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EXHIBIT 10.23
LICENSE AGREEMENT
This AGREEMENT is dated the day of , 1999.
BETWEEN:
NAXOS OF AMERICA, INC., 416 Xxxx Xxxxxxx Xxxx Drive (Suite 509), Franklin,
Xxxxxxxxx 00000, XXX (the LICENSOR)
AND:
INTERNATIONAL TRADING & MANUFACTURING CORPORATION, X.X. Xxx 0000, Xxx Xxx, XX
00000, XXX (Attn: Xxxx Xxxxxx)(the LICENSEE)
WHEREAS:
The Licensor owns or controls the rights in the sound recordings listed in
Schedule A (the RECORDINGS); and
The Licensee is engaged in the business of producing and manufacturing a
compilation CD/audio cassette entitled (the PRODUCT); and
The Licensee wishes to use the Recordings in connection with the Product;
IT IS HEREBY AGREED AS FOLLOWS:
1. LICENSE GRANT
a) In consideration of the payment by the Licensee to the Licensor under
Section 4 of this Agreement and the other covenants herein on the part
of the Licensee, the Licensor hereby grants to the Licensee the
non-exclusive right and license to reproduce and make copies of the
Recordings for the purposes of manufacturing and distributing the
Product.
b) All rights other than those specifically granted herein are reserved by
the Licensor. By way of illustration but not of limitation, the
Recordings shall not be sold and/or used separately from the Product and
the Licensee shall not have the right to change or adapt the copies of
the Recordings supplied by the Licensor, except with respect to
duration.
c) The Licensor acknowledges that the Licensee plans to manufacture up to
twelve (12) compilation CDs, for which it may wish to use additional
sound recordings owned or controlled by the Licensor. In that case, the
parties will negotiate in good faith agreements on similar terms and
conditions with respect to the use of sound recordings to be used on
such compilations.
2. TERM
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a) This Agreement shall commence upon the above date and shall end upon the
earlier of:
I) with respect to each of the Recordings, the expiration of the
copyright therein, or
II) the date on which publication of the Product has been definitively
terminated.
The Licensor shall give the Licensee reasonable notice of the expiration
of copyright (including renewals and extensions) in the Recordings.
b) Upon the expiration of the term of this Agreement, or upon termination of
this Agreement as provided herein, all rights granted under this Agreement
shall cease and terminate and the rights to make or authorize any further
use of the Recordings and to use or distribute the Product shall also
cease and terminate. The Licensee shall destroy its unsold stock of the
Product and shall provide the Licensor with an affidavit of destruction.
3. TERRITORY
The rights granted hereunder shall apply throughout the world.
4. PAYMENT
In consideration of the license granted hereunder, the Licensee shall pay to
the Licensor:
a) for the manufacture of the first _____________ copies of the Product:
i) the sum of _____________ upon the execution hereof; or
ii) an advance of _____________ upon the execution hereof, the sum of
_____________ upon the first test marketing commitment for the
Product, and the sum of _____________ upon the signing of a chain-wide
distribution agreement in respect to the Product.
b) for the manufacture of additional copies of the Product, _____________ for
each _________ copies of the Product.
5. LABELLING OF PRODUCTS
a) The products shall be sold under the labels and/or trademarks of the
Licensee, i.e. Baby Genius, Child Genius, Kid Genius, Little Genius and
Genius.
b) The Licensee shall include on the product credit to the Licensor as
follows: "under license from Naxos".
c) If the Product is manufactured without the credit set forth in subsection
(b) above, the Licensee shall, at the discretion of the Licensor, either
recall copies which have been distributed but which have not
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yet reached the end consumer, and/or pay a contractual penalty equivalent
to one-half of the fee set out in Section 4(a)(i) above.
6. SAMPLES
The Licensee shall provide the Licensor with sample copies of the Product
free of charge at the time of its commercial release.
7. WARRANTIES
a) The Licensor hereby warrants that, except for approvals of appropriate
music publishers, it has the full right, power and authority to enter
into this Agreement and to grant this license as the party which owns
and/or controls the exclusive right to make copies of the Recording in
the way and by the means authorized by this Agreement.
b) The Licensee hereby warrants that it has the full right, power and
authority to enter into this Agreement and to perform its obligations
hereunder.
c) The Licensee shall obtain music publishing clearances, if required, from
the owners of the musical works embodied in the Recordings and shall pay
any mechanical reproduction rights in respect of the Recordings
reproduced on the Product, and guarantees the Licensor against any claim
by any third party in this regard.
d) Each party shall indemnify the other in respect of any costs, losses,
claims or damages actually incurred by the party not in breach by reason
of breach of this Agreement, but the Licensor's aggregate liability to
the Licensee shall be limited to the amount of consideration actually
paid by the Licensee hereunder. This shall survive the termination of
this Agreement.
8. ASSIGNMENT
a) The Licensee may not transfer or assign the rights and license granted
hereunder, in whole or in part, either affirmatively or by operation of
law, without the Licensor's prior written consent.
b) If the Licensor does grant consent to an assignment, the Licensee shall
remain liable for the performance of all of the terms and conditions
hereof to be performed on the Licensee's part and any such assignment or
transfer shall be subject to all the terms hereof. The Licensee agrees
that any assignee or person acquiring from it any right, title or
interest shall be notified of the terms and conditions of this license
and shall agree to be bound thereby.
9. TERMINATION
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a) Either party may terminate this Agreement (without prejudice to its
other rights and remedies) by written notice sent by registered mail, if
the other party is in breach of any of its obligations hereunder and has
failed to remedy such breach within twenty-one (21) days of a written
request for remedy from the party not in breach.
b) This Agreement and the license granted hereunder shall automatically
terminate immediately upon the Licensor sending written notice by
registered mail to the Licensee at its address listed above, without
prejudice to any claim which the Licensor may have for damages or
otherwise, and the Licensee shall surrender the material supplied to it
by the Licensor, on the occurrence of any of the following:
(i) the Licensee is adjudicated bankrupt or files a petition in
bankruptcy or is in process of reorganization under the Bankruptcy
Act of the Licensee's country of domicile; or
(ii) the Licensee takes advantage of the insolvency laws of any state
or territory; or
(iii) a permanent receiver, trustee, or similar court officer is
appointed by a court of competent jurisdiction to administer its
affairs; or
(iv) the Licensee voluntarily or involuntarily goes out of business or
attempts to assign, mortgage, or pledge all or substantially all
of its assets for the benefit of its creditors; or
(v) the Licensee attempts to assign this Agreement, or sublicense or
terminate any of its rights or duties hereunder, or attempts to
sell, mortgage or pledge the Recordings provided to it hereunder
without the prior written consent of the Licensor.
10. GENERAL
a) This Agreement shall be subject to and interpreted in accordance with
the laws of the state of Tennessee which courts shall have exclusive
jurisdiction to hear and determine all disputes under or in connection
with this Agreement.
b) Notices to be given under this Agreement shall be sent to the address of
the party to receive notice as stated above, which address may be
changed by written notice hereunder.
c) This Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof and merges all prior and
contemporaneous communications. It shall not be modified except by a
written agreement dated subsequent to the date of this Agreement and
signed by the parties.
d) Headings are for ease of reference only and shall not be deemed to form
part of this Agreement.
e) Nothing in this Agreement shall constitute a joint venture or a
partnership between the parties.
f) In the event that any clause of this Agreement should be revealed to be
invalid or unenforceable, this shall not invalidate the remaining
clauses of this Agreement.
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g) Each of the parties agrees that the signature hereof on its behalf and on
behalf of the other party and exchange hereof with such signatures in the
first instance by means of facsimile transmission shall thereupon
constitute a binding agreement between the parties and that the parties
shall as soon as possible thereafter sign and exchange original paper
copies hereof.
In witness of which this Agreement has been executed.
/s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx, Director of Licensing
Naxos of America, Inc.
/s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
International Trading & Manufacturing Corp.
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SCHEDULE A
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