A SUBDIDIARY OF KABLE NEWS COMPANY, INC., Distribution Agreement
AGREEMENT made and entered into at New York, New York this ____9th____ day of
_____October 2003_____ by and between EPIC MEDIA, INC., an OREGON corporation,
whose place of business is at 00000 Xxxxxxx Xxxxx, Xxxx Xxxxxx, XX 00000
(hereafter PUBLISHER) and KABLE DISTRIBUTION SERVICES, INC. a Subsidiary of
KABLE NEWS COMPANY, INC., an ILLINOIS corporation, whose place of business is at
Mount Morris, Illinois, with its executive offices at 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx
1. DEFINITIONS
(a) "Completion of Shipping" with respect to each issue of a Publication
shall mean the date the PUBLISHER'S printer completed shipping all
copies of such issue to Distributor's Sales Outlets in accordance with
DISTRIBUTOR's shipping instructions as stated on the Printer's
Completion Notice.
(b) "Cover Price" with respect to each issue of a Publication shall mean
the suggested retail selling price of such issue specified on the
cover of each copy thereof.
(c) "Distributor's Estimated Final Net Xxxxxxxx" with respect to each
issue of a Publication shall mean DISTRIBUTOR's estimate of what the
Net Xxxxxxxx of such issue will be at such time as when all Returns
have been received from Distributor's Sales Outlets.
(d) "Distributor's Sales Outlets" shall mean customers of DISTRIBUTOR.
(e) "Net Xxxxxxxx" with respect to each issue of a Publication shall mean
Publisher's Gross Xxxxxxxx with respect to such issue, less Return
Credits with respect to such issue.
(f) "Off-Sale Date" with respect to each issue of a Publication shall mean
the On-Sale Date of such Publication's next issue, or such other date
as designated by PUBLISHER and agreed to by DISTRIBUTOR, that all
copies of such issue are scheduled to be removed from retail outlets
for sale to the general public.
(g) "On-Safe Date" with respect to each issue of a Publication shall mean
the date as designated by PUBLISHER that such issue is scheduled to be
placed in retail outlets for sale to the general public.
(h) "Printer's Completion Notice" with respect to each issue of a
Publication shall mean a notice delivered to DISTRIBUTOR and executed
by an appropriate representative of the printer of such issue, which
shall certify the specific number of copies of such issue shipped in
accordance with DISTRIBUTOR's instructions, and the date of completion
of such shipping.
(i) "Publisher's Billing Price" with respect to each issue of a
Publication shall mean the amount charged DISTRIBUTOR by PUBLISHER for
each copy of such issue distributed hereunder.
(j) "Publisher's Gross Xxxxxxxx' with respect to each issue of a
Publication shall mean the product of Publisher's Billing Price with
respect to such issue multiplied by the number of copies distributed
hereunder in accordance with the Printer's Completion Notice with
respect to such issue.
(k) "Publication(s)" shall mean the title(s) listed on Schedule "A"
including any "one-shots," annuals or titles derived therefrom, as
amended from time to time to include any additional titles
subsequently covered by the terms hereof as provided herein or as
provided by agreement of the parties.
(l) "RDA" shall mean a retail display allowance offered pursuant to a
PUBLISHER authorized program to retailers engaged in the sale of
PUBLISHER's Publication(s) for (i) each copy sold of each Publication
and/or (ii) a specified position in a retailer sales fixture.
(m) "Returns" with respect to each issue of a Publication shall mean any
and all copies of such issue returned for credit by Distributor's
Sales Outlets pursuant to Paragraph 9 hereof and for which DISTRIBUTOR
has issued such a credit.
(n) "Return Credit" with respect to each issue of a Publication shall mean
the product of Publisher's Billing Price multiplied by the number of
Returns of such issue.
(o) Territory" shall mean the United States of America and all its
possessions, all Any and Fleet Post Office designations, Canada and
the rest of the world.
2. GRANT OF RIGHTS
PUBLISHER hereby gives and grants unto the DISTRIBUTOR, effective as of the date
of this Agreement, and during the term hereof (and any renewal term thereof) the
sole and exclusive right to purchase from PUBLISHER and to resell and distribute
throughout the Territory, the Publication(s) of PUBLISHER, except that PUBLISHER
reserves the right to sell copies thereof to individual subscribers at
subscription prices. All purchases shall be subject to DISTRIBUTOR's right to
receive Return Credits for Returns as set forth in Paragraph 9 hereof. This
grant of rights shall survive the sale, assignment, transfer or other
disposition of PUBLISHER's rights in and to the Publications, or the failure to
publish same.
3. TERM
(a) The term of this Agreement shall be for a period of four (4 ) years
from the On-Sale Date of the first issue distributed hereunder and
shall include all issues of all Publications whose scheduled On-Sale
Date(s) are prior to the expiration of such period. This Agreement
shall automatically continue for successive terms of equal length
thereafter unless either party hereto shall give written notice of
its, intention to terminate ("Notice of Termination") no less than
ninety (90) days prior to the last day of any such term; such Notice
of Termination to be sent by certified mail, return receipt requested,
and addressed to the other party at its last known place of business.
(b) the date of this Agreement and that the failure of the PUBLISHER to
comply with this provision shall give DISTRIBUTOR the unequivocable
right to terminate this Agreement upon ten (10) days written notice
thereof.
(c) Any and all of the respective rights and duties of the PUBLISHER and
DISTRIBUTOR under this Agreement shall survive its termination with
regard to copies of the Publication(s) distributed hereunder, the
distribution of which had commenced before such termination.
(d) Termination of this Agreement for any reason shall not affect any
right of either party to receive any money owed by the other
hereunder, the amount of which shall be calculated in the manner which
would have otherwise been required hereby, absent such termination.
Anything to the contrary in this Agreement notwithstanding, PUBLISHER
shall not have the right to terminate this Agreement at any time that
the PUBLISHER is indebted to the DISTRIBUTOR, for any reason
whatsoever, without first reimbursing the DISTRIBUTOR to the full
amount of such indebtedness.
4. PUBLISHER REPRESENTATIONS
(a) PUBLISHER represents and warrants that (i) it is the sole and
exclusive owner of all rights, including but not limited to,
copyrights, titles, trademarks, tradenames, trade dress, logos,
formats, in and to the Publication(s) (collectively the "Rights") and
that such Rights are not subject to any liens or encumbrances of any
nature; (ii) the Rights herein granted to DISTRIBUTOR have not been
granted to any other person, firm, or corporation; (iii) it has the
right and authority to enter into the Agreement and to perform the
obligations hereunder to be performed by PUBLISHER; (iv) there are no
existing contracts, agreements or other arrangements which in any way
whatsoever prevent or interfere with the PUBLISHER's making and
entering into this Agreement or performing hereunder; (v) that to the
best of PUBLISHER's knowledge, there are no suits or proceedings
pending or threatened against or affecting PUBLISHER which, if
adversely determined, would impair the Rights herein granted to
DISTRIBUTOR or prevent PUBLISHER from performing hereunder; (vi) and
nothing contained in any Publication will be grounds for an action
either to prevent distribution thereof or for damages by reason of the
fact that the material contained therein is libelous, slanderous,
obscene, invades any right of privacy, a violation of any copyright,
trademark, or other personal property rights or for any reason
whatsoever.
(b) PUBLISHER represents and agrees that all issues of said Publication(s)
shall substantially conform to the specimen copy(ies) or facsimile(s),
or to any specifications or other descriptions, exhibited by PUBLISHER
to DISTRIBUTOR, and approved by DISTRIBUTOR.
5. FIRST OPTION
DISTRIBUTOR shall have the first option to purchase from PUBLISHER, and to
resell and distribute any and all additional periodicals) or publication(s)
intended to be published by PUBLISHER and/or any of its principals,
stockholders, officers and/or directors during the term of this Agreement (or
any other renewal term thereof) on the same terms and conditions as set forth in
this Agreement. PUBLISHER and/or the above named parties shall promptly notify
the DISTRIBUTOR in writing of its (their) intention to publish and distribute
any such additional publication(s), and DISTRIBUTOR shall within fifteen (15)
days after receipt of said written notification advise of its willingness or
refusal to distribute any such additional publication(s).
6. NUMBER OF COPIES, COVER PRICE AND FREQUENCY
The Cover Price, the number of copies to be printed and the frequency of each
issue of the Publication(s) shall be as PUBLISHER and DISTRIBUTOR shall mutually
agree upon, and the PUBLISHER agrees to deliver, or promptly cause to be
delivered, the specified number of copies of each issue of the Publication(s)
with the assigned xxxxx number, Universal Product Code Symbol, Cover Price and
the letter "K" imprinted on the front cover of each copy thereof to each and
every Distributor's Sales Outlet designated by DISTRIBUTOR in accordance with
D1STRIBUTOR's shipping instructions. PUBLISHER further agrees that only copies
distributed by DISTRIBUTOR shall have the letter "K", the Universal Product Code
Symbol, and the biped number assigned by DISTRIBUTOR imprinted on the front
cover.
7. TRANSPORTATION AND RELATED COSTS
PUBLISHER shall pay all transportation costs, including without limitation,
insurance costs, Canadian Goods and Service Tax (hereafter GST), import-export
charges or tariffs and other duties, relating to the shipment of each issue of
the Publication(s) to Distributor's Sales Outlets.
8. PUBLISHER'S BILLING PRICE, FOREIGN CURRENCY
(a) The Publisher's Billing Price to DISTRIBUTOR shall be in accordance
with the prices) set forth in Schedule "A"; provided, however, that
upon any change in the Cover Price of a Publication, the Publishers
Billing Price shall automatically be revised pro rata with respect to
the issues with the changed Cover Price so that the ratio of
Publisher's Billing Price to Cover Price shall remain consistent with
that determined by reference to the prices then in effect in Schedule
"A", which shall, following each change in Cover Price, be deemed
amended with or without a written amendment as otherwise required by
Paragraph 29(a).
(b) All monies which may be due PUBLISHER pursuant to the terms of this
Agreement shall be paid in United States dollars, and PUBLISHER will
reimburse DISTRIBUTOR for any losses realized by DISTRIBUTOR, due to a
difference in foreign exchange rates, including those of Canada, on
monies received from Distributor's Sales Outlets in payment for
Publication(s) distributed hereunder, and DISTRIBUTOR agrees to pay
PUBLISHER any gains realized due to said difference. DISTRIBUTOR has
the right to make any adjustments for foreign exchange rates prior to
making any payment(s) to PUBLISHER.
MISSING COPY ITEM 9.
(a) DISTRIBUTOR has the option and is authorized to accept as Returns from
Distributor's Sales Outlets whole copies, front covers, headings of
front covers, and affidavits or statements of returns including those
electronically transmitted, of the Publication(s). DISTRIBUTOR has the
exclusive right to determine the method of return from Distributor's
Sales Outlets. DISTRIBUTOR is specifically authorized by PUBLISHER to
destroy or arrange for the destruction of said Returns at any time
after receiving same in any manner deemed suitable by DISTRIBUTOR,
unless at least thirty (30) days prior to the On-Sale Date of any
particular issue of the Publicationfsl. PUBLISHER shall have given
DISTRIBUTOR notice in writing of PUBLISHER's request that the Returns
of said issue be held for thirty (30) days after date of Settlement
with respect thereof so that PUBLISHER can audit said Returns at its
own cost and expense. Said audit and count must be made by PUBLISHER
during such thirty (30) day period at the particular place of storage
thereof maintained by DISTRIBUTOR at such time. PUBLISHER agrees not
to request more than one (1) audit per year per Publication unless, as
a result of two (2) or more prior audits, substantial discrepancies
were discovered by PUBLISHER.
(b) In the event that DISTRIBUTOR has not received all Returns of any
issue(s) distributed hereunder from any of the Distributor's Sales
Outlets for any reason, including without limitation, that such
outlets or that any one of them (i) are subject to the appointment of
a receiver, or (ii) are adjudicated a bankrupt after filing of a
petition of voluntary or involuntary bankruptcy, or (iii) are
reorganized or managed by a trustee or committee of creditors under
the Federal Bankruptcy Act, or (iv) are dissolved, terminated or no
longer in business, or (v) are destroyed by fire, flood or other
disaster, or (vi) are unable to return all unsold copies of any such
issue due to strikes, lockouts, other labor disputes, bankruptcy or
for any other reason, then DISTRIBUTOR shall be entitled to charge
PUBLISHER for Returns from such Distributor's Sales Outlets, in an
amount equal to the product of the average return percentage of the
applicable Distributor's Sales Outlet(s) for such Publication(s) for
the twelve (12) month period (or such lesser period if applicable)
prior to the issue(s) for which DISTRIBUTOR has not received all
Returns, multiplied by the number of copies received by said
Distributor's Sales Outlet(s) for such issues(s).
(c) In the event PUBLISHER desires to receive whole copy Returns, written
notice of the quantities thereof desired, and the address to which
such whole copy Returns shall be sent, shall be supplied to
DISTRIBUTOR not less than thirty (30) days prior to the On-Sale Date
of such issue. PUBLISHER shall pay DISTRIBUTOR at the rate of six
($.06) cents per copy for packing and handling costs for whole copy
returns received by DISTRIBUTOR, and PUBLISHER shall reimburse
DISTRIBUTOR for all direct costs incurred by DISTRIBUTOR, including
all shipping costs, all container costs and all costs charged by
Distributor's Sales Outlets, for arranging, receiving and delivering
such whole copy Returns. Upon receipt of such written notice
requesting whole copy Returns, the sole obligation of DiSTRIBUTOR in
this regard shall be to make written request for the same from
Distributor's Sales Outlets, it being understood and agreed that
nothing herein contained shall require DISTRIBUTOR to take any other
action with respect to such request. PUBLISHER represents and warrants
that it will only use said whole copy Returns to fulfill subscription
orders or for such other purpose that is mutually agreed upon between
PUBLISHER and DISTRIBUTOR.
10. RDA
(a) DISTRIBUTOR is authorized to offer on PUBLISHER's behalf PUBLISHER's
RDA program and PUBLISHER agrees to be bound by the terms of its RDA
program as offered by DISTRIBUTOR, including RDA Advance Payments
pursuant to the KABLE ADVANCE RDA PAYMENT PROGRAM (`XXXX") paid on
PUBLISHER's behalf to participating retailers; said advance payments
for XXXX to be deducted from the Initial Advance Payment set forth in
sub-paragraph 15(b). PUBLISHER further agrees to execute any necessary
documents in connection therewith.
(b) DISTRIBUTOR shall administer PUBLISHER's RDA program and PUBLISHER
shall pay to DISTRIBUTOR on demand any and all amounts paid or due to
be paid by DISTRIBUTOR on PUBLISHER's behalf to retailers
participating in PUBLISHER's RDA program and XXXX as administered by
DISTRIBUTOR.
(c) In consideration of the services performed by DISTRIBUTOR in
administering PUBLISHER's RDA program, PUBLISHER will pay to
DISTRIBUTOR a fee of forty-five ($.45) cents per issue per retailer
for each payment made by DISTRIBUTOR on PUBLISHER's behalf to
participating retailers.
(d) Notwithstanding the provision of Paragraph 10(b), DISTRIBUTOR may
decline to advance sums due to retailers participating in PUBLISHER's
RDA Program and XXXX in the event PUBLISHER becomes indebted to
DISTRIBUTOR on an actual or estimated basis, or PUBLISHER refuses to
pay DISTRIBUTOR for sums paid to retailers. In the event DISTRIBUTOR
declines to pay retailers, PUBLISHER shall pay retailers directly.
11. DISCOUNTS AND ALLOWANCES
PUBLISHER shall pay DISTRIBUTOR for any and all discounts and allowances, which
are in excess of DISTRIBUTOR's national billing discount for each Publication,
made by DISTRIBUTOR to any of Distributor's Sales Outlets in locations where
special labor conditions and/or other situations and conditions exist causing
such discounts or allowances.
12. RISK OF LOSS; SHORTAGES. ETC.
Any loss, shortage, destruction of, or damage to copies of any issue(s) of each
Publication, including, but not limited to, any loss, shortage, or damage to
such copies as reported by DISTRIBUTOR's Sales Outlets and for which credits are
claimed, or to any Returns as defined in Paragraph 9 hereof, shall at all times
be at the risk of and be borne solely by PUBLISHER, and DISTRIBUTOR shall be
entitled to charge PUBLISHER's account with DISTRIBUTOR for such copies, and
same may be deducted by DISTRIBUTOR from any sums otherwise due PUBLISHER. The
parties specifically agree that credits granted to DISTRIBUTOR's Sales Outlets
by DISTRIBUTOR for shortages, lost or damaged copies shall be conclusive and
binding upon the PUBLISHER, and upon PUBLISHER's written request DISTRIBUTOR
shall furnish to PUBLISHER such information DISTRIBUTOR may have with respect to
any loss, shortage, destruction or damage. The right and
that DISTRIBUTOR shall assist PUBLISHED in the filing or sucn claims, in the
event that DISTRIBUTOR shall recover any part of such loss, then the DISTRIBUTOR
shall include same in Net Xxxxxxxx and shall charge PUBLISHER the DISTRIBUTOR's
actual costs, including counsel fees and other expenses, incurred in recovering
such loss; however, DISTRIBUTOR shall not be under any obligation to institute
any action or proceeding for recovery of any such loss. In the event PUBLISHER
recovers any part of such loss directly from the shipper, PUBLISHER will pay
DISTRIBUTOR a sum equal to the amount DISTRIBUTOR would have earned if such
recovery were included in Net Xxxxxxxx for such Pnblicatinn, on Me alternative.
l!STRIRI IT(1P may rierirrrt crirh crrmc frnm env naymentc thereafter rir re PI
IRI ISI-1 P nr charge PUBLISHER's account. PUBLISHER acknowledges and agrees
that DISTRIBUTOR is not liable for any losses to copies of Publications or other
materials stored at DISTRIBUTOR's warehouse(s) occasioned by fire, water damage,
natural catastrophes, acts of God and/or theft, and that it is the obligation of
the PUBLISHER to obtain insurance to cover any such loss at its own expense,
13. PROMOTION AND SOLICITATION COSTS
PUBLISHER shall at its own expense provide DISTRIBUTOR with reasonable
quantities of promotional materials for DISTRIBUTOR's use. PUBLISHER shall pay
DISTRIBUTOR for all direct costs in connection with all promotion and
solicitation mailings, including those associated with PUBLISHER's RDA program,
made for PUBLISHER's Publications. If PUBLISHER requests DISTRIBUTOR to incur
advertising or promotional expenses on behalf of PUBLISHER or for any of the
Publication(s), PUBLISHER shall pay DISTRIBUTOR for all such expenses. PUBLISHER
agrees that in all trade press advertising pertaining to single copy
circulation, it will include a phrase substantially as follows: "Exclusively
(internationally) distributed by KABLE NEWS COMPANY, INC." Notwithstanding
anything else in this Agreement to the contrary, for the first issue of each
Publication, PUBLISHER shall pay all promotional and solicitation costs directly
to the vendors or persons involved.
14. MISCELLANEOUS CHARGES
PUBLISHER shall pay DISTRIBUTOR for the following charges:
(a) Administration fee of two hundred ($200.00) dollars for each Audit
Bureau of Circulation ABC State Circulation Analysis requested by
PUBLISHER and fifteen hundred ($1,500.00) dollars for each ABC County
Report requested by PUBLISHER.
(b) Fee of one hundred and twenty-five ($125,00) dollars for producing a
galley for any issue which is cancelled or for producing any
additional shipping galleys occasioned by PUBLISHER's errors,
omissions or failure to notify DISTRIBUTOR of changes on a timely
basis.
(c) Any reshipment charges incurred by DISTRIBUTOR.
(d) Any other charges or expenses incurred by DISTRIBUTOR specifically on
PUBLISHER's behalf or for its Publication(s).
15. PAYMENTS TO PUBLISHER
DISTRIBUTOR shall pay PUBLISHER the Net Xxxxxxxx of each issue of each
Publication distributed pursuant to this Agreement, less all credits to which
DISTRIBUTOR shall be entitled, as follows:
(a) "GST Advance Payment" paid on PUBLISHER's behalf to the Canadian
government of an amount equal to the GST required to be paid with
respect to such issue; said GST advance to be deducted from the
Initial Advance Payment required in sub-paragraph 15(b) hereof, and
the GST Advance shall be repaid by DISTRIBUTOR to PUBLISHER sixty (60)
days after payment by DISTRIBUTOR of the Initial Advance Payment for
such issue.
(b) "Initial Advance Payment" of an amount equal to Sixty Percent (60 %)
percent of Distributor's Estimated Final Net Xxxxxxxx with respect to
such issue, less the GST Advance Payment for such issue and less a
reasonable reserve for discounts and allowances pursuant to Paragraph
11, but not less than five percent (5%) of the PUBLISHER's Gross
Billing for such issue, such reserve to be accounted for at the time
of the Second Advance Payment under sub-paragraph 15
(c), to be paid to PUBLISHER (10) ten days after DISTRIBUTOR's receipt of
Completion Notice of Completion of Shipping, or on the actual On Sale
Date, whichever later, for such issue and to continue this method of
making Initial Advance Payments on subsequent issues If in
DISTRIBUTOR's sole judgment the sales warrant them; DISTRIBUTOR's
obligation to make such Initial Advance Payment being conditioned upon
timely shipment by PUBLISHER of the particular issue to meet its
scheduled On Sale Date, and that PUBLISHER is in compliance with all
of the terms of this Agreement. Notwithstanding the foregoing, the
"Initial Advance Payment" for the first issue of each Publication
shall be Fifteen Percent (15%) of the Publisher's Gross Xxxxxxxx, less
the GST Advance Payment for such issue and less a reasonable reserve
for discounts and allowances pursuant to Paragraph 11, but not less
than five percent (5%) of the PUBLISHER's Gross Billing for such
issue. (c) "Second Advance Payment" of an amount equal
to_______forty-five(45%) percent of Distributor's Estimated Final Net
Xxxxxxxx with respect to such issue, less the aggregate amount of the
Initial Advance Payment made by DISTRIBUTOR to PUBLISHER for such
issue, the GST Advance Payment, and alf charges, allowances,
discounts, other advances and other credits and reimbursements
incurred or accrued to which DISTRIBUTOR shall be
entitled,_________eighty (80) days after the Off-Sale Date of such
issue of each Publication. If on the Second Advance Payment date of
any Issue, the previous advances made by DISTRIBUTOR to PUBLISHER on
that issue exceed the amount due as a result of the Second Advance
Payment calculation, then DISTRIBUTOR may deduct such excess from any
monies due or thereafter due PUBLISHER pursuant to this Agreement, or
any other Agreement between the parties, or DISTRIBUTOR at its sole
option may require PUBLISHER to pay DISTRIBUTOR for such excess within
ten (10) days following DISTRIBUTOR's request thereof.
(d) "Settlement Payment" of an amount equal to the Net Xxxxxxxx with
respect to such issue, less the aggregate amount of all advance
payments made by DISTRIBUTOR to PUBLISHER or for its account, and all
charges, allowances, discounts and other credits or reimbursements
incurred or accrued to which DISTRIBUTOR shall be entitled for such
issue or which have been incurred or accrued by DISTRIBUTOR for other
issues and which were not previously deducted, and any reserve
DISTRIBUTOR, in its sole judgment,
prepared by the DISTRIBUTOR________NINETY (90) days after the OFF-Sale
date with respect to such XXXXXXX after to PUBLISHER together with the
amount shown due, if any. In the event that the Publisher Statement
indicates an amount due DISTRIBUTOR ("Overpayment"), then DISTRIBUTOR
at its sole option may deduct such Overpayment from any monies due or
thereafter due PUBLISHER, and/or require PUBLISHER to pay DISTRIBUTOR
for such Overpayment on demand. Any Returns received and/or charges or
credits incurred or accrued by DISTRIBUTOR with respect to any issue
of PUBLISHER's Publication(s) subsequent to the preparation of the
Publisher statement with respect to such issue of the Publication(s)
shall be included as a credit to DISTRIBUTOR on any subsequent
Publisher Statement and deducted from any monies thereafter payable to
PUBLISHER, or DISTRIBUTOR at its option may require PUBLISHER to pay
DISTRIBUTOR on demand for any such charges and credits. PUBLISHER
agrees to accept any Publisher Statement from DISTRIBUTOR as an
account stated and the items therein enumerated as true and correct,
except as to any specific item or items appearing therein to which the
PUBLISHER may object in writing within thirty (30) days from the date
of the mailing of said Statement.
(e) If, at any time after an issue has been On-Sale for at least thirty
(30) days, the DISTRIBUTOR, in its sole judgment, determines that the
total of advance payments, disbursements, allowances, discounts and
other credits incurred or accrued for which DISTRIBUTOR shall be
entitled to reimbursement, are in excess of Distributor's Estimated
Final Net Xxxxxxxx with respect to such issue, then DISTRIBUTOR may
deduct any such excess from any payments thereafter due PUBLISHER, or
DISTRIBUTOR at its option may require PUBLISHER, and PUBLISHER agrees,
to pay DISTRIBUTOR for such excess within ten (10) days following
DISTRIBUTOR's request thereof.
(f) Nothwithstanding anything in this Agreement to the contrary,
DISTRIBUTOR's may at any time withhold any funds otherwise due
PUBLISHER and apply same to any monies due and owing to DISTRIBUTOR
from PUBLISHER.
(g) Notwithstanding anything in this Agreement to the contrary,
DISTRIBUTOR may at any time withhold any funds otherwise due PUBLISHER
and apply same to any monies due and owing to DISTRIBUTOR from
PUBLISHER.
(h) No advances or other payments shall be payable by DISTRIBUTOR to
PUBLISHER:
(i) For any issue(s) for which DISTRIBUTOR has exercised its right
not to distribute pursuant to Paragraph 19 hereof, or
(ii) For any issue(s) following a party's exercise of its option to
terminate pursuant to Paragraph 22(b) hereof, or
(iii) For any issue(s) of any Publication if DISTRIBUTOR has reason to
believe and has notified PUBLISHER that PUBLISHER has not
published said issue in accordance with this Agreement, or if
DISTRIBUTOR has reason to believe PUBLISHER will not continue to
publish further issues of said Publication as provided for in
this Agreement, or
(iv) For the last two (2) issues of each Publication to be distributed
by DISTRIBUTOR for PUBLISHER hereunder subsequent to the giving
by either party to the other a Notice of Termination pursuant to
Paragraph 3 of this Agreement.
(h) Settlement Payment for the two (2) issues of each Publication
immediately preceding the exercise of an option to terminate pursuant
to Paragraph 22(b) and for any issues distributed thereafter, or for
the two (2) issues immediately preceding a notice by DISTRIBUTOR
pursuant to Paragraph 15(g)(iii), or for the last two (2) issues of
each Publication to be distributed by DISTRIBUTOR under this Agreement
following a Notice of Termination pursuant to Paragraph 3, shall be
made by DISTRIBUTOR to PUBLISHER one hundred and eighty (180) days
after the Off-Sate Date of the last issue of all Publication(s) being
terminated. DISTRIBUTOR shall be entitled to withhold a reasonable
reserve from the sum otherwise due PUBLISHER from the Settlement
Payment of such last two (2) issues. Said reserve shall be in an
amount equal to (I) DISTRIBUTOR's estimate of Return Credits for
Returns yet to be received, (ii) DISTRIBUTOR's estimate of RDA claims
yet to be received from retailers participating in PUBLISHER's RDA
program as set forth in Paragraph 10 hereof, (iii) the amount which
DISTRIBUTOR estimates will be needed to reimburse DISTRIBUTOR for
charges, allowances and discounts to be made or given on behalf of
PUBLISHER and, (iv) for such other credits for which DISTRIBUTOR will
be entitled to be reimbursed, which will or may be incurred subsequent
to the preparation of the Publisher Statement for such last two (2)
issues. In the event that such reserve is insufficient, PUBLISHER
agrees to pay DISTRIBUTOR any such sums within ten (10) days following
DISTRIBUTOR's request thereof.
(i) The parties agree that payment(s) for copies of Publications
distributed to Distributor's Sales Outlets located outside the United
States of America and Canada will be made ninety (90) days later than
the dates indicated in Paragraphs 15(c), 15(d) and 15(h).
(j) Any and all Overpayments shall be repaid by PUBLISHER to DISTRIBUTOR
upon termination of this Agreement or at such time as DISTRIBUTOR
shall have discontinued distributing, for any reason whatsoever, any
Publication, or any particular issue of any Publication.
(k) The respective obligations of PUBLISHER and DISTRIBUTOR under this
Paragraph 15 shall survive the termination of this Agreement.
16. INDEMNIFICATION
(a) PUBLISHER shall indemnify, hold harmless and promptly reimburse the
DISTRIBUTOR, and Distributor's Sales Outlets and their retail outlets
and all of their respective officers, directors, employees, agents and
representatives (here collectively referred to as Indemnities), from
and against any losses, damages, fines, judgments, expenditures,
claims, reasonable counsel fees, legal and court expenses, bond and
bail charges and premiums, as well as any and all other costs of any
kind or nature, resulting from defending or settling any claims, civil
or criminal actions or proceedings and/or supplementary proceedings,
or in connection with any inquiries, proceedings or actions by any
federal, state, local and/or any other governmental agencies or
authorities (collectively 'Claims') which in anyway relate to, or
arise from or by reason of: (i) the title, contents or any printed
matter contained within any of the Publication(s), including, but not
limited to, editorial contents, photographs, pictures, cartoons,
caricatures, drawings or other artwork, advertisements, and
classifieds, whether contained on any cover, or any page or
advertisement contained in or for said Publication(s), or any
promotional material for PUBLISHER or the Publication(s); (ii) the
breach or alleged breach of any of PUBLISHER's representations and
warranties contained in Paragraph 4 of this Agreement, (iii) any
services performed, or terms or programs offered by DISTRIBUTOR
pursuant to the specific request of PUBLISHER, or pursuant to
incorrect information supplied by PUBLISHER, or (iv) any other act of
PUBLISHER relating to or affecting the distribution or sale of the
Publication(s) or the services performed by any of the Indemnities in
connection with the Publications.
(c) Expense to (i) retain counsel of its own choosing for itself and/or
DISTRIBUTOR's Sales outlets and/or retain XXXXX the retention of
counsel by Distributor's Sales Outlets and/or retail outlets. If
PUBLISHER shall also be named a party thereto, PUBLISHER shall have
the right to its own counsel at its expense. DISTRIBUTOR shall give
PUBLISHER notice of any such suits, proceedings, actions, claims or
demands as soon as practicable after receipt of same.
(d) PUBLISHER agrees that PUBLISHER shall have no right to compromise or
settle any Claim in which DISTRIBUTOR is named unless DISTRIBUTOR is
given ten (10) days notice and such compromise or settlement shall
result in a full and final release of all Claims against DISTRIBUTOR.
(e) During the dependency of any such Claim, DISTRIBUTOR may withhold
payments as security, to the extent reasonably necessary, which
otherwise would be due to the PUBLISHER under this or any other
agreement between PUBLISHER and DISTRIBUTOR. DISTRIBUTOR may apply the
payments so withheld to satisfy in whole or in part, PUBLISHER'S
obligations under this Paragraph 16.
(f) PUBLISHER will name DISTRIBUTOR as an additional named insured under
any PUBLISHER'S liability insurance carried by PUBLISHER and will
deliver a certificate of such insurance to DISTRIBUTOR.
(g) PUBLISHER's obligations hereunder shall survive the termination of
this Agreement.
17. GALLEYS AND SHIPPING INSTRUCTIONS DISTRIBUTOR shall supply the PUBLISHER,
or at PUBLISHER'S request, its printer or forwarding agent with one set per
issue of shipment galleys, shipping instructions and labels designating the
names and addresses of Distributor's Sales Outlets specifying the number of
copies of each issue of each Publication to be sent to each of them or
computer tapes containing such information or electronically transmit such
information, sufficiently in advance of the Completion of Shipping with
respect to such issue so that such issue can be shipped to arrive at
Distributor's Sales Outlets receiving point(s) prior to the On-Sale Date of
such issue.
18. ACCESS TO RECORDS DISTRIBUTOR shall give PUBLISHER or its duly authorized
representatives, during business hours, reasonable access to DISTRIBUTOR's
draw, sale and Return figures relating to each issue of the Publication(s)
and other necessary records in support of all items of charges and credits
made by DISTRIBUTOR to PUBLISHER pursuant to this Agreement, and shall
permit PUBLISHER at its own cost and expense reasonable access, to inspect
and make copies of the same; said records to be maintained for a period of
twelve (12) months following the Off-Sale Date of each issue of each
Publication,
19. DISTRIBUTOR'S RIGHT TO REFUSE DISTRIBUTION Anything to the contrary in this
Agreement notwithstanding, the DISTRIBUTOR may at any time, without prior
notice, and without incurring any liability thereof, refuse to distribute
any issue(s) of any Publication(s) covered by this Agreement, or at its
option exercise the right to terminate this Agreement, if it comes to the
attention of DISTRIBUTOR that such issue(s) may contain libelous, obscene
or indecent material, or invade any person's right of privacy or other
personal right, or infringe a copyright or trademark owned by a third
parry, or contain any matter of any kind that is in violation of law, or if
such Publication shall be refused the use of the mails by the United States
Postal Service or such public corporation as may then exist for the
handling of mail, or if any such issue is refused entry into the United
States or Canada. In the event DISTRIBUTOR refuses distribution hereunder
with respect to an issue of a Publication no payments shall be due
PUBLISHER under Paragraph 15 with respect to such issue. Distribution of
any issue of any Publication(s) covered by this Agreement or receipt of
promotional copies does not and shall not establish nor constitute
knowledge or approval by the DISTRIBUTOR of the contents of such issue. The
PUBLISHER is aware that DISTRIBUTOR does not regularly, and is not
obligated, to examine or pass upon any issues of the Publication(s).
Nothing contained in this Paragraph 19 shall affect any rights of
DISTRIBUTOR under Paragraph 16.
20. FORCE MAJEURE Neither party shall be liable for any damage due to causes
beyond its control, including but not limited to, acts of civil or military
authority, orders, rules or other actions by appropriate regulatory
authorities, labor difficulties, fire, flood, power failure, or other
natural or human catastrophes, acts of God, national emergencies,
quarantine, insurrection, riots and failure of transportation and
equipment, nor shall any of the above be deemed a default by either party.
21. RELATIONSHIP OF PARTIES It is understood and agreed that the relationship
between PUBLISHER and DISTRIBUTOR is that of creditor and debtor. All
monies paid by, or due and owing from Distributor's Sales Outlets for
copies of said Publication(s) not returned to DISTRIBUTOR, are and shall at
all times belong to and remain the absolute property of the DISTRIBUTOR. It
is further agreed that DISTRIBUTOR is not the agent of the PUBLISHER except
in connection with any services performed pursuant to Paragraph 10 of this
Agreement, nor is PUBLISHER the agent of DISTRIBUTOR. Further, this
Agreement does not constitute and shall not be construed as constituting a
partnership of joint venture between PUBLISHER and DISTRIBUTOR. 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 right of
any kind whatsoever to any third persons.
22. ASSIGNMENT, TRANSFERS AND SALE OF RIGHTS, ETC.
(a) PUBLISHER may not assign this Agreement or any rights thereunder to
any other person, firm or corporation without the prior written
consent of the DISTRIBUTOR; provided, however, nothing herein
contained shall be construed to prevent PUBLISHER from assigning any
right to receive any advance(s) or payment(s) which the DISTRIBUTOR
may make to the PUBLISHER under this Agreement to any
such assignment shall be on a form provided by DISTRIBUTOR and shall
expressly state therein that at all times the same subject and
subordinate in all respects to any and all of the rights of
DISTRIBUTOR under this Agreement and under any other agreement between
PUBLISHER and DISTRIBUTOR , and provided further that a copy of such
assignment shall be first submitted and approved by DISTRIBUTOR at
least forty (40) days prior to the On-Sale Date of the particular
issue. PUBLISHER agrees to pay DISTRIBUTOR a thirty-five ($35.00)
dollar administration fee for each assignment processed by
DISTRIBUTOR, payable at the time the assignment is delivered to
DISTRIBUTOR.
(b) Either party hereto may terminate this Agreement at any time during
the term hereof in the event that the other party shall make a general
assignment for the benefit of creditors, have a receiver appointed of
its assets, be adjudicated a bankrupt, make a petition for
reorganization, or take advantage of any insolvency statute. However,
should any of the foregoing events occur with respect to PUBLISHER,
DISTRIBUTOR may elect to continue this Agreement without payment of
any advances otherwise due under Paragraph 15(a) and 15(b).
(c) In the event PUBLISHER enters into an agreement to (i) sell, transfer
or dispose of all or substantially all of the assets of PUBLISHER, or
(ii) sell, transfer, assign, license or otherwise relinquish or
dispose of any of its rights to any or all of the Publication(s) or
their title(s) or trademark(s) covered under, or distributed pursuant
to, this Agreement, to a third party (hereinafter 'Acquiring Party"),
then PUBLISHER guarantees that any such agreement between PUBLISHER
and Acquiring Party shall contain a provision requiring, (x) at
DISTRIBUTOR's option, that either any such Acquiring Party be bound by
and enter into an agreement assuming all the terms and conditions of
this Agreement, relating to the title or titles acquired, including
any liabilities to DISTRIBUTOR hereunder, or in the alternative, that
the Acquiring Party enter into a New Distribution Agreement with
DISTRIBUTOR under the same terms and conditions of this Agreement for
a term equal to the then remaining term of this agreement, and (y)
that the DISTRIBUTOR be named as a third party beneficiary with regard
to that required provision. However, any such sale, transfer,
assignment or license, or the entering into of a New Distribution
Agreement, shall not relieve PUBLISHER of any existing or estimated
obligation or liability to DISTRIBUTOR, or any subsequent obligation
or liability if same concerns Publications distributed prior to such
sale, transfer, assignment or license (hereafter "Continuing
Obligations"). Any existing obligation together with any DISTRIBUTOR's
estimate of any sums to be owed, shall be paid by PUBLISHER prior to
such sale, transfer, assignment or license of any Publications. Any
continuing obligations of PUBLISHER shall be paid by PUBLISHER to
DISTRIBUTOR upon demand.
(d) DISTRIBUTOR has the right to require that any proceeds to be paid by
an Acquiring Party to PUBLISHER should first be paid to DISTRIBUTOR to
satisfy any sums owed or estimated to be owed to DISTRIBUTOR by
PUBLISHER hereunder. (d) DISTRIBUTOR may not assign this Agreement or
any rights hereunder to any other person, firm or corporation without
the prior written consent of the PUBLISHER, except in connection with
the sale or transfer of all or substantially all of the assets of
DISTRIBUTOR.
23. ONE -- SHOTS AND/OR ANNUALS
Any one-shots and/or annuals derived from any of the Publication(s) as may
hereafter be published shall be included in this Agreement on the same
terms and conditions as set forth herein. Notwithstanding the foregoing, in
the event the DISTRIBUTOR wishes to change the amount and/or timing of
advance payments and the timing of Settlement, the parties hereby agree to
negotiate in good faith as to the amount ano timing or sucn payments.
24. WAREHOUSING
In the event that any Publication(s) or other materials of PUBLISHER are
stored at DISTRIBUTOR's warehouse(s), PUBLISHER agrees to pay DISTRIBUTOR
its handling and storage costs as they may be increased from time to time.
DISTRIBUTOR reserves the right to limit the amount of space allotted to
PUBLISHER. PUBLISHER agrees to remove any Publication(s) or other material
from DISTRIBUTOR's premises upon thirty (30) days notice. In the event
PUBLISHER does not remove its property within such thirty (30) day period,
DISTRIBUTOR may remove and dispose of same as it sees fit at PUBLISHER's
expense. Nothing contained in this Paragraph 24 shall affect PUBLISHER's
risk of loss as set forth in Paragraph 12.
25. NOTICES
Except as otherwise specifically provided herein, all notices permitted or
required hereunder shall be in writing and shall be given by receipted
personal delivery, registered or certified mail, or Federal Express (or
similar overnight delivery service), at the respective addresses set forth
below, or at such other address or addresses as may be designated by either
party. Such notices shall be deemed given when mailed or delivered to the
post office or such overnight delivery service, except that a notice of
change of address shall be effective only from the date of its receipt. A
copy of each notice shall be sent simultaneously to:
TO DISTRIBUTOR: with a copy to: TO PUBLISHER:
Kable Distribution Services, Inc. Kable News Company, Inc. Epic Media, Inc.
-------------------------
a Subsidiary of KNC Attention: Vice President of Finance Attention: President
Attention: President 00 Xxxxx Xxxxxx Xxxxxx 15671 Village Drive
-------------------------
000 Xxxxxxxxx Xxxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxxxx Xxxxxx, XX 00000 Xxxx Xxxxxx, XX 00000
-------------------------
and/or to such other person(s) or address(es) as such parties shall
designate to the other by written notice.
26. NON-DISCLOSURE
(a) The parties each acknowledge that the terms and conditions contained
in this Agreement constitute confidential business information, and
that therefore, each agree that they, their representatives, agents
and employees will not disclose the terms and conditions of this
Agreement to any person or organization except as otherwise provided
in subparagraph (b) of this Paragraph 26.
(b) Notwithstanding the provisions of subparagraph (a) of this Paragraph
26 to the contrary,
(i) Either party may disclose the provisions of this Agreement to any
potential purchaser, assignee, or licensee of any Publication or
other asset of such party or to underwriters, accountants,
lawyers, bankers or other lenders, or such other party or parties
as such party may reasonably require in the ordinary course of
business; provided that such potential purchaser, assignee,
licensee, underwriter, accountant, lawyer, banker or other
lender, or other party agree in writing to hold the provisions of
this Agreement confidential in the same manner as required by the
terms of this Paragraph 26; and
(ii) Either party may disclose the existence or provisions of this
Agreement if required to do so by any court order or subpoena, or
if in the reasonable opinion of its counsel it is required to do
so by any state or Federal securities or other law or regulation;
and
(iii) Either party may disclose the existence or any provisions of
this Agreement if information ad been disclosed.
27. 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. The courts of New York (state and federal) will have exclusive
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 or certified mail, return receipt
requested. Any such delivery or mail service shall be deemed to have the same
force and effect as personal service within the State of New York.
28. HEADINGS
The headings in this agreement are for convenience or reference only, and shall
not limit or otherwise affect the meaning hereof.
29. GENERAL
(a) No waiver of any breach of this agreement shall be held to be a waiver
of any other or subsequent breach. No waiver, modification or
cancellation of any term or condition of this Agreement or any
amendment thereto shall be effective unless executed in writing by the
party to be charged. All remedies afforded by this Agreement shall be
taken and construed as cumulative, that is, in addition to every other
remedy provided herein or by law.
(b) in the event that the date on which any payment is to be made under
this Agreement is a Saturday, Sunday, or legal holiday, the payment
shall be made on the next business day thereafter.
(c) This Agreement shall be binding upon the parties hereto and their
respective legal representatives, heirs, successors and assigns.
(d) No oral or other representations, understandings or agreements have
been made or relied upon in the making of this Agreement other than
those specifically set forth herein. This Agreement supersedes all
existing agreements by and between the parties hereto and constitutes
final expression of their agreement with respect to the subject matter
hereof and is a complete and exclusive statement of the terms thereof.
(e) The Schedules attached to this Agreement are incorporated into and
hereby made a part hereof.
IN WITNESS WHER OF, the parties hereto have caused this Agreement to be executed
by their duly authorized officers, as the day and year first written above.
EPIC MEDIA, INC.
Xxxx Xxxxx
--------------------------------
*PUBLISHER
By: /s/ Xxxxxxxx X. Gzuczko 10/10/03
--------------------------------------------
(Print Name and Title) (Date)
KABLE DISTRIBUTION SERVICES, INC. a Subsidiary of KABLE
NEWS COMPANY, INC. "DISTRIBUTOR"
By: Xxxxxx X. Xxxxx
--------------------------------------------------------
Xxxxxx X. Xxxxx-Vice President, Client Services
(PRINT NAME AND TITLE) (DATE)
SCHEDULE "A"
PUBLISHER'S
TITLE FREQUENCY COVER PRICE BILLING PRICE
------ --------- ------------- -------------
U.S. CANADA U.S. CANADA
------------ -------------
EVERYTHING FOR MEN MONTHLY $5.00 $8.00 $2.50 $4.00
EVERYTHING FOR WOMEN MONTHLY $5.00 $8.00 $2.50 $4.00
