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PUBLISHING AGREEMENT
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THIS PUBLISHING AGREEMENT ("Agreement") is made effective as of October 1,
1997, by and between ▇▇▇▇▇ PARTNERSHIP, L.P. ("▇▇▇▇▇") and KIDEO PRODUCTIONS,
INC. ("Kideo").
WHEREAS, Kideo desires to obtain a license to publish, print and
distribute personalized children's books by incorporating therein a child's
photograph, name and personalized text and also incorporating the Barney(R)
dinosaur character and related characters, the rights to which are owned by
▇▇▇▇▇ (the "Characters") as more particularly described in Exhibit A, attached
hereto and incorporated herein by reference (the "Barney Books"); and
WHEREAS, ▇▇▇▇▇ is willing to grant such a license to Kideo only upon the
terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises, the mutual promises and
covenants contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. TERM. The term of this Agreement shall commence on the date first
set forth above and, unless earlier terminated pursuant to its provisions, shall
continue through the date five (5) years thereafter (the "Term").
2. TERRITORY. The rights granted to Kideo hereunder shall be only for
the United States, and its territories, possessions and military bases
worldwide, and Canada (collectively, the "Territory").
3. LICENSED PRODUCTS. The license granted to Kideo hereunder shall be
only for those children's books featuring the Characters as more particularly
described in Exhibit A, only in the English language, and only in the format set
forth in Exhibit A.
4. CHANNELS OF DISTRIBUTION. As used herein, "Channels of Distribution"
shall include the following and no others:
(a) Retail stores and merchants for sale and distribution
direct to the public; and
(b) Sales by Kideo directly to the consumer whereby such consumer's
order is delivered via mail or courier and not through traditional retail
channels ("Direct Sales"). Direct Sales shall not encompass solicitation via
flea market vendors or other similar means of distribution which traditionally
service a secondary, over-run, or irregular market.
Publishing Agreement Between ▇▇▇▇▇
Partnership, L.P. and Kideo Productions. Inc.
Page 1 of 19
Document No. 1870
5. LICENSE; RESERVED RIGHTS; PURCHASE OPTION.
(a) On the terms and conditions set forth in this Agreement, ▇▇▇▇▇
hereby grants to Kideo and Kideo hereby accepts a non-exclusive license to
publish, print and distribute the Barney Books only through the Channels of
Distribution in the Territory. Within sixty (60) days following the one-year
anniversary of Kideo's first publication date of the first title of the Barney
Books, the parties shall negotiate in good faith regarding the potential grant
of a license by ▇▇▇▇▇ to Kideo for additional titles for Barney Books to be
manufactured and distributed hereunder, either new titles to be developed by
Kideo or existing titles of ▇▇▇▇▇' books. On reaching agreement on each
additional title, if any, an exhibit substantially in the form of Exhibit A
shall be signed by the parties and attached hereto, and shall thereupon be
deemed to be fully incorporated herein by reference, and all references herein
to "Barney Books" shall thereafter be deemed to include such additional
title(s).
(b) General Reservation of Rights. ▇▇▇▇▇ expressly reserves all
rights not specifically granted to Kideo under this Agreement. ▇▇▇▇▇ may use or
license to any other party all rights not expressly and explicitly granted to
Kideo as ▇▇▇▇▇, in its sole discretion, deems appropriate.
(c) Specific Reservation of Rights. Without limiting the generality
of Paragraph 5(b), ▇▇▇▇▇ specifically reserves and shall have the sole right to
publish, print. distribute, sell or use, and to license or authorize others to
use the Characters on or in connection with books and other items as follows:
(i) In connection with premiums, tie-ins, giveaways or
promotional arrangements;
(ii) By or through any broadcasting company or related station
airing programming related to the Characters;
(iii) By or through the Barney(R) Fan Club, any retail stores
operated by or on behalf of ▇▇▇▇▇ and arty catalogues produced or distributed by
or on behalf of ▇▇▇▇▇;
(iv) On or about the premises of or in connection with any
live events, personal appearances, tours, exhibitions or other performance
venues featuring or otherwise relating to the Characters;
(v) In any theme or amusement park or retail store operated by
or on behalf of such park; or
Publishing Agreement Between ▇▇▇▇▇
Partnership, L.P. and Kideo Productions. Inc.
Page 2 of 19
Document No. 1870
(vi) In any theater showing a movie featuring the Characters
or retail store operated by the studio distributing such movie.
(d) Kideo agrees that it will refrain and will exercise due care to
ensure that its customers refrain from using the Barney Books in any way which
would involve any exercise of ▇▇▇▇▇' reserved rights.
(e) Purchase Option. ▇▇▇▇▇ shall have the right (but not
obligation) to place orders with Kideo (by supplying Kideo the necessary
personalized information for each Barney Book in the manner required by Kideo)
and purchase from Kideo, such number of each title of the Barney Books (i) for
non-resale promotional uses at Kideo's actual printing cost (including product
and fulfillment cost), plus shipping and handling, and (ii) for other uses in
connection with ▇▇▇▇▇' reserved rights, at a price equal to the lowest wholesale
price (including product and fulfillment cost) charged by Kideo to a third party
purchaser. No Royalties shall be payable to ▇▇▇▇▇ by Kideo on account of such
sales.
6. OWNERSHIP OF PROPRIETARY MATERIALS AND TECHNOLOGY.
(a) ▇▇▇▇▇' Ownership of Proprietary Materials. Kideo expressly
acknowledges that the Characters and all copyrights, trademarks and other
proprietary rights in or associated with the Characters (collectively, the
"Proprietary Materials") are owned exclusively by ▇▇▇▇▇. Kideo shall not acquire
and shall not claim any title thereto, and Kideo shall derive no rights
hereunder to use, manufacture, market or distribute any merchandise or materials
whatsoever utilizing the Proprietary Materials except as expressly provided in
this Agreement. The parties agree that all uses of the Proprietary Materials by
Kideo pursuant to this Agreement shall inure to the benefit of ▇▇▇▇▇.
(b) Kideo's Ownership of Technology. As between ▇▇▇▇▇ and Kideo, and
subject to ▇▇▇▇▇' ownership as set forth in subparagraph (a) above, Kideo shall
own all proprietary rights in and to the technology used in "personalizing" the
Barney Books with a child's photograph, name, and personalized text. ▇▇▇▇▇
expressly acknowledges that nothing herein shall be construed to grant to ▇▇▇▇▇
any ownership interest in any trademarks, trade dress or other proprietary
rights of Kideo, and ▇▇▇▇▇ shall nor claim any ride thereto or interest therein.
(c) Image and Reputation. Neither party shall dispute the other's
ownership rights, as between them, as set forth above. Neither party shall do or
cause to be done anything that might adversely affect the image or reputation of
the other party or such other party's products, characters, or proprietary
materials. Kideo shall manufacture, sell, promote and distribute the Barney
Books in an ethical manner and in accordance with the terms and intent of this
Agreement.
Publishing Agreement Between ▇▇▇▇▇
Partnership, L.P. and Kideo Productions, Inc.
Page 3 of 19
Document No. 1870
7. MARKETING.
(a) Marketing Plan.. Kideo shall provide to ▇▇▇▇▇, for ▇▇▇▇▇'
reasonable approval, a plan for the marketing and distribution of the Barney
Books (the "Marketing Plan"). Kideo shall not proceed with implementation of the
Marketing Plan without the prior approval of ▇▇▇▇▇, which shall not be
unreasonably withheld. ▇▇▇▇▇ shall make good faith efforts to promptly respond
to Kideo's submitted Marketing Plan (or any portion thereof): provided that,
failure of ▇▇▇▇▇ to inform Kideo whether ▇▇▇▇▇ approves the Marketing Plan
within thirty (30) days following receipt thereof shall constitute ▇▇▇▇▇'
disapproval.
(b) Implementation of Marketing Plan. On approval of the Marketing
Plan and subject to the provisions of Paragraphs 9, 10 and 11 hereof, Kideo
shall arrange for the design and production of packaging and marketing and
promotional materials by those vendors regularly used in connection with Kideo's
products, and the placement of any agreed on advertising of the Barney Books.
(c) Premiums. promotions and giveaways. No Barney Books may be used
as premiums, as part of promotions, or as giveaways without the prior written
approval of ▇▇▇▇▇. A detailed description of any such planned promotional or
premium use of Barney Books, including, but not limited to, information about
the quantity of merchandise involved and the purpose of the program, must be
provided to ▇▇▇▇▇. Failure to obtain prior written approval shall result in the
obligation of Kideo to pay full royalties on all Barney Books given away, or
used as premiums or in promotions.
(d) Marketing Costs.. Kideo shall bear all marketing, promotional
and advertising costs related to the Barney Books and shall arrange for all
invoices therefor to be sent directly to Kideo.
8. DISTRIBUTION.
(a) Kideo shall use its reasonable efforts to diligently and
continuously manufacture, promote, market, sell and distribute (collectively.
"Distribute") the Barney Books in commercially reasonable quantities throughout
the Territory, beginning not later than the publication date agreed upon by the
parties and set forth on the pertinent exhibit hereto. Kideo shall Distribute
the Barney Books in accordance with its customary policies and practices
applicable to similar products, substantially in accordance with the Marketing
Plan and subject to those approvals of ▇▇▇▇▇ as required herein.
(b) Fulfillment. Kideo shall maintain a number of staff and a
quantity and quality of equipment sufficient to allow prompt fulfillment of
reasonably anticipated orders.
Publishing Agreement Between ▇▇▇▇▇
Partnership, L.P. and Kideo Productions. Inc.
Page 14 of 19
Document No. 1870
(c) Kideo shall bear all distribution costs related to the Barney
Books and shall arrange for all invoices therefor to be sent directly to Kideo.
9. APPROVALS AND QUALITY.
(a) General. Each Barney Book and all elements thereof, including,
without limitation, all editorial, photographic, artistic, credit and other
material to be included in the Barney Book and the format and look thereof shall
be subject to ▇▇▇▇▇' prior written approval, which shall be in ▇▇▇▇▇' reasonable
discretion; further, each author and illustrator whom Kideo desires to use in
the development of the Barney Books shall be subject to ▇▇▇▇▇' prior written
approval, which shall be in Lyon's sole discretion. No Barney Book shall be
published, printed, sold, distributed, promoted or otherwise used in any manner
whatsoever without ▇▇▇▇▇' prior written approval.
(b) Provision of Existing Books. In the event that the parties agree
upon additional titles to be included as part of the Barney Books, which consist
of existing ▇▇▇▇▇' titles, ▇▇▇▇▇ will provide to Kideo, at a charge of Five
Hundred Dollars ($500.00) per book title, such title(s) in CD format for Kideo's
publication in the English language.
(c) Submissions and Approvals. Kideo shall submit each Barney Book
to ▇▇▇▇▇, for ▇▇▇▇▇' written approval, at each of the following stages:
(i) first draft manuscript;
(ii) final draft manuscript;
(iii) layout;
(iv) rough artwork;
(v) final artwork; and
(vi) final proof.
Kideo must obtain ▇▇▇▇▇' approval of each stage of development prior to
proceeding to the next stage. ▇▇▇▇▇ shall use reasonable efforts to promptly
complete its review and inform Kideo whether materials are approved or
disapproved. ▇▇▇▇▇' failure to approve, in writing, any such submission within
fifteen (15) days following receipt shall constitute disapproval. If ▇▇▇▇▇
disapproves any such submission, ▇▇▇▇▇ shall explain its reasons therefor and
describe with reasonable specificity all modifications that would be required
for ▇▇▇▇▇' approval. Kideo may request that any disapproval be reduced to
writing, If ▇▇▇▇▇ does not approve an element of the final proof which it
approved at an earlier stage and which was executed in conformity with such
approved earlier stage, Kideo shall make such changes as required by ▇▇▇▇▇. and
▇▇▇▇▇ shall reimburse Kideo its actual costs incurred in making such changes. In
no event shall ▇▇▇▇▇ bear any responsibility for the cost of changes to elements
not previously approved by ▇▇▇▇▇ or not executed in conformity with an approved
earlier stage.
Publishing Agreement Between ▇▇▇▇▇
Partnership, L.P. and Kideo Productions. Inc.
Page 5 of 19
Document No. 1870
(d) Duplication Materials. Kideo shall be responsible for the
preparation. at its sole cost, of all film positives, color separations, film
negatives, black keyplate proofs, and other duplication materials used in the
manufacture of the Barney Books by Kideo (the "Duplication Materials"), as well
as all other costs in connection with the publication, printing, and
distribution of the Barney Books. The Duplication Materials shall be owned by
▇▇▇▇▇. During the term hereof. Kideo shall furnish to ▇▇▇▇▇, at Kideo's actual
out-of-pocket costs plus fifteen percent (15%), duplicate Duplication Materials
(including, without limitation, duplicate film) for the Barney Books at ▇▇▇▇▇'
request. During the term of [his Agreement, ▇▇▇▇▇ will not, without the prior
written consent of Kideo, use or grant to any third party the right to use any
of the Duplication Materials in connection with the publication of a book in the
Territory. However, the parties agree that ▇▇▇▇▇ shall be entitled, at all
times, to use or grant to any third party the right to use all of ▇▇▇▇▇'
existing tides as published by ▇▇▇▇▇, regardless whether any such existing tides
are hereafter added as Barney Books.
(e) Advertising Submissions and Approvals. Kideo may, subject to
▇▇▇▇▇' prior written approval, use textual and pictorial matter pertaining to
and including the Proprietary Materials on such promotional, display and
advertising material as may, in its reasonable judgment, promote the sale of the
Barney Books. No advertising may be placed in any Barney Book without ▇▇▇▇▇'
prior written consent, which ▇▇▇▇▇ may withhold in its sole discretion.
(f) Approval Standards. Approval or disapproval shall be in ▇▇▇▇▇'
sole discretion. Any Barney Books or promotional materials used in connection
therewith not approved by ▇▇▇▇▇ as provided in this Agreement shall be deemed
unlicensed and shall not be manufactured, sold, distributed or promoted by
Kideo. ▇▇▇▇▇ shall use reasonable best efforts to provide Kideo notice of its
approval or disapproval and, in the latter case, its reasons for same, in a
timely manner.
(g) Changes and Modifications. Any modification of a Barney Book or
any promotional materials must be submitted in advance for ▇▇▇▇▇ written
approval as if it were a new Barney Book or new promotional material. Approval
of a Barney Book or promotional material which uses particular artwork does not
imply approval of such artwork for use with a different Barney Book or
promotional material.
(h) Quality Maintenance. All ▇▇▇▇▇▇ ▇▇▇▇▇ and promotional material
must conform in all respects to the proofs approved by ▇▇▇▇▇. On first
publication of each tide of the Barney Books, Kideo shall provide to ▇▇▇▇▇, free
of charge, 5 copies of each title of the Barney Books, with its packaging. At
▇▇▇▇▇' request, Kideo shall provide to ▇▇▇▇▇, for ▇▇▇▇▇' periodic quality
control inspection, a reasonable number of additional samples of the Barney
Books and promotional and packaging material relating to the Barney Books. All
samples furnished to ▇▇▇▇▇ shall be at no cost to ▇▇▇▇▇, and no Royalties shall
be payable with respect thereto.
Publishing Agreement Between ▇▇▇▇▇
Partnership, L.P. and Kideo Productions. Inc.
Page 6 of 19
Document No. 1870
(i) Damaged, Defective, Non-Approved or Non-Complying Items. Kideo
shall not knowingly. nor shall it knowingly permit any third party to sell,
market, distribute or use, for any purpose whatsoever, any Barney Books or
promotional and packaging material relating to the Barney Books which are
damaged. defective, seconds or otherwise substandard or fail to meet ▇▇▇▇▇'
trademark and copyright usage and notice requirements or safety standards.
(j) Recall and Destruction. If any Barney Books or promotional or
packaging materials manufactured, distributed, sold, promoted or otherwise used
(i) have not been previously approved by ▇▇▇▇▇; (ii) in ▇▇▇▇▇' reasonable
judgment, have deteriorated in later production from those previously approved
by ▇▇▇▇▇; (iii) are damaged, defective, seconds or otherwise substandard; or
(iv) fail to meet ▇▇▇▇▇' trademark and copyright usage and notice requirements
or safety standards, ▇▇▇▇▇ may, together with any other remedies available to
it, require such Barney Books or promotional or packaging materials to be
immediately recalled and withdrawn from the market arid destroyed at Kideo's
expense, such destruction to be attested to in a certificate signed by an
officer or principal of Kideo.
10. OWNERSHIP, COPYRIGHT AND TRADEMARK NOTICES AND PROTECTION.
(a) Ownership. ▇▇▇▇▇ shall own all copyrights and renewals thereof,
trademarks and other proprietary rights in any and all materials approved by
▇▇▇▇▇ for use in any of the Barney Books or which incorporate or otherwise
include any of the Proprietary Materials (the "Book Material"). Kideo agrees and
acknowledges that any Book Material shall be a "work-made-for-hire" within the
meaning of the United Stares Copyright Act and shall be owned in its entirety
exclusively by ▇▇▇▇▇. ▇▇▇▇▇ reserves for itself or its designees all rights to
use any and all Book Material, without limitation. To the extent any Book
Material created by Kideo or any other person or entity is deemed not to be a
work-made-for-hire, Kideo hereby assigns to ▇▇▇▇▇ all copyrights, trademarks and
other proprietary rights in such Book Material. Kideo agrees to execute or cause
to be executed by any of its employees who participate in the creation of any
such Book Material any additional documents proposed by ▇▇▇▇▇ to effectuate and
confirm ▇▇▇▇▇' sole and exclusive ownership of all copyrights, trademarks and
other proprietary rights in and to such Book Material, and Kideo irrevocably
appoints ▇▇▇▇▇ as its attorney-in-fact to execute any and all such documents if
Kideo fails to return executed copies of such documents to ▇▇▇▇▇ within fifteen
(15) days following submission. Kideo warrants and represents that all
contributions to the creation of Book Material shall be undertaken as
works-made-for-hire for Kideo on behalf of ▇▇▇▇▇. If any third party makes or
has made any contribution to the creation of Book Material, Kideo shall, prior
to any use of such Book Material, obtain from such party a full assignment of
rights such that the foregoing assignment by Kideo shall vest full rights in
▇▇▇▇▇. Kideo shall not, without the prior written approval of ▇▇▇▇▇. give or
agree to give credit of any kind to any such party or
Publishing Agreement Between ▇▇▇▇▇
Partnership, L.P. and Kideo Productions. Inc.
Page 7 of 19
Document No. 1870
any employee of Kideo who participates in the creation of Book Material. ▇▇▇▇▇
acknowledges chat nothing herein shall be construed to grant to ▇▇▇▇▇ any
ownership interest in any Kideo trademarks or trade drew
(b) Preparation of Artwork by ▇▇▇▇▇. In the event that artwork for
use in the development of the Barney Books or any related packaging, display or
promotional materials is created by ▇▇▇▇▇ (or by third parties under contract to
▇▇▇▇▇), either at Kideo's request or as necessary, in ▇▇▇▇▇' opinion, to modify
artwork initially prepared by Kideo and submitted for ▇▇▇▇▇~ approval, Kideo
shall pay for such artwork at ▇▇▇▇▇' prevailing commercial art rate. All such
payments shall be made by Kideo within forty-five (45) days of receipt of ▇▇▇▇▇'
invoice for same. ▇▇▇▇▇ shall, upon Kideo's request, provide to Kideo estimates
of charges for artwork to be created by ▇▇▇▇▇, which shall be agreed upon by
Kideo prior to ▇▇▇▇▇ beginning work.
(c) Notices. Kideo shall cause appropriate copyright and trademark
notices or other indicia of ▇▇▇▇▇' ownership to be imprinted, irremovably and
legibly, on each Barney Book and all advertising, promotional, packaging and
wrapping material which includes any of the Proprietary Materials. In no event
shall Kideo use any copyright or trademark notices which shall conflict or be
confusing with or negate any notices required hereunder by ▇▇▇▇▇. Matters
relating to ▇▇▇▇▇' trademarks, copyrights, and other notice elements, UPC
symbols, cover layout and packaging elements shall be determined by ▇▇▇▇▇, in
its sole discretion.
(d) Protection. Kideo shall assist ▇▇▇▇▇ in the procurement,
protection, and maintenance of ▇▇▇▇▇' rights in and to the Proprietary
Materials, including, but not limited to, cooperating in the preparation and
filing and renewal of registered user applications, as necessary, in the
Territory. ▇▇▇▇▇ may, in its sole discretion, commence or prosecute and effect
the disposition of any claims or suits relative to the imitation, infringement
or unauthorized use of the Proprietary Materials either in its own name, or with
Kideo's prior written consent, in the name of Kideo, or join Kideo as a party in
the prosecution of such claims or suits. Kideo agrees to cooperate fully with
▇▇▇▇▇ in connection with any such claims or suits and undertakes to furnish full
assistance to ▇▇▇▇▇ in the conduct of all proceedings in regard thereto. Kideo
shall promptly notify ▇▇▇▇▇ in writing of any infringements or imitations or
unauthorized uses by others of the Proprietary Materials. Kideo shall not,
without the prior written consent of ▇▇▇▇▇, institute any suit or take any
action on account of such infringements, Imitations or unauthorized uses.
(e) Registration. In addition to those samples required to be
delivered to ▇▇▇▇▇ pursuant to Paragraph 9(h). Kideo agrees to deliver to ▇▇▇▇▇,
as soon as available and free of cost, that number of each title of the Barney
Books, together with (heir packaging, wrapping material, sales information and
similar material, as required for trademark or copyright registration purposes.
Any copyrights or trademarks with respect to the Barney Books shall be procured
by and for the benefit of ▇▇▇▇▇ and at ▇▇▇▇▇'
Publishing Agreement Between ▇▇▇▇▇
Partnership, L.P. and Kideo Productions. Inc.
Page 8 of 19
Document No. 1870
expense. Kideo further agrees to promptly provide ▇▇▇▇▇ with the date of the
first use in commerce of each of the Barney Books and any other information
required to effect such registrations.
11. ADDITIONAL SPECIFICATIONS AND STANDARDS.
(a) Compliance with Government and Industry Standards. Kideo
represents and warrants that it will at all times comply with all federal, state
and Local laws, regulations. rules and guidelines, and all voluntary industry
standards relating or pertaining to the design, manufacture, sale, advertising,
distribution or use of the Barney Books. Kideo shall comply with any regulatory
agencies which shall have jurisdiction over the Barney Books and shall procure
and maintain in force any and all permissions, certifications and other
authorizations from governmental and other official authorities that may be
required in relation thereto. Kideo further represents and warrants that each
Barney Book and component thereof shall comply with all applicable laws,
regulations, rules, guidelines and voluntary industry standards.
(b) No Tie-Ins. Kideo shall not associate other characters or
licensed properties with the Characters or other Proprietary Materials in any
books, packaging, promotional or display materials or otherwise (by way of
example only, personalized books featuring the characters Mickey Mouse or Lamb
Chop) unless Kideo receives ▇▇▇▇▇' prior written approval. Kideo further agrees
not to use or authorize any third party to use any of the Proprietary Materials
on any business sign, business cards, stationery or forms, or as part of the
name of Kideo business or any division thereof. ▇▇▇▇▇ acknowledges and accepts
the use of Kideo's trademarked name and logo as currently used in its publishing
business.
12. MANUFACTURING.
(a) Production Facilities. Kideo agrees to promptly furnish ▇▇▇▇▇
with the addresses of Kideo's production facilities for, and the names and
addresses of any third parties which manufacture, the Barney Books and related
packaging and promotional materials, ▇▇▇▇▇ shall have the right at any time
during regular business hours and at its own expense to inspect any such
facilities for the purpose of enabling ▇▇▇▇▇ to determine whether Kideo is
adhering to the requirements of this Agreement. ▇▇▇▇▇ shall maintain all
information regarding Kideo production facilities as confidential and shall
conduct any inspection in a reasonable manner such that no safety risks to the
manufacturer result from such inspection.
(b) Manufacture of Barney Books. Kideo shall manufacture and/or
arrange for manufacture of the Barney Books by those vendors regularly used by
Kideo, at Kideo's sole cost. In the event any such vendor is not a wholly-owned
subsidiary of Kideo, Kideo shall, before authorizing such manufacture and before
placing any Orders with the proposed manufacturer, obtain ▇▇▇▇▇' approval. Kideo
shall then have the
Publishing Agreement Between ▇▇▇▇▇
Partnership, L.P. and Kideo Productions. Inc..
Page 9 of 19
Document No. 1870
proposed manufacturer sign, in duplicate original, an agreement in the form of
Exhibit B attached hereto ("Manufacturer's Agreement"). Kideo shall deliver the
original copies of the Manufacturer's Agreement signed by Kideo and the proposed
manufacturer to ▇▇▇▇▇, and Kideo shall obtain ▇▇▇▇▇' signature on the
Manufacturer's Agreement before the manufacture of the Barney Books by the
proposed manufacturer. Kideo shall arrange for all invoices for the
manufacturing of the Barney Books to be sent directly to Kideo.
13. ROYALTIES.
(a) Calculation of Royalties. Kideo shall pay to ▇▇▇▇▇ as royalties
(the "Royalties").
(i) On each Barney Book sold at Kideo's usual full direct
price ("Direct Price"), an amount equal to ten percent (10%) of the Direct Price
("Direct Royalty"); and
(ii) On each Barney Book sold to a retailer, cataloger, or
similar party at less than the Direct Price ("Retailer Price"), an amount equal
to the Direct Royalty which would otherwise be payable, multiplied by the
percentage obtained by dividing the Retailer Price by the Direct Price.
In no event shall the Royalties paid be less than the Minimum Royalty, as
defined below. No costs incurred in the manufacture, sale, distribution,
advertisement, or exploitation of the Barney Books shall be deducted from any
Royalties payable to ▇▇▇▇▇ by Kideo. No deductions shall be made for
uncollectible accounts. Except as expressly provided in this Agreement, no costs
whatsoever shall be deducted for purposes of calculating the Royalties.
(b) Minimum Royalty Defined. "Minimum Royalty" shall mean the sum of
U.S.$ .90 for each Barney Book sold, regardless of whether sold at Direct Price
or Retailer Price.
(c) Accrual. Royalties shall accrue upon the sale of the Barney
Books regardless of the time of collection by Kideo. For purposes of this
Agreement, each Barney Book shall be considered "sold" on the date when such
Barney Book is billed, invoiced, shipped or paid for, whichever event occurs
first.
(d) No Royalties shall be paid on copies of the Barney Books
distributed free as samples or for review, publicity, promotion and like
purposes so long as Kideo is in compliance with Section 7(c) of this Agreement.
14. PRICING. After consultation between ▇▇▇▇▇ and Kideo, suggested
prices for the Barney Books shall be established for the different Channels of
Distribution.
Publishing Agreement 8ev"een ▇▇▇▇▇
Partnership, L.P. and Kideo Productions. Inc.
Page 10 of 19
Document No. 1870
15. ROYALTY PAYMENT AND REPORTING.
(a) Quarterly Payments. Kideo shall pay the Royalties in quarterly
periods, ending on the last day of each March, June, September and December
during the Term. Payments shall be received by ▇▇▇▇▇ within forty-five (45) days
after the end of each quarterly period. All royalty payments shall be in United
Stares dollars. Neither the expiration nor the termination of this Agreement
shall relieve Kideo from its Royalty payment obligations.
(b) Royalty Statement. At the time payment of Royalties is due,
Kideo shall also furnish ▇▇▇▇▇, on forms provided or approved by ▇▇▇▇▇, a
statement of the price of each Barney Book, the number of all Barney Books sold
during the immediately preceding quarterly period, and any such other
information as ▇▇▇▇▇ may reasonably require. Such statements shall be certified
true and correct by a duly authorized officer of Kideo. Receipt or acceptance by
▇▇▇▇▇ of any statement furnished pursuant to this Agreement or of any sums paid
hereunder shall not preclude ▇▇▇▇▇ from questioning the correctness thereof at
any time, and any inconsistencies or mistakes in such statements or payments
that are discovered shall immediately be rectified and the appropriate payments
made by Kideo.
(c) Audted Statement. On ▇▇▇▇▇' demand, but not more than once in
any calendar year period during the Term, Kideo shall, at its own expense,
furnish to ▇▇▇▇▇ a detailed statement for the period specified by ▇▇▇▇▇,
certified by an independent certified public accountant, including, without
limitation, the number of each of the Barney Books sold in each country of the
Territory and as a total for the entire Territory. and the price of each.
(d) Address for Payment. The statements and payments required
pursuant to this Paragraph 15 shall be delivered to:
The ▇▇▇▇▇ Group
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
(e) Interest Charges. Any payments which are made to ▇▇▇▇▇ after the
due dare shall bear interest at the then current prime rate quoted by ▇▇▇▇▇'
bank (or the maximum rare permissible by law, if less than the current prime
rate) from the dare such payments are due to the date of payment. ▇▇▇▇▇' right
to interest on late payments shall not preclude ▇▇▇▇▇ from exercising any of its
other rights or remedies pursuant to this Agreement or otherwise with regard to
Kideo's failure to make timely remittances.
Publishing Agreement Between ▇▇▇▇▇
Partnership, L.P. and Kideo Productions. Inc.
Page 11 of 19
Document No. 1870
16. BOOKS AND RECORDS.
(a) Maintenance, Inspection and Audit. Kideo shall keep, maintain
and preserve, at Kideo's principal place of business, during the Term and for at
least three (3) years thereafter, complete and accurate records and accounts
covering all transactions relating to this Agreement. All such records and
accounts shall be maintained in accordance with generally accepted accounting
principles consistently applied. Such records and accounts shall be available
for inspection and audit, including the taking of extracts or copies as ▇▇▇▇▇
deems necessary, at any time or times during reasonable business hours and upon
reasonable written notice by ▇▇▇▇▇ or its nominees; but not more than once
during each calendar year of the Term. Kideo agrees not to cause or permit any
interference with any such inspection and audit All information gained in the
course of any inspection or audit shall be treated as confidential business
information of Kideo.
(b) Effect of Exercise of Audit Rights. The exercise by ▇▇▇▇▇, in
whole or in part, at any time of the right to inspect and audit records and
accounts or any other right granted herein, shall be without prejudice to any
rights or remedies of ▇▇▇▇▇ and shall not preclude or prevent ▇▇▇▇▇ from
thereafter disputing the accuracy of any statement or payment.
(c) Deficiency.~. if ▇▇▇▇▇ causes an inspection and audit to be
instituted which discloses a deficiency between the amount found to be due to
▇▇▇▇▇ and the amount actually received or credited to ▇▇▇▇▇, Kideo shall be
responsible for payment of the deficiency, together with interest thereon at a
rate equal to two percent (2%) above the then current prime rare quoted by
▇▇▇▇▇' bank (or the maximum rare permissible by law, if less than the foregoing)
from the date such amount became due until the date of payment. If such
deficiency is at least equal to the greater of (i) the Royalty due for any
quarterly period and (ii) the sum of $2500.00, United States dollars, Kideo
shall also reimburse ▇▇▇▇▇ for its reasonable costs and out-of pocket expenses
of such inspection and audit.
17. WARRANTIES AND REPRESENTATIONS. ▇▇▇▇▇ and Kideo each represents and
warrants to the other as follows:
(a) It has full power and authority to execute and deliver this
Agreement and to perform the transactions contemplated hereby;
(b) The making of this Agreement does nor, and during the Term will
not, violate or conflict with any agreements, rights or obligations binding on
or affecting it;
Publishing Agreement Between ▇▇▇▇▇
Partnership, L.P. and Kideo Productions. Inc.
Page 12 of 19
Document No. 1870
(c) This Agreement has been duly and properly authorized, executed
and delivered by it and constitutes its legal, valid and binding obligation
enforceable in accordance with its terms; and
(d) There is not pending or, to its knowledge, threatened against it
any action. sun or proceeding at law or in equity or before any court, tribunal,
governmental body, agency or official or any arbitrator that purports to draw
into question, or is likely to affect, the legality, validity or enforceability
of this Agreement or its ability to perform its obligations under this
Agreement.
l8. ADDITIONAL REPRESENTATIONS.
(a) ▇▇▇▇▇' Additional Representation. ▇▇▇▇▇ represents and warrants
to Kideo that no materials specifically provided by ▇▇▇▇▇ to Kideo pursuant to
this Agreement do or will violate the right of privacy or publicity, or defame,
or violate, or infringe any copyright, trademark, common law, or any other
proprietary right(s) of any person or entity.
(b) Kideo's Additional Representation. Kideo represents and warrants
to ▇▇▇▇▇ that none of the Barney Books nor any element thereof, including but
not limited to the "personalized" elements, except materials specifically
provided by ▇▇▇▇▇ to Kideo pursuant to this Agreement, do or will violate the
right of privacy or publicity or defame or violate any copyright, trademark,
common law, or any other proprietary right(s) of any person or entity.
19. TERMINATION. The following rights are without prejudice to any other
rights which ▇▇▇▇▇ may have either pursuant to this Agreement, in law, equity or
otherwise.
(a) ▇▇▇▇▇' Immediate Right of Termination. ▇▇▇▇▇ shall have the
right to immediately terminate this Agreement on written notice:
(i) If Kideo manufactures, sells, markets or distributes any
Barney Books containing or otherwise used in connection with the Proprietary
Materials or promotional or packaging material relating thereto without ▇▇▇▇▇'
prior approval as provided for by this Agreement or continues to manufacture,
sell, market or distribute any such Barney Books or promotional or packaging
material relating thereto after receipt of notice from ▇▇▇▇▇ disapproving such
items;
(ii) If Kideo fails to either (A) allow ▇▇▇▇▇ to inspect
Kideo's or its authorized manufacturers' facilities or (B) obtain prior
authorization by ▇▇▇▇▇ of any third party manufacturers in accordance with
Paragraph 11 of this Agreement;
Publishing Agreement Between ▇▇▇▇▇
Partnership, L.P. and Kideo ProductionS, Inc.
Page ▇▇ ▇▇ ▇▇
▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇
(▇▇▇) If Kideo breaches any provision of this Agreement
relating to the unauthorized assertion of rights in the Proprietary Materials,
including, without limitation, the distribution or sale of the Barney Books or
the use of any promotional or packaging material which does not contain
appropriate trademark and/or copyright notices;
(iv) If Kideo fails to obtain or maintain product liability
insurance as required by this Agreement;
(v) If Kideo breaches any provision of this Agreement
prohibiting Kideo from directly or indirectly arranging for the manufacture by
third parties, assigning, transferring. sublicensing, delegating or otherwise
encumbering this Agreement or any of its rights or obligations;
(vi) If Kideo tails to make timely payment of Royalties or
submissions of royalty statements when due two or more times during any
twelve-month period; or
(vii) If Kideo or any of its officers, directors, employees,
agents or affiliates takes any action in connection with the manufacture, sale,
distribution or advertising of the Barney Books or the promotional and packaging
materials which damages or reflects adversely upon ▇▇▇▇▇ and/or the Proprietary
Materials.
(b) Right to Terminate on Notice. Without prejudice to any other
rights or remedies available to either party, either party may terminate this
Agreement in the event of a material breach hereof by the other, effective on
thirty (30) days' prior written notice; provided that, during such thirty (30)
day notice period, the party in breach fails to cure the breach to the
reasonable satisfaction of the non-breaching party.
20. EFFECT OF TERMINATION.
(a) Fulfillment of Pre-termination Orders. Neither Kideo nor Kideo's
successors or permitted assigns shall have any right whatsoever after the
effective date of termination to manufacture, sell, ship, market, distribute or
otherwise use the Barney Books. However, Kideo shall complete the manufacture
and delivery of only such work-in-progress as is necessary to fill bonafide
binding orders accepted by Kideo prior to the termination of this Agreement
(b) Return of Duplication Materials. Book Materials. Within ten (10)
business days following the expiration or termination of this Agreement, Kideo
shall (i) turn over all Duplication Materials and Book Materials to ▇▇▇▇▇, and
(ii) give evidence satisfactory to ▇▇▇▇▇ of the destruction of all promotional
and packaging materials. ▇▇▇▇▇, at its election shall have the right to have its
representative observe such destruction. ▇▇▇▇▇ shall have the right, but not the
obligation, to purchase all or any
Publishing Agreement Between ▇▇▇▇▇
Partnership, L.P. and Kideo Productions, Inc.
Page 14 of 19
Document No. 1870
part of Kideo's then existing promotional and packaging material relating
thereto at Kideo's actual manufacturing cost for same. Kideo shall be
responsible to ▇▇▇▇▇ for any damages caused by the unauthorized use or sale, by
Kideo or others, of the Duplication Materials or any Barney Books or other
materials not turned over to ▇▇▇▇▇.
(c) Reversion of Rights. From and after the expiration or
termination of this Agreement, all rights granted to Kideo under this Agreement
shall forthwith revert to ▇▇▇▇▇, and Kideo shall refrain from any use of the
Proprietary Materials.
(d) Injunctive Relief.. Kideo acknowledges that its failure to cease
the manufacture, sale, marketing, distribution or other use of the Barney Books
or the promotional and packaging material relating thereto immediately when and
as provided herein, will result in immediate and irreparable damage to ▇▇▇▇▇ and
to the rights of any subsequent Kideo of ▇▇▇▇▇. Kideo acknowledges and agrees
that there is no adequate remedy at law for failure to cease such activities and
that, in the event of such failure, ▇▇▇▇▇ shall be entitled to injunctive relief
and such other relief as any court with jurisdiction may deem just and proper.
21. INDEMNITY.
(a) Each party assumes liability for, and shall indemnity, defend,
protect, save and hold the other harmless from and against, any and all claims,
actions, suits, costs, liabilities, judgments, obligations, losses, penalties,
damages and expenses (including reasonable legal fees and expenses) of
whatsoever kind or nature arising out of any breach or alleged breach by such
party of any of its warranties, representations, covenants or obligations made
pursuant to this Agreement. (l~) To seek or receive indemnification hereunder:
(i) The party seeking indemnification must have promptly
notifid the other of any claim or litigation of which it is aware to which the
indemnification relates; and
(ii) The party seeking indemnification must have afforded the
other the opportunity to approve any compromise, settlement, litigation, or
other resolution or disposition of such claim or litigation; provided that, if
such other party fails reasonably to approve any such compromise, settlement,
litigation or other resolution or disposition of such claim or litigation, such
other party shall be obligated to defend any such claim or litigation for the
benefit of the party seeking indemnification; and
(iii) The party seeking indemnification must cooperate fully
with the other in connection with defending such claim.
Pub1ishing Agreement Between ▇▇▇▇▇
Partnership, L.P. and Kideo Productions, Inc.
Page 15 of 19
Document No. 1870
22. INSURANCE. Kideo shall, at its own expense, obtain and maintain,
during the Term and for three (3) years thereafter, standard comprehensive
general liability coverage for bodily injury, property damage and personal
injury, from a qualified insurance carrier acceptable to ▇▇▇▇▇. Said coverage
shall include broad form contractual liability as well as product liability
insurance, and shall be no less than Three Million United States Dollars
($3,000,000.00) per claim, and shall name ▇▇▇▇▇ (including its parents,
affiliates, partners, subsidiaries, officers, employees, agents and
representatives) as additional insured. Kideo shall, promptly upon the execution
of this Agreement, furnish ▇▇▇▇▇ a certificate of insurance stating thereon the
limits of liability, the period of coverage, the parties insured (including
Kideo and ▇▇▇▇▇), and the insurer's agreement not to terminate or materially
modify such insurance without notifying ▇▇▇▇▇, in writing, at least thirty (30)
days before such termination or modification. Coverage shall be on an occurrence
basis. The existence of liability insurance shall not mitigate, alter or waive
the indemnity provisions of Paragraph 21.
23. NOTICES. All notices, requests, demands and communications, other
than statements and payments of Royalties, required or permitted under this
Agreement shall be in writing and shall be deemed delivered at die time of
delivery if personally delivered or transmitted via facsimile, the next business
day following deposit with a reputable courier service for overnight delivery,
or five business days following deposit in the U.S. mail, certified mail postage
pre-paid, addressed as follows:
(a) if to ▇▇▇▇▇: With a copy to:
▇▇▇▇▇ Partnership, ▇.▇. ▇▇▇▇▇ Partnership, L.P.
ATTN: Executive Vice President ATTN: Vice President
Suite 1600 Legal & Business Affairs
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ 2435 N. Central Expressway
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile: 972.390-6001
(b) If to Kideo:
Kideo Productions, Inc.
ATTN: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Either party may from time to time change its address by notice to the other
specifying a new address.
Publishing Agreement Between ▇▇▇▇▇
Partnership, L.P. and Kideo Productions, Inc.
Page 16 of 19
Document No. 1870
24. INDEPENDENT CONTRACTOR. Kideo is an independent contractor and not
an agent, partner, joint venturer, franchisee, affiliate or employee of ▇▇▇▇▇.
No fiduciary or franchise relationship exists between the panics. Neither party
shall be liable for any debts, accounts, obligations or other liabilities of
the other, its agents or employees. Kideo shall have no authority to obligate or
bind ▇▇▇▇▇ in any manner. ▇▇▇▇▇ has no proprietary interest in Kideo and has no
interest in the business of Kideo, except to the extent set forth in this
Agreement.
25. BINDING EFFECT. This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties hereto and their
permitted assigns.
26. CONFIDENTIALITY. Each party may, during the Term of this Agreement,
have access to certain procedures, technical data, proprietary information and
trade secrets of the other party and its affiliates (collectively, the
"Confidential information"). Neither party shall use, disclose or otherwise
permit any person or entity access to any of the Confidential Information;
provided that, each party may disclose such portions of the Confidential
Information to its agents or employees who have a reasonable need to know such
information in connection with its performance hereunder. Each party understands
that it is not allowed to sell, license or otherwise exploit any products or
services which embody, in whole or in part, any Confidential Information.
27. GOVERNING LAW; JURISDICTION. THIS AGREEMENT AND THE LEGAL
RELATIONSHIP BETWEEN THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE iNTERNAL LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS. THE PARTIES AGREE THAT ALL ACTIONS OR
PROCEEDINGS ARISING IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY SHALL BE TRIED AND LITIGATED ONLY IN THE DISTRICT COURT OF
THE STATE OF TEXAS LOCATED IN THE COUNTY OF DALLAS, STATE OF TEXAS OR, IF
JURISDICTIONALLY SUFFICIENT, THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF TEXAS, AND EACH PARTY HERETO HEREBY EXPRESSLY AND IRREVOCABLY
SUBMITS THE PERSON OF SUCH PARTY TO THE JURISDICTION OF SUCH COURTS IN ANY SUCH
SUIT, ACTION OR PROCEEDING.
28. SEVERABILITY; HEADINGS. Each term and provision of this Agreement
constitutes a separate and distinct undertaking, covenant, term and provision
hereof In the event that any term or provision of this Agreement shall be
determined to be unenforceable, invalid or illegal in any respect, such
unenforceability. invalidity or illegality shall not affect any other term or
provision of this Agreement, but this Agreement shall be construed as if such
unenforceable, invalid or illegal term or provision had never been contained
herein. If any term or provision of this Agreement
Publishing Agreement Between ▇▇▇▇▇
Partnership, L.P. and Kideo Productions, Inc.
Page 17 of 19
Document No. 1870
shall for any reason be held to be excessively broad as to time, duration,
activity or subject, it shall be construed, by limiting and reducing it, so as
to be enforceable to the maximum extent permitted under applicable law as it
shall then exist. Headings of paragraphs herein are for convenience only and are
without substantive significance.
29. ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding among the panics hereto with respect to the subject matter hereof
and supersedes all prior agreements, commitments, arrangements, negotiations or
understandings, whether oral or written, between the parties with respect
thereto, There are no agreements, covenants, undertakings, representations or
warranties with respect to the subject matter of this Agreement other than those
expressly set forth or referred to herein.
30. FORCE MAJEURE. Neither Kideo nor ▇▇▇▇▇ shall be liable for failure
to perform hereunder resulting from, directly or indirectly, or contributed to
by reason of fire, flood, epidemic, earthquake, explosion, accident, or other
act of God ("Force Majeure"), or by virtue of war, blockade, embargo, act of a
public enemy, civil disturbance, labor dispute (or threatened dispute), strike
lockout, inability to secure sufficient labor, essential commodities, necessary
equipment or adequate transportation facilities, applicable law, or any other
disruptive events beyond such party's reasonable control; provided that, if a
party's failure to perform continues for more than ninety (90) days, the other
party shall have the right, upon written notice, to terminate this Agreement.
31. RIGHTS CUMULATIVE. Except as expressly provided in this Agreement,
and to the extent permitted by law, any remedies described in this Agreement are
cumulative and not alternative to any other available remedies.
32. AMENDMENT; WAIVER. Neither this Agreement, nor any of the terms or
provisions hereof, may be amended, modified, supplemented or waived, except by a
written instrument signed by the parties hereto (or, in the case of a waiver, by
the party granting such waiver). No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other provision
hereof (whether or not similar), nor shall such waiver constitute a continuing
waiver. No failure of either party hereto to insist upon strict compliance by
the other party with any obligation, covenant, agreement or condition contained
in this Agreement shall operate as a waiver of, or estoppel with respect to, any
subsequent or other failure. Whenever this Agreement requires or permits consent
by or on behalf of any party hereto, such consent shall be given in a manner
consistent with the requirements for a waiver of compliance as set forth in this
Paragraph 32.
Publishing Agreement Between ▇▇▇▇▇
Partnership, L.P. and Kideo Productions, Inc.
Page 18 of 19
Document No. 1870
IN WITNESS WHEREOF, ▇▇▇▇▇ and Kideo have caused this Agreement to be
executed by their authorized representatives effective as of the date first set
forth above.
KIDEO PRODUCTIONS, [NC. ▇▇▇▇▇ PARTNERSHIP, L.P.
By Rhenclid, Inc., Its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------- ---------------------------------
Printed Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: President & CEO Executive Vice President
Publishing Agreement Between ▇▇▇▇▇
Partnership, L.P. and Kideo Productions, Inc.
Page 19 of 19
Document No. 1870
EXHIBIT A
Barney(R) Books
Format Titles Publication Date
------ ------ ----------------
24 page, case bound cover, Three, titles to be mutually To be mutually agreed
diecut, personalized agreed upon. upon. The first book shall
be published no later than
April 1998.
KIDEO PRODUCTIONS, INC. ▇▇▇▇▇ PARTNERSHIP, L.P.
By Rhenclid, Inc., Its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ T ▇▇▇▇▇
--------------------------- -----------------------------
Printed Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: President & CEO Executive Vice President
Exhibit A to Publishing Agreement Between
▇▇▇▇▇ Partnership, L.P. and Kideo Productions, Inc.
Page 1 of 1
Document No. 1870
EXHIBIT B
MANUFACTURER'S AGREEMENT
THIS MANUFACTURER'S AGREEMENT is made pursuant to the Publishing Agreement
("Agreement") between ▇▇▇▇▇ PARTNERSHIP, L.P.("▇▇▇▇▇") and the undersigned KIDEO
PRODUCTIONS, INC. ("Kideo"), a copy of which is attached hereto and made a part
hereof.
__________________________________ (full name) at _________________________
(principal address) ("Manufacturer") desires to manufacture and sell to Kideo
the following books bearing certain of ▇▇▇▇▇' Proprietary Materials:
______________________ (the "Barney Books"). Such Barney Books shall be
manufactured only at (full address):___________________________________________
In consideration of ▇▇▇▇▇' approval of the manufacture by Manufacturer of the
Barney Books utilizing the Proprietary Materials listed in Paragraph 6 of the
Agreement, at the locations listed above, the parties agree as set forth below.
1. Manufacturer acknowledges the validity of and ▇▇▇▇▇' sole title to the
Proprietary Materials. Manufacturer agrees that its right to manufacture the
Barney Books utilizing the Proprietary Materials is in all respects subject to
the terms and conditions in the Agreement, including, but not limited to, the
termination provisions and restrictions on the use of the Proprietary Materials.
Manufacturer agrees that the provisions of the Agreement shall take precedence
over and supersede any agreements between Kideo and Manufacturer.
2. Manufacturer and Kideo acknowledge that Manufacturer's manufacture of
any Barney Books is subject to ▇▇▇▇▇' prior written approval, and may not
proceed prior ▇ ▇▇▇▇▇' execution of this Agreement.
3. Manufacturer will (a) not manufacture the Barney Books to the order of
anyone other than Kideo; (b) invoice only Kideo; (c) not ship to anyone other
than Kideo; and (d) not manufacture after the expiration, or (if applicable) the
earlier termination of the Agreement. Manufacturer agrees that its manufacture
of Barney Books shall give Manufacturer no right to use the Proprietary
Materials in any manner whatsoever or to sell Barney Books utilizing the
Proprietary Materials except as specifically provided in this Agreement and/or
beyond the expiation or (if applicable) the earlier termination of the
Agreement.
4. Manufacturer will not subcontract manufacture of any of the Barney
Books or any component thereof utilizing the Proprietary Materials.
Exhibit B to Publishing Agreement Between
▇▇▇▇▇ Partnership, L.P. and Kideo Productions, Inc.
Page 1 of 3
Document No. 1870
5. Manufacturer will not manufacture any merchandise or other materials
whatsoever utilizing the Proprietary Materials, other than the Barney Books.
6. Without in any way limiting the terms and provisions of the Agreement,
Manufacturer shall:
(a) use only materials certified by the United States and/or
applicable stare or other municipal agencies as acceptable for importing into
and distribution and use within and throughout the United States;
(b) use only materials and processes which meet or exceed any and
all applicable safety, quality, performance and flammability requirements of the
United States, each state of the United States and industry standards and
guidelines: and
(c) perform all inspections and testing necessary to ensure that all
Barney Books manufactured and sold pursuant to this Agreement meet or exceed all
of the foregoing requirements, standards and guidelines.
7. Manufacturer will permit Kideo and/or ▇▇▇▇▇' authorized representatives
at any time to inspect Manufacturer's activities, premises, accounting books and
invoices relevant to Manufacturer's manufacture and supply of the Barney Books.
8. Manufacturer will keep confidential its manufacture of the Barney
Books, including, without limitation, Manufacturer will not publish or cause the
publication of pictures or other representations of any of the Barney Books
and/or the Proprietary Materials in any publication or promotional material, nor
advertise that Manufacturer is permitted to manufacture the Barney Books.
9. Upon notification of the expiration or termination of the Publishing
Agreement. Manufacturer will immediately cease manufacturing the Barney Books
and (a) immediately deliver to ▇▇▇▇▇ or ▇▇▇▇▇' authorized representatives, at no
cost to ▇▇▇▇▇. any and all films, copies, molds, plates, engravings and other
devices used to manufacture the Barney Books or any component thereof or
reproduce the Proprietary Materials, as well as any Barney Books or any
component thereof remaining in Manufacturer's possession; or (b) upon ▇▇▇▇▇'
written instructions to do so, immediately destroy such items as ▇▇▇▇▇ may
direct, and deliver to ▇▇▇▇▇ a written certificate of destruction signed by an
officer or principal of Manufacturer.
10. Nothing herein will be construed so as to make Manufacturer a party to
or third party beneficiary of the Agreement and Manufacturer will look solely to
Kideo for payment and/or other compensation in respect of the manufacture of the
Barney Books. It is specifically acknowledged that this Agreement is not and
shall not constitute a license from ▇▇▇▇▇ to Manufacturer, and Manufacturer
shall derive no rights hereunder to manufacture any products whatsoever
utilizing the Proprietary Materials or any of ▇▇▇▇▇'
Exhibit B to Publishing Agreement Between
▇▇▇▇▇ Partnership, L.P. and Kideo Productions, Inc.
Page 2 of 3
Document No. 1870
proprietary rights except as expressly provided pursuant to this Agreement.
Manufacturer will have no claim against and hereby releases ▇▇▇▇▇ in respect of
any such payment and/or any Barney Books and/or the Agreement. Furthermore, if
Kideo's rights to use the Proprietary Materials expire or terminate,
Manufacturer agrees to make no claim against ▇▇▇▇▇ for any reason whatsoever.
11. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS WITHOUT GIVING EFFECT TO THE
CONFLICTS OF LAWS PRINCIPLES THEREOF. THE PARTIES AGREE THAT ALL ACTIONS OR
PROCEEDINGS ARISING TN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY SHALL BE TRIED AND LITIGATED ONLY IN THE DISTRICT COURT OF
TUE STATE OF TEXAS LOCATED IN THE COUNTY OF DALLAS, STATE OF TEXAS, OR IF
JURISDICTIONALLY SUFFICIENT, TILE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF TEXAS, AND EACH PARTY HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS THE
PERSON OF SUCH PARTY TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS IN ANY SUCH
SUIT, ACTION OR PROCEEDING. MANUFACTURER IRREVOCABLY APPOINTS _________________
(THE "PROCESS AGENT"), WITH AN OFFICE ON THE DATE HEREOF AT_____________________
AS ITS AGENT UPON WHOM PROCESS AGAINST IT MAY BE SERVED.
▇▇▇▇▇ PARTNERSHIP, L.P. ____________________________________
By Rhenclid, Inc., Its General Partner MANUFACTURER
By By:
---------------------------------- ----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Printed Name:________________________
Executive Vice President Title: ______________________________
Date: ______________________ Date: _______________________________
K1DEO PRODUCTIONS. INC.
By: _________________________________
Printed Name: _______________________
Date:________________________________
---------------------------
Exhibit B to Publishing Agreement Between
▇▇▇▇▇ Partnership, L.P. and Kideo Productions, Inc.
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