EXHIBIT 10.11
DATED 17TH DAY OF JANUARY 1996
BETWEEN
SEGA OZISOFT PTY LIMITED
AND
BRILLIANT INTERACTIVE IDEAS PTY LIMITED
ASSISTANT MULTIMEDIA SOFTWARE
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DEVELOPMENT & PRODUCTION AGREEMENT
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THIS AGREEMENT is made the 17th day of January 1996.
BETWEEN SEGA OZISOFT PTY LIMITED A.C.N. 056 032 476 a company duly
incorporated in the State of New South Wales and having its
registered office at 000 Xxxxxx Xxxxxx, Xxxxxx in the said
State (hereinafter the "Producer") of the first part.
AND BRILLIANT INTERACTIVE IDEAS PTY LIMITED A.C.N. 061 288 668 a Producer
duly incorporated in the State of New South Wales and having
its registered office at Xxxxx 00, XXX Xxxxxx, Xxxxxx Xxxxx,
Xxxxxx in the said State (hereinafter "BII") of the second
part.
WHEREAS:
A. The Producer wishes to develop and cause to be marketed a CD-ROM
interactive game entitled "Cyberswine" further described in Exhibit
1 for use on PC computers and the Sega Saturn game platform, which
shall utilise the Producer's Development Tools further described in
Exhibit 2 which shall be further developed and refined by the
Producer with the assistance of the BII (hereinafter the "Project").
B. BII being a company which specialises in computer software
development has agreed for the good and valuable consideration
contained herein to provide assistant production services described
in the Schedule of Services contained in the Schedule hereto
("Services").
C. The Producer has agreed to provide technical assistance to BII on
the Project in the provision of the Services.
THE PARTIES AGREE AS FOLLOWS
1. TERM.
This Agreement shall be deemed to have come into operation on 1
November 1994 and subject to the rights of termination shall
continue until terminated pursuant to the provisions hereof.
2. PAYMENT FOR SERVICES.
2.1 The Producer will pay BII a total fee of $CONFIDENTIAL INFORMATION
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION being the total budget allocated for BII for the Services
to be provided ("Budget"). The Budget payments shall be performance
based and payable upon provision to the reasonable satisfaction of
the Producer of various aspects of the Services to be provided. The
amount payable from the Budget for those part services shall be
mutually agreed upon between the parties
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on a monthly basis taking into consideration the expenditure of
resources required to be utilized by BII in its performance of those
part services ("Invoice Amount"). BII shall then invoice the
Producer for the Invoice Amount which shall be payable thirty (30)
days from date of receipt.
2.2 Further, the Producer shall pay to BII CONFIDENTIAL INFORMATION
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION% royalties based upon the Net Revenue received by the
Producer being the gross revenue actually received by the Producer
from sales and exploitation of the Cyberswine software/computer
program less cash and credit returns, warranty replacements, sales
tax, bad debts, distress non-profit sales to reduce inventory.
2.3 The Producer shall retain CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION% of the
Budget and shall have no obligation to make any final payment or
royalty payments until completion and delivery of the Services to
the Producer's reasonable satisfaction.
2.4 In the event of termination of this Agreement by the Producer
without cause after commencement of work under this Agreement, the
Producer shall pay BII a termination fee to be mutually agreed upon
between the parties upon a pro-rata basis taking into consideration
the Budget and the amount of approved Services provided to the
Producer by BII verses the amount of total services contracted for
herein.
3. PROJECT VARIATIONS
3.1 BII shall immediately advise the Producer of any circumstance
whereby in BII's opinion its estimates of time, costs, or
achievement of Services, must be or has been substantially varied
and the extent or nature of such variation.
3.2 In the event that any circumstance whereby in BII's opinion BII's
estimates of time, cost or Services specified herein and provided
for in the Budget must be varied, BII shall submit to the Producer
amendments to the Services and Budget for approval or rejection by
the Producer in its sole discretion.
4. SUB-CONTRACTORS
4.1 BII SHALL ENSURE THAT IT OBTAINS AS SOON AS PRACTICABLE FROM ANY
SUB-CONTRACTOR OR CONSULTANT USED BY IT IN THE PROVISION OF THE
SERVICES AN UNDERTAKING EXECUTED BY THE SUBCONTRACTOR OR CONSULTANT
IN THE FORM OF EXHIBIT 1 HERETO.
4.2 All additional royalties or fees payable through any sub-contract
agreement over
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and above the fees and royalties payable to BII under this Agreement
shall be payable through and be the sole responsibility of BII
unless any contrary agreement is made in writing between the parties
hereto in advance to any sub-contract agreement being entered into
by BII.
5. CONFIDENTIALITY & TECHNOLOGY DISCLOSURE
5.1 The Producer agrees to supply to BII the confidential information
and make available its technical support personnel and such further
documentation as BII shall reasonably require for the purposes of
this Agreement.
5.2 BII agrees that information disclosed by the Producer, including
information acquired by BII from its inquiries to the Producer or
inspection of the Producer's property, relating to the Producer's
products, software, research, development, know-how or personnel, as
well as information relating to the Cyberswine and Development
Tools, (all being referred to herein as "the Confidential
Information"), is confidential to the Producer.
5.3 BII shall maintain the confidence of the Confidential Information
and shall prevent its unauthorized dissemination or use; provided
however that this Agreement shall impose no obligation on BII with
respect to maintaining the confidence of Confidential Information
which is at the time of disclosure hereunder, or becomes
subsequently without fault on the part of BH, generally known or
available by publication, commercial use or otherwise.
5.4 BII agrees not to use the Confidential Information for purposes
other than those necessary directly to further the purposes of this
Agreement or as otherwise agreed herein in relation to use of the
Development Tools.
5.5 BII agrees to return all Confidential Information to the Producer
forthwith upon request, howsoever the Confidential Information may
be embodied at the date of such request, including but not limited
to computer programs, documentation, notes, plans, drawings and any
copies thereof on microfiche, magnetic tape or disk or any other
medium whatsoever. In the event such medium cannot be detached from
any valuable equipment, BII shall so certify and shall forthwith
erase the Confidential Information so embodied and certify its
erasure to the Producer within seven (7) days of the request for
return being made by the Producer.
5.6 BII hereby acknowledges that unauthorized disclosure or use of
Confidential Information could cause irreparable harm and
significant injury which may be difficult to ascertain. Accordingly,
each party agrees that the other shall have the right to seek and
obtain immediate injunctive relief from breaches of this Agreement,
in addition to any other rights and remedies it may have.
5.7 BII agrees to treat as confidential all information received from
the Producer
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which is not information already in the public domain, or is not
required by law to be disclosed. BII agrees to disclose such
information only to those of its employees or subcontractors who
need to know it for the performance of this Agreement.
6. WARRANTIES AND INDEMNITIES
6.1 BII shall indemnify and save the Producer harmless from and against
any costs, damages, loss or liability of any kind (including legal
costs and disbursements in defending or settling the claim giving
rise to same) howsoever suffered or incurred by the Producer by
virtue of the provision of the Services or any breach of this
Agreement by BII.
6.2 In addition, BII will indemnify the Producer and hold it harmless
from and against all claims, liabilities, damages, losses and
expenses, including but not limited to reasonable attorneys' fees
and costs of suit, arising out of or in connection with any
negligent or willful act or omission of BII or BII's employees or
agents which proximately causes or contributes to (a) any injury to
or destruction of tangible or intangible property of the Producer's,
including computer programs and data or any loss of use resulting
therefrom; or (b) any violation of any statute, ordinance or
regulation in the provision of the Services.
6.3 BII acknowledges and agrees that it is obliged to report as income
all compensation received by BII pursuant to this Agreement, and BII
agrees to indemnify the Producer and hold it harmless to the extent
of any obligation imposed on the Producer (a) to pay any withholding
taxes, social security, unemployment or disability insurance or
similar items, including interest and penalties thereon, in
connection with any payments made to BII by the Producer pursuant to
this Agreement and/or (b) resulting from BII being determined not to
be an independent contractor.
7. INVENTIONS AND COPYRIGHT WORKS
7.1 BII assigns to the Producer:
(a) all inventions, models, discoveries and novel designs whether
or not registrable as designs or patents created by BII or any
sub-contractor of BII pursuant to this Agreement; and
(b) the entire copyright throughout the world in all writing and
literary material (including script enhancements; sound
production; computer programs including but not limited to any
application programs, assembler programs, microcodes,
mnemonics, object and/or source codes, operating systems or any
modifications or enhancements to any programs within the
Project; formatting information; flow charts; programmers'
notes and other
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documentation); art works; digital imaging; sprites;
animations; model drawings and other copyright work
(collectively the 'Works') created by BII or any sub-contractor
of BII pursuant to the Services to be provided under this
Agreement;
whether or not in normal business hours or using varied premises or
equipment in provision of the Services subject to paragraph 7.2 of
this clause.
7.2 The parties agree that they will jointly own and will both have the
unfetted right to exploit at any time throughout the world any newly
developed development and production techniques, being new methods
and concepts employed in the development and production of the
Project and which specifically exclude use of the Development Tools
and any Confidential Information supplied to BII by the Producer
which may be derived from either the sole effort of BII or by the
joint efforts of the parties to this Agreement. This right is
limited to the methods and concepts developed under this Agreement
for the development and production of the Project and does not
extend to give BII any right in, access to, or use of, any of the
Works incorporated within the Project. The limitations contained in
this sub-clause shall not operate so as to limit the rights of BII
under clause 11 herein.
7.3 BII shall both during and after engagement by the Producer do all
such acts and things, and sign all such documents, as the Producer
or its attorneys may reasonably request to secure the Producer's
ownership or fights to the inventions, discoveries, designs or
copyright works referred to in paragraph 7.1 of this clause.
8. AUTHOR'S MORAL RIGHTS
8.1 BII authorizes and permits the Producer to reproduce and make
adaptations to or alterations of any part of any Works (including
computer programs) being prepared by BII pursuant to this Agreement,
without acknowledgment of the authorship or part authorship of BII
in any adaptations or alterations unless agreed to in advance by the
Producer.
8.2 The operation of this clause shall in no way effect the credit
rights granted to BII under clause 10 herein.
9. PROVISION OF DOCUMENTATION AND SOURCE CODE BY THE CONTRACTOR
9.1 Providing that the Producer is not in default of this Agreement, BII
shall, with the cooperation of the Producer, provide to the Producer
such documentation in such form relating to the Works as the
Producer may require from time to time.
9.2 The documentation to be provided by BII pursuant to this Agreement
will be such that the Works will be adequately explained.
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9.3 BII will, at the request and expense of the Producer, provide in
writing, such further documentation as is required by the Producer
that is in excess of adequately explaining the Works (hereinafter
"Additional Documentation") subject to an agreement being reached
between the parties hereto on BII's cost of supplying the Additional
Documentation.
9.4 Forthwith upon expiration or termination of this Agreement, BII
shall deliver all the Confidential Information then in its or its
sub-contractor's possession and all Works (including source code of
any program) to the Producer and in addition BII shall leave with
the Producer all scripts, writings, records, books, drawings, note
books and other documentation and things pertaining to the Works,
including any extra features of the Works and further any equipment,
tools or other devices owned by the Producer then in the possession
of BII or any sub-contractor subject to BII's rights contained in
sub-clause 7.2.
10. CREDITS
10.1 The Producer shall be under no obligation to commercially exploit
Cyberswine but if the Producer does so, subject to sub-clauses 10.3
and 10.5 herein, the Producer shall ensure that on the credit
screens of Cyberswine, BII is given sole credit in the credit titles
as "Assistant Producer" of the screenplay, such credit being in
lettering equal in kind and size and having equal screentime to that
given to the Animators of Cyberswine.
10.2 Further, subject to Cyberswine's commercial exploitation as stated
above, the Producer shall ensure that BII's employees and individual
sub-contractors, as decided upon by BII in its sole discretion and
who assisted in the provision of the Services for Cyberswine shall
be given credit titles including their names and functions and such
credits shall be collectively placed on a credit screens which shall
have equal screentime to that given to the Animators of Cyberswine.
10.3 In the event that BII's engagement is terminated for any reason or
the Producer engages another entity or entities who provide the
Services the parties shall negotiate in good faith as to credits if
any which shall be given to BII. Such agreement shall be based upon
the amount of approved Services provided to the Producer by BII and
the amount of total services contracted for herein.
10.4 No casual or inadvertent failure to accord BII credit in accordance
with this clause shall constitute a breach of this Agreement by the
Producer and BII's remedies in that event shall be confined to
recovery of damages.
11. USE OF DEVELOPMENT TOOLS
11.1 BII may make a written request to the Producer to use any of the
Development Tools owned by the Producer in any of its own software
development projects, excluding any Development Tools or parts
thereof which incorporate information
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which has been provided by and is considered confidential
information of Sega Enterprises Limited.
11.2 Approval for use of the Development Tools shall not be unreasonably
withheld by the Producer and such approval shall be mutually agreed
upon between the parties:
(a) ensuring that the proposed development project(s) of BII do not
devalue or cheapen the Development Tools or their operation
either financially or morally taking into consideration the
Producers business operations and target markets; and
(b) subject to an agreement being reached on the relevant royalty
rate payable by BII to the Producer on each proposed
development project. The royalty rate payable by BII shall be
on Net Revenues as described in sub-clause 2.2 herein and shall
be no greater than CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION percent
(CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION%) and no less than
CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION percent (CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION%).
If the Producer so chooses to reject a request to use the
Development Tools by BII, the Producer agrees to provide BII with a
written explanation of the grounds for the rejection and BII shall
have the right to resubmit revised applications for use of the
Development Tools for any proposed software development project.
12. ROYALTIES, BOOKS OF ACCOUNT & AUDITS
12.1 If any royalties are payable hereunder, the payer shall account to
payee with regard to transactions hereunder within thirty (30) days
following the conclusion of each calendar quarter. The payer hereby
warrants that such statements of account to be prepared shall be
true and correct. The accounts shall show in detailed form the
appropriate calculations relating to the computation of the
royalties.
12.2 The payer shall pay all royalties due in Australian Dollars which
shall be deposited into the bank account of the payee, the details
of which shall be provided to the payer by the payee and the
statement indicating such amount to be due shall be simultaneously
sent to a postal address, the details of which shall be provided to
the payer.
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12.3 The payer shall keep books of account relating to the revenues
received in the exploitation of the software of any relevant project
on the basis of generally accepted accounting principles which shall
be maintained for a minimum period of two (2) years after the
termination of the exploitation of that project or Cyberswine by the
payer.
12.4 Payee may upon fourteen (14) days notice and at its own expense,
audit the applicable records at the registered office of the payer
in order to verify statements rendered. Any such audit shall take
place during reasonable business hours and in such a manner so as
not to interfere with the normal business activities of the payer.
12.5 All information contained in the books and records of the payer
shall be kept confidential and payee agrees that such information
inspected and/or copied on behalf of payee shall be used only for
the purpose of determining the accuracy of the statements and shall
be revealed only to such officers, directors, employees, agents
and/or representatives of payee as is necessary to verify the
accuracy of the statements.
12.6 If the audit reveals an underpayment in excess of five percent (5%)
of the royalties due and payable hereunder for any calendar quarter,
the payer shall reimburse payee, within seven (7) days after written
notification is given to the payer, for the difference and full out-
of-pocket costs for any audit of the relevant books and records of
the payer.
13. TERMINATION
13.1 Either party may terminate this Agreement at any time if:
(a) the other is in material breach of any warranty, term,
condition or covenant of this Agreement and fails to cure that
breach within thirty (30) days
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after receiving written notice of that breach and the other
party's intention to terminate; or
(b) the other (i) becomes insolvent; (ii) fails to pay its debts or
perform its obligations in the ordinary course of business as
they mature; (iii) admits in writing its insolvency or
inability to pay its debts or perform its obligations as they
mature; or (iv) becomes the subject of any voluntary or
involuntary proceeding in bankruptcy, reorganisation,
liquidation, dissolution, receivership, attachment or
composition for the benefit of creditors that is not dismissed
with prejudice within thirty (30) days after it begins.
Termination will become effective under section (a) automatically
upon receipt of notice in the event of a breach incapable of cure,
or in the case of a breach capable of cure upon the expiration of
the cure period in the absence of a cure, and under section (b)
immediately upon the non-terminating party's receipt of a notice of
termination at any time after the specified event or the failure of
the specified proceeding to be timely dismissed.
13.2 Subject to sub-clause 2.4 herein, the Producer reserves the right to
terminate this Agreement without cause, by providing BII with
thirty (30) days' prior written notice:
13.3 Neither party will be liable to the other for damages of any sort
solely as a result of terminating this Agreement in accordance with
its terms, and termination of this Agreement will be without
prejudice to any other right or remedy of either party.
14. EXCHANGE OF STAFF
Neither party hereto shall without the written authorisation of the
other, induce an employee of the other to leave that other's
employment for the purpose of becoming an employee or contractor of
the inducing party, either during the term of this Agreement or for
the period of three months after the termination or expiration
thereof. In the event that either party engages an employee of the
other as employee or contractor during the term of this Agreement or
for a period of
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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 after the termination or
expiration hereof, the defaulting party shall pay liquidated damages
assessed in the sum of $CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION for each such
employee so engaged, such sum being assessed by the parties hereto
as fair compensation for the loss of such employee and the cost of
engaging and retraining a replacement employee or contractor.
15. FORCE MAJEURE
Neither party shall be liable for any loss or damage or be deemed to
be in breach of this Agreement if its failure to perform or failure
to cure any of its respective obligations hereunder results from any
event or circumstance beyond its reasonable control, including,
without limitation, availability and use for the required purpose of
the Development Tools, any natural disaster, fire, flood,
earthquake, or other Act of God; shortage of equipment, materials,
supplies, or transportation facilities; strike or other industrial
dispute; war or rebellion; or compliance with any law, regulation,
or order (whether valid or invalid) of any governmental body;
provided, however, that the party interfered with gives the other
party written notice thereof promptly, and, in any event, within
thirty (30) working days of discovery of any such Force Majeure
condition. If notice of the existence of any Force Majeure condition
is provided within such period, the time for performance or cure
shall be extended for a period equal to the duration of the Force
Majeure event or circumstance described in such notice, except that
any such cause shall not excuse the payment of any sums owed to
Licensor prior to, during, or after any such Force Majeure
condition.
16. CONCILIATION & ARBITRATION
16.1 In the event that either party is of the view that any dispute,
controversy or claim arising out of or relating to this Agreement,
or the breach, termination or invalidity thereof, OTHER THAN any
such dispute, controversy or claim between the parties hereto
concerning ownership of any aspect of the Software or the licenses
granted hereby ("the Dispute"), cannot be resolved by informal
discussion, negotiation and agreement, the Dispute shall first be
the subject of conciliation, administered by the Australian
Commercial Disputes Centre Limited ("the Centre") conducted at
Sydney and held in accordance with the Conciliation Rules of the
Centre in force at the date of this Agreement. The Dispute shall be
submitted for conciliation by either party by serving upon the other
party Notice of Dispute setting out the nature of the dispute,
controversy or claim and material facts in relation thereto, with a
copy being sent to the Centre requesting a date
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for initial meeting in accordance with the Conciliation Rules.
16.2 In the event that the Dispute is not resolved by agreement following
conciliation within ninety (90) days from the date first nominated
for meeting by the Centre pursuant to clause 16.1, the Dispute shall
be referred to and determined by arbitration, administered by the
Centre, conducted in Sydney and held under the rules of arbitration
of the International Chamber of Commerce by one or more arbitrators
appointed in accordance with the said rules. The parties shall be
entitled to legal representation in such arbitration.
16.3 Neither party hereto shall commence any action or claim in any court
or other tribunal unless and until the Dispute has been referred to
and determined by arbitration under clause 16.2 hereof and an award
has been delivered by the arbitrator or arbitrators appointed
pursuant thereto. All proposals, discussions, statements,
information supplied and other matters raised during conciliation
and arbitration under this clause shall be confidential and without
prejudice to any claim or proceeding subsequently made or brought by
either party.
17. SURVIVAL
17.1 Unless otherwise specifically provided hereunder, payment and
indemnification obligations, representations, warranties and any
accrued rights shall survive the expiration or termination of this
Agreement including without limitation BII's rights to exploit the
Development Tools provided for under clause 11.
17.2 BII's rights to royalties hereunder shall not survive this Agreement
for termination with cause by the Producer as provided for under
sub-clause 13.1.
18. GENERAL PROVISIONS
The relationship between the parties is independent and neither
party is a legal representative, agent, joint venturer, partner, or
employee of the other for any purpose whatsoever. This Agreement
constitutes the entire agreement between the parties. Neither of the
parties may assign this Agreement without the prior written
authorisation of the other. In the event that any part of this
Agreement is determined invalid or unenforceable, that part shall be
enforced to the extent possible consistent with the intention of the
parties, or, if unenforceable, deemed deleted from this Agreement,
while the remainder continues in full force and effect. Any waiver
by either party of any provision of this Agreement shall not be
construed as a waiver of any other provision of this Agreement, nor
shall such waiver operate as or be construed as a waiver of such
provision respecting any future event or circumstance. All notices
sent to either of the parties shall be in writing to the address
stated in the preamble hereof and shall be effective upon the date
of receipt. This Agreement shall be construed and governed in
accordance with the laws of the State of New South Wales, Australia.
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WITNESS WHEREOF the parties hereto have executed this Agreement on
the day and year herein before written.
Sega Ozisoft Pty Limited Brilliant Interactive Ideas Pty Limited
------------------------ ---------------------------------------
/s/ Xxxxx Xxxxxxxxxx /s/ Xxxx Xxxxxx
---------------------------------- ---------------------------------------
Name: /s/ Xxxxx Xxxxxxxxxx Name: Xxxx Xxxxxx
Title: Managing Director Title: Managing Director
/s/ Damon Pembroke /s/ Xxxxxxx Xxxxxx
---------------------------------- ---------------------------------------
Witness: Damon Pembroke Witness: Xxxxxxx Xxxxxx
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SCHEDULE
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A. SCHEDULE OF SERVICES
1. BII will render such services as the Producer may from time to time request
in writing in connection with the development and production of the Project
and Development Tools, whereby BII will provide various technical
assistance and development aids and techniques including but not limited to
creative direction and general Project management. BII without limiting the
generality of the foregoing, will be responsible for the following:
(a) provision of project management with regard to the development of
Cyberswine;
(b) production of Cyberswine using the Development Tools provided by the
Producer including but not limited to;
(i) lay-up and placement of models, sound and cameras within the
relevant Development Tools,
(ii) sound production, post production within the relevant
Development Tools,
(c) preparation of creation of 3D studio animation fries for Cyberswine;
(d) Cyberswine script enhancements, alterations and polish as required
by Producer;
(e) modification and enhancement of texture maps, models, animation and
sound supplied to BII by third party animators for inclusion into
Cyberswine;
(f) sampling of music/sound effects for Cyberswine;
(g) liasing with and direction of third party animators for the supply
of libraries of motion capture and models to be used in the
production of Cyberswine;
(h) provision of creative input and technical direction for the
development of Cyberswine;
(i) Alpha and Beta testing and delivery of a Beta copy of Cyberswine for
evaluation and approval by Producer;
(j) premastering and delivery of final Golden Master of Cyberswine for
use on PC computer hardware (inclusive of required interactivity and
gameplay, final graphics and layed-up scenes) ready for commercial
replication and exploitation by the Producer;
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(k) provision of creative input and technical direction for the on going
development of Development Tools;
(l) evaluation, review and testing of the Development Tools and
provision of written reports on the results of such testing
including but not limited to Alpha testing, bug reports and
suggestions for ongoing development, maintenance, enhancements and
modifications of the Development Tools.
2. BII also agrees to train the Producer's development personnel in the use of
those development aids and techniques used by BII and necessary for the
development and production of the Project for additional remuneration based
on time and materials at a rate to be agreed upon in advance between the
parties.
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B. REPORTING
BII shall provide reports detailing the Services completed or
provided in such a manner and form, and at such times as mutually
agreed to between the parties.
C. ACCEPTANCE PROCEDURE
1. Upon delivery of any Works required to be delivered by BII in the provision
of the Services pursuant to the Project (hereinafter a "Deliverable Item"),
the Producer shall have CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION (CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION) business days to examine and test the delivered item to
determine whether it conforms to the reasonable requirements of the
Producer for its intended use. The Producer will notify BII of the
Producer's acceptance or rejection of the Deliverable Item and, in the case
of any rejection, will provide BII with a reasonably detailed list of
deficiencies in the Deliverable Item. If the Producer fails to notify BII
of the Producer's acceptance or rejection within such period, the
Deliverable Item shall be deemed to be accepted by the Producer. In the
case of a rejection, BII will use diligent efforts to correct the
deficiencies and will promptly resubmit the Deliverable Item, as connected,
within a reasonable time period based upon the nature of the problem and
mutually agreed to between the parties. This procedure will iterate until
the Producer either accepts the Deliverable Item or elects to complete or
have completed the Deliverable Item.
2. In the event that Producer withholds approval of any Deliverable Item and
elects to have it completed by a third party, the Producer may deduct an
amount equal to reasonable compensation for such specialists efforts
(including any compensation payments made to any non-employee specialists)
from any payments due to BII under this Agreement.
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EXHIBIT 1
ASSIGNMENT AND CONFIDENTIALITY AGREEMENT
BII should photocopy this Exhibit, deleting the "EXHIBIT 1" line and this
italicized note, and then have such copies executed by each employee, consultant
or other contractor working on the Works or Services by BII. A copy of such
executed agreement shall be sent to the Producer as soon as possible.
THIS ASSIGNMENT is made on _________________ 19 ___.
BETWEEN (Name & Address) _______________________________________
(hereinafter the "Sub-contractor") of the first part, the "Sub-
contractor") of the first part,
AND: BRILLIANT INTERACTIVE IDEAS PTY LIMITED A.C.N. 061 228 668 a
Producer duly incorporated in the State of New South Wales and
having its registered office at Xxxxx 00, XXX Xxxxxx, Xxxxxx Xxxxx,
Xxxxxx in the said State (hereinafter the "BII") of the second part
WHEREAS:
A. The Sub-contractor has been requested to provide technical consulting
services and/or author or co-author additions and modifications to certain
computer programs and other works described in the Schedule hereto and may
create adaptations, notes, flow charts, diagrams, drafts and explanatory
memoranda and related literary and artistic works including source and
object codes derived from or incidental to the said program(s) (herein
referred to as "Works").
B. The work to be done by the Sub-contractor for BII shall be done in
connection with the Contract for Assistant Production Services agreement
between Sega Ozisoft Pty Limited (the "Producer") and BII dated as of
__________, 199__ (the "Development Agreement").
C. The Producer is directing the project pursuant to which the Works shall be
created and accordingly the parties wish to ensure that the copyright
subsisting in the Works rests with the Producer being the third party
beneficiary to this Agreement.
NOW THIS DEED WITNESSES as follows:
1. In consideration of the sum of one dollar ($1.00) paid to the Sub-
contractor by BII (receipt whereof is hereby acknowledged), the Sub-
contractor hereby assigns to the Producer the entire copyright throughout
the world and all other rights of a like nature including all moral rights
subsisting or conferred in respect of the Works by the law in force in any
part of the world AND FURTHER assigns to the Producer the copyright and all
other rights of a like nature belonging to the Sub-contractor which may be
conferred or subsist in any alterations or addition to the Works or other
literary or artistic works
17
created at any time at the request or direction of BII pertaining to the
Development Agreement.
2. The Sub-contractor acknowledges that the Works and all and any information
relating to the business or data of BII and/or the Producer which may be or
has been acquired by the Sub-contractor are confidential to the either of
those parties and the Subcontractor shall not divulge, communicate or in
any manner publish the Works or Information except as the relevant party(s)
may in writing authorise and direct from time to time.
3. The Subcontractor acknowledges that the Producer is a third party
beneficiary of this Agreement, and has full right to bring any action
against the Subcontractor, including injunctive action, to enforce the
terms herein.
4. This Agreement will be interpreted in accordance with the laws of the New
South Wales.
SCHEDULE
--------
Name of Software:
1 ____________________________________________
2 ____________________________________________
3 ____________________________________________
4 ____________________________________________
WITNESS WHEREOF the parties hereto have executed this Agreement on the day and
year herein before written.
Brilliant Interactive Ideas Pty Limited
______________________________ ---------------------------------------
______________________________ ________________________________________
Name: Name:
Title: Title:
______________________________ ________________________________________
Witness: Witness:
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