EXHIBIT 10.21
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AGREEMENT
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This agreement (the "Agreement ) is entered into between Central Park
Media.Corporation ("CPM"), having its principal place of business located at 000
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000 and CDKnet, LLC. (the "Company"), a
New York company having its principal place of business located at 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000 on this 29th day of March 1999.
WHEREAS, CPM is in the business of creating, selling,
distributing and licensing for sale Japanese animation, Anime and other content.
WHEREAS, The Company is in the business of developing
software and Internet technologies and applications, utilizing sophisticated
video digitization and compression techniques.
WHEREAS, the Company has developed the XxxXxxxxxx.xxx
process, a; unique Internet based ordering process, giving a consumer the
ability to create custom compiled video based CDs through the XxxXxxxxxx.xxx Web
site (hereinafter, "MixFact"). These custom compiled discs are created with the
Company's software technology (CDK Technology) which enables the integration of
stereo audio, full screen high quality video and seamless Internet Web browsing
from a standard CD or DVD (hereinafter, "CDK Technology"); and
WHEREAS, CPM and the Company desire to create, market and
take orders via the internet, video based CDs (hereinafter, "CPMdisc") via
MixFact using the CDK Technology and audio, video and other content provided by
CPM, on the terms and conditions set forth below.
NOW THEREFORE, in consideration of the mutual promises of the
parties hereto and of the mutual benefits to be gained by the performance
thereof, and such other good and valuable
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consideration, the receipt and sufficiency of which the parties hereto
acknowledge, the parties hereby agree as follows:
1. The Company hereby agrees to create, and develop a
seamless link from CPMsites to MixFact where consumers can create and purchase
customized video based CPM Disc produced with the CDK Technology.
2. The Company will give CPM the ability to offer custom
compiled promotional CDs to its web site visitors at no charge to CPM or
customer. Customer will be responsible for shipping and handling charges.
Shipping and handling will be collected and retained by the Company. The Company
will work in conjunction with CPM to create the format of the custom CDs
offered.
3. CPM will insert a XxxXxxxxxx.xxx link on its XXXxxxx.xxx,
XxxxxxxXxxxXxxxx.xxx and Xxxxxxxx-Xxxxxxxxx.xxx Web sites (hereinafter
"CPMsites") in order to market, promote and advertise XxxXxxxxxx.xxx's ability
to custom compile iso9660 multi-session based CPMdisc for consumers to be
ordered over the Internet containing Japanese animation, Amine and or other
content (hereinafter "Content").
4. CPM hereby agrees to provide a prominent logo/link to
MixFact from CMPsites.
5. CPM hereby agrees, during the term of this Agreement on a
non exclusive basis, it will provide content to the Company as listed in exhibit
A on a continuing basis to incorporate into the MixFact database. Content will
include but is not limited to Japanese animation and Anime video segments and
clips, video and audio Documentaries, Product Catalogs, Still clips and photos
and Audio soundtracks taken from CPMs library of wholly owned content and
content licensed from third parties (hereinafter the "Content"), which the
Company will digitize, store and sell through MixFact and
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CMPsites. The amount of Content supplied, digitized and utilized for MixFact
CPMsites and the prices to be charged to consumers will be mutually agreed upon
in good faith by the Company and CPM.
6. Neither the Company or CPM grants to each other its
respective ownership or control over any copyright, trademark, patents, trade
secret or other intellectual property rights.
7. The Company will provide all the technology and service
necessary to digitize and store the Content, process the order requests received
through CPMsites and MixFact, set up and manufacture CDs and DVDs (in the
future) with the selected Content, xxxx customers credit card or other payment
source and ship the completed CD or DVD package. There shall be no cost to CPM
to the above survices.
8. CPM represents that it has secured all usage and other
licensing rights for Content it will provide to CDK, (collectively the
"Licenses"). CPM will also insure that the Licenses allow for the creation of
CPMdisc, and any other products created hereunder. CPM will be responsible for
payment of Licenses royalties. Its agreed and understood that CPM disc shall
only include only the linear version of the programming supplied by CPM and such
programming shall not be edited nor made interactive in any manner other than
the inclusion of menu pages or chapter stops, and such terms normally understood
in the industry.
9. Revenues from custom compiled CDs purchased through
CPMsites at MixFact will be paid out on a monthly basis first to the Company
then to CPM. Any obligations due CPM, and or any third party pursuant to
Licenses, advertising or any other reason are subordinated to payments due to
the Company.
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(a) The Company will be paid in accordance with the
following chart:
Units sold / month The Company's compensation per CMPdisc (CD)
0-10,000 $5.00/CD
10,001-50,000 $6.00/CD
50,001 and up $6.00/CD plus 5% of the
Gross per CD retail
(b) The Company's compensation per CPM disc shall not
exceed 80% of the retail price paid by the consumer.
10. In addition to the selected Content, CPMdisc will be
configured to contain Web links to CPMsites, MixFact, selected advertisers and
other possible links, which will be mutually agreed by both parties.
11. Each party shall have the right to examine at their own
cost, the books and records of the other party to the extent they pertain to
this Agreement. Such examination shall be made during reasonable business hours
upon reasonable advance written notice at the audited parties regular place of
business where such books and records are maintained. If a discrepancy of
greater than 5% (five percent) or two thousand US dollars (US $2,000.00),
whichever is larger, is discovered, the audited party shall bear the reasonable
cost of such audit as well as pay any outstanding difference owed to the
auditing party.
12. The packaging and discs for all CPMdisc will include CPM,
and the Company and their licensors trademarks and logos and appropriate
copyright notices for the content.
13. CPM acknowledges that the Company is making no
representations or warranties with respect to MixFact and the CDK Technology,
and CPM agrees that the Company shall not be liable to
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CPM or any of their customer, directly or indirectly, in connection with any
claim, or action for damages of any nature, pursuant to or in connection with
this Agreement. CPM agrees that it Will not, and will not permit or assist any
other party to: (i) reverse engineer, disassemble or decompose all or any part
of the CDK Technology, or any copy thereof, or (ii) without the written approval
of the Company, use any trademark or technology of the Company or the Company's
licensors other than as expressly permitted herein. This section survives the
expiration hereof.
14. CPM and the Company, on behalf of themselves and their
respective affiliates acknowledge and agree pursuant to this Agreement that each
of the parties may be given access to or come into possession of confidential
information of the other, which information may contain trade secrets,
proprietary data or other confidential business or technical information. CPM
and the Company, on behalf of themselves and their respective affiliates and/or
assigns acknowledge that it will not use, duplicate or divulge to others any
such confidential information, including, without limitation trade secrets
belonging to or disclosed to each other, without first obtaining written
permission from the party seeking to use the information. All tangible
embodiments of such confidential information shall be delivered to the other
party upon any termination or expiration of this Agreement, or upon request by
such party, whichever first occurs. This section survives expiration hereof.
15. CPM represents that any and all content, packaging,
advertising and other materials provided by it to the Company and/or utilized in
connection herewith do not and will not (i) infringe any third party's
copyright, trademark rights, rights of privacy and publicity, moral rights or
any other proprietary or personal rights or (ii) defame or otherwise injure the
reputation of any person, organization or entity. This section survives the
expiration hereof.
16. Neither CPM or the Company will (i) make false or
misleading representations with regard to the other parties technology or
products, (ii) publish or employ or cooperate in the
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publication or employment of any misleading or deceptive advertising materials,
(iii) make representations warranties or guaranties to anyone with respect to
the specifications, features or capabilities of the other parties technology or
products that are inconsistent with information contained in the respective
packaging materials. This section survives the expiration hereof.
17. This Agreement will remain in effect for three (3) years
if the following annual unit sales performance criteria are met by the marketing
partnership.
Year one: 50,000 units
Year two: 75,000 units
Year three: l00,000 units
If performance criteria are not met by marketing partnership each of CPM or the
Company will have the right to cancel its involvement with the other. On a
program by program basis the term of availability will be listed in exhibit one
and the Company will cease sale and marketing that program.
18. Starting year four (4), CPM will have the right to
annually renew the Agreement on the same terms and conditions provided the
marketing partnership achieves a unit sales performance of 120% of the prior
years performance criteria, and CPM exercises its option by Certified Mail
notice no later than three months prior to the end of the original term or any
extended terms.
19. CPM and the Company shall work together in order to have
CPMsites links and MixFact created and ready for release by June 15, 1999.
20. CPM and the Company hereby agree and acknowledge that the
CPMsites customer list developed from the sale of CPMdisc are proprietary to
both companies, and CPM and the Company hereby agree not to market or otherwise
profit from the sale of this customer list without both
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parties express written consent. Revenue generated from the sale of customer
list will be split 50% to CPM and 50% to the Company.
21. Company represents and warrants that:
a) it is a legal corporation of the State of New York
b) it is authorized and has the power to enter into this Agreement and to the
best of its knowledge, it is not subject to any agreement or obligation which
would prevent it from entering into or performing this Agreement, or which would
be violated by its performance of this Agreement, or the performance of which
would violate this Agreement;
c) it shall not distribute the CPM Disks in any manner which may give rise to
claims against CPM with respect to any common law or other right (including,
without limitation, any copyright, trademark, trade name, service xxxx) of any
person or organization, or which may diminish the good will previously
established in the Program;
f) it shall engage in no action that may create a claim against CPM for payment
to third parties for the use of any content other than the Program;
g) all necessary rights in connection with the CPM Disks in the Territory
throughout the Period of this Agreement, including without limitation, all
copyright, trademark and such other rights as may be required, are owned by, or
have been acquired and fully paid for by Licensee;
h) neither CPM nor its parent or any subsidiary, affiliate, agent, distributor
or dealer shall have any responsibility or liability for the making of payments
to any person or organization (including, without
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limitation, any union or guild or any member thereof, actor, director, writer,
producer, composer, craftsman, musician or performer) in connection with the
distribution of the CPM Disks, or any artwork, packaging, advertising or
promotional materials (including trailers) relating to the CPM Disks, and all
residual and other third party payments, deferred compensation and profit or
gross receipt participation shall be and are the sole responsibility of Company
and shall be paid by Company in a timely fashion so as not to give rise to any
claim against CPM.
i) Company shall maintain a link from its website to any CPM owned website that
CPM may designate
22. The Company agrees to indemnify, defend, and hold
harmless CPM or assigns, from and against any and all claims, demands, or
actions and any losses, expenses, and damages resulting directly therefrom
(including court costs and reasonable attorney fees) based on a claim against
Licensee that the MixFact or CDK Technology employed in creating the product
infringes or abridges a third-party right in the United States in a validly
issued patent, copyright, or trade secret. Any such indemnification by the
Company shall be contingent upon CPM giving the Company prompt written notice of
the claim for which indemnification is sought.
22. The rights and obligations of each of the parties
hereunder shall inure to the benefit of and shall be binding upon the successors
and assigns of such party.
23. The confidential information referred to in this
Agreement does not include information which (i) is or becomes generally
available to the public other than as a result of a disclosure by the parties,
(ii) was available to the parties on a non-confidential basis prior to its
disclosure to the parties (iii) becomes available to the parties on a
non-confidential basis from a source other than the parties, provided, however,
that such source is not, to the parties reasonable knowledge, bound by a
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Confidentiality agreement with the either or any of its Representatives and such
source is otherwise entitled to disclose it.
24. Neither party may assign, in whole or in part, this
Agreement or its rights and obligations under it, without the written consent of
the other party, which shall not be unreasonably withheld. This language does
not apply to a sale of all or substantially all of the assets of either company.
25. CPM explicitly retains all the rights not expressly
granted to Company in this agreement, including without limitation the right to
broadcast the CPM content over network television, pay cable, free cable,
satellite telephony or computer or any other broadcast medium, now known or
developed in the future.
26. CPM will use its web sites to advertise and promote
Company's goods and services provided in this Agreement to the same extent that
it advertises and promotes other third party goods and services. Company will
use its web sites to advertise and promote CPM goods and services provided in
this Agreement to the same extent that it advertises and promotes other third
party goods and services.
27. This Agreement contains the entire agreement between the
parties hereof pertaining to the subject maker hereof, and supersedes and
replaces any and all prior agreements between the parties concerning the subject
matter hereof.
28. The terms and conditions hereof may be changed only by an
agreement in writing signed by the parties hereto.
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29. This Agreement shall be governed by construed and
enforced under the laws of the State of New York without giving effect to the
conflicts or choice of laws provisions thereof.
30. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
CDKnet, LLC Central Park Media
/s/ Xxxxxxx Xxxxx /s/ Xxxx X'Xxxxxxx
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By: Xxxxxxx Xxxxx By: Xxxx X'Xxxxxxx
SVP
