1
Exhibit 10.56
[WARNER PUBLISHER SERVICES LETTERHEAD]
THIS AGREEMENT, dated June 23, 1998, between WARNER PUBLISHER SERVICES, INC., a
New York corporation (herein called "Warner"), and, ▇▇▇▇▇▇ ENTERTAINMENT
COMPANY a California corporation (herein called "Publisher").
1. DEFINITIONS. As used in this agreement, the following terms shall have the
following respective meanings:
(a) "Publication(s)" shall mean that certain magazine(s) entitled ▇▇▇▇▇▇;
The Magazine For Kids, which shall be published monthly.
(b) "Territory" shall mean the United States of America, including Puerto
Rico and the Military and the Dominion of Canada.
(c) "Printer's Completion Notice" shall mean a notice delivered to Warner
and executed by the traffic manager or shipping manager of the
Publisher's printer for each issue of each Publication, specifying the
number of copies of such issue shipped in accordance with Warner's
instructions, and the date of completion of such shipment. Under no
circumstances may a Printer's Completion Notice be sent to Warner
prior to the completion of shipping to Warner's customers, whether or
not an intermediary is used.
(d) "Net Sales" shall mean (with respect to each issue of each
Publication) the number of copies of the Publication(s) specified in
each Printer's Completion Notice (as the same may be modified or
amended by additional information furnished by the printer or
Publisher), less the number of copies of that issue returned to Warner
pursuant to the provisions of Paragraph 8 and less the number of
copies of that issue lost or damaged in shipments to wholesale
distributors per subparagraph 3(c).
(e) "Cover Price" shall mean the suggested retail selling price of each
Publication(s) (as specified by Publisher on the cover of each copy
thereof), as the same may be increased or decreased by Publisher
during the Term.
(f) "Warner's Commission" shall mean a sum equal to seven point two (7.2%)
percent of the Cover Price of the Net Sales.
(g) "Customer Discount" shall mean the discount off the Cover Price at
which Publisher directs Warner to ▇▇▇▇ ▇▇▇▇▇▇'▇ customers for copies
of the Publication(s). Publisher agrees that the Customer Discount
shall remain the same as that prior to this agreement, unless
Publisher and Warner's customer(s) agree otherwise in writing to be
furnished to Warner.
(h) "Gross ▇▇▇▇▇▇▇▇" shall mean the Cover Price, less the Customer
Discount, multiplied by the number of copies of the Publication(s)
specified on a Printer's Completion Notice and less Warner's
Commission with respect to such number of copies.
(i) "Final ▇▇▇▇▇▇▇▇" shall mean the Cover Price, less the Customer
Discount, multiplied by the Net Sales and less Warner's Commission
(j) "On Sale Date" shall mean the date, as designated by Publisher, that
each issue of the Publisher(s) is to be place for initial sale at
retail outlets.
(k) "Off-Sale Date" shall mean the date, designated by Publisher, for
recall of issue of the Publication(s) from sale at retail outlets,
provided, however, that the Off-Sale Date of any issue of a
Publication shall not be later than one (1) day prior to the On-Sale
Date of the next succeeding issue of the same Publication. The
Off-Sale Date of "one-shots" shall also be determined by Publisher.
(l) (i) "Term" shall mean the period commending with the on-sale date of
the first issue of the Publication(s) distributed by Warner, and
shall continue thereafter for a period of three (3) years. The
Term shall thereafter be automatically extended for successive
three (3) year periods upon the same terms and conditions as
herein contained, subject, however, to the right of
2
either party, on prior written notice to the other party as
provided below, to terminate the Term upon the expiration of
the original Term or any renewal period.
(ii) The notice of termination shall specify the On-Sale Date of the
last issue of each Publication to be distributed under this
agreement and shall be served not less than Ninety (90) days
prior to the end of the original Term or any renewal period by
registered mail or national courier system addressed to the
party being notified at the address specified under paragraph
15 hereof. Notwithstanding such termination, this agreement
shall continue in full force and effect after the termination
date for the purpose of distributing such last issue, handling
and crediting returns of unsold copies, and effecting a final
settlement of Publisher's account. Warner shall have the right,
upon the giving by either party of such written termination
notice, to suspend any further payments to or on behalf of
Publisher and to withhold all further sums relating to the
Publication(s) until final settlement is effected, one hundred
eighty (180) days after the Off-Sale Date of the last issue of
the Publication(s) distributed by Warner hereunder. Warner
shall be entitled to set up a reasonable reserve at that time
for anticipated returns from areas located outside the United
States and Canada, and for all proper and reasonable charges or
reimbursements due Warner pursuant to the terms of this
agreement.
(iii) Notwithstanding anything to the contrary in this agreement,
Publisher shall not be entitled to terminate this agreement at
any time if Publisher is indebted to Warner for any such reason
without first reimbursing Warner the full amount of such
indebtedness.
2. RIGHTS GRANTED: Publisher hereby grants to Warner, for the Term and
throughout the Territory, the exclusive right to distribute the
Publication(s) and any "one shots" derived from the Publication(s) as agent
for Publisher. The provisions of this paragraph 2 shall not apply to copies
of the Publication(s) furnished by Publisher to individual subscribers and
to direct comics market.
3. THE PUBLISHER AGREES:
(a) To publish the Publication(s) at the frequency specified in
subparagraph 1(a), and in substantially the same physical form
(including, but not limited to, size, quality of paper and
reproduction) and with editorial, creative and artistic elements at
least equal to those in previous issues and to print on the cover of
the Publication(s) a UPC code including Warner's bi-pad number.
(b) That upon receipt from Warner of the lists of wholesale distributors
and the number of copies of each of the Publication(s) to be shipped
thereto, Publisher shall complete shipment to wholesale distributors
in accordance with such lists far enough in advance of the On-Sale
Dates of the respective issues to enable distribution to and by
wholesale distributors by the On-Sale Dates. Publishers shall pay all
transportation charges relating to the shipment of the Publication(s)
to wholesale distributors.
(c) That Warner may deduct from the payments due Publishers, as provided
in subdivision 9(b)(ii) hereof, all amounts attributable to copies of
the Publication(s) lost or damaged in shipment to wholesale
distributors. Subject to the provisions of paragraph 16 hereof, all
such loss or damage adjustments made by Warner for the benefit of said
wholesale distributors shall be conclusive on the question of loss
and/or damage and binding upon Publisher. Warner and Publisher shall
assist one another in the handling of claims against carriers for
copies of the Publication(s) that are delayed, lost or damaged in
transit.
3
(d) That Warner shall allow wholesale distributors the privilege of
returning all unsold copies of the Publication(s) and receiving credit
at the rate charged therefor, in accordance with the terms of
paragraph 8 hereof.
(e) That Warner may refuse to distribute any issues of Publication(s)
which, in its opinion, contain libelous, obscene or indecent matter;
which infringe the copyright, right of privacy or publicity or any
other right of any third party; which are unlawful; or which are
refused use of the mails by postal authorities; or, in its sole
discretion, Warner may elect to terminate this agreement with respect
to the Publication(s) concerned. Warner shall have no obligation to
review the content of any Publication.
(f) That if Warner incurs any expenses hereunder on behalf of Publisher or
the Publications(s), then Warner may recover, pursuant to subdivision
9(b)(viii) hereof, any or all such expenses from any advances and/or
payments due or becoming due to Publisher, or, at its option, may
require Publisher to reimburse Warner by check within 10 days
following Warner's request therefor.
4. WARNER AGREES:
(a) To furnish shipping instructions and addressed labels to Publisher at
a reasonable time prior to the scheduled shipping date for
distribution of the Publication(s).
(b) To ▇▇▇▇ and collect all payments from wholesale distributors for
Warner's own account and to designate wholesale distributors and other
customers.
(c) To make payments to Publisher as specified in paragraph 9.
(d) To consult with Publisher's designated representatives, upon request,
with respect to:
(i) The number of copies of each issue to be printed;
(ii) The number of copies of each issue to be allotted and shipped to
each wholesale distributor;
(iii) The sales history of the Publication(s); and
(iv) The advertising and promotion campaigns for the Publication(s).
(e) To designate an employee of Warner as the non-exclusive account
executive for the Publication(s).
(f) To render to Publisher a sales performance statement for each issue of
the Publication(s) showing, in summary form, the issue date, On-Sale
and Off-Sale Dates, number of copies distributed, returns accepted,
Net Sales (in both numerical and percentage terms), and the sales
trend of the Publication(s) (a numerical comparison of Net Sales of
that issue versus Net Sales of the previous issue and of the same
issue one year earlier.)
(g) To render to Publisher a payment statement for each issue of the
Publication(s) summarizing the appropriate calculations pursuant to
this agreement.
(h) The activities described in this paragraph shall be performed in
Warner principal corporate offices, except as otherwise agreed between
Warner and Publisher.
5. WARNER NOT A TRUSTEE: In no event shall Warner be obligated to segregate
any of the sums collected by it hereunder from any of its other funds, nor
shall Warner be considered a trustee, pledgeholder or fiduciary of
Publisher. Publisher acknowledges and agrees that Warner shall be entitled
to perform distribution and other services for other publishers regardless
of whether such other publishers' publications may be competitive with the
Publication(s).
6. RETAIL DISPLAY ALLOWANCES:
(a) Warner shall, only if requested by Publisher, perform the work of
receiving and collating information from retail magazine dealers and
issuing payments on behalf
4
of Publisher for amounts due to them under retail or checkout display
allowance ("RDA") programs conducted by the Publisher in reference to
the Publication(s) as previously authorized by Publisher in writing
for each retail outlet. Such RDA payments shall be charged to the
Publisher's account and recovered and received by Warner as provided
in subparagraph 1(i) and subdivision 9(b)(iii) hereof, at such time as
Warner determines (whether such determination is based upon an
estimate made by Warner or otherwise) that such dealers are entitled
thereto, whether such payment is actually made by Warner at such time.
Any adjustments made by Warner regarding the amount of such allowances
shall be credited or charged (as the case may be) to Publisher's
account at the time such adjustment is actually made by Warner.
(b) In consideration of the services to be performed by Warner pursuant to
this paragraph 6, Warner shall receive an RDA service fee of $.55 for
each issue of the Publication(s) per retailer claim, which sum shall
be recovered by Warner pursuant to subdivision 9(b)(iv) hereof.
(c) Publisher shall have the right, upon timely notice to Warner, to
assume all obligations to perform all RDA services and issue all RDA
payments. Publisher hereby gives the notice of assumption specified in
the preceding sentence.
7. CREDIT TO WHOLESALE DISTRIBUTORS:
(a) Warner will ▇▇▇▇ customers at Customer Discount.
(b) In the event Warner's customers make deductions from payments to
Warner for adjustments to Customer Discount or other special
allowances not agreed to by the Publisher, Warner will notify
Publisher of such adjustments and shall deduct from any payments to
Publisher pursuant to subdivision 9(b)(vii) hereof, the amount of such
deductions. Publisher may direct Warner to hold up or stop future
shipments to the customer.
(c) Publisher agrees that Warner shall be entitled to make all decisions
as to which customer to sell the Publication(s) to, and all credit and
collection decisions with respect to wholesale distributors, including
whether to stop or hold up shipment to delinquent accounts and to
secure substitute accounts. Warner shall bear any losses from
uncollectible accounts and all collection expenses, provided that
Publisher has adhered to directions by Warner to stop or hold up any
shipment to a wholesale distributor. If Publisher fails to adhere to
any such directions, Publisher shall bear all resulting losses of
uncollectible accounts, including any collection expenses, and any
such losses sustained by Warner shall be charged to Publisher's
account and recovered by Warner as provided in subdivision 9(b)(v)
hereof. Nothing herein contained, however, shall require Warner to
institute any legal action or collection proceedings. Publisher agrees
and acknowledges that Warner may recommend new or substitute accounts
in place of or in addition to customers that Warner thinks are
inadequate, an unacceptable credit risk, or irregular in payments.
Publisher will adhere to Warner's recommendation to change customers.
8. RETURNS:
(a) In determining the sums payable to Publisher, Warner shall be entitled
to deduct returns of each issue of the Publication(s) shipped to
Warner from Warner's customers located in the Territory at any time
within 120 days of the Off-Sale Date of each such issue, but as to the
last issue distributed pursuant to this agreement, or any one-shots or
special issues, Warner may accept returns shipped at any time within
180 days of the Off-Sale Date of such issues. The aforesaid 120 and
180 day periods shall be subject to extension by reason of delay or
delays resulting from the use of Reshipping Wholesaler Agencies (as
that term is commonly understood in the magazine trade), in mail
delivery, "acts of God", or any other cause beyond the reasonable
control of Warner, or with Publisher's consent.
(b) If Warner receives returns of any issue hereunder after final
settlement of such issue pursuant to subparagraph 9(b) hereof, Warner
may deduct such returns at the rate charged therefor from any
remittance becoming due Publisher, or, after termination of this
agreement, the Publisher shall promptly reimburse Warner upon receipt
of Warner's statement regarding such returns.
5
(c) Warner may accept returns of unsold copies of the Publication(s) by
means of front covers, headings, affidavits, or electronic notification
in form satisfactory to Warner. If Publisher shall request, in writing,
full copy returns, Warner shall use its reasonable efforts to obtain
same, and in such case, Publisher agrees to pay for returns
transportation and such handling charges as are required. Warner shall
furnish Publisher with returns statements which, subject to paragraph
16 hereof, shall be accepted by Publisher as conclusive evidence
thereof, and Warner is hereby authorized to destroy any and all front
covers or headings representing such returns.
9. PAYMENT TO PUBLISHER: Warner shall make the following payments to
Publisher with respect to each issue of the Publication(s).
(a) As an advance against any and all sums which may become payable to
Publisher pursuant to subparagraph (b) with respect to each issue of
the Publication(s).
(i) For the first three issues of the Publication, an amount equal to
fifteenth (15%) percent of Gross ▇▇▇▇▇▇▇▇ and for the fourth and
subsequent issue of the Publication, an amount equal to fifty
(50%) percent of Warner's estimate of Final ▇▇▇▇▇▇▇▇ (determined
in Warner's sole discretion), due on the on-sale date of the
Publication and after receipt by Warner of the Printer's
Completion Notice, less an estimated amount to cover the
deductions specified in subdivisions 9(b)(ii) - 9(b) (viii) to the
extent that such deductions are determinable at such date.
In the event that Publisher and Warner do not agree as to the
number of copies of each issue of the Publication(s) to be
allotted and shipped to each wholesale distributor, Warner may,
thereafter, at its ole discretion, base the computation of the
advances to become due to Publisher pursuant to this paragraph 9
on the number of copies of each issue of the Publication(s) that
Warner deemed appropriate to be allotted and shipped to each
wholesale distributor, rather than the number actually printed and
shipped.
(ii) An amount equal to sixty-five (65%) percent of Warner's estimate
of the Final ▇▇▇▇▇▇▇▇ (determined in Warner's sole discretion),
sixty (60) days after the Off-Sale Date of such issue, less the
first advance and an estimate of any unpaid deductible expenses
provided for under subdivisions 9(b)(ii) - 9(b)(viii) to the
extent that such deductions have not previously been deducted and
retained by Warner.
(b) An amount equal tot he Final ▇▇▇▇▇▇▇▇ shall be paid to Publisher one
hundred twenty (120) days after the Off-Sale Date of that issue, less
any of the following deductible expenses which have not been recovered
by Warner:
(i) All sums advanced to Publisher pursuant to subparagraph (a) above;
(ii) All loss and damage adjustments pursuant to subparagraph 3(c)
above;
(iii) All RDA payments pursuant to paragraph 6 above;
(iv) Warner's RDA service fee pursuant to paragraph 6 above;
(v) All uncollectible amounts and other items properly chargeable to
Publisher referred to in paragraph 7 above;
(vi) The following special allowances which may be granted by Warner:
I. With respect to Reshipping Wholesaler Agencies (as the term is
commonly understood in the magazine trade):
A. A charge of $12.45 per cwt. on all non-second-class entry
magazines for U.S. and Canada reshipping agencies.
B. A charge of $6.40 per cwt. on all second-class entry
magazines for U.S. and Canada reshipping agencies.
II. The charges referred to in subdivision A and B above are
subject to change in proportion to any increase in the
aforesaid rates.
6
III. A charge of $3,000.00 will be made if an analysis of
circulation by population is requested and required
for the Audit Bureau of Circulation report. No charge
will be made for the Sate Circulation analyses which
are customarily made once a year for the Publication.
(vii) Diskettes containing O&R or history data will be furnished
at the Publisher's request upon a charge of $200 per
diskette subject to increases from time to time.
(viii) All other charges, payments or other reimbursements due
Warner pursuant to the terms of this agreement,including but
not limited to, any foreign exchange losses (any foreign
exchange gains shall be credited to Publisher).
10. ONE-SHOTS:
(a) Warner shall have the right to refuse to distribute any one-shots
as may hereafter be published. In the event Warner agrees to
distribute such one-shots, Warner shall pay Publisher its Final
▇▇▇▇▇▇▇▇ as computed for each one-shot less the deductions specified
in subdivisions 9(b)(ii) - 9(b)(viii).
(b) All the terms and conditions of the agreements shall be applicable
to such one-shots as may be distributed hereunder, except that with
respect to advance payments the parties hereby agree to negotiate in
good faith as to the amount and timing of such payments.
11. CROSS-COLLATERALIZATION/OVERDRAFTS:
The Estimated Final ▇▇▇▇▇▇▇▇ of each issue of all Publication(s)
distributed by Warner pursuant to this agreement shall be treated as a
unit. If the sum of advance payments due and the deductible expenses
incurred by Warner pursuant to subdivisions 9(b)(ii) - 9(b)(viii) with
respect to any issue of any Publication(s) exceeds the Estimated Final
▇▇▇▇▇▇▇▇ for such issue (such excess is hereunder referred to as the
"Overdraft"), the Overdraft may be deducted by Warner from any advance
and/or payment of Final ▇▇▇▇▇▇▇▇ which ▇▇▇▇▇▇ may be required to make on
any issue or issues of the same Publication(s), or any other
Publication(s), the distribution rights to which have been granted to
Warner by Publisher or any affiliate,parent or subsidiary of Publisher
pursuant to this or any other agreement, or shall be refunded or paid
thereby immediately upon demand.
12. PUBLISHER'S WARRANTIES; INDEMNITY:
(a) Publisher warrants and represents that:
(i) the rights herein granted to Warner have not been granted to
any other person, firm, or corporation; it has the right and
authority to enter into this agreement and to perform its
obligations hereunder, free and clear of any encumbrances; and
there are no suits or proceedings pending or threatened against
or affecting Publisher which, if adversely determined, would
impair the rights herein granted to Warner;
(ii) it is duly organized and incorporated under the laws of the
State of California.
(iii) it is the sole and exclusive owner of the Publication(s) and
all rights therein.
(iv) that the Customer Discounts and all pricing,discount, and
allowance terms shall be in compliance with all applicable
antitrust and trade laws in the territory; and
(v) that the Publication(s) and distribution of the Publication(s)
under the Agreement will not violate any laws or rights of any
third parties or entities.
(b) Publisher agrees to defend and indemnify Warner and its officers,
agents, representatives, Warner's customers and retailers against any
damages, costs, expenses (including reasonable counsel fees),
judgements, settlements, penalties, liabilities or losses arising out
of any claim, action or proceeding alleging copyright
7
or trademark infringement, libel, obscenity, violations of the rights
of privacy, publicity or any other rights of any person, or any
federal, state or local statute or regulation, in connection with the
title, cover, contents or advertising of the Publication(s),
including, but not limited to, advertisements, illustrations, or
photographs, or in the text thereof, or arising out of the breach or
alleged breach of any of the foregoing representations or warranties.
Warner and Publisher shall each, with all reasonable promptness,
notify the other of any suit, proceeding, claim or demand brought in
connection with the Publication(s). If any such suit, proceeding,
claim or demand is brought against Warner, Warner may elect (i) to
undertake the defense thereof at the Publisher's expense or (ii) to
notify the Publisher to undertake the defense thereof. If Warner does
so notify the Publisher, the Publisher shall undertake the defense at
its own expense; and in such case, Warner may at its option join in
the defense but at its own expense.
(c) During the pendency of any such suit, proceedings, claim or demand,
Warner may withhold payments from Publisher, under this or any other
agreement between Publisher and Warner, to the extent reasonably
necessary to remedy any damage, cost, expense, settlement, judgement
or liability which may result therefrom.
(d) The warranties and representations of Publisher hereunder shall, along
with the indemnity, survive the termination of this agreement.
13. CUSTOMER BANKRUPTCY - COMPUTATION OF NET SALES:
In the event that a wholesale distributor or other customer to which Warner
distributes the Publication(s) on Publisher's behalf shall take advantage
of any federal or state insolvency law for relief of debtors, including
reorganization, or shall cease its business operation with the effect that
such wholesale distributor or other customer shall not return its unsold
copies of the Publication(s), Warner shall use the average Net Sales of the
Publication(s) as reported by such wholesale distributor or customer for
the twelve (12) months (or such lesser period if applicable) prior to those
months for which such wholesale distributor or customer failed to return
unsold copies of the Publication(s), for determining the Net Sales of the
Publication(s) shipped to such wholesale distributor or customer for said
months.
14. ASSIGNMENT:
This agreement shall bind and inure to the benefit of the parties hereto
and their respective successors and assigns, provided that no assignment of
this agreement, voluntary or by operation or law, shall be binding upon
either of the parties hereto without the prior written consent of the
other, unless it is an assignment to a parent, subsidiary or affiliate as
part of the sale or transfer of all or substantially all of such party's
assets. Notwithstanding this, Publisher may sell, assign, transfer or
otherwise dispose of its interest in any Publication or any trademark(s)
associated therewith to any third party (whether by means of a sale of
assets or equity) if such third party agrees in writing to assume and be
bound by all the terms and conditions of this agreement to be performed by
Publisher and prior to such sale, assignment, transfer or other disposition
Publisher reimburses Warner the full amount of any indebtedness owed by
Publisher to Warner; provided, however, that Publisher shall guarantee and
remain responsible for the performance of all obligations hereunder with
respect to such Publication, and that Warner shall have the right to
terminate this agreement with respect to such Publication.
15. NOTICES:
All notices which either party hereto is required or may desire to give to
the other shall be given by addressing the same to the other at the address
hereinafter set forth, or at such other address as may be designated in
writing by any such party in a notice to the other given in the manner
prescribed in this paragraph. All such notices shall be sufficiently given
when the same shall be deposited so addressed, postage prepaid, in the
United States mail and/or when the same shall have been delivered, so
addressed, by national courier system, or to a telegraph or cable company
toll prepaid and the date of said mailing or telegraphing shall be the date
of the giving of such notice. The addresses to which any such notices shall
be given are the following:
TO WARNER: TO PUBLISHER:
Warner Publisher Services ▇▇▇▇▇▇ Entertainment Company
Attn: President 1999 Avenue of the Stars, 17th Floor
1271 Avenue of the Americas ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
8
16. AUDIT RIGHTS:
Publisher may, at its own, expense, audit the books and records of Warner
relative to the distribution of the Publication(s) pursuant to this
agreement at the place where Warner maintains such books and records in
order to verify statements rendered to Publisher hereunder. Any such audit
shall be conducted only by a reputable public accountant during reasonable
business hours in such manner as not to interfere with Warner's normal
business activities. A true copy of all reports made by Publisher's
accountant shall be delivered to Warner at the same time such respective
reports are delivered to Publisher by said accountant. In no event shall an
audit with respect to any statement commence later than twelve (12) months
from the date of dispatch to Publisher of such statement nor shall any
audit continue for longer than five (5) consecutive business days, nor
shall audits be made hereunder more frequently than twice annually, nor
shall the records supporting any such statement be audited more than once.
All statements rendered hereunder shall be binding upon Publisher and not
subject to objection for any reason unless such objection is made in
writing stating the basis thereof and delivered to Warner within twelve
(12) months from delivery of such statement, or, if an audit is commenced
prior thereto, within thirty (30) days from the completion of the relative
audit.
17. INTEGRATION; WAIVER; MODIFICATION:
This agreement constitutes the complete and entire understanding of the
parties hereto concerning the subject matter hereof and supersedes any
prior agreements, understandings and representations. This agreement is not
being executed in reliance upon any representation or warranty not
expressly set forth herein. No waiver, modification or cancellation of any
term or condition of this agreement shall be effective unless executed in
writing by the party charged therewith. No written waiver shall excuse the
performance of any act other than those specifically referred to therein.
18. NO PARTNERSHIP, ETC.:
This agreement does not constitute and shall not be construed as
constituting a partnership or joint venture between Warner and Publisher.
Neither party shall have any right to obligate or bind the other party in
any manner whatsoever, except as otherwise specifically set forth herein,
and nothing herein contained shall give, or is intended to give, any rights
of any kind to any third persons.
19. CONSTRUCTION:
This agreement shall be governed by and construed in accordance with the
laws of the State of New York applicable to agreements executed and fully
performed therein. It is agreed that New York courts (state and federal)
only, will have jurisdiction over any controversies regarding this
agreement; any action or proceeding which involves such a controversy will
be brought only in those courts, in New York County. Any process in any
such action or proceeding may, among other methods, be served by delivery,
certified or registered mail, national courier system or any other
receipted form of delivery. Any such delivery, mail service, courier
service, or other receipted form of delivery shall be deemed to have the
same force and effect as personal service within the state of New York.
20. FORCE MAJEURE:
If because of act of God; accident; fire; lockout; strike or other labor
dispute; riot or civil commotion; act of public enemy; law enactment,
regulation, rule, order or act of government or governmental
instrumentality (whether federal, state, local or foreign); or other cause
of a similar or different nature beyond the control of Publisher or Warner,
the performance of Publisher's or Warner's obligations hereunder is delayed
or prevented, such delay or prevention shall not be considered a breach of
this agreement.
21. HEADINGS:
The headings in this agreement are for convenience of reference only, and
shall not limit or otherwise affect the meaning thereof.
9
22. CONFIDENTIALITY:
Publisher agrees that this agreement contains confidential business terms
and that disclosure thereof could be damaging to Warner. Accordingly,
Publisher agrees to treat this agreement as proprietary information and
not to reveal any of the terms hereof to any third party, for any purpose
unrelated to performance under this agreement, except upon Warner's prior
approval.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be
executed by their duly authorized officers as of the day and year first
above written.
▇▇▇▇▇▇ ENTERTAINMENT COMPANY: WARNER PUBLISHER SERVICES, INC.
BY: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ BY: [SIGNATURE ILLEGIBLE]
------------------------- ----------------------------
TITLE: TITLE:
---------------------- --------------------------
