This Agreement is made as of October, 1999.
BETWEEN:
Satellite Television Asian Region Limited, a company organised and
existing under the laws of Hong Kong, having its registered office at
8/F, One Harbourfront, ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
("Star TV");
AND
▇▇▇▇▇▇▇▇.▇▇▇, a company incorporated under the laws of the State of
Nevada, having its registered office at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇, ▇▇▇▇▇▇, ▇.▇.▇. ▇▇▇▇▇-▇▇▇▇ ("▇▇▇▇▇▇▇▇.▇▇▇").
This Agreement comprises the Principal Terms, Standard Terms and Schedule 1
appended hereto.
I. Principal Terms
Acceptance Date: As set out in clause 3.2 of the Standard Terms.
Delivery Schedule: As set out in Schedule 1.
Delivery Format: Each Game will include the necessary HTML files and
SWF files required to place/position the games within a Star
TV web page(s), together with the accompanying user manual,
if any.
Games: At least ten (10) interactive electronic educational games
to be desStar TVed and produced by ▇▇▇▇▇▇▇▇.▇▇▇ for use by
Star TV, more particularly described in the attached
Schedule 1.
Revenue Sharing: Star TV shall pay ▇▇▇▇▇▇▇▇.▇▇▇ a portion of the Net Revenue
in the manner as set out in clause 5 of the Standard Terms.
Net Revenue: Net Revenue shall mean the revenue actually
received by Star TV from the sale of advertising banners
appearing in the web page(s) where the Games are posted,
less non-recovered costs for producing, maintaining and
hosting such advertising banners (including, but not limited
to any required payments to third parties in connection with
generating such revenue, advertising management fees,
general sales costs, any costs for the production of the
banner, agency fees, taxes and levies etc).
Technical
Specification: As set out in Schedule 1.
Term: Subject to clause 9 of the Standard Terms, this Agreement
shall expire on the first anniversary of the Acceptance Date
of the tenth Game delivered to Star TV as per the attached
Schedule 1.
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II. Standard Terms
1. Grant of Rights
1.1 In consideration of Star TV allowing ▇▇▇▇▇▇▇▇.▇▇▇ to create links to its
web site pursuant to clause 4 and Star TV paying to ▇▇▇▇▇▇▇▇.▇▇▇ a portion
of the Net Revenue (if any) calculated in the manner as set out in clause
5, ▇▇▇▇▇▇▇▇.▇▇▇ hereby grants to Star TV the exclusive right to broadcast,
distribute, re-distribute, display, exhibit, exploit, transmit, publish,
project, and simulcast the Games on the World Wide Web, through
▇▇▇.▇▇▇▇▇▇.▇▇▇ or other Star TV Group properties. The exclusive right
granted herein shall last for the Term of this Agreement. Notwithstanding
the foregoing, ▇▇▇▇▇▇▇▇.▇▇▇ may use the Games on ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.
1.2 ▇▇▇▇▇▇▇▇.▇▇▇ agrees not to create, design or produce any other interactive
electronic educational games for any third parties prior to termination of
this Agreement.
2. Delivery of Contents
2.1 ▇▇▇▇▇▇▇▇.▇▇▇ shall deliver the Games in Delivery Format to Star TV.
2.2 The Games shall be delivered in accordance with the Delivery Schedule. Time
is of essence.
3. Testing and Acceptance
3.1 Star TV shall, upon receipt of the Games in Delivery Format, conduct tests
to verify whether the Games comply with the Technical Specifications as set
out in Schedule 1. Such tests may include posting Games on a Star TV web
page(s) for its viewers to conduct free trials of the Games.
3.2 Promptly after receipt of each Game, Star TV shall notify ▇▇▇▇▇▇▇▇.▇▇▇ in
writing that it accepts the Game or, if Star TV decides that such Game is
not in compliance with the Technical Specifications or otherwise defective
in any respect, Star TV shall so notify ▇▇▇▇▇▇▇▇.▇▇▇ in writing and
identify the reasons for such decision. ▇▇▇▇▇▇▇▇.▇▇▇ shall forthwith
implement free of charge, such reasonable alterations or reasonable
modifications to such Game to Star TV's satisfaction and acceptance. The
date when Star TV informs ▇▇▇▇▇▇▇▇.▇▇▇ in writing of its acceptance of a
Game(s) shall be the "Acceptance Date" of such Game.
3.3 If ▇▇▇▇▇▇▇▇.▇▇▇ is unable to alter and/or modify a Game to Star TV's
satisfaction within one (1) month from the date of a notification pursuant
to clause 3.2 above with respect to such Game, Star TV may terminate this
Agreement forthwith upon written notice to ▇▇▇▇▇▇▇▇.▇▇▇.
4. Linking and On-Air Promotions
4.1 During the term of this Agreement, Star TV may use the then current URL for
the games section on ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and the words "▇▇▇▇▇▇▇▇.▇▇▇"
and/or "▇▇▇▇▇▇▇▇▇▇▇.▇▇▇" in the creation of a link from web page(s) where
the Games are posted to the games section on ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.
4.2 During the term of this Agreement, ▇▇▇▇▇▇▇▇.▇▇▇ may use the then current
URL for the games section on ▇▇▇.▇▇▇▇▇▇.▇▇▇ and the words "Star TV Games"
and/or "Star Games" and/or "▇▇▇▇▇▇.▇▇▇ Games" in the creation of a link
from ▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇ and/or ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ to the Star TV web page(s)
where the Games are posted.
4.3 Any links created pursuant to clauses 4.1 and 4.2 above will only take the
user to the games section of the respective web sites and shall not create
any framing or other interference with the user's connection to or the
presentation or functionality of the respective web sites.
4.4 Except as set forth in clause 1.1 above, this Agreement does not grant any
rights to either party in respect of the intellectual property of the other
party.
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4.5 Either party may withdraw its permission granted pursuant to clauses 4.1
and 4.2 above immediately:
a. upon termination of this Agreement for whatever reason; or
b. by giving written notice to the other party if, in the reasonable
opinion of the party seeking withdrawal, the material posted in the
other party's web site is:
(i) harassing, libellous, abusive, threatening, harmful, vulgar,
obscene, indecent, or otherwise objectionable in any nature; or
(ii) likely to contravene any government licence, laws, regulations or
code of practice applying from time to time.
4.6 Star TV may, in its sole discretion, promote the Games and/or ▇▇▇▇▇▇.▇▇▇
and/or ▇▇▇▇▇▇▇▇.▇▇▇ and/or ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ in any advertisements to be
broadcast or otherwise transmitted by the Star TV channels. Notwithstanding
the foregoing, Star TV will cease to refer to ▇▇▇▇▇▇▇▇.▇▇▇ in any such
advertisements if it is advised by ▇▇▇▇▇▇▇▇.▇▇▇ that such reference could
adversely affect ▇▇▇▇▇▇▇▇.▇▇▇'s ability to rely on any exemption or
exclusion from registration of its securities under the securities laws of
any jurisdiction.
5. Revenue Sharing of Advertising Banners
5.1 For the period starting on the Acceptance Date of the sixth Game, "Spelling
Bee", until termination of this Agreement, the parties agree to share the
Net Revenue in the following manner:
a. for the sale of banner advertising to customers resulting directly
from an ▇▇▇▇▇▇▇▇.▇▇▇ referral, Star TV shall pay to ▇▇▇▇▇▇▇▇.▇▇▇ 57.5%
of the Net Revenue received from such sales.
b. for all other sales of banner advertising, Star TV shall pay to
▇▇▇▇▇▇▇▇.▇▇▇ 42.5% of the Net Revenue received from such sales.
5.2 For the avoidance of doubt, this revenue sharing only applies to sales of
advertising banners appearing on web page(s) where the Games are posted.
This clause 5 shall not apply to revenue generated by other web pages of
Star TV or Star TV web sites, or to other forms of exploitation of the
Games. This clause 5 shall not apply to any revenue generated prior to the
Acceptance Date of the sixth Game, "Spelling Bee".
5.3 Within 30 days after receiving a payment from a customer who places banner
advertising, Star TV shall remit to ▇▇▇▇▇▇▇▇.▇▇▇ its share of the Net
Revenue with respect to such payment.
5.4 Star TV has the absolute discretion in accepting or declining any offer
made for the purchase / sale of advertising banner(s). Star TV does not owe
any responsibility or duty to ▇▇▇▇▇▇▇▇.▇▇▇ to accept referrals made by
▇▇▇▇▇▇▇▇.▇▇▇.
5.5 Nothing in this Agreement shall indicate or mean that either party is the
partner or agent of the other. Neither party has the power nor the right to
bind the other.
6. ▇▇▇▇▇▇▇▇.▇▇▇'s Representations and Warranties
6.1 ▇▇▇▇▇▇▇▇.▇▇▇ warrants and represents that:
a. it has the full power and authority to enter into and perform this
Agreement;
b. it is the beneficial owner of all rights necessary to provide the
Games in accordance with this Agreement or is assigned such rights on
such terms that allow it to fulfil its obligations to Star TV under
this Agreement, and, when the Games are delivered in accordance with
this Agreement, it will be the beneficial owner of all rights in the
Games or will have been assigned such rights on such terms that allow
it to fulfil its obligations to Star TV under this Agreement;
c. ▇▇▇▇▇▇▇▇.▇▇▇ has obtained all requisite copyright clearances,
licences, permits and consents with respect to any music, audio
soundtrack works or other works,
3
effects, logos, copyrighted materials belonging to third parties to
enable Star TV to broadcast, distribute, re-distribute, display,
exhibit, exploit, publish, transmit, project and simulcast (the
"Activities") the Games or any portion thereof, on any Star TV web
site or otherwise making the Games or any portion thereof available to
the public through the Internet or other digital media service;
d. if it is later discovered that Star TV will require additional
licences (including but not limited to copyright and trademark
licences) from ▇▇▇▇▇▇▇▇.▇▇▇ or other third parties in order to engage
in the Activities, ▇▇▇▇▇▇▇▇.▇▇▇ will use its commercially reasonable
best efforts to execute (and procure third parties to execute) all
documents and do all acts necessary to effectuate such licence or to
perfect the rights granted herein;
e. Star TV's engagement in the Activities will not infringe any
intellectual property or privacy rights of third parties;
f. the Games produced and delivered to Star TV will be suitable for the
purpose intended and free from any viruses or any defects preventing
compliance with the Technical Specifications as set out on Schedule 1;
g. ▇▇▇▇▇▇▇▇.▇▇▇ will not create, produce or deliver any interactive
electronic educational games for any third party other than Star TV
where the theme, format, genre or other characteristics of such
interactive games are reasonably likely to mislead the public to
believe that such interactive games are sequels or otherwise
associated with the Games.
6.2 All representations and warranties made pursuant to this Agreement shall
survive for a period of two years from the date of termination of this
Agreement.
7. Star TV's Representations and Warranties
7.1 Star TV warrants and represents that it has the full power and authority to
enter into and perform this Agreement.
7.2 All representations and warranties made pursuant to this Agreement shall
survive for a period of two years from the date of termination of this
Agreement.
8. Indemnity
8.1 ▇▇▇▇▇▇▇▇.▇▇▇ shall indemnify and keep indemnified Star TV and its
employees, officers, directors and affiliates against all losses, actual
damages, costs and payments (other than a pure loss of profits or
consequential damages), including reasonable legal fees incurred as a
result of ▇▇▇▇▇▇▇▇.▇▇▇'s breach, non-observance or non-performance of any
term of this Agreement.
8.2 Star TV shall indemnify and keep indemnified ▇▇▇▇▇▇▇▇.▇▇▇ and its
employees, officers, directors and affiliates against all losses, actual
damages, costs and payments (other than a pure loss of profits or
consequential damages), including reasonable legal fees incurred as a
result of Star TV's breach, non-observance or non-performance of any term
of this Agreement.
8.3 If a third party claims or threatens to claim that the Games and/or Star
TV's use of the Games infringes any third party's intellectual property
rights, ▇▇▇▇▇▇▇▇.▇▇▇ shall, at Star TV's request, assist in or be
responsible for any related legal proceedings and negotiations for
settlement, provided that in no event shall ▇▇▇▇▇▇▇▇.▇▇▇ be empowered to
act as the agent of Star TV or to settle in a manner detrimental to Star TV
any such claim or threatened claim to which Star TV is or could be a party.
▇▇▇▇▇▇▇▇.▇▇▇ shall also indemnify Star TV for costs and damages including
reasonable legal fees in connection with any such claim or threatened
claim.
8.4 The indemnities contained in this Agreement shall survive the termination
of this Agreement.
4
8.5 Notwithstanding anything else contained in this clause 8, neither party
shall be required to make any indemnification payment with respect to any
third party claim that is paid, settled or otherwise resolved without the
other party having consented in advance to the terms of such payment,
settlement or resolution.
9. Termination
9.1 Either party may terminate this Agreement:
a. where the other party is in breach of any term of this Agreement and
(if the breach is capable of remedy) fails to remedy such breach
within fourteen (14) days of receiving written notice thereof; or
b. upon the other party is being wound up, commencing the process of
liquidation or having a petition of winding-up presented against it;
or
c. after giving the other party thirty (30) days' written notice. 9.2
Star TV may terminate this Agreement in accordance with clause 3.3
above.
10. Intellectual Property Rights
10.1 ▇▇▇▇▇▇▇▇.▇▇▇ shall own all rights, title and interest worldwide in the
Games, including their title, theme, format, genre, characteristics, source
code and object code.
10.2 ▇▇▇▇▇▇▇▇.▇▇▇ further acknowledges that, unless otherwise agreed in writing
by the parties after the date of this Agreement, no future compensation or
payment (apart from the share of Net Revenue as set out in clause 5 above)
shall be due to ▇▇▇▇▇▇▇▇.▇▇▇ or its employees or agents or third parties
related to ▇▇▇▇▇▇▇▇.▇▇▇, in respect of Star TV's use and exploitation of
the Games in accordance with this Agreement, regardless of the manner and
extent (consistent with the terms of this Agreement) to which Star TV
elects to exploit the Games.
11. Miscellaneous
11.1 This Agreement represents the entire agreement between the parties and
supersedes any prior agreement whether oral or written. No amendment or
variation to this Agreement, and no waiver of any term of this Agreement
shall take effect unless it is in writing and signed by both parties.
11.2 Each provision of this Agreement shall be severable. If any provision is
held invalid, such invalidity shall not impair the effect of the rest of
this Agreement.
11.3 No failure or delay on the part of either of the parties to exercise any
right or remedy under this Agreement shall be construed as a waiver
thereof.
11.4 Neither party shall assign this Agreement, in whole or in part, to any
third party without the prior written consent of the other party.
11.5 Both parties shall keep the terms of this Agreement confidential and shall
not issue any press releases or make any public announcements in relation
thereto without the prior written consent of the other. Notwithstanding the
foregoing, Star TV acknowledges that if this Agreement is deemed to
constitute a "material contract" of ▇▇▇▇▇▇▇▇.▇▇▇ within the applicable
definition, this Agreement will be required to be filed as an exhibit to
▇▇▇▇▇▇▇▇.▇▇▇'s publicly available periodic filings with the United States
Securities and Exchange Commission.
5
11.6 Any notice, request, instruction or other documents to be given under this
Agreement shall be in writing to the parties at their respective addresses
set forth below, or to such other address as a party may subsequently
specify and shall be deemed to have been received (i) upon delivery in
person, (ii) upon the passage of ninety-six (96) hours following post by
first class mail, (iii) upon the passage of twenty-four (24) hours
following post by overnight receipted courier service or (iv) upon
transmittal by confirmed telex, facsimile or email provided that if sent by
facsimile or email a copy of such notice shall be concurrently sent by
mail, postage prepaid, with an indication that the original was sent by
facsimile or email and the date of its transmittal.
Notices to Star TV:
▇▇. ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, One Habourfront
▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ Special Administrative Region
Fax No.: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Email: ▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
Copy to General Counsel
Fax. No.: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Email: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
Notices to ▇▇▇▇▇▇▇▇.▇▇▇
▇▇. ▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇
▇.▇.▇. ▇▇▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇ ▇▇▇▇
Email: ▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
Copy to General Counsel
c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇, eduverse dot com, Inc.
Fax No.: (▇▇▇) ▇▇▇ ▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
11.7 This Agreement shall be governed by and construed in accordance with the
laws of Hong Kong Special Administrative Region without regard to the
choice of law and conflicts of laws provisions thereof, and each party
hereby agrees to submit to the exclusive jurisdiction of the courts of Hong
Kong Special Administrative Region in connection with any disputes arising
hereunder.
6
11.8 This Agreement may be signed in one or more counterparts, each of which may
be termed an original, but all of which together shall constitute one
Agreement. Delivery of an executed counterpart of a signature page of this
Agreement by facsimile will be effective as delivery of a manually executed
counterpart of this Agreement.
IN WITNESS WHEREOF the parties hereto have hereunto set their hands as of the
date first above written.
FOR AND ON BEHALF OF FOR AND ON BEHALF OF
Satellite Television Asian ▇▇▇▇▇▇▇▇.▇▇▇
Region Limited
Per: Per:
-------------------------------- --------------------------------
Name: Name:
------------------------------ --------------------------------
Title: Title:
------------------------------ --------------------------------
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SCHEDULE 1
Name of Game Technical Specification Delivery Schedule
--------------------------------------------------------------------------------------------------------------------
BUNNY DROP The objective of Bunny Drop is to guess the November 1, 1999
correct word before the bunny drops through the
hatch. You have six guesses to save the bunny.
Each level of play features a variety of
categories, such as names of people, sports,
music, and general knowledge. Bunny Drop will
test your knowledge in these categories and
improve your vocabulary and spelling while you
are having fun! *
--------------------------------------------------------------------------------------------------------------------
SWAP GAME Form a sentence by unscrambling the words. You November 1, 1999
do this by swapping words and putting them in
correct order.
Each level of play features a variety of
categories, such as names of people, sports,
music and general knowledge. The Swap Game will
test your knowledge of these categories and
improve your grammar and vocabulary while you
are having fun! *
--------------------------------------------------------------------------------------------------------------------
JUNGLE GUY Help The Jungle Guy escape from the vicious lion! November 1, 1999
Select the correct word that completes the
sentences and save Jungle Guy from the lion.
Every time a question is answered incorrectly
Jungle Guy becomes increasingly tired. *
--------------------------------------------------------------------------------------------------------------------
SCRAMBLED SENTENCES Put each sentence in the correct order by November 1, 1999
clicking on the words one by one. Improve your
grammar while you are having fun! *
--------------------------------------------------------------------------------------------------------------------
SOUND OFF Match all of the English words to win! When two November 1, 1999
English words are matched, the sound is
pronounced through the game.
Using Sound Off is a fun way to learn to
spell and pronounce commonly used English
words. *
--------------------------------------------------------------------------------------------------------------------
SPELLING BEE After you hear each word, spell it correctly to November 15, 1999
make the teacher happy and go on to the next
word. *
--------------------------------------------------------------------------------------------------------------------
T.B.A. by Nov 15, 1999 January 15, 2000
*
--------------------------------------------------------------------------------------------------------------------
T.B.A. by Dec 15, 1999 February 15, 2000
*
--------------------------------------------------------------------------------------------------------------------
T.B.A. by Jan 15, 2000 March 15, 2000
*
--------------------------------------------------------------------------------------------------------------------
T.B.A. by Feb 15, 2000 April 15, 2000
*
--------------------------------------------------------------------------------------------------------------------
* All Games are single player games and are developed using a combination of
Macromedia Flash, HTML and Javascript, with the exception of Scrambled
Sentences which is developed using HTML and Javascript. Each of the Games
may be inserted into and played from within a single web page, which web
page may or may not contain other text and graphics.
8
