EXHIBIT 10.13
DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT is entered into this 2nd day of November 1995 by and
between BRILLIANT INTERACTIVE IDEAS PTY LTD ACN 061 288 668 of Xxx 0, 00 Xxx
Xxxxx, Xxxxx, XXX, 0000 (hereinafter referred to as "BII ") and ROADSHOW
ENTERTAINMENT PTY LTD ACN 005 078 428 located at The Xxxxxx Xxxxxx, 000 Xxxxxxx
Xx, Xxxxxxx, XXX, 0000 (hereinafter referred to as "ROADSHOW").
WHEREAS ROADSHOW is in the business of publishing and distributing computer
software in Australia and New Zealand and BII are in the business of developing
interactive multimedia software products. ROADSHOW is desirous of publishing and
distributing the various software products as listed in Appendix A hereto, that
BII have developed.
NOW THEREFORE THE PARTIES do agree as follows:
Territory is defined as Australia and New Zealand and all those islands normally
serviced from Australia and New Zealand as follows:-
(a) Australia
Papua New Guinea and mandated territories, including New Britain,
New Ireland, Admiralty Islands, Solomon Islands (including
Bougainville), Vanuatu, New Caledonia, Christmas Islands, Xxxxxxx
Islands, Ocean Island, Nauru;
(b) New Zealand
Xxxx Islands, Fijian Islands, Samoan Islands (excluding American
Samoa), Xxx Xxxxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxx, Kiribati
(formerly Xxxxxxx Islands), Tuvalu (formerly Ellice Islands), The
Takelau Islands.
1. BII have developed a range of CD-ROM software titles for ROADSHOW
hereinafter referred to as the "Products ". (as listed in Appendix
A).
2(a). The Products shall be delivered in object code in a form compatible
with IBM PC running under Windows V3.x and Windows 95, as well as
Macintosh from Apple Computer.
2(b). BII agrees to rectify all software bugs which are defined as
programming errors in the Products reported by ROADSHOW within 30
days or as agreed between the parties.
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3(i). BII grants to ROADSHOW the exclusive right to reproduce, publish,
distribute, display and sell the Products in the Territory on all
hardware platforms (excluding on-line and remote delivery systems)
whether now known or hereinafter devised and to all markets whether
or not now known provided that in the event that BII are approached
by another organisation (the Approachor) wishing to convert any of
the Products to another hardware platform other than IBM PC or
Macintosh from Apple Computer and the Approachor requires worldwide
distribution then BII shall be entitled to enter into an agreement
with the Approachor for worldwide distribution provided that BII
notify ROADSHOW in writing of the approach and BII use their best
efforts to secure the exclusive distribution rights on the hardware
platform for ROADSHOW in the Territory.
ROADSHOW shall not be entitled to make any alterations to the object
code of the Products without the written consent of BII. Such
consent shall not be unreasonably withheld.
3(ii). ROADSHOW shall not distribute or export directly or indirectly any
copies of the Product outside the Territory and ROADSHOW shall not
distribute, sell or make available any copies of the Product to
anyone in the Territory, whom ROADSHOW knows or ought to know, will
export copies of the Product outside the Territory.
4(i). The rights as granted in clause 3 above are the exclusive rights for
the Territory and shall not conflict with any other rights granted
by BII.
4(ii). BII further grants to ROADSHOW OEM and bundle rights to the Products
for the Territory. These rights are independent of the other rights
as granted above.
5(i) ROADSHOW shall pay to BII a royalty of CONFIDENTIAL INFORMATION
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION% of the Net Revenue received by ROADSHOW for each Product
sold under clause 3 and 4(ii) above. Net Revenue is defined as gross
revenue actually received by ROADSHOW from the sale and exploitation
of Products less cash and credit returns, warranty replacements and
sales tax payable on the Products. No royalty shall be due on
Products distributed at no charge under clause 22 of this Agreement
to distributors, sub-distributors or dealers for promotional or
evaluation purposes.
ROADSHOW shall retain BII's royalties as enumerated above in respect
of all Products until ROADSHOW shall have recouped therefrom
cumulatively a sum equal to all advances or guarantees which have
been paid or are payable to BII under the terms of this agreement.
After said sum is recouped by ROADSHOW, ROADSHOW shall disburse
BII's royalties to BII in accordance with clause 5 (ii) hereof.
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5(ii). ROADSHOW shall pay to BII the royalties due under clause 5(i) above,
each calendar quarter (March, June, September and December) within
30 days after the end of each calendar quarter. Such royalty
payments are subject to the recoupment of advances from BII's share
as contained in clause 6 below.
5(iii). ROADSHOW shall provide BII a quarterly sales and royalty report,
certified as correct by an authorized officer of ROADSHOW (the
Certified Sales and Royalty Report) when remitting the royalty
payments as detailed in clause 5 (ii) above. Where royalties payable
are offset against advances then the Certified Sales and Royalty
report shall still be provided to BII within 30 days from the end of
the calendar quarter.
In the event that the Certified Sales and Royalty report has not
been provided to BII within 45 days from the end of the calendar
quarter then BII shall be entitled to appoint an independent party
to examine ROADSHOW's records for the purpose of ascertaining the
royalties due for the relevant period. The cost of the independent
party in determining the royalties due plus any royalties due shall
be paid to BII within 14 days of ROADSHOW receiving written
notification from BII of the amount due.
6. ROADSHOW shall pay to BII a sum of AUD $CONFIDENTIAL INFORMATION
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION (CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION) being a non-refundable
development advance to be recouped against royalties due to BII, for
each Product sold under clause 5 above. The advance shall be payable
as follows:
(a) AUD $CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION on the execution
of this Agreement;
(b) AUD $CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION per Product upon
the delivery to ROADSHOW of the gold master and all
necessary artwork (such artwork to be supplied on a syquest
cartridge or CD-ROM) for the release of the Product, for
each Product;
(c) AUD $CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION per Product
within 45 days of the delivery of the gold master and all
necessary artwork for the release of the Product, for each
Product;
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ROADSHOW agrees that the payment of the advances in 6(b) and 6(c) above will not
be delayed as a result of amendments and changes that may be requested by
ROADSHOW.
7. In the event of ROADSHOW not releasing a given Product in any
country or land within the Territory within CONFIDENTIAL INFORMATION
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION (CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION) CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION of ROADSHOW receiving the gold master and
artwork for the Products then the rights granted under clauses 3 and
4 of this Agreement for the given Product shall revert back to BII
for the country or island within the Territory that the Products
have not been released in, unless agreement is reached between
ROADSHOW and BII to extend the CONFIDENTIAL INFORMATION OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
(CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION) CONFIDENTIAL INFORMATION OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
period. In the event of the rights granted in clauses 3 and 4
reverting back to BII under this clause, for a country or island
within the Territory, the definition of Territory shall be changed
to exclude the country or island.
8. Left Blank
9. ROADSHOW shall use it's best commercially reasonable endeavors to
promote and expand the sale of the Products in all parts of the
Territory and in all sectors of the market on the maximum possible
scale by all reasonable means. ROADSHOW shall fulfil all orders for
the Product within a reasonable time after receipt of the order and
shall not make any false, misleading or deceptive statements in
respect of the Product.
10. ROADSHOW shall keep complete and accurate records regarding the
production, replication and distribution of the Products and shall
upon 10 business days notice from BII allow BII or its agent to
inspect all of these records and other related documents during
normal working hours. In the event of any discrepancies being noted
ROADSHOW agree to pay BII within 10 days all additional moneys owing
and where the discrepancy exceeds 10% of the amount that is due to
BII, ROADSHOW agrees to pay all costs incurred by BII in conducting
the inspection of ROADSHOW's records. BII's ability to conduct the
above mentioned inspection is restricted to once every year and
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on termination of this Agreement for any reason whatsoever.
11(i). BII may terminate this Agreement immediately upon giving written
notice to ROADSHOW if:
(a) ROADSHOW falls to make any payment when due or otherwise
breaches a major provision or warranty of this Agreement and
has not rectified such breach within thirty (30) days of
notice from BII; or
(b) ROADSHOW dissolves, liquidates or bankruptcy, insolvency or
winding up procedures are commenced by ROADSHOW or are
brought against ROADSHOW and such proceedings are not set
aside within thirty (30) of their commencement.
11(ii) ROADSHOW may terminate this Agreement immediately upon giving
written notice to BII if BII dissolves, liquidates or if bankruptcy,
insolvency or winding up procedures are commenced by BII or are
brought against BII and such proceedings are not set aside within
thirty (30) days of their commencement; or if BII otherwise breaches
a major provision or warranty of this Agreement and does not rectify
the breach within thirty (30) days after receiving written notice of
the breach from ROADSHOW.
11(iii) If this Agreement is terminated by ROADSHOW due to a breach by BII
under clause 11 (ii) above then BII shall refund any unrecouped
portion of the advance
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theretofore paid provided that the breach by BII is not due to an
unjustified, negligent or wilful act by ROADSHOW or any of
ROADSHOW's employees, agents, contractors or subcontractors.
12. If this Agreement is terminated for any reason, ROADSHOW shall:
(a) immediately return all masters of the Products to BII; and
(b) have the fight to sell it's existing stocks of the Product
for a period of six (6) months, from the date the Agreement
is terminated subject to payment to BII of all royalties due
under this agreement;
(c) at the expiration of the six month period referred to in
clause 12(b) above ROADSHOW shall destroy all remaining
stock of the Products held by ROADSHOW and provide BII with
written notice certifying that all remaining stock has been
destro yed.
13. BII shall be responsible for any and all other royalties due on the
Products to third parties including music royalties, animation
royalties and licensing royalties.
14. BII provides no warranty as to names being used including the name
Brilliant Interactive Ideas in the territories in which ROADSHOW
distributes. In the event a name change is needed for legal reasons
then the parties shall consult as to the new name and BII shall make
the necessary changes at its expense. BII shall indemnify ROADSHOW
to the extent of direct costs incurred by ROADSHOW as a result of
any such name variation.
BII warrants that it is not aware of any contraventions caused by
the names that are used.
15.(i). The names used are the property of BII and ROADSHOW shall have no
claim to these or any other names being used.
BII retains any and all of the copyrights contained in the Products
and ROADSHOW shall have no rights in the copyrights or other
intellectual rights contained in the
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Products. All Products shipped shall reflect the appropriate
copyrights which shall be provided to ROADSHOW simultaneously with
the masters. Any press releases or advertisement for the Products
shall reference BII as the developer and shall contain the
appropriate copyright notices as provided.
15(ii). BII hereby authorizes ROADSHOW to take any and all action that
ROADSHOW deems necessary to protect and enforce BII's copyright in
the products. ROADSHOW shall notify BII in writing of any and all
action that ROADSHOW takes prior to the commencement of the action
and shall keep BII fully informed of the status and progress of the
action. Where as a result of such action by ROADSHOW damages are
awarded then ROADSHOW shall be entitled to recover from the damages
all costs incurred as a result of the action and any residual amount
remaining shall be split equally between ROADSHOW and BII.
16. Left Blank
17. Left Blank
18. BII represents and warrants that:-
(a) the Products, as delivered to ROADSHOW, will not infringe the
patent, copyright, trademark, trade secret or other proprietary or
privacy rights of any third party. Each party shall fully indemnify
the other (and its affiliates, shareholders, directors, officers,
employees and agents) against all losses, costs, charges and
expenses arising from such party's negligence in connection with
this Agreement;
(b) that BII is a corporation duly incorporated and validly existing in
good standing under the laws of the state of its incorporation; and
has full rights, power, legal capacity and authority to enter into
this Agreement and to carry out the terms hereof and perform its
obligations hereunder;
(c) That BII has secured or will secure, prior to delivery of each of
the Products all rights necessary to enable ROADSHOW to exercise its
Product distribution rights under this Agreement, without incurring
any obligations or liabilities whatsoever to any person and any
obligations or liabilities arising shall be and remain the sole
responsibility and obligation of BII. BII further warrants that it
has obtained all applicable licenses and has paid and / or will
timely pay all applicable payment for the rights to reproduce,
distribute, perform and display such works, as applicable, without
any rights of reimbursement from ROADSHOW.
(d) the Products pursuant to the terms of this Agreement satisfy or will
be capable of satisfying all censorship requirements within the
Territory.
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19. ADDITIONAL RIGHTS
BII hereby grants to ROADSHOW and ROADSHOW hereby accepts the
following additional rights for the Territory and upon the terms and
conditions of this Agreement:-
(a) The right to have sole, full and complete discretion concerning the
manufacture / duplication, distribution, marketing and other
exploitation of the Products in accordance with the terms and
conditions of this Agreement;
(b) The right to make written summaries, extracts and synopses of the
Products, for the purpose of advertising, exploiting and publicising
the Products and to use, exhibit and or broadcast excerpts of the
Products for the purpose of advertising, publicising and otherwise
promoting the Product including without limitation the right to
incorporate extracts in catalogues of all kinds, whether electronic
or not;
(c) The right to access to use such advertising promotion and publicity
material as BII may own or control;
(d) The right to create and prepare materials for the promotion
advertising and publicising of the Products provided that all
advertising or publicity for the Products shall comply with all
credit obligations of BII of which ROADSHOW shall have been given
prior written notice;
(e) The right to use the trademarks and designs on and in the Products
in association with the sale or hire hereof as permitted by this
Agreement;
(f) The right to use whatever duplicator that it in its unfettered
discretion considers is most appropriate in all the circumstances
for the duplication of units of the Products.
20. END USER TECHNICAL SUPPORT
(a) ROADSHOW shall provide end user technical support to all end users
of the Products. BII will provide reasonable telephone consultation
to ROADSHOW with respect to any questions or problems concerning the
Products or the use of the Products;
(b) At ROADSHOW's request, BII shall provide reasonable assistance to
ROADSHOW's software, support personnel in connection with ROADSHOW's
technical support of end users of the Product Packages.
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21. WITHHOLDINGS
All amounts payable hereunder shall be subject to all laws and
regulations now or hereafter in existence requiring the deduction
and / or withholding of moneys for income, sales, or other taxes
assessable with respect to fees hereunder. ROADSHOW shall be
entitled to withhold such taxes and remit the same to the taxing
entity within the Territory and will use best efforts to furnish BII
with certificates evidencing the withholding and payment of any such
taxes. The benefit of the resultant tax credits arising from the
payment of the withholding taxes shall accrue to BII.
22. FREE SAMPLES
BII agrees to allow ROADSHOW to produce sixty (60) copies, or a
greater number of copies as agreed between ROADSHOW and BII, of Not
For Resale units of each Product for promotional purposes. No fees
or royalties shall be payable to BII for these Not For Resale units
under the terms of this agreement
23. ROADSHOW agrees to provide BII with 100 copies of Not For Resale
units of each Product for BII's promotional purposes. Such Not for
Resale units to be provided to BII at ROADSHOW'S cost of producing
the unit.
24. Each party shall treat as confidential all information of a
confidential nature of the other party which comes into it's
possession under this Agreement.
25. The term of this Agreement shall be for a period of CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION (CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION) CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION from the date of signing of this Agreement.
26. This Agreement shall be governed by the laws of New South Wales.
27. ASSIGNMENT
This Agreement may not be assigned by either party without the
express written approval of the other party. Such approval may not
be unreasonably withheld.
28. NOTICES
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28.1 Any notice, communication or other document authorised or required
to be given or sent pursuant to this Agreement (herein referred to
as a "Notice") shall unless otherwise specifically provided by this
Agreement be in writing addressed as follows:-
TO BII: Xxxxx 0, 00 Xxx Xxxxx
Xxxxx
XXX 0000
Telephone: (00) 0000 0000
Facsimile: (00) 0000 0000
For the Attention of: Xxxx Xxxxxx
TO ROADSHOW:
4th Floor, The Merlin Centre
000 Xxxxxxx Xx.
Xxxxxxx
XXX 0000
Telephone: (00) 000 0000
Facsimile: (00) 000 0000
For the Attention of: Xxxxx Xxxxx
or such other address as the relevant addressee may hereafter
specify for such purpose to the other party to this Agreement by
notice in writing.
28.2 A notice includes communication by facsimile. The sender of any
communication by facsimile shall forthwith confirm the same by
letter, but failure by the addressee to receive the same shall not
prejudice the validity or effect of such facsimile.
28.3 A notice shall be signed or, in the case of a facsimile, purport to
be signed, by the party originating the notice or by a director or
secretary of that party if it is a corporation.
28.4 A notice which is sent by prepaid mail shall be deemed to be
received on the third day following the day on which it was posted.
28.5 A notice which is sent by facsimile shall be deemed to be received
at the time printed on the printout by the machine on which the
notice is transmitted.
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29. RELATIONSHIP OF PARTIES.
Each party is acting as an independent contractor and not as an
agent, partner, or joint venturer with the other party for any
purpose. Except as provided in this Agreement, neither party shall
have any right, power, or authority to act or to create any
obligation, express or implied, on behalf of the other.
30. FORCE MAJEURE.
Neither party shall be responsible for delays or failure of
performance resulting from acts beyond the reasonable control of
such party. Such acts shall include, but not be limited to, acts of
God strikes, walkouts, riots, acts of war, epidemics, failure of
suppliers to perform, government regulations, power failure(s),
earthquakes, or other disasters.
31. SURVIVAL OF CERTAIN PROVISIONS.
The confidentiality obligations set forth in the Agreement shall
survive the termination of this Agreement by either party for any
reason.
32. HEADINGS.
The titles and headings of the various sections and paragraphs in
this Agreement are intended, solely for convenience of reference and
are not intended for any other purpose whatsoever, or to explain,
modify, or place any construction upon or on any of the provisions
of this Agreement.
33. ALL AMENDMENTS IN WRITING.
No provisions in either party's purchase orders, or in any other
business forms employed by either party will supersede the terms and
conditions of this Agreement, and no supplemental modification, or
amendment of this Agreement shall be binding, unless executed in
writing by duly authorised representative of each party to this
Agreement.
34. ENTIRE AGREEMENT.
The parties have read this Agreement and agree to be bound by its
terms, and further agree that it constitutes the complete and entire
agreement of the parties and supersedes all previous communications,
oral or written, and all other communications between them relating
to the license and to the subject matter hereof. No representations
or statements of any kind made by either party, which are not
expressly stated herein, shall be binding on such party.
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35. WAIVER
Failure by either party to insist upon the performance of any or
more of the conditions hereof shall not be deemed to be a waiver of
any rights and remedies that that party may have and shall not
deemed a waiver of any subsequent breach or default. No provision of
this agreement shall deemed to have been waived unless such waiver
shall be in writing and signed by a person being or purporting to be
a director, manager, secretary or other officer of the party giving
notice in their behalf.
36. SEVERABILITY
If any clause or part hereof shall be held or be deemed invalid or
unenforceable for any reason whatsoever, then such clause or part
thereof shall be deemed to be deleted from this Agreement and the
Agreement shall otherwise remain in full force and effect. The
parties hereto agree to replace any invalid, illegal or
unenforceable provision with a provision which has the most similar
permissible economic and legal effect to the invalid, illegal or
unenforceable provision.
By their signatures below the parties agree to be bound by the terms of this
Agreement.
/s/ Xxxxxxx Xxxxxxxx /s/ Xxxx Xxxxxx
-------------------------- ---------------------
ROADSHOW ENTERTAINMENT PTY BRILLIANT INTERACTIVE IDEAS PTY
ACN 005 078 428 LTD
Name: Xxxxxxx Xxxxxxxx ACN 061 288 668
Position: Director Acquisitions Name: Xxxx Xxxxxx
Position: Managing Director
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Appendix A
The Products are:
A. KIDSTHEATRE
1. Plates are People Too
2. The Gumball Shop
3. Play Ball Xxxxxxx
X. KIDSTORY
1. Dinosaur in the Garden
2. Monster on the Loose
3. Caitlin's Crazy Contraptions
C. Craftpax
1. Activity Pack
2. Magic Trix
D. Beyond 2000 Interactive
1. Dream Machines and Their Designers
2. 101 Ways to Save Our Planet
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