EXHIBIT 10.24
Multimedia Production Agreement
between
Brilliant Interactive Ideas Pty Ltd
("Producer")
and
Monto Holdings Pty Ltd
("The Investor")
MULTIMEDIA PRODUCTION AGREEMENT
DETAILS OF THE AGREEMENT
DATE OF THE AGREEMENT:
This agreement is made on 14th March, 1995
PARTIES TO THE AGREEMENT:
1. Brilliant Interactive Ideas Pty Ltd
(ACN 021 288 668)
of 00 Xxx Xxxxx, Xxxxx, Xxx Xxxxx Xxxxx, 0000
(THE "PRODUCER")
and
2. Monto Holdings Pty Ltd
(ACN 002 440 502)
of Xxxxx 00, XXX Xxxxxx, Xxxxxx Xxxxx, Xxxxxx
New South Wales, 2000
(THE "INVESTOR")
BACKGROUND TO THE AGREEMENT
A. The Producer intends to develop and produce a multimedia product for
Commercialisation.
B. The Investor will agree to provide or procure funds for the purpose of
development of the multimedia product or service.
C. The Producer will agree to pay certain amounts to the Investor from the
Commercialisation of the multimedia product, subject to the terms and
conditions of this Agreement.
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THE PARTIES AGREE AS FOLLOWS:
1. DEVELOPMENT OF MULTIMEDIA PRODUCT BY PRODUCER
1.1 OBLIGATION TO DEVELOP
The producer will Develop the Multimedia Product in accordance with:
(a) this Agreement (including without limitation, by fulfilling the
Milestones in accordance with Clause 1.2);
(b) The Product Development Budget; and
(c) all requests and directions of the Investor
1.2 MILESTONES
The producer will fulfill the Milestones:
(a) to a standard acceptable to the Investor in its absolute
discretion and
(b) on or before the dates set out in Item 2 of the Schedule.
1.3 DELIVERY OF PRODUCER'S MATERIAL:
Without limiting the operation of Clause 1.2, the Producer will deliver
to the Investor the Producer's Material, or copies of it in the form
required by the Investor, by the dates specified in the Item 2 of the
Schedule.
1.4 NATURE OF PRODUCER'S MATERIAL:
The Producer will ensure that nothing created for the purposes of this
Agreement by or at the direction of the Producer:
(a) is defamatory, obscene, false, misleading or deceptive;
(b) breaches any law or Statute, or
(c) infringes any Intellectual Property Rights of any other person
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1.5 TIME OF ESSENCE
Times for the fulfillment of obligations of the Producer under this
Agreement are essential terms of this Agreement.
1.6 MATERIAL CONTRACTS
(a) The Producer will comply with all provisions of any agreement that
is material to its business including, without limitation, any
agreement that relates to:
(i) use of the Third Party Rights; or
(ii) Commercialisation of the Multimedia Product.
(b) The Producer must give written notice to the Investor promptly
upon the occurrence of any of the following events:
(i) default under any of the agreements referred to in Clause
1.6(a).
(ii) notice of any litigation in respect of any of the agreement
referred to in Clause 1.6(a) involving a sum in excess of
$10,000; or
(iii) notice of a breach of any of the agreements referred to in
Clause 1.6(a).
2. PAYMENT OF INVESTMENT FUNDS BY THE INVESTOR
2.1 PAYMENTS IN ACCORDANCE WITH SCHEDULE
SUBJECT TO:
(a) Clauses 2.2 and 11; and
(b) the Producer performing its obligations in accordance with this
Agreement,
the Investor will pay the Investment Funds to the Funds to the Producer
in the instalments and on or before the dates referred to in Item 3 of
the Schedule.
2.2 NOTICE BY PRODUCER IF PAYMENTS DUE
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Where any instalment of the Investment Funds is stated in Item 3 of the
Schedule to be payable by the Investor on or within a certain period
after the fulfillment by the Producer of a Milestone, the Investor will
only be required to pay the instalment within CONFIDENTIAL INFORMATION
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
Business Days after:
(a) the Producer gives to the Investor a written notice advising of
the fulfillment of the relevant Milestone; and
(b) the Investor is satisfied that the Producer has fulfilled the
relevant Milestone;
(1) to a standard acceptable to the Investor in its absolute
discretion; and
(2) on or before the relevant date set out in Item 2 of the
Schedule.
2.3 DEFAULT BY INVESTOR
The investor defaults in its obligation to pay Investment Funds to the
Producer in accordance with the terms of this Agreement, the Producer may
serve a written notice to the relevant Investor requiring payment of the
relevant Investment Funds within CONFIDENTIAL INFORMATION OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION Business
Days. If that Investor fails to pay those Investment Funds within
CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION Business Days:
(a) the Producer may terminate this Agreement with respect to the
Investor;
(b) the Investor will lose its rights in the Multimedia Product; and
(c) the Investor is entitled to recoup those Investment Funds it has
invested in the Multimedia Product up to the date of termination
only after the Producer has recovered the reasonable costs
incurred by the Producer in finding the replacement Investor.
The foregoing does not prejudice or in any way affect the Producer's
right to take any legal action against the defaulting Investor.
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3. PRODUCT DEVELOPMENT DOCUMENTS
3.1 DELAYS IN ACHIEVING MILESTONES
If the Producer becomes aware that there will or may be any delay
(including an indefinite delay) in achieving any of the Milestones on or
before the dates set out in Item 2 of schedule, the Producer will:
(a) immediately give written notice to the Investor advising of:
(1) the nature and period of the delay; and
(2) any steps the Producer proposes to take to rectify or
minimise the delay in achieving the relevant Milestone;
(b) consult with the Investor to determine the steps to be taken to
avoid or minimise the delay; and
(c) implement any steps required by the Investor to be taken to avoid
or minimise the delay.
3.2 AMENDMENTS
The producer may not amend the Product Development Budget without
obtaining the prior written consent of the Investor.
3.3 COPIES OF AMENDED DOCUMENTS
The Producer will provide to the Investor:
(a) 1 amended copy of the Product Development Budget marking clearly
all amendments; and
(b) I amended copy of the Product Development Budget without any
marking of amendments,
within 1 Business Day after making any amendments permitted under Clause
4.2.
3.4 EFFECT OF DELAY ON PAYMENTS
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For the avoidance of doubt, where the date for the fulfillment of a
Milestone is extended under this Clause 3, the Investor will not be
required to may any payment to the Producer under Clause 2.1 until both;
(a) the relevant Milestone (as extended) is fulfilled; and
(b) the provisions of Clause 2.1 are satisfied.
4. OWNERSHIP OF INTELLECTUAL PROPERTY
All product Intellectual Property Rights will be owned by the Producer.
5. COMMERCIALISATION
5.1 PRODUCER TO KEEP INVESTOR INFORMED
Without limiting the Producer's obligations under Clause 7, the Producer
will:
(a) advise the Investor in writing of the details of all agreements
the Producer proposed to conclude; and
(b) provide to the Investor, copies of all documents evidencing any
agreement concluded by the Producer.
5.2 FURTHER MULTIMEDIA PRODUCTS
The Producer will not nor will the Producer permit or assist any other
party to develop, produce or Commercialise the Multimedia Product or any
Further Multimedia Product without first:
(a) providing to the Investor the full details (including all
technical specifications) of the Further Multimedia Product,
(b) providing copies of all documents and agreements and draft
documents and agreements related to the proposed development,
production or Commercialisation of the Multimedia Product or the
Further Multimedia Product, including any proposed assignment,
licence or grant of any other rights with respect to any of the
Product Intellectual Property Rights;
(c) obtaining the prior written consent of the Investor to the
proposed development, production or Commercialisation, which
consent shall not be unreasonably withheld; and
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(d) observe all other terms of this Agreement relating to the
Multimedia Product,
6. INCOME AND COMMERCIALISATION
6.1 INVESTOR'S RIGHT TO INCOME
(a) The Producer will pay, or cause to be paid, to the Investor the
amounts set out in or calculated in accordance with Item 4 of the
Schedule in respect of the Commercialisation of the Multimedia
Product.
6.2 OTHER ARRANGEMENTS AFFECTING DIVISION OF INCOME
The Producer will not do any act or thing or enter into any agreement
regarding or contemplating the division, allocation or payment of any
amount out of the Gross Receipts, Net Profits or any other amounts
received from or in respect of the Commercialisation of the Multimedia
Product or any Further Multimedia Product without obtaining the
Investor's prior written consent.
7. REPORTING TO DEVELOPMENT
7.1 QUARTERLY PROGRESS REPORTS
During the Development of the Multimedia Product by the Producer under
this Agreement, the Producer will provide quarterly progress reports:
(a) to and in the form required by the Investor;
(b) on the last Business Day of each quarter.
7.2 CONTENT OF QUARTERLY PROGRESS REPORTS
The quarterly progress reports will include details of;
(a) the fulfillment during the past quarter of all Milestones required
to be fulfilled during the period in accordance with this
Agreement;
(b) all other issues or occurrences relevant to the performance of the
Producer's obligations under this Agreement which have arisen or
occurred during the past quarter; and
(c) such other information as the Investor requires from time to time.
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7.3 FURTHER REPORTS
After the Multimedia Product has been Developed to the Investor's
satisfaction and for so long as the Investor has any interest in the
Product Intellectual Property Rights, the Producer will provide progress
reports;
(a) every six (6) months for the first three (3) years of the project;
(b) annually for the next four years of the project
unless the Investor's interest in the project comes to an end at an
earlier stage.
8. WARRANTIES
8.1 GENERAL WARRANTIES
Each party warrants that:
(a) it has authority to enter and perform its obligations under this
Agreement;
(b) it has the ability to perform its obligations under this
Agreement; and
(c) it is authorised by all necessary government and other agencies
and authorities to perform its obligations under this Agreement
and will continue to be authorised to perform this Agreement
8.2 THE PRODUCER'S WARRANTIES
The Producer represents and warrants to the Investor that:
(a) the Producer owns, will own or has the exclusive right to acquire
all the Intellectual Property Rights in and to the Multimedia
Product other than the Third Party Rights;
(b) development and use of the Multimedia Product under this Agreement
and the grant of any rights by the Producer under this Agreement
will not infringe the rights, including the Intellectual Property
Rights, of any person,
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(c) before signing this Agreement, the Producer obtained all necessary
licences, permissions, approvals and consents required for the
purposes of this Agreement;
(d) the Producer has not entered into any licence, or Agreement, with
any person which conflicts with the rights granted to the Investor
under this Agreement;
(e) all of the information provided to the Investor in relation to the
subject matter of this Agreement before the Producer signed this
Agreement is true, correct and not misleading.
9. CONFIDENTIALITY
9.1 CONFIDENTIAL INFORMATION
Each party acknowledges that it or its employees or agents may be given
access to Confidential Information in the course of negotiating or
performing this Agreement,
9.2 NO DISCLOSURE
Each party will keep Confidential Information and will not disclose it to
any third party or use it otherwise than:
(a) for the purpose of this Agreement;
(b) as authorised in writing by the other party;
(c) as required by any law, stock exchange, judicial or parliamentary
body or governmental agency; or
(d) by way of disclosure to that party's professional advisors who
have agreed to keep confidential the Confidential Information.
9.3 NO UNAUTHORISED COPYING
No party will copy any document containing Confidential Information
except as necessary to perform this Agreement.
9.4 RETURN OF MATERIALS
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On termination of this Agreement, each party will return to each other
party all documents or copies of documents containing information which
is, at the date of termination, Confidential Information of that other
party.
9.5 RESPONSIBILITY FOR EMPLOYEES, AGENTS ETC
Each party will ensure that its employees, agents, contractors and other
persons comply with this Clause 9.
10. SCOPE OF LIABILITY
10.1 PRODUCER'S INDEMNITY
The Producer will at all times identify and keep indemnified the Investor
and the Investor's respective officers, employees and agents (in this
Clause 10 referred to as "those indemnified") from and against any loss
(including reasonable legal costs and expenses) or liability incurred by
any of those indemnified arising from any claim, demand, suit, action or
proceeding by any person against any of those indemnified where such loss
or liability arose out of, in connection with or in respect of:
(a) entry into or performance of this Agreement;
(b) any breach of this Agreement by the Producer; or
(c) any of the warranties given by the Producer under Clause 8 proving
to have been false, misleading or inaccurate when made.
10.2 LIABILITY LIMIT
The total liability for damages or other forms of monetary relief of the
Investor for matters related to, connected with or arising out of this
Agreement regardless of the cause of action, whether in contract, tort
(including, without limitation, negligence) or breach of any Statute or
any other legal or equitable obligation is limited to the amount of
liability to contribute to the Investment Funds under Clause 2.
10.3 IMPLIED TERMS
Where any Statute implies in this Agreement any term, and that Statute
avoids or prohibits provisions in a contract excluding, restoring or
modifying the application of or exercise of, or liability under such
term, such implied terms as are not excludable will be deemed to be
included in this Agreement.
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11. TERMINATION
11.1 REMEDYING TERMINATION EVENTS AND PERFORMANCE EVENTS
(a) If a Termination Event occurs in relation to any party, any other
party may, in its absolute discretion, remedy the Termination Event
and may recover the cost of remedying the Termination Event from
the party in relation to which the Termination Event occurred.
(b) If a Performance Event occurs, the Investor may, in its absolute
discretion, remedy the Performance Event and may recover the cost
of remedying the Performance Event from the Producer.
11.2 IMMEDIATE TERMINATION
This Agreement may be terminated immediately by notice:
(a) from the Investor to the Producer if a Termination Event occurs in
relation to the Producer;
(b) from the Producer to the Investor if a Termination Event occurs in
relation to any one of the parties which comprise the Investor; or
(c) from the Investor to the Producer if a Performance Event occurs.
11.3 DEBT DUE TO THE INVESTOR
If this agreement is terminated by the Investor under Clause 11.2, the
Producer will pay to the Investor on demand an amount equal to that part
of the Investment Funds which the Investor has paid to the Producer
under Clause 2 up to the date of termination.
12. FORCE MAJEURE
12.1 NO LIABILITY
Subject to Clause 11, a party is not liable for its inability to
perform, or for any delay in performing any of its obligations under
this Agreement if that inability or delay is caused by a Force Majeure
Event.
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12.2 EXTENSION OF TIME TO PERFORM
Subject to Clause 11.2, the time for performance of any obligation by
either party under this Agreement will be extended by a period equal to
the period of any Force Majeure Event which causes the inability to
perform, or delay in performing, the obligation.
13. RELATIONSHIP OF THE PARTIES
13.1 RELATIONSHIP
This Agreement does not create any partnership, joint venture or agency
relationship between the parties.
13.2 NO AUTHORITY
No party may enter into any agreements or incur any liabilities on behalf
of another party without that other party's prior written consent and may
not represent to any person that it has any authority to do so.
13.3 PRODUCER'S SPECIFIC OBLIGATION
Without limiting the operation of Clause 11.2 and not withstanding any
other provision of this Agreement to the contrary, the Producer will not
in any negotiations or dealings with any person advise, or represent to,
such person that the Producer is negotiating or dealing for or on behalf
of or at the request or direction of the Investor.
14. NOTICES
14.1 LEGIBILITY
A notice under this Agreement must be in legible writing and in English
addressed to the party concerned at that party's address.
14.2 ADDRESS
For the purpose of the notice under Clause 14.1, a party's address is the
address specified at the commencement of this Agreement or as notified to
each other party except that where the Investor is comprised of more than
one party the address of the Investor will be the address of the
Investor.
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14.3 HOW A NOTICE MAY BE SERVED
A notice may be served by giving it to another party personally, by
posting it by security post or by faxing it.
14.4 WHEN A NOTICE IS RECEIVED BY POST
If the notice is posted by security post it is deemed to be received by
the receiving party 2 Business Days after posting.
14.5 WHEN A NOTICE IS RECEIVED BY FAX
If the notice is faxed it is deemed to be received by the receiving party
when the completed transmission report is received, unless:
(a) the sending party's machine indicates a malfunction in
transmission, or the receiving party within a reasonable time (and
in any event no longer than 2 Business Days) informs the sending
party of an incomplete transmission; or
(b) the transmission is completed outside business hours at the
receiver's address in which case the notice is regarded as
received at the commencement of business of the following Business
Day in that place.
15. CUMULATIVE RIGHTS
The rights are arising out of this Agreement do not exclude any other
fights of any party.
16. ENFORCEABILITY
16.1 EFFECT OF INEFFECTIVENESS OF PART OF THE AGREEMENT
Any Clause or part of a Clause of this Agreement which is Ineffective in
any jurisdiction is Ineffective only to that extent in that jurisdiction.
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16.2 SEVERANCE OF INEFFECTIVE PARTS OF THE AGREEMENT
Where any clause or part of that clause is ineffective it may be severed
without affecting any other part of this Agreement.
17. WAIVER
17.1 NO WAIVER EXCEPT BY NOTICE IN WRITING
No right under this Agreement is waived or deemed to be waived except by
notice in writing signed by the party waiving the right.
17.2 NO WAIVER OF SUBSEQUENT BREACHES
A waiver by one party under Clause 17.1 does not prejudice its rights in
respect of any subsequent breach of this Agreement by the other party.
17.3 NO WAIVER BY EXTENSION OR FORBEARANCE
A party does not waive its rights under this Agreement because it grants
an extension or forbearance to the other party.
18. VARIATION
A variation of this Agreement must be in writing and signed by each of
the parties.
19. ASSIGNMENT
19.1 NO ASSIGNMENT EXCEPT BY CONSENT
Rights arising out of or under this Agreement are not assignable by any
party without prior written consent of each of the other parties.
19.2 CONSENT MUST NOT BE UNREASONABLY WITHHELD
A party will not unreasonably withhold its consent to assignment.
19.3 BREACH TERMINATES THE AGREEMENT
A breach of Clause 19.1 by one party entitles any other party to
terminate this Agreement.
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19.4 NO EFFECT ON REMAINED OF AGREEMENT
Clause 19.3 does not affect the construction of any other part of this
Agreement.
20. CURRENCY
20.1 REFERENCES TO THE AUSTRALIAN CURRENCY
Unless the contrary intention appears, all references to currency in this
Agreement shall be construed as being references to Australian currency.
20.2 PAYMENTS IN AUSTRALIAN CURRENCY
Unless the other party consents in writing any payments which are
required to be paid under this Agreement by a party to another party will
be paid in Australian currency.
21. FURTHER STEPS
Each party will do all things and execute all further documents necessary
to give full effect to this Agreement.
22. ENTIRE AGREEMENT
This Agreement supersedes all previous agreements in respect of its
subject matter and embodies the entire Agreement between the parties.
23. COUNTERPARTS
This Agreement may be executed in any number of counterparts.
24. SURVIVAL
The rights and obligations under Clauses 4 and 6 to 29 inclusive survive
termination of this Agreement.
25. LEGAL ADVICE
The Producer acknowledges that in relation to this Agreement it has
received legal advice or has had the opportunity of obtaining legal
advice.
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26. COSTS AND EXPENSES
Each party will bear its own cost and expenses in relation to the
negotiation, preparation, execution, delivery and completion of this
Agreement and any other related documentation.
27. GOVERNING LAW AND JURISDICTION
27.1 GOVERNING LAW
This Agreement is governed by the laws of New South Wales.
27.2 JURISDICTION
The parties irrevocably submit to the non-exclusive jurisdiction of the
courts of New South Wales.
28. DEFINITIONS
28.1 DEFINITIONS
In this Agreement, unless the context otherwise requires:
"BUSINESS DAY" means a day on which the Commonwealth Bank of Australia is
open for business in the capital city of the place named in Item 9 of the
Schedule;
"COMMERCIALISE" means to commercially exploit the Developed Multimedia
Product including by the production, manufacture, licensing, sub-
licensing, publication, promotion, marketing sale or hire of the
Multimedia Product or by inclusion in any product in any medium currently
existing or yet to yet invented throughout the Universe or service
supplied to any person incorporating the Multimedia Product and
"Commercialisation" will have a corresponding meaning;
"CONFIDENTIAL INFORMATION" means all trade secrets, ideas, know-how,
concepts and information whether in writing or otherwise relating (in any
way) to:
(1) a party's sub-licensees or employee;
(2) the Multimedia Product, the Producer's Material or any Further
Multimedia Products;
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(3) the affairs or businesses, sales, marketing or promotional
information of a party; or
(4) the terms of this Agreement or any amounts payable under this
Agreement,
which is not in the public domain and includes any such
information in the party's power, possession or control concerning
or belonging to any third party,
"DEDUCTIBLE EXPENSES" means all expenses incurred by or on behalf of the
Producer in connection with the Commercialisation of the Multimedia
Product by or on behalf of the Producer, including:
(a) residuals;
(b) the cost of protecting the Product Intellectual Property Rights
and any other rights in and to the Multimedia Product;
(c) the cost of prints and sound recordings;
(d) the cost of promotions, advertising and sales representatives; and
(e) duties, taxes, foreign language versions, insurance, royalties,
shipping charges and other expenses which distributors are
entitled to deduct or recoup under any distribution agreement,
and not otherwise deducted by any distributor from sums payable to the
Producer (or any agent or representative) under any distribution
agreement;
"DEDUCTIBLE FEES" means all commissions and fees deductible from the
Gross Receipts and payable in accordance with any and all agreements
properly entered into (with any approvals required from the Investor) in
respect of the Commercialisation of the Multimedia Product by or on
behalf of the Producer including all amounts payable to the Beyond
organisation for the licencing of the Beyond 2000 television series;
"DEFERMENT" means any fee in respect of the provision of any services,
rights, finance or facilities in connection with the exercise or
exploitation of the Rights by or on behalf of the Publisher payable out
of the Gross Receipts and which would be recognised as part of the costs
of production of the Multimedia Product;
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"DEVELOP" means to develop and produce the Multimedia Product for
Commercialisation in accordance with this Agreement to the Investor's
absolute satisfaction and "Development" will have a corresponding
meaning;
"FORCE MAJEURE EVENT" means any;
(a) act of God;
(b) outbreak or escalation of hostilities (whether or not war has been
declared) or any other unlawful act against order or authority;
(c) industrial dispute;
(d) other event which is not within the reasonable control of the
parties;
"FURTHER MULTIMEDIA PRODUCT" means any further multimedia product:
(a) based on or using any image, text, character, scene or event in or
any object or other codes, "look and feel" or format of the
Multimedia Product; and
(b) developed by, on behalf of or with the co-operation of the
Producer;
"GROSS RECEIPTS" means the total income received by or on behalf of the
Producer from the Commercialisation of the Multimedia Product by or on
behalf of the Producer; including:
(a) all relevant rebates, subsidies or grants;
(b) all sums received by the Producer (or any agent or representative)
by way of damages or compensation for any infringement of or
interference with any rights in and the Multimedia Product or for
breach
(c) any claim for insurance or any loss of moneys that would have been
included in Gross Receipts once recovered; and
(d) relating to the Commercialisation of the Multimedia Product by or
on behalf of the Producer;
"INEFFECTIVE" means void, illegal or unenforceable;
"INSOLVENCY EVENT" means, in relation to a party:
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(a) a receiver, receiver and manager, trustee, administrator, other
controller (as defined in the Corporations law) or similar
official is appointed over any of the assets or undertaking of the
other party;
(b) the party suspends payments of its debts generally;
(c) the party is or becomes unable to pay its debts when they are due
or is or becomes unable to pay its debts or is presumed to be
insolvent within the meaning of the Corporations Law;
(d) the party enters into or resolves to enter into any arrangement,
composition or compromise with, or assignment for the benefit of,
its creditors or any class of them;
(e) the party ceases to carry on business or threatens to cease to
carry on business;
(f) a resolution is passed or any steps are taken to appoint, or to
pass a resolution to appoint, an administrator; or
(g) an application or order is made for the winding up or dissolution
of the other party, or a resolution is passed or any steps are
taken to pass a resolution for the winding up or dissolution of
the party, otherwise than for the purpose of an amalgamation or
reconstruction that has the prior written consent of the first
party;
"INTELLECTUAL PROPERTY RIGHTS" means any and all intellectual and
industrial property rights throughout the world including rights in
respect of or in connection with:
(a) any Confidential Information;
(b) copyright (including future copyright and rights in the nature of
or analogous to copyright);
(c) performers protection;
(d) inventions (including patents);
(e) trade marks, service marks; and
(f) designs, circuit layouts,
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whether or not now existing and whether or not registered or registrable
and includes any right to apply for the registration of such rights and
includes all renewals and extensions;
"INVESTMENT FUNDS" means the total amount set out in Item 3 of the
Schedule payable by the Investor to the Producer in accordance with this
Agreement;
"MILESTONES" means the milestones to be fulfilled under the Product
Development Documents by the dates set out in Item 2 of the Schedule;
"MULTIMEDIA PRODUCT" means the multimedia product described in Item 1(a)
of the Schedule including any software, compact or other disc or other
version to the Multimedia Product and any revised, modified, amended,
altered, edited, re-edited or enhance version of the Multimedia Product;
"NET PROFITS" means the Gross Receipts after deduction of all:
(a) Deductible Expenses;
(b) Deductible Fees; and
(c) Deferments;
"PERFORMANCE EVENT" means:
(a) the Producer's failure to fulfill a Milestone:
(1) to a standard acceptable to the Investor or the Investor, or
(2) on or before the date set out in Item 2 of the Schedule for
achieving the Milestone; or
(b) a Force Majeure Event which inhibits or delays the performance of
the Producer's obligations under this Agreement and continues for
CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION or more successive Business
Days or for a period in aggregate equal to, or in excess of,
CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION business Days;
"PRODUCER'S MATERIAL" means any material in any form (whether written or
machine or eye readable or otherwise) with respect to the Development and
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Commercialisation of the Multimedia Product created, developed or
produced by or on behalf of the Producer in the course of Developing the
Multimedia Product;
"PRODUCT DEVELOPMENT BUDGET" means the budget, shown as Annexure A to
this Agreement together with any further budget which may he specified in
Item 2 of the Schedule to be developed by the Producer as a Milestone,
for the Development of the Multimedia Product, as amended only in
accordance with this Agreement;
"PRODUCT DEVELOPMENT DOCUMENTS" means:
(a) the Product Development Budget;
(b) the technical specification set out in Item 1(b) of the Schedule
together with any further technical specification which may be
specified in Item 2 of the Schedule to be developed by the
Producer as a Milestone; and
(c) any other documents required to be created or observed by the
Producer,
as amended in accordance with this Agreement from time to time;
"PRODUCT INTELLECTUAL PROPERTY RIGHTS" means the Intellectual Property
Rights in and to:
(a) the Multimedia Product; and
(b) the Producer's Material;
"PRODUCT MATERIAL" means all software, packaging and promotional,
marketing and other material in all media relating to the Multimedia
Product and the Commercialisation of the Multimedia Product;
"REPORTS" means reports delivered and if the context so admits, reports
to be delivered, by the Producer under Clause 7;
"STATUTE" means any act of parliament or other legislative body or any
regulations or other subordinate instruments made under or pursuant to
such an act;
"TERMINATION EVENT" means;
(a) an insolvency Event; or
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(b) a warranty in Clause 8 made by the other party proving to have
been false, incorrect or misleading when made; and
"THIRD PARTY RIGHTS" means all Intellectual Property Rights or embodied
or to be embodied in the Multimedia Product and the Product's Material
which are owned by or licensed to any other person other than the
Producer or the Investor.
28.2 "INTERPRETATION"
In this Agreement:
(1) heading and underlinings are for convenience only and do not
affect the interpretation of this Agreement;
(2) explanatory comments do not form part of this Agreement and are
not legally binding;
(3) a reference to this Agreement includes an annexure, exhibit or
schedule to this Agreement;
(4) a provision of this Agreement will not be interpreted against a
party just because that party prepared the provision;
(5) a word or expression in the singular include the plural, and the
other way around;
(6) words importing a gender include any gender;
(7) other parts of speech and grammatical forms of a word or phrase
defined in this Agreement have a corresponding meaning;
(8) a reference to a document includes an amendment or supplement to,
or replacement or novation of, that document;
(9) a reference to a party to this or any other Agreement includes
that party's successors and permitted assigns;
(10) a reference to an agreement other than this Agreement includes an
undertaking agreement or legally enforceable arrangement or
understanding whether or not in writing;
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(11) a reference to a Clause, a Schedule or an Annexure is a reference
to a clause, a schedule or an annexure to this Agreement;
(12) a reference to a Clause includes a reference to a sub-clause; and
(13) a reference to a person or words denoting a person includes a
company, statutory corporation, partnership, joint venture,
association, board, government or semi-government, agency or
authority and that person's successors and legal personal
representatives.
29. EXECUTION CLAUSES
Executed as an Agreement by the parties
Signed for and on behalf of Brilliant Interactive Ideas Pty Ltd
By _____________________(Name) /s/________________(Signature)
________________________(Title)
who warrants by his or her signing
that he or she has authority to sign
this Agreement.
in the presence of
Witness /s/____________________
Name of Witness ___________________________
please print
Signed for and on behalf of Monto Holdings Pty Limited
By_____________________(Name) /s/______________________(Signature)
_______________________(Title)
who warrants by his or her signing
that he or she has authority to sign
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this Agreement.
in the presence of
Witness /s/_____________________
Name of Witness ___________________________
please print
25
SCHEDULE
to
MULTIMEDIA PRODUCTION AGREEMENT
ITEM 1 Description and Specification
(a) Multimedia Product (Clause 1.1):
A series of two (2) interactive magazines based
on the Beyond 2000 television series.
(b) Technical Specification
The Multimedia Product must comply with the
representations made in the Product Development
Budget.
ITEM 2 Milestones (Clause 1.2):
The following Milestones in the Development of
the Multimedia Product under this Agreement are
to be fulfilled by the Producer on or before the
dates listed below:
No Milestone Date
1. Execution of agreement for the Project CONFIDENTIAL INFORMATION
OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND
EXCHANGE COMMISSION
2. Completion of CONFIDENTIAL INFORMATION CONFIDENTIAL INFORMATION
OMITTED AND FILED SEPARATELY WITH THE OMITTED AND FILED SEPARATELY
SECURITIES AND EXCHANGE COMMISSION of WITH THE SECURITIES AND
research component of title 1 and CONFIDENTIAL EXCHANGE COMMISSION
INFORMATION OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION research component of title 2
3. Delivery to the Investor of a working prototype CONFIDENTIAL INFORMATION
of the engine used for the two titles OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND
EXCHANGE COMMISSION
4. Delivery to the Investor of Gold Master of title 1 CONFIDENTIAL INFORMATION
OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND
EXCHANGE COMMISSION
5. Delivery to The Investor of Gold Master of title 2 CONFIDENTIAL INFORMATION
OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND
EXCHANGE COMMISSION
ITEM 3 Payment of Investment Funds (Clause 2.1):
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The total amount of the Investment Funds payable
by the Investor to the Developer under this
Agreement is CONFIDENTIAL INFORMATION
OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION payable
in the following manner:
Milestone No.
1 CONFIDENTIAL INFORMATION OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION
2 CONFIDENTIAL INFORMATION OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION
3 CONFIDENTIAL INFORMATION OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION
4 CONFIDENTIAL INFORMATION OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION
5 CONFIDENTIAL INFORMATION OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION
ITEM 4 Payments Due to Investor (Clause 6):
(a) Multimedia Product
1. The Producer will apply the Gross Receipts from
Commercialisation of the Multimedia Product, or
cause them to be applied, as follows:
CONFIDENTIAL INFORMATION
OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND
EXCHANGE COMMISSION of Gross
Receipts to the Investor and
CONFIDENTIAL INFORMATION
OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND
EXCHANGE COMMISSION of Gross
Receipts to the Developer
2. Time for Accounting and Payment
The Producer will pay all amounts payable under
this Item 4 within CONFIDENTIAL INFORMATION
OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION after the
end of each calendar quarter ending on
CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION, CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION, CONFIDENTIAL INFORMATION
OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION and
CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION
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