EXHIBIT 10.12
DATED 19th day of July 1995
---------------------------------------------------------------------
BETWEEN
EAT CYBERFIST PTY LIMITED
AND
SEGA OZISOFT PTY LIMITED
LICENSING AGREEMENT FOR "CYBERSWINE" STORY
------------------------------------------
CONCEPT & CHARACTERS
--------------------
AGREEMENT made the 19th day of July, 1995
PARTIES EAT CYBERFIST PTY LIMITED A.C.N. 065 701 975 a company duly
incorporated in the State of New South Wales and having its registered
office at 00 Xxxx Xxxxxx, Xxxxxxxxxxx in the said State (hereinafter
"Licensor") of the first part.
AND 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
"Licensee") of the second part.
WHEREAS
A. Licensor has created and is the sole and exclusive owner of and
controls all the proprietary rights in the literary and artistic works
known collectively as Cyberswine and is continuing developments and
future works based on the same or similar literary and artistic works,
and further owns the entire goodwill associated with the characters or
improvements thereof related to Cyberswine, examples of which are
incorporated in Exhibit "A" attached hereto (hereinafter in total the
"Property"); and,
B. Licensor has the power and authority to grant to Licensee the right,
privilege and license to exploit in any way the Cyberswine literary
and artistic works and its related characters otherwise based on the
Property as identified in Exhibit "A" and to exploit any future
copyright and/or Trademark on or in association with the Property;
and,
C. Licensee is engaged or is intending to engage in the research and
-------- -- ------- -- -- --------- --
development of interactive computer software for entertainment,
educational and business purposes (hereinafter "Software") for use in
(i) any media on which products such as the Software may operate
through which the user may interact with the product, including but
not limited to personal computers, game machines, arcade games, VCR-
interactive and CD-interactive machines (including without limitation
the 3DO Multiplayer machines) and similar microprocessor-based units;
and (ii) any system under which interactive animated film products the
Software may be accessed for use from a location that is remote from
the central processing unit on which the product is principally used,
such as an on-line service, or a remote delivery service over cable
television lines, telephone lines, microwave signals or radio waves
that allows pay-per-play or the equivalent (collectively the
"Formats"); and,
D. Licensee desires to obtain from the Licensor for good and valuable
-- ------------------------------------------------------------------
consideration, the receipt and sufficiency of which are hereby
--------------------------------------------------------------
acknowledged, an exclusive world-wide license for unlimited use of the
----------------------------------------------------------------------
Property in any Software, and the related manufacturing, distribution
---------------------------------------------------------------------
and marketing associated with the commercial
--------------------------------------------
2
exploitation of that Software for all Formats in which Sega
-----------------------------------------------------------
Enterprises Limited of Japan (hereinafter "Sega") and the Licensee
------------------------------------------------------------------
distribute software and/or hardware at any time for the Term
------------------------------------------------------------
(hereinafter the "Licensed Products"): and,
-------------------------------------------
E. Licensor is willing, on the terms and subject to the conditions of
this Agreement, to grant the Licensee the desired exclusive license on
the Property.
NOW, THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS:
1. LICENSE
(a) Licensor hereby grants to Licensee the exclusive right and
----------------------------------------------------------
license to develop, use, manufacture, have manufactured, sell, distribute and
-----------------------------------------------------------------------------
advertise the Licensed Products throughout the world including but not limited
------------------------------------------------------------------------------
to the right to reproduce and make adaptations of the Property, under any and
-----------------------------------------------------------------------------
all patents, trademarks and copyrights and any applications thereto which have
------------------------------------------------------------------------------
been filed or may be filed in the future with respect to the Property, for the
------------------------------------------------------------------------------
purposes of development and exploitation of any Licensed Products (hereinafter
------------------------------------------------------------------------------
the "License"),
---------------
(b) The licensed Property shall not be used in connection with any
other good or services, licensed or otherwise unless such use is expressly
permitted by Licensor in writing, provided that the Licensee may use the
Property on any promotional or novelty items or premium products (e.g. T-shirts,
posters, stickers, etc.) displaying or depicting the Property and developed,
manufactured and/or distributed by Licensee or in its behalf in connection with
the world-wide marketing of the Licensed Products.
(c) All rights and interests with respect to the Property not
specifically granted herein to Licensee may be used by Licensor without
limitation, including, the use or authorization of others to use any of the
Property in any manner in connection with any articles of merchandise other than
the specific Licensed Products and relevant marketing thereof as expressly
authorised hereunder and which use or authorisation does not amount to unfair
competition, interference, or infringement of any of Licensee's rights
hereunder.
(d) Licensee warrants and represents to Licensor that the Property,
or a part thereof, will appear in or as part of a Licensed Products within a
four year period from the date of execution of this Agreement by both parties
(hereinafter the "Product Introduction Date").
2. TERM OF AGREEMENT
This Agreement and the provisions hereof, except as otherwise provided, shall be
in full force and effect commencing on the date of execution by both parties and
shall continue in each country of the world for the term of the copyright or
renewals thereof (if any) in the Property in that country (hereinafter the
"Term") or until terminated pursuant to the provisions hereof.
3
3. FINANCIAL & REPORTING OBLIGATIONS
3.1. Advance Payments:
(a) In addition to the non-refundable advance against royalties of
CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION paid by the Licensee in consideration for the License, the
receipt and sufficiency of which are hereby acknowledged, the Licensee agrees to
make advance payments to Licensor on the unit sale performance of any Licensed
Products upon the following criteria:
(i) upon the sale of CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
units to trade, an advance payment of CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION will be paid by Licensee
to Licensor:
(ii) upon the sale of CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
units to trade, a further advance payment of CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION will be paid by Licensee
to Licensor.
(b) Advance payments shall be recoupable by Licensee from the
royalties payable under sub-clause 3.2 hereinbelow, prior to the direct payment
of any royalties to Licensor.
3.2. Royalties:
(a) Royalties shall be payable to the Licensor at a percentage rate
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 %) of all gross revenue received by
Licensee its successors or assigns relating to the sale, license, distribution
or other exploitation of the Licensed Products, less the Cost of Goods defined
herein below (hereinafter "Royalties").
(b) Licensee shall account to Licensor with regard to transactions
hereunder within thirty (30) days following the conclusion of each calendar
quarter. Licensee 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, the
recoupment of the guaranteed payments and the Cost of Goods being the actual
cost of manufacturing, packaging, and/or repackaging copies of the Licensed
Products incurred by the Licensee or its appointed licensee(s) up to the time
the title in the Licensed Products passes to the purchaser, licensor,
distributor or other third party exploiting the Licensed
4
Products, including the duplication costs for copies of the Licensed Products on
optical or magnetic media, packaging materials, manuals and other collateral
materials and program components as mutually agreed to in advance between the
parties.
(c) Licensee shall pay all Royalties due to Licensor in Australian
Dollars which shall be deposited into the bank account of Licensor, the details
of which shall be provided to Licensee by Licensor 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 Licensee by Licensor. Statements shall be
provided to Licensor whether or not the guaranteed payments have been recouped
and whether or not royalties are due and owing.
3.3. Books of Account and Audits
(a) Licensee shall keep books of account relating to the distribution
of the Products on the basis of generally accepted accounting principles and
shall be maintained for a minimum period of two (2) years after the termination
of this Agreement.
(b) Licensor may upon reasonable notice and at its own expense, audit
the applicable records at the registered office of Licensee 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 Licensee.
(c) All information contained in the books and records of Licensee
shall be Confidential Information and Licensor agrees that such information
inspected and/or copied on behalf of Licensor 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 Licensor as is
necessary to verify the accuracy of the statements.
(d) Licensee shall reimburse Licensor for the full out-of-pocket
costs including travel costs and expenses for any audit of the books and records
of Licensee that determines a short fall of 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 %) or more in royalties reported for any calendar quarter.
4. WARRANTIES & OBLIGATIONS
4.1. Licensor represents and warrants solely for the benefit of Licensee that:
(a) Licensor has the right, power and authority to enter into this
Agreement and to fully perform its obligations hereunder.
(b) As of the date of execution of this Agreement, Licensor is
unaware of any material pending or unresolved claim or suit against it which
either questions the validity, of any of the Property or claims that any of the
Property infringes upon any valid proprietary right of any third party.
5
(c) The making of this Agreement by Licensor does not violate any
separate agreement, rights or obligations existing between Licensor and any
other person or entity, and throughout the term of this Agreement, Licensor
shall not make any separate agreement with any person or entity that is
inconsistent with any of the provisions of this Agreement.
(d) Licensor warrants on behalf of the authors of the Property that
they shall not exercise or use its moral rights as the author to the detriment
of Licensee or any third party designated by Licensee for the Term of this
Agreement
(e) Licensor has done or if necessary will do, all things necessary
to ensure that the license granted herein including but not limited to the
copyright and trademarks in the Property, is owned solely by Licensor for the
Term of this Agreement.
(f) Licensor will disclose to the Licensee all improvements created
by the Licensor or any related third party during the term hereof and, all
improvements made at any time whatsoever shall be deemed to be included into the
Property.
(g) Licensor will not assign its comic book and/or its graphic novel
rights without reserving all its proprietary rights to any and all improvements
made.
(h) Licensor will not denigrate, demean, deface or act deleteriously
in any way with the Property by any act or omission subject to the Licensor's
sole creative right to make improvements to the physical appearance of
characters and scenes embodied within the Property.
(i) Licensor further represents and warrants that it will notify
------------------------------------------------------------
the Licensee a minimum of thirty (30) days prior to entering any contractual
----------------------------------------------------------------------------
relations, of its intention to license the Property to a third party for
------------------------------------------------------------------------
incorporation into any Format not then distributed by Sega or the Licensee.
---------------------------------------------------------------------------
4.2. Licensee represents and warrants solely for the benefit of Licensor that:
(a) Licensee has the right, power and authority to enter into this
Agreement and to fully perform its obligations hereunder,
(b) The making of this Agreement by Licensee does not violate any
separate agreement, rights or obligations existing between Licensee and any
other person or entity, and throughout the term of this Agreement, Licensee
shall not make any separate agreement with any person or entity that is
inconsistent with any of the provisions of this Agreement.
(c) Licensee shall not make any representation or give any warranty
to any person or entity expressly or impliedly on behalf of Licensor or to the
effect that the Licensed Products are connected in any way with Licensor (other
than that the Licensed Products have been manufactured, marketed, and/or sold
under license from Licensor).
(d) Licensee will use its best efforts to promote, market, sell and
distribute the Licensed Products and will bear all related costs associated
therewith.
6
(e) Licensee shall be solely responsible for the manufacture,
production, sale and distribution of the Licensed Products and will bear all
related costs associated therewith.
(f) All Licensed Products shall be of merchantable quality, and shall
be safe for use by the intended consumers. Licensee further warrants that it
will comply with all applicable laws and regulations and will observe all
applicable safety standards in the manufacture and sale of the Licensed Products
in all territories where the products are sold.
(g) Subject to paragraph l(d) herein the Licensee shall notify
--- ----------------------------------------------------------
the Licensor within thirty (30) days of its intention, in its sole discretion,
------------------------------------------------------------------------------
not to proceed with the research, development and exploitation of any future
----------------------------------------------------------------------------
Licensed Products incorporating the Property or adaptations thereof. Upon such
-------------------------------------------------------------------------------
notification this Agreement will be considered terminated subject to the
------------------------------------------------------------------------
obligations contained in Clause 10 herein.
------------------------------------------
5. INDEMNIFICATION
5.1. Licensor's Indemnification:
(a) Licensor agrees to defend and indemnify and hold the Licensee
harmless against any claims, demands, causes of action and judgements arising
solely out of the use of the Property by the Licensee as authorised in this
Agreement or resulting from a breach of any of the warranties expressly set
forth in sub-clause 4.1, provided that the Licensee shall give notice to the
Licensor within fourteen (14) days after notification of each such claim,
demand, cause of action or judgement and further provided that the Licensor
shall have the right to undertake and conduct the defence of any such cause of
action so brought and handle any such claim or demand. With respect to such
indemnification, the Licensor agrees to hold the Licensee harmless at no cost or
expense to the Licensee whatsoever including, but not limited to attorney's fees
and court costs.
(b) Notwithstanding the foregoing, the Licensor shall indemnify and
save the Licensee 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
Licensee by virtue of the provision of the license herein or any breach of this
Agreement by the Licensor. Such indemnity shall extend (without limiting the
generality of the foregoing) to any costs, damages, loss or liability (including
legal costs and disbursements in defending or settling the claim giving rise to
same) incurred by the Licensee by virtue of any injury or disability suffered by
any employee or sub-contractor of the Licensor, whether on the Licensee premises
or otherwise and by whatever legal theory (whether statutory, tortuous or
otherwise) arising.
(c) The Licensor acknowledges and agrees that it is obliged to report
as income all compensation received by the Licensor pursuant to this Agreement,
and the Licensor agrees to indemnify the Licensee and hold it harmless to the
extent of any obligation imposed on the Licensee (i) to pay any withholding
taxes, social security, unemployment or disability insurance or similar items,
including interest and penalties thereon, in connection with any
7
payments made to the Licensor by the Licensee pursuant to this Agreement and/or
(ii) resulting from the Licensor being determined not to be an independent
contractor.
(d) In addition, Licensor will indemnify the Licensee and hold them
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
the Licensor or the Licensor's employees or agents which approximately causes or
contributes to (i) any injury to or destruction of tangible or intangible
property, including artwork, documentation, computer programs and data of any
loss of use resulting therefrom; or (ii) any violation of any statute, ordinance
or regulation.
5.2. Licensee's Indemnification:
Licensee agrees to defend, indemnify and hold the Licensor harmless
against any claims, demands, causes of action and judgements arising out of the
Licensee's development, design, manufacture, distribution, shipment,
advertising, promotion, offering for sale and/or sale of the Licensed Products
and/or the promotional and packaging material subject to any claims, demands,
causes of action and judgements relating directly to the matters covered by the
Licensor's warranties expressly set forth in sub-clause 4.1 and its indemnities
provided above in this Clause. With respect to this indemnification, the
Licensee agrees to hold the Licensor harmless at no cost or expense to the
Licensor whatsoever including, but not limited to attorney's fees and court
costs. The Licensee shall have the right to undertake and conduct the defence of
any such cause of action so brought and handle any such claim or demand with
attorneys of its own selection.
5.3. Indemnification Procedures:
(a) If a third party asserts any claim or allegation which, if
proven, would trigger the indemnification obligations set forth in sub-clauses
5.1 and 5.2, the indemnifying party shall be promptly notified of such claim by
the indemnified party and given control of the defence and/or settlement
thereof. If any such claim or action ("Matter") is brought against an
indemnified party notice shall be given to the indemnifying party and the
indemnifying party shall be entitled to participate therein and assume the
defence thereof with legal counsel of its choosing.
(b) After a notice to the indemnified party of the indemnifying
party's election to assume the defence of a Matter, the indemnifying party shall
not be liable to the indemnified party under Clause 5 for any legal expenses
subsequently incurred by the indemnified party in connection with the defence of
a Matter. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of a matter unless such settlement
includes an unconditional release of the indemnified party from all such
liability relating to a Matter.
(c) The foregoing provisions of Clause 5 represents the entirety of
the parties obligations (contractual, common-law or otherwise) with respect to
any Matter by any third
8
party; however, nothing in Clause 5 shall limit either parties rights for breach
of any covenant contained in this Agreement.
6. PATENTS, TRADEMARKS AND COPYRIGHTS
(a) Licensor may seek, in its own name and at its own expense,
appropriate patent, trademark or copyright protection for the Property in any or
all territories throughout the world.
(b) Pursuant to paragraph 4.1(e) herein, in the event that Licensee
requests that Licensor obtain patent, trademark or copyright protection for the
Property in a particular country where Licensor had not, heretofore, obtained
protection, Licensor agrees to take reasonable steps to obtain such protection.
(c) The parties agree to execute any documents reasonably requested
by the other party to effect any of the above provisions.
7. CREDITS
(a) Subject to paragraph l(d) herein Licensee shall be under no
obligation to make the Licensed Products but if Licensee does so the Licensee
shall ensure that on the source computer code of the Licensed Products the
Licensor is given sole credit in the credit titles as the creator of the
Property, such credit being in lettering equal in kind and size and having equal
screentime to that given to the programmers of the Licensed Products.
(b) No casual or inadvertent failure to afford Licensor credit in
accordance with this clause shall constitute a breach of this Agreement by the
Licensee.
8. CONFIDENTIAL INFORMATION
(a) The parties mutually acknowledge and agree that certain
information that one party (the "Receiving Party") shall receive from the other
party (the "Disclosing Party") shall be deemed to be confidential information
and subject to restrictions on disclosure and use as set forth below
(hereinafter "Confidential Information").
(b) Licensee and Licensor, each as a Receiving Party, respectively,
agrees that it shall maintain the confidentiality of the Confidential
Information of the Disclosing Party and safeguard the confidential and/or
business sensitive information which it may receive from the other party with
the same degree of care used to protect its own information of a like nature
and/or in accordance with the provisions of any separate non-disclosure
agreement applicable to such information. Each party further agrees that it
shall not use for its own account apart from this Agreement or for the account
of any third party, nor disclose or otherwise disseminate to any third party,
any company trade secret or other such confidential information of or concerning
the other party unless the written consent of the other party shall first have
been obtained.
9
(c) The obligations set forth in this Clause 8 shall not be
applicable to any information: (i) which is or becomes generally known or part
of the public domain through no default hereunder on the part of the Receiving
Party: (ii) is known to the Receiving Party prior to the disclosure thereof by
the Disclosing Party, as established by documentary evidence; (iii) lawfully
received by the Receiving Party from a third party who provided such information
without breach of any separate confidentiality, obligation owed by such third
party; (iv) disclosed by the Disclosing Party to third parties without
restriction on subsequent disclosure; (v) required to be disclosed in the
context of any administrative or judicial proceeding, but only to the extent
required by such action and only after giving the Disclosing Party not less than
ten (10) working days prior written notice of any such required disclosure, and
provided further that the party required to make such disclosure shall use its
reasonable best efforts to obtain an appropriate protective order regarding the
information to be disclosed in any such context; and/or (vi) as to which ten
(10) years have elapsed since initial disclosure.
(d) Each party, as Receiving Party, shall use its reasonable best
efforts by contract, instruction or otherwise to ensure that its officers,
directors, employees, agents and contractors comply with such party's
obligations under this Clause 8 and to ensure that no Confidential Information
of the Disclosing Party or Joint Confidential Information shall be disclosed or
made available to any such officers, directors, employees, agents or contractors
of the Receiving Party unless such persons or third parties have a need to know
such information for purposes of the performance of this Agreement.
(e) Upon the termination of this Agreement, each party, as a
Receiving Party, shall promptly return to the Disclosing Party any and all
documents and related materials of or concerning the trade secrets and/or
Confidential Information which originated with the other party and which remains
in the Receiving Party's custody or under its control, or, if requested by the
Disclosing Party, shall destroy all such trade secret and/or confidential
information and certify to the destruction of all such documents and related
materials.
9. TERMINATION
The following termination rights are in addition to the termination rights
provided elsewhere in the Agreement:
(a) Each party hereto shall have the right to immediately terminate
this Agreement by giving written notice to the other party in the event that the
other party does any of the following:
(i) files a petition in bankruptcy or is adjudicated a bankrupt
or insolvent, or makes an assignment for the benefit of
creditors, or an arrangement pursuant to any bankruptcy
law, or if the Licensee discontinues its business or a
receiver is appointed for the other party or for the other
party's business and such receiver is not discharged within
thirty (30) days; or,
10
(ii) breaches any of the material provisions of this Agreement
relating to the rights in the Property and same is not
cured after 30 days following written notice.
(b) Licensor shall have the right to immediately terminate this
Agreement by giving written notice to Licensee in the event that Licensee does
any of the following:
(i) fails to meet the Product Introduction Date as specified
herein with a grace period of thirty (30) days; or,
(ii) fails to make timely payment of Royalties when due and the
non-payment is not cured in 30 days after notice from
Licensor.
(c) This Agreement may be terminated by either party upon thirty (30) days
written notice to the other party in the event of a breach of a material
provision of this Agreement by the other party, provided that, during the thirty
(30) day period, the breaching party fails to cure such breach.
10. POST TERMINATION RIGHTS
(a) Not more than forty-five (45) days after the termination of this
Agreement, Licensee shall provide Licensor with a complete schedule of all
inventory of Licensed Products then on-hand (the "inventory").
(b) Upon the termination of this Agreement, Licensee shall be entitled,
for an additional period of six (6) months on a non-exclusive basis, to continue
to sell such Inventory. Such sales shall be made subject to all of the
provisions of this Agreement and to an accounting for and the payment of a
Royalty thereon. Such accounting and payment shall be due and paid within thirty
(30) days after the close of the said 6 month period.
(c) Upon termination of this Agreement for any reasons whatsoever,
Licensee agrees to immediately return to Licensor all material relating to the
Property including, but not limited to, all artwork, colour separations,
prototypes and the like originally sourced from the Licensor.
11. NOTICE
All notices or other communications required or desired to be sent to either of
the parties shall be in writing and shall be sent by registered or certified
mail, postage prepaid, return receipt
11
requested, or sent by recognised national courier service, telex, telegram or
facsimile, with charges prepaid and subject to confirmation by letter. The
address for all notices or other communications required to be sent to Licensor
or Licensee, respectively, shall be the registered office address stated in the
preamble hereof, or such other address as may be provided from one party to the
other on at least ten (10) days prior written notice. Any such notice shall be
effective upon the date of receipt.
12. ARBITRATION OF DISPUTES
(a) In the event of a dispute, controversy or claim arising out of or
relating to this Agreement, or the breach, termination or invalidity thereof
("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 for initial
meeting in accordance with the Conciliation Rules.
(b) 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 paragraph 12(a), 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.
(c) 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 paragraph 12(b) 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.
13. NO PARTNERSHIP OR JOINT VENTURE
The relationship between Licensor and Licensee, respectively, is that of
Licensor and Licensee. Licensee is an independent contractor and is not the
legal representative, agent, joint venturer, partner, or employee of Licensor
for any purpose whatsoever. Neither party shall have any right or authority to
assume or create any obligation of any kind or to make any representation or
warranty on behalf of the other party, whether express or implied, or to bind
the other party in any respect or manner whatsoever.
14. ASSIGNMENT
This Agreement shall inure to the benefit of Licensor and Licensee and their
respective successors and assigns. Licensee may assign, transfer, convey or
sublicense the license and
12
associated rights granted herein its sole discretion, however, the Licensee
shall continue and remain liable to the Licensor with respect to its obligations
hereunder. Licensor may not assign any of the rights to the Property dealt with
under this Agreement to any person, firm, corporation or other entity for the
term of the agreement without the prior written authorisation of Licensee.
15. COMPLIANCE WITH APPLICABLE LAWS
The parties shall at all times comply with all applicable statutes, laws,
ordinances, regulations and orders of Australia, and with all conventions and
treaties to which Australia is a party, which relate to or in any way affect
this Agreement and/or the parties' respective exercise of theft rights or
performance of their obligations hereunder. Each party, at its own expense,
shall obtain any license, permit or approval required with respect to the
exercise of any of its rights and/or performance of any of its obligations
hereunder, and shall declare, record or take such steps to render this Agreement
binding, including, without limitation, the recording of this Agreement with any
appropriate governmental authorities (if required).
16. 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, 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.
17. REMEDIES
Unless expressly set forth to the contrary, either party's election of any
remedies provided for in this Agreement shall not be exclusive of any other
remedies available hereunder or otherwise at law or in equity, and all such
remedies shall be deemed to be cumulative.
18. SEVERABILITY
In the event that any provision of this Agreement (or portion thereof) is
determined by a court of competent jurisdiction to be invalid or otherwise
unenforceable, such provision (or part thereof) shall be enforced to the extent
possible consistent with the stated intention of the parties, or, if incapable
of such enforcement, shall be deemed to be deleted from this Agreement, while
13
the remainder of this Agreement shall continue in full force and remain in
effect according to its stated terms and conditions.
19. WAIVER
No failure or delay by either party in exercising any right, power, or remedy
under this Agreement shall operate as a waiver of any such right, power, or
remedy. No waiver of any provision of this Agreement shall be effective unless
in writing and signed by the party against whom such waiver is sought to be
enforced. 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.
20. ENTIRE AGREEMENT
This Agreement including Exhibit "A" attached hereto constitutes the entire
understanding of the parties, and revokes and supersedes all prior or
contemporaneous agreements, proposals, understandings, and communications
between Licensor and Licensee, whether oral or written, with respect to the
subject matter hereof and is intended as a final expression of their Agreement.
It shall not be modified or amended except in writing signed by the parties
hereto and specifically referring to this Agreement. This Agreement shall take
precedence over any other documents which may be in conflict with said
Agreement.
21. INTERPRETATION
In the interpretation of this Agreement unless the context otherwise requires:
(a) words importing the singular shall include the plural and vice
versa:
(b) words importing one gender shall include the other genders:
(c) expressions are to be interpreted in accordance with their meaning
in the COPYRIGHT XXX 0000 (Commonwealth);
(d) all sums are payable as and in Australian dollars;
(e) clause headings shall be disregarded;
(f) all warranties shall during the term of this Agreement have the
force and effect of conditions;
(g) all warranties survive completion of this Agreement
14
22. FURTHER DOCUMENTATION
The parties hereto agree to perform such other and further acts and execute,
acknowledge and deliver such other and further documents and instruments as may
be necessary or appropriate to carry out the intent of this Agreement.
23. GOVERNING LAW
This Agreement shall be construed and governed in accordance with the laws of
the State of New South Wales.
IN WITNESS WHEREOF the parties hereto have executed this Agreement on the day
and year herein before written.
Sega Ozisoft Pty Limited Eat Cyberfist Pty Limited
------------------------ -------------------------
/s/ Xxxxx Xxxxxxxxxx /s/ Xxxxxx Xxxxx
---------------------------- -----------------------------
Name: Xxxxx Xxxxxxxxxx Name: Xxxxxx Xxxxx
Title: Managing Director Title: Director
/s/ Damon Pembroke /s/ Xxxxxx Xxxx
---------------------------- -----------------------------
Witness: Damon Pembroke Witness: Xxxxxx Xxxx
15
EXHIBIT "A"
-----------
All information contained in this Exhibit is to be incorporated and read in
conjunction with the applicable terms and conditions contained herein, as well
as this Agreement in whole, for the purpose of further defining the licensed
Property known as Cyberswine and all other ancillary characters appearing in the
CYBERSWINE comic book, examples of the reproduced artwork are incorporated and
attached to this exhibit.
16