| 7.1 |
Time of Essence |
| Time is of the essence in all respects of this Agreement. |
| 7.2 |
Governing Law |
| This Agreement is governed by, and is to be construed and interpreted in accordance with, the laws of the Province of Alberta and the laws of Canada applicable in that Province. |
| 7.3 |
Submission to Jurisdiction |
| Without prejudice to the ability of any Party to enforce this Agreement in any other proper jurisdiction, each of the Parties irrevocably and unconditionally submits and attorns to the non exclusive jurisdiction of the courts of the Province of Alberta to determine all issues, whether at law or in equity, arising from this Agreement. To the extent permitted by Applicable Law, each of the Parties: |
| (a) |
irrevocably waives any objection, including any claim of inconvenient forum, that it may now or in the future have to the venue of any legal proceeding arising out of or relating to this Agreement in the courts of that Province, or that the subject matter of this Agreement may not be enforced in those courts; |
| (b) |
irrevocably agrees not to seek, and waives any right to, judicial review by any court which may be called upon to enforce the judgment of the courts referred to in this Section 14.6, of the substantive merits of any suit, action or proceeding; and |
| (c) |
to the extent a Party has or may acquire any immunity from the jurisdiction of any court or from any legal process, whether through service or notice, attachment before judgment, attachment in aid of execution, execution or otherwise, with respect to itself or its property, that Party irrevocably waives that immunity in respect of its obligations under this Agreement. |
| 7.4 |
Entire Agreement |
| This Agreement constitutes the entire agreement between the Parties pertaining to the subject matter of this Agreement and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the Parties, and there are no representations, warranties or other agreements between the Parties in connection with the subject matter of this Agreement except as specifically set out in this Agreement. No Party has been induced to enter into this Agreement in reliance on, and there will be no liability assessed, either in tort or contract, with respect to, any warranty, representation, opinion, advice or assertion of fact, except to the extent it has been reduced to writing and included as a term in this Agreement. |
| 7.5 |
Notices |
| Any notice, demand, request, consent, approval, or other communication which is required or permitted by this Agreement to be given or made by a Party must be in writing and either delivered personally or by courier, sent by prepaid registered mail, or transmitted by e-mail or functionally equivalent electronic means of transmission, charges (if any) prepaid, and must be sent to the intended recipient at its address as follows: |
| |
| to Gemstone at the following address: |
| 170, 11080 – 50 Street SE Calgary, AB T2C 5T4 |
| Attention: |
Cole Heavenor |
| Tel. No.: |
1-888-908-2675 |
| E-mail: |
cole@gemstonelights.com |
| to the Dealer, at the address noted on the first page of this Agreement; |
|
| or at any other address as any Party may at any time advise the other in accordance with this Section 7.4. Any notice or communication delivered to the Party to whom it is addressed will be deemed to have been given or made and received(i) upon receipt when personally delivered, (ii) upon receipt when deposited for next day delivery with a recognized overnight courier service (such as FedEx or UPS), (iii) at the beginning of the fifth business day after the business day notice was deposited with the postal service, or (iv) when transmitted by electronic mail and receipt has been confirmed electronically or otherwise. |
| 7.6 |
Severability |
| Each Section of this Agreement is distinct and severable. If any Section of this Agreement, in whole or in part, is or becomes illegal, invalid, void, voidable or unenforceable in any jurisdiction by any court of competent jurisdiction, the illegality, invalidity or unenforceability of that Section, in whole or in part, will not affect the legality, validity or enforceability of the remaining Sections of this Agreement, in whole or in part, or the legality, validity or enforceability of that Section, in whole or in part, in any other jurisdiction. |
| 7.7 |
Amendment and Waiver |
| No amendment, discharge, modification, restatement, supplement, termination or waiver of this Agreement or any Section of this Agreement is binding unless it is in writing and executed by each Party. No waiver of, failure to exercise, or delay in exercising, any Section of this Agreement constitutes a waiver of any other Section (whether or not similar) nor does any waiver constitute a continuing waiver unless otherwise expressly provided. |
| 7.8 |
Further Assurances |
| Each Party will execute and deliver any further agreements and documents and provide any further assurances, undertakings and information as may be reasonably required by the requesting Party to give effect to this Agreement and, without limiting the generality of this Section 7.7, will do or cause to be done all acts and things, execute and deliver or cause to be executed and delivered all agreements and documents and provide any assurances, undertakings and information as may be required at any time by all Governmental Authorities having jurisdiction over the affairs of a Party or as may be required at any time under applicable law. |
| 7.9 |
Assignment and Enurement |
| Neither this Agreement nor any right or obligation under this Agreement may be assigned by the Dealer without the prior written consent of Gemstone. This Agreement enures to the benefit of and is binding upon the Parties and their respective heirs, executors, administrators, estate trustees, trustees, personal or legal representatives, successors and permitted assigns. |
| 7.10 |
Counterparts |
| This Agreement may be executed and delivered by the Parties in one or more counterparts, each of which will be an original, and each of which may be delivered by facsimile, e-mail or other functionally equivalent electronic means of transmission, and those counterparts will together constitute one and the same instrument. |
| 7.11 |
Conduct of Parties |
| Whenever a Section of this Agreement requires a consent or approval by a Party and notification of the consent or approval is not delivered within the applicable time limit, then, unless otherwise specified, the Party whose consent or approval is required will be conclusively deemed to have withheld its consent or approval. |
| 7.12 |
Remedies Cumulative |
| The rights, powers and remedies under this Agreement are cumulative and are in addition to and not in substitution for any other rights, powers and remedies available at law or in equity or otherwise. No single or partial exercise by a Party of any right, power or remedy precludes or otherwise affects the exercise of any other right, power or remedy to which that Party may be entitled. |
| 7.13 |
No Franchise or Business Opportunity Agreement. |
| The Parties to this Agreement are independent contractors and nothing in this Agreement shall be deemed or constructed as creating a joint venture, partnership, agency relationship, franchise, or business opportunity between the Parties. Neither Party, by virtue of this Agreement, will have any right, power, or authority to act or create an obligation, express or implied, on behalf of the other Party. Each Party assumes responsibility for the actions of their personnel under this Agreement and will be solely responsible for their supervision, daily direction, and control, wage rates, withholding income taxes, disability benefits, or the manner and means through which the work under this Agreement will be accomplished. Except as provided otherwise in this Agreement, Dealer has the sole discretion to determine Dealer's methods of operation, Dealer's accounting practices, the types and amounts of insurance Dealer carries, Dealer's personnel practices, Dealer's advertising and promotion, Dealer's customers, and Dealer's service areas and methods. The relationship created hereby between the Parties is solely that of seller and distributor. If any provision of this Agreement is deemed to create a franchise relationship between the parties, then the Parties shall negotiate in good faith to modify this Agreement so as to effect the Parties' original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as a distribution agreement and not a franchise agreement. |
| 7.14 |
Acknowledgement |
| Each Party acknowledges that: |
| 7.14.1 |
it has received or had the opportunity to receive independent legal advice from its own lawyer with respect to the terms of this Agreement before its execution; |
| 7.14.2 |
it has read this Agreement, understands it, and agrees to be bound by its terms and conditions; |
| 7.14.3 |
this Agreement is the product of the joint efforts of the Parties, it expresses their agreement, and, if there is any ambiguity in any of its provisions, that provision should not be interpreted in favour of either one of the Parties; and |
| 7.14.4 |
it has received a copy of this Agreement. |
| Each of the Parties has executed and delivered this Agreement, as of the date noted at the beginning of this Agreement. |
