EXHIBIT 10.1
THIS AGREEMENT IS made the day of April 30, 2007
BETWEEN
1. ZONE4PLAY, INC a company incorporated under the laws of the state of
Delaware, USA, having its registered office at 000 Xxxxx Xxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxxx (ZONE)
2. TWO WAY LIMITED (ABN 28 007 424 777) of Xxxxx 0, 00 Xxxxxxx Xxxxxx Xxxx,
Xxxxxxx, XXX 0000, Xxxxxxxxx (TWO WAY)
(each a PARTY and together PARTIES)
PRELIMINARY
(A) Zone and Two Way (under its then name Two Way TV Australia Limited) entered
into a written agreement on 17 August 2005 (THE EXCLUSIVE DISTRIBUTION
AGREEMENT)
(B) Zone and Two Way have agreed to vary the Exclusive Distribution Agreement
on and subject to the terms of this Agreement.
1. DEFINITIONS AND INTERPRETATION
1.1 Words defined in the Exclusive Distribution Agreement will have the
same meaning when used in this agreement.
1.2 The clause headings are inserted for ease of reference only and do not
affect the construction of this agreement.
1.3 Words denoting the singular include the plural and vice versa; words
denoting any gender include all genders; and words denoting persons
include corporations, partnerships, other unincorporated bodies and
all other legal entities and vice versa.
2. EXCLUSIVE/NON-EXCLUSIVE LICENCE
2.1 The Licence referred to in clauses 2.1 and 2.3 of the Exclusive
Distribution Agreement shall be exclusive for the period 1 June 2005
to 30 June 2008 and non-exclusive for the period 1 July 2008 to 31 May
2010. For the avoidance of doubt, it is clarified that such exclusive
license shall not limit the rights of Zone, by itself or by permitting
third parties, to exploit or use its Intellectual Property in
connection with Play for Fun and Play for Real Products on the
internet, provided however that Zone are not permitted to make
available Product to mobile phone users in the Territory via the
internet without the permission of Two Way.
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2.2 For the avoidance of doubt "non-exclusive" means that Zone is entitled
by itself or by permitting third parties to exploit or use its
Intellectual Property in connection with Play for Fun and Play for
Real Products in Australasia without the permission of Two Way from 1
July 2008.
2.3 Zone and Two Way confirm that the Play for Fun and Play for Real
Products covered under the Licence include all of the applications
described in the Appendices to the Agreement (totalling 77 pages)
which were initialled by both parties and attached to the Term Sheet
dated 23 May 2005 signed by both parties.
3. INSTALLATION
Clauses 3.3 and 3.8 of the Exclusive Distribution Agreement shall be varied
to require Two Way to produce evidence of written agreements with Operators
before Zone shall be obliged to supply Two Way with the tools, background
technology and the completed solution referred to in clauses 3.3 and 3.8
respectively.
4. FEES
The Fixed Licence Fees and the First and Last Matching Rights Fee payable
under clause 5 of the Exclusive Distribution Agreement shall be varied as
follows:
4.1 Clause 5.1(a) - insert after "Fixed Licence Fee" the words "for the
period up to 30 June 2008".
4.2 Clause 5.5(a) - insert after "Fixed Licence Fee" the words "for the
period up to 30 June 2008".
4.3 Clause 5.6 is deleted.
4.4 Clause 5.9(a) - insert after "First and Last Matching Rights Fee" the
words "for the period up to 30 June 2008".
4.5 In accordance with the payment terms under the Exclusive Distribution
Agreement, as varied by this Agreement, Two Way will pay a total fee
of $525,000 to Zone for the period from the date of execution of this
Agreement until 30 June 2008, with the payments to be payable on the
following dates:
US$175,000 within seven days of the date of this Agreement;
US$87,500 on 1 July 2007;
US$87,500 on 1 October 2007;
US$87,500 on 1 January 2008; and
US$87,500 on 1 April 2008.
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5. OPTIONS
Clauses 8.2 to 8.4 of the Exclusive Distribution Agreement shall be
deleted.
6. FULL AND FINAL SETTLEMENT
Zone hereby waives all and any claims against Two Way and Two Way hereby
waives all and any claims against Zone in respect of all causes of action
which have or may have accrued to date under the Exclusive Distribution
Agreement and/or in respect of the performance or alleged breach of either
parties obligations contained in the Exclusive Distribution Agreement in
particular those matters referred to in Two Way's letters of 23 January and
7 February 2007 to Zone and Zone's letter of 31 January 2007 to Two Way to
the intent that the execution of this Agreement shall be in full and final
settlement thereof and neither party will allege any breach against the
other party in respect of the same causes of action now and whenever
arising at any time in the future.
7. AUTHORITY
The persons executing this Agreement have been duly authorised and
empowered to do so on behalf of the respective parties hereto.
8. WAIVERS
The failure of either party at any time to require performance of any
provision of this Agreement shall not affect its right to enforce such
provision at a later time.
9. JURISDICTION
This Agreement shall be governed by and construed in accordance with the
laws of England. The parties submit to and agree that any dispute arising
out of or in any way connected with this Agreement shall be submitted to
the exclusive jurisdiction of the English courts.
10. ENTIRE AGREEMENT
This Agreement represents the entire understanding of Zone and Two Way on
the subject matter hereof and sets aside all previous agreements,
negotiations and discussions between the parties. This Agreement may not be
modified or amended except by written agreement signed by the duly
authorised representatives of each of the parties hereto.
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11. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
A person who is not a party to this Agreement shall not have any rights
under or be able to enforce this Agreement by virtue of the Contracts
(Rights of Third Parties) Xxx 0000.
IN WITNESS whereof this Agreement has been executed by the parties hereto as a
deed and is intended to be and is hereby delivered on the date first above
written
Signed by )
for and on behalf of )
ZONE4PLAY, INC /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx, Director
Signed by )
for and on behalf of )
TWO WAY LIMITED /s/ Xxxxx Xxxxx-Xxxxxx
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Xxxxx Xxxxx-Xxxxxx
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