Definitive Agreement for execution by July 31, 2000.
Regardless of whether the Definitive Agreement is signed by both parties, each
party is responsible for its own costs incurred before negotiations towards the
Definitive Agreement are called off or the Definitive Agreement is signed, as
applicable; without limiting the foregoing, no fees or damages may be claimed by
either party from the other party except for a breach of the attached
confidentiality agreement.
2. STANDSTILL: This section 2 will bind the parties from the date this
memorandum is signed until the Definitive Agreement is signed or July 31, 2000
(whichever occurs first):
(a) Innofone will not discuss (either directly or indirectly) the
concept of offering Services to Canadian-resident customers of any
financial institution (other than customers of CIBC or credit card
holders of Visa Desjardins) nor will it solicit or entertain any offers
from issuers of same. This includes suggesting or proposing to another
financial institution that Innofone and the financial institution or
any of its affiliates engage in an arrangement if the Definitive
Agreement is not signed.
(b) CIBC Merchant Card Services will not discuss (either directly or
indirectly) with any company, other than Innofone the concept of that
company providing any Services to Merchants, nor will CIBC Merchant
Card Services solicit or entertain any offers from such companies.
3. NO WARRANTIES: Innofone does not warrant or represent any undertakings of the
financial success of the Merchant Program, enrollment levels or business volume
regarding the Merchant Program.
4. DUE DILIGENCE: Since confidentiality and security are of extreme importance
to every bank and service excellence is of the utmost importance to both
parties, the parties will as soon as reasonable possible after the execution of
this Memorandum commence a review of these issues, including how Innofone
proposes they be addressed by Innofone and each Supplier. This due diligence
review will include, at CIBC's option, site reviews of the premises of Innofone
and each Supplier, work flow/process review, review of Innofone's financial
capability and status of Supplier and Carrier arrangements.
5. CONFIDENTIALITY: The parties agree to be bound by the confidentiality terms
in attached Schedule "A".
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If this Memorandum accords with Innofone's understanding of our
discussions, please so indicate by signing and below and faxing this letter back
to me within one week from today.
Yours truly,
Shane Kuros
GENERAL MANAGER, PRODUCT GROUP
MERCHANT CARD SERVICES
Canadian Imperial
Bank of Commerce
................................................................................
This Memorandum reflects our understanding of discussions to date with CIBC.
Date: July 26, 2000
INNOFONE CANADA INC.
By: LARRY HUNT, CEO
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SCHEDULE "A"
TERMS OF CONFIDENTIALITY AGREEMENT
WHEREAS CIBC and Innofone are engaged in discussions (the "DISCUSSIONS")
regarding Innofone's potential role as co-ordinator of the program described in
the letter to which this Schedule is attached (the "MERCHANT PROGRAM").
AND WHEREAS During the Discussions, CIBC and Innofone will provide each other
with confidential information about themselves and their businesses, strategies
and plans, technologies and/or customers.
AND WHEREAS Each party wishes to ensure that the other will not disclose or
allow access to that confidential information to any person, company or other
entity, other than the other's own employees, officers and agents who have a
need to know the information, and that the other will ensure that those
employees, officers and agents keep that information confidential.
INNOFONE AND CIBC THEREFORE AGREE AS FOLLOWS:
1. DEFINITIONS. In this Agreement, "DISCLOSER" means either Innofone or CIBC
when disclosing Information to the other party, and "RECIPIENT" means either
Innofone or CIBC when receiving Information from the other party.
"INFORMATION" includes any information which the Recipient receives from the
Discloser in the future, or has received prior to the date on which the
Recipient signs this Agreement, about the Discloser and its present and
future business, customers, strategies, plans and/or technologies, including
but not limited to:
(i) information about CIBC's current "Guaranteed Proof" program;
(ii) the existence (or possible existence) of the Merchant Program and the
fact that the Discussions are occurring; and
(iii) either party's ideas, plans and proposals in respect of the Merchant
Program,
as well as the terms of all memoranda and other agreements, binding or not,
which the parties may enter into with respect to the Merchant Program, but does
not include information which is:
(a) in the public domain;
(b) known by the Recipient at the time of receipt and which is not subject
to an obligation of confidence;
(c) independently developed by the Recipient; or
(d) permitted to be disclosed by the Discloser in writing.
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2. CONFIDENTIALITY. The Recipient will ensure and be fully responsible for
ensuring that all Information is maintained in strict confidence and is not
disclosed to any person or business other than:
(a) persons whom the Discloser has previously identified in writing as
being permitted to have access to the Information; or
(b) the Recipient's employees, officers and agents who are directly
involved in the Discussions and who need to evaluate or otherwise use
the Information or the product(s) of that Information for the purpose
of the Discussions.
Nothing in this Agreement restricts or will restrict either party's right to
develop, use or market products or services similar to or competitive with those
of the other party disclosed by the other party in the Information as long as
the party developing, using or marketing such products or services does not
breach this Agreement. Each party acknowledges that the other party may already
possess or have developed products or services similar to or competitive with
those of the other party to be disclosed in the Information.
3. USE OF INFORMATION.
(a) FOR THE DISCUSSIONS, ONLY: The Recipient will ensure that its
employees, officers and agents, and any persons identified pursuant
to Section 2 will use the Information only for the purpose of the
Discussions, and not for any other purpose, including for the
Recipient's own purposes other than the Discussions. Accordingly,
the Recipient will instruct such persons of their duty to keep the
Information confidential, and exercise its best efforts to ensure
that they act accordingly.
(b) COPYING, RETURN OF INFORMATION: The Recipient will not, except in
connection with the Discussions, copy or duplicate Information or
knowingly allow anyone else to copy or duplicate such Information.
The Recipient will promptly return to the Discloser, upon its
request, or certify as destroyed, any and all tangible material
containing the Information, including all copies and notes, whether
such material was made or compiled by the Recipient or furnished by
the Discloser.
4. ALLOWABLE DISCLOSURE IF REQUIRED BY LAW. Despite any other provision of this
Agreement, the Recipient may disclose Information to a government body or agency
or a court if it is required to do so by law or judicial decree. However, before
such disclosure, the Recipient must:
(a) make known to such government body, agency or court the proprietary
and confidential nature of the Information and claim confidentiality
with respect to it; and
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(b) notify the Discloser, at which time the Discloser has the right to
bring proceedings at the Discloser's expense to enjoin, void or
truncate that disclosure and the Recipient will, at the Discloser's
expense, take such steps and perform such necessary acts to assist
the Discloser in any such proceedings.
5. STORAGE. The Recipient will keep the Information in a safe and secure area
and ensure that it cannot be accessed by anyone other than persons authorized in
accordance with this Agreement.
6. PROPERTY RIGHTS. The Recipient acknowledges that all Information provided to
it by the Discloser is proprietary to the Discloser. The Recipient acknowledges
that it has no proprietary rights at all to any material, list, report or other
document prepared by it which contains Information provided to it by the
Discloser, and that all such property belongs to the Discloser.
7. PUBLIC OR OTHER STATEMENTS. Neither party may make or issue any public
disclosure, press release or any statement to a journalist or any financial
analyst or make any other kind of announcement concerning the attached
memorandum of understanding, Definitive Agreement, Merchant Program or
Discussions unless it has first advised the other party of the disclosure and
obtained its express written consent to the disclosure, including the precise
information to be disclosed.
8. NO IMPLIED OBLIGATIONS. Neither this Agreement, nor the disclosure or receipt
of any Information, confirms any intention to enter into any contract or other
business relationship, or to purchase any products or services, by either of the
parties or any commitment by either of the parties with respect to the present
or future development, production or distribution of any products or services.
9. RELEASE. Except as under this Section 9, the Discloser makes no
representations or warranties to the Recipient in relation to any of the
Information or its adequacy, accuracy, or suitability for any purpose, and
except as expressly agreed in writing, the Discloser is not liable for any loss
or damage arising from the use of the Information, however caused. However, the
Discloser does represent and warrant that the Information which is disclosed to
the Recipient is information proprietary to the Discloser and that the Discloser
is free to, and is in no way restricted from, disclosing such Information to the
Recipient.
10. TERMINATION. All obligations in this Schedule "A" will survive
termination of the Discussions and all other agreements, contracts and
dealings between the Recipient and the Discloser for the purpose of the
Discussions or otherwise.
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