EXHIBIT 10.16
PUBLISHING AGREEMENT
In consideration of the mutual promises contained in this PUBLISHING AGREEMENT,
Shortland Publications Limited, of 000 Xxxxxxxx Xx, Xxxxxxxx 0, Xxxxxxx, a New
Zealand Corporation ("Licensor"), and Brilliant Interactive Ideas Pty Limited
ACN 061 228 668, of Xxxxx 0, 00 Xxx Xxxxx, Xxxxx, Xxx Xxxxx Xxxxx, Xxxxxxxxx,
0000, an Australian corporation ("Licensee"), agree as follows:
1. DEFINITIONS
For purposes of this Agreement:
(a) "Agreement" means this PUBLISHING AGREEMENT, together with Exhibits A and B
and any other addenda attached hereto and each supplemental Exhibit A signed by
both parties, as the same may be amended from time to time in accordance with
this Agreement.
(b) "Effective Date" shall mean the date upon which this Agreement has been
executed by both parties.
(c) "License Fees" shall mean the license fees payable by Licensee for the
rights granted herein as set forth in Exhibit A.
(d) "Licensed Materials" means the copyrighted materials identified in Exhibit
B, including all updates, revisions, new volumes and sequels thereto.
2. GRANT OF LICENSE
Without limiting the foregoing the Licensor grants the Licensee the worldwide
non exclusive right to publish, reproduce, perform in public, broadcast,
transmit to subscribers under a diffusion service, broadcast and adapt (and do
all the foregoing in relation to such adaptation) the Licensed Materials
electronically, including without limitation, on computer disc and magnetic
medium, CD-ROM, CD-I, ROM-cartridge.
3. EFFECTIVE DATE AND TERM
The term of this Agreement and of each license granted under this Agreement
shall begin on the Effective Date and shall continue thereafter 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) years or until this Agreement is
terminated under Section 12 below. So long as Licensee is in compliance with the
terms and conditions of this Agreement, this Agreement shall be automatically
renewed for subsequent
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CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION (CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION) year terms.
4. PAYMENT, REPORTING AND AUDIT
(a) For the rights granted herein, Licensee shall pay Licensor the License Fees
set forth in Exhibit A. License Fees shall be based upon gross amounts received
by Licensee and payable for each copy of the Licensed Materials for which
Licensee receives compensation from Licensee's customer. Licensee shall be
entitled to a credit equal to the License Fees previously paid by Licensee for
Licensed Materials returned to Licensee by Licensee's customers. The Licensee
shall be entitled to deduct any withholding tax from the License Fees and shall
advise the Licensor of the amount and particulars of any deduction in order that
the Licensor may apply for any applicable foreign tax credit.
(b) Within twenty-five (25) days after each calendar quarter, Licensee shall
provide Licensor with a report setting forth the number of copies of Licensed
Materials distributed by Licensee during the preceding calendar quarter and the
gross amount received by Licensee from Licensee's customers for Licensed
Materials. At the time such report is submitted to Licensor, Licensee shall pay
Licensor the License Fees then due.
(c) In order to enable Licensor to audit the statements submitted by Licensee
under this Agreement, Licensee shall maintain at Licensee's place of business
referenced in the Agreement complete and accurate books and records, examination
of which would enable an independent chartered accountant, agreed to by the
parties, to audit the statements submitted by Licensee under this Agreement.
Once a year and upon thirty (30) days written notice, the said independent
chartered accountant may conduct, at Licensor's sole cost and expense, such
audits as reasonably necessary to determine Licensee's compliance with its
reporting and payment obligations under this Agreement. Licensee agrees to
reasonably cooperate with the independent chartered accountant in performing
such audits. Such audits as are conducted shall be subject to such reasonable
scrutiny procedures and limitations as Licensee may impose, and the independent
chartered accountant and Licensor and respective employees, agents and
contractors shall make no use of any information obtained in the course of such
audits other than for the purposes hereof. Independent chartered accountant and
Licensor and respective employees, agents or contractors shall retain no copies
of any materials or data obtained in the course of such audits other than that
reasonably necessary to verify Licensee's performance. If such audits reveal
that Licensee has under-reported the number of copies of Licensed Materials for
which Licensee received compensation from Licensee's customers on any report
submitted pursuant to Section 4(b) above, Licensee shall pay to Licensor the
appropriate License Fees due and owing and bear the cost of the audit.
5. SHIPMENT AND DELIVERY
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Licensor will ship the Licensed Materials, in hard copy, to Licensee within
thirty (30) days after the Effective Date. All shipments hereunder shall be
F.O.B. Licensee.
6. LICENSEE'S OBLIGATIONS
(a) Licensee agrees to use its reasonable efforts to publish and market the
Licensed Materials as deemed appropriate in Licensee's sole discretion.
(b) Notwithstanding Section 6(a) above, Licensee shall be entitled to
discontinue marketing the Licensed Materials, or any portion thereof. Further,
Licensee, in its sole discretion, shall be entitled to determine the method and
form of marketing, distribution and publication of the Licensed Materials, as
the same may be changed by Licensee.
7. LEFT BLANK
8. LEFT BLANK
9. PROPRIETARY RIGHTS
(a) Licensor warrants that it has the right to enter into this Agreement and
grant the rights and licenses granted to Licensee hereunder.
(b) Title to the Licensed Materials is not being transferred to Licensee under
this Agreement. Instead, Licensee is granted a license to the Licensed Materials
as set forth herein.
10. INDEMNITIES
(a) The Licensor shall indemnify, defend and hold Licensee, its agents and
employees, harmless from any loss, damage or liability (including attorneys'
fees, costs and expenses) resulting from a claim that Licensed Materials
infringe any copyright, license, trade secret, or other proprietary rights of a
third party and in addition the Licensor shall:
(i) procure for the Licensee the right to continuance to use the
Licensed Materials in accordance with this Agreement; or
(ii) modify the Licensed Materials so that they become non infringing,
provided this is acceptable to the Licensee; and
(iii) where the Licensor does not comply with Clauses 10(a)(i) or (ii),
refund any License Fees that have been paid by the Licensee
relating to the infringing licensed Materials.
(b) Licensor shall indemnify, defend and hold Licensee, its agents and
employees, harmless
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from any loss, damage or liability (including attorneys' fees, costs and
expenses) resulting from a claim that Licensed Materials is defamatory, libelous
or untrue.
11. LIMITATION OF LIABILITY AND REMEDY
EXCEPT AS SET FORTH IN SECTION 10, NEITHER PARTY SHALL BE LIABLE FOR ANY
INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT
LIMITATION, PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS OR OTHER ECONOMIC
LOSS ARISING IN CONNECTION WITH THIS AGREEMENT AND LICENSEE'S PUBLICATION OF THE
LICENSED MATERIALS. THIS LIMITATION OF LIABILITY WILL APPLY REGARDLESS OF THE
FORM OF ACTION, WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE AND
INDEPENDENT OF ANY FAILURE OF ESSENTIAL PURPOSE OF THE LIMITED WARRANTY AND
REMEDIES PROVIDED HEREUNDER. THIS DISCLAIMER SHALL APPLY WHETHER OR NOT THE
OTHER PARTY HAS BEEN APPRISED OF THE POSSIBILITY OF SUCH DAMAGES PROVIDED ALWAYS
THAT THE FOREGOING SHALL NOT EXCLUDE THE LICENSOR'S LIABILITY FOR DIRECT DAMAGES
OR RELIANCE DAMAGES RESULTING FROM THE LICENSOR'S NEGLIGENCE OR A BREACH OF THIS
AGREEMENT.
12. TERMINATION
(a) In the event either party breaches any material provision of this Agreement
and fails to remedy the breach within thirty (30) days after written notice
thereof, the non-breaching party may terminate this Agreement immediately by
giving breaching party written notice.
(b) Licensee may terminate this Agreement upon thirty (30) days prior written
notice.
(c) Upon termination of this Agreement, all licenses granted by Licensor to
Licensee hereunder shall terminate. Notwithstanding the foregoing, after
termination of this Agreement, Licensee shall be entitled to distribute all
Licensed Materials or products in which the Licensed Materials have been
incorporated remaining in Licensee's inventory or in relation to which the
Licensee has entered into binding commitments with its customers to supply.
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(d) The provisions of Sections 4, 9, 10, 11, 13 and 14 of this Agreement shall
survive any termination.
13. NOTICE
Every notice or other communication required or contemplated by this Agreement
shall be delivered either by (i) personal delivery, (ii) postage prepaid return
receipt requested, registered or certified mail, (iii) nationally recognized
overnight courier, or (iv) facsimile with a confirmation copy sent
simultaneously by postage prepaid, return receipt requested, registered or
certified mail, in each case addressed to the party for whom intended at the
address appearing after that party's signature on this Agreement or at such
other address as the intended recipient previously shall have designated by
written notice to the other party. Notices shall be effective on the earliest of
the date of personal delivery, the date officially recorded as delivered by
official postal or independent courier service, the date sent if sent by
facsimile, or the seventh (7th) business day after any deposit in the mail.
Notice not given in writing shall be effective only if acknowledged in writing
by a duly authorized representative of the party to whom it was given.
14. GENERAL
(a) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original instrument, but all
of which together shall constitute only one and the same instrument.
(b) Law to Govern. The construction, interpretation and performance of this
Agreement and all transactions related thereto shall be governed by and
construed in accordance with the substantive laws of New Zealand. The parties
expressly agree that the United Nations Convention on Contracts for the
International Sale of Goods shall not apply to this Agreement. Further, each
party consents to the jurisdiction of, and venue in, New Zealand, and agrees
that any action or lawsuit arising under this Agreement or relating to the
subject matter thereof shall be maintained in New Zealand.
(c) Written Agreement to Govern; Amendments; Waivers. This Agreement sets
forth the entire understanding and supersedes and merges all prior and
contemporaneous agreements between the parties relating to the subject matter
contained herein for the same Licensed Materials, and neither party shall be
bound by any provision, amendment or modification other than as expressly stated
in or contemplated by this Agreement or as subsequently shall be set forth in
writing and executed by a duly authorized representative of the party to be
bound thereby. All waivers hereunder must be made in writing, and failure at any
time to require the other party's performance of any obligation under this
Agreement shall not affect the right subsequently to require performance of that
obligation. Any waiver of any breach of this Agreement shall not be construed as
a waiver of any continuing or succeeding breach.
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(d) Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law;
but if any provision of this Agreement should be prohibited or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, and the balance of this Agreement shall be
interpreted as if such provision were so excluded. 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.
(e) Subject Headings. The subject headings of the Sections of this Agreement
are included for the purposes of convenience only, and shall not affect the
construction or interpretation of any of its provisions.
(f) Attorneys' Fees. If any action or proceeding shall be commenced to enforce
or interpret this Agreement or any right arising in connection with this
Agreement, the prevailing party in such action or proceeding shall be entitled
to recover from the other party all reasonable attorneys' fees, costs and
expenses incurred by such prevailing party in connection with such action or
proceeding.
(g) Successors and Assigns. This Agreement shall be binding on, and shall
inure to the benefit of the successors and assigns of Licensor and Licensee. The
Licensee shall be entitled to assign this Agreement and the Licensor will
consent to such assignment provided that the Licensor shall be entitled to
withhold consent if it believes that the Licensee's proposed assignee is not a
fit and proper party.
(h) Relationship of Parties. The relationship of the parties is that of
independent contractors. No one party is the agent of the other and neither
party is authorized to act on behalf of the other party.
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IN WITNESS WHEREOF the parties have caused this Agreement to be executed by
their duly authorized representatives as of the date first set forth below.
"Licensor" "Licensee"
Shortland Publications Limited Brilliant Interactive Ideas Pty Limited
A New Zealand Corporation ACN 061 228 668
An Australian corporation
By /s/ Xxxxxx Xxxxxxxx By /s/ Xxxx Xxxxxx
----------------------------- -----------------------------
Signature Signature
Xxxxxx Xxxxxxxx Xxxx Xxxxxx
----------------------------- -----------------------------
Name (Type or Print) Name (Type or Print)
Managing Director Managing Director
----------------------------- -----------------------------
Title Title
1 December 1994 1 December 1994
----------------------------- -----------------------------
Date Date
Address: Address:
000 Xxxxxxxx Xxxx Level 1, 17 The Xxxxx
Xxxxxxxx 0 Xxxxx
Xxx Xxxxxxx XXX, Xxxxxxxxx 0000
Phone: 000 000 0000 Phone: 000 000 0000
Fax: 000 000 0000 Fax: 000 000 0000
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EXHIBIT A TO AGREEMENT
License Fees:
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Licensee shall pay Licensor CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION percent (CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION%) of amounts actually received by Licensee from its customer for the
License Materials until such time as the cost of development and production of
the Licensed Materials has been recovered and then the Licensee shall pay
Licensor CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION percent (CONFIDENTIAL INFORMATION OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION%) of amounts
actually received by Licensee from its customer for the Licensed Materials.
Licensee shall be entitled to a credit for unpaid amounts owed to Licensee, the
return of Licensed Materials by Licensee' customers, rebates and refunds.
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EXHIBIT B TO AGREEMENT
Description of Licensed Materials:
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Title Author Illustrator
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The Gumball Shop Xxx Xxxxxx Xxxxxx Xxxxxx
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What a Rumpus Xxxxxxx Xxxxxxxxxx Jan van der Voo
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Blue Boots Xxxxxxxx Xxxxxx Xxxxxxxx Lautusi
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Five in Bed Xxxxx Xxxxxx Jan van der Voo
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That's Really Weird Xxxxxxx Xxxxxxxxxx Xxxx Xxxx
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A Crocodile to Tea Xxxxx Xxxxxx Xxxxx Xxxxxx
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The Crazy Hazy Day Xxxx Xxxxxx Xxxx Xxxxxx
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I Saw it in the Sea Xxxxxx Xxxxxxx Xxxxx Xxxxxx
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Niffo Nox and his Socks Xxxxx Xxxxxxx Xxxxx Xxxxx
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The Haircut Xxxxxxx Xxxx Jan van der Voo
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Around go the Days Xxx Xxxxxx Xxxxxx Xxxxxxxx
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Alligator Fumes Xxxxx Xxxxxxx Xxxxxx Xxxxxx
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