EXHIBIT 10.20
DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT is entered into this 22nd day of February 1996 by
and between BRILLIANT INTERACTIVE IDEAS PTY LTD ACN 061 288 668 of Lvl 1.17 Xxx
Xxxxx, Xxxxx, XXX, 0000 (hereinafter referred to as "BII") and SHORTLAND
PUBLICATIONS LIMITED located at 000 Xxxxxxxx Xxxx, Xxxxxxxx 0, Xxx Xxxxxxx
(hereinafter referred to as "SHORTLAND").
WHEREAS SHORTLAND is in the business of publishing educational materials
including educational computer software bundle packs in the USA and BII are in
the business of developing interactive multimedia software products. SHORTLAND
is desirous of publishing and distribution specially prepared educational bundle
packs of the various software products as listed in Appendix A hereto, that BII
have developed.
NOW THEREFORE THE PARTIES do agree as follows:
1. BII have developed a range of CD-ROM software titles, and made specific
modifications to those titles as requested by SHORTLAND, hereinafter
referred to as the "Products" (as listed in Appendix A), for which
SHORTLAND have developed special education materials including teachers
notes and guides and paper book copies of the software titles.
2. The Products shall be delivered in object code on CD-ROM in a form
compatible with IBM PC running under Windows V3.x and Windows 95, as well
as Macintosh from Apple Computer.
3. SHORTLAND shall create special education bundle packs comprising the
Products, teachers notes and guides and one or more copies of the paper
book version of the software titles, hereinafter referred to as the
EDUCATION BUNDLE.
4. SHORTLAND together with its selected educational distributors shall
distribute he EDUCATION BUNDLE directly to the education and schools
markets in the USA and other territories as agreed to in writing by
SHORTLANDS and BII. The EDUCATION BUNDLE shall not be sold to retial
customers directly or through retail channels and retail outlets anywhere
in the world. All Products shall be identified as "Educational Bundle
packs - Not for Retail Sale."
5(a). SHORTLAND agrees to refer all retail enquiries to BII to enable BII to
pass such enquiries on to the relevant retail publisher in the territory.
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5(b). If requested by BII, SHORTLAND agrees to use its best endeavours to get
its educational distributors to include a brochure promoting the
availability of the retail versions of the Products, in the EDUCATIONAL
BUNDLE.
6. SHORTLAND shall provide BII with purchase orders for CD-ROM's of the
Products and BII shall supply SHORTLAND with the number of units of CD-
ROM's of the Products as ordered by SHORTLAND for US CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION (United States dollars CONFIDENTIAL INFORMATION OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION dollars) per
unit ordered. The initial order from SHORTLAND is for CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION (CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION units) of each Product.
7. SHORTLAND agrees to pay BII the moneys owing for the Products ordered in
clause 6 above as follows:
(i) CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION % on receipt of written
confirmation from BII that the gold master has been supplied to the
replicator for duplication or if a master xxxxxxx already exits, on
written conformation from BII that the replicator has been ordered
to duplicate the Products as ordered by SHORTLAND.
(ii) CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION % on despatch of the Product
ordered by Shortland to 000 Xxxxxxxx Xxxx, Xxxxxxxx 0, Xxx Xxxxxxx.
8. SHORTLAND shall provide first line support to its customs for all
problems and queries and in the event of a software problem related to
the Products that SHORTLAND is unable to rectify BII shall provide the
necessary technical support to SHORTLAND to rectify the problem.
9. BII may terminate this Agreement immediately upon giving written notice
to SHORTLAND if:
(a) SHORTLAND fails to make any payment when due;
(b) SHORTLAND breaches a major provisions or warranty of this Agreement
and has not rectified such breach within thirty (30) days
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of notice from BII; or
(c) SHORTLAND dissolves, liquidates or if bankruptcy, insolvency or
winding up procedures are commenced by SHORTLAND or are brought
against SHORTLAND and such proceedings are not set aside within
thirty (30) days of their commencement.
10. SHORTLAND may terminate this Agreement immediately upon giving written
notice to BII if BII dissolves, liquidates or if bankruptcy, insolvency
or winding up procedures are commenced by BII or are brought against BII
and such proceedings are not set aside within thirty (30) days of their
commencement; or if BII otherwise breaches a major provision or warranty
of this Agreement and does not rectify the breach within thirty (30)
days after receiving written notice of the breach from SHORTLAND.
11. If this Agreement is terminated for any reason, SHORTLAND shall have the
right to sell its existing stocks of the Product subject to payment to
BII of all amounts due under this agreement.
12. BII shall be responsible for any and all other royalties due on the
Products to third parties including music royalties, animation royalties
and licensing royalties and will pay such royalties to ensure that BII
maintains the rights to the Products to enable this distribution
agreement to be continued.
13. BII retains any and all of the copyrights contained in the Products and
SHORTLAND shall have no rights in the copyrights or other intellectual
rights contained in the Products.
14. BII hereby authorizes SHORTLAND to take any and all action that SHORTLAND
deems necessary to protect and enforce BII's copyright in the products.
SHORTLAND shall notify BII in writing of any and all action that
SHORTLAND takes prior to the
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commencement of the action and shall keep BII fully informed of the
status and progress of the action. Where as a result of such action by
SHORTLAND damages are awarded then SHORTLAND shall be entitled to recover
from the damages all costs incurred as a result of the action and any
residual amount remaining shall be split equally between SHORTLAND and
BII.
15.1 BII makes the following representations and warranties and undertakes the
following indemnity obligations for the benefit of SHORTLAND:
(a) That it owns and can grant to SHORTLAND such of the rights as are
included in this Agreement;
(b) That such of the rights as are granted to SHORTLAND pursuant to this
agreement are not subject to any prior agreements, liens and/or
other rights which might interfere with their exercise by SHORTLAND;
(c) That the rights and the Products will not infringe the patent,
copyright, trade xxxx, trade secret or other proprietary,
intellectual or privacy rights of any third party;
(d) That BII is not knowingly in breach of any contract or contracts
with any other party relating to the Products or the rights on which
they are based and undertakes to continue to do all things necessary
to comply with its obligations under such contracts.
These representations and warranties shall survive the termination of
this agreement.
15.2 BII agrees to indemnify and hold harmless SHORTLAND and its officers,
employees, distributors, agents, shareholders and directors from any
damage, loss or expense (including legal fees) occasioned by any claim,
demand, action or proceeding, based upon the breach of any of the
representations and warranties made by BII.
15.3 BII represents and warrants that it is a corporation duly incorporated
and validly existing in good standing under the laws of the state of its
incorporation and has full rights, power, legal capacity and authority to
enter into this agreement and to carry to the terms hereof and perform
its obligations hereunder.
15.4 SHORTLAND agrees to indemnify and hold harmless BII and its shareholders,
directors, officers, employees and agents against all losses, costs
(including legal fees), charges and expenses arising from any breach of
Clause 4 of this Agreement and any negligence on SHORTLAND's part in
connection with this Agreement.
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16. Each party shall treat as confidential all information of a confidential
nature of the other party which comes into it's possession under this
Agreement.
17. The term of this Agreement shall be for a period of CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION (CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION) CONFIDENTIAL INFORMATION OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION from the
date of signing of this Agreement and will be automatically extended for
a further term provided SHORTLAND has performed all its obligations under
this Agreement.
18. This Agreement shall be governed by the laws of New South Wales.
19. This Agreement may not be assigned by either party without the express
written approval of the other party. Such approval may not be
unreasonably withheld.
20. NOTICES.
20.1 Any notice, communication or other document authorised or required to be
given or served pursuant to this Agreement (herein referred to as a
"Notice") shall unless otherwise specifically provided by this Agreement
be in writing addressed as follows:
TO XXXX: Xxxxx 0, 00 Xxx Xxxxx
Xxxxx
XXX 0000
Telephone: (00) 0000 0000
Facsimile: (00) 0000 0000
For the Attention of: Xxxx Xxxxxx
TO SHORTLAND: 000 Xxxxxxxx Xx.
Xxxxxxxx 0
Xxx Xxxxxxx
Telephone: (000) 000 0000
Facsimile: (000) 000 0000
For the Attention of: Xxx Xxxxxx
or such other address as the relevant addressee may hereafter specify for
such purpose to the other party to this Agreement by notice in writing.
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20.2 A notice includes communication by facsimile. The sender of any
communication by facsimile shall forthwith confirm the same by letter,
but failure by the addressee to receive the same shall not prejudice the
validity or effect of such facsimile.
20.3 A notice shall be signed or, in the case of a facsimile, purport to be
signed, by the party originating the notice.
20.4 A notice which is sent by prepaid mail shall be deemed to be received on
the third day following the day on which it was posted.
20.5 A notice which is sent by facsimile shall be deemed to be received at the
time printed on the log out by the machine on which the notice is
transmitted.
21. Each party is acting as an independent contractor and not as an agent,
partner, or joint venturer with the other party for any purpose. Except
as provided in this Agreement, neither party shall have any right, power,
or authority to act or to create any obligation, express or implied, on
behalf of the other.
22. Neither party shall be responsible for delays or failure of performance
resulting from acts beyond the reasonable control of such party. Such
acts shall include, but not be limited to, acts of God, strikes,
walkouts, riots, acts of war, epidemics, failure of suppliers to perform,
governmental regulations, power failure(s), earthquakes, or other
disasters.
23. The confidentiality obligations set forth in the Agreement shall survive
the termination of the Agreement by either party for any reason.
24. No provision in either party's purchase orders, or in any other business
forms employed by either party will supersede the terms and conditions of
this Agreement, and no supplement, modifications, or amendment of this
Agreement shall be binding, unless executed in writing by a duly
authorised representative of each party to this Agreement.
25. The parties have read this Agreement and agree to be bound by its terms,
and further agree that it constitutes the complete and entire agreement
of the parties and supersedes all previous communications, oral or
written, and all other communications between them relating to the
license and to the subject matter hereof. No representations or
statements of any kind made by either party, which are not expressly
stated herein, shall be binding on such party.
26. Failure by either party to insist upon the performance of any or more of
the conditions hereof shall not be deemed to be a waiver of any rights
and remedies that that party may have and shall not be deemed a waiver of
any subsequent breach or default. No provision of this Agreement shall be
deemed to have been waived unless such waiver
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shall be in writing and signed by a person being or purporting to be a
director, manager, secretary or other officer of the party giving notice
in that behalf.
27. If any clause or part hereof shall be held or be deemed invalid or
unenforceable for any reason whatsoever, then such clause or part thereof
shall be deemed to be deleted from this Agreement and the Agreement shall
otherwise remain in full force and effect. The parties hereto agree to
replace any invalid, illegal or unenforceable provision with a provision
which has the most similar permissible economic and legal effect to the
invalid, illegal or unenforceable provision.
By their signatures below the parties agree to be bound by the terms of this
Agreement.
______________________________ _______________________________
SHORTLAND PUBLICATIONS LIMITED BRILLIANT INTERACTIVE IDEAS PTY
Name: Xxx Xxxxxx ACN 061 288 668
Position: Manager-New Developments Name: Xxxx Xxxxxx
Position: Managing Director
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Appendix A
The Products are:
1. The Gumball Shop
2. Caitlins Crazy Contraptions
3. The Yukadoos
4. The Wrong Way Around World
5. The Little Engine
6. Dinosaur in the Garden
7. Monster on the Loose
8. Crocodile to Tea
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