Agreement
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between
Zentralstelle
für private Überspielungsrechte (ZPÜ)
Gesellschaft des bürgerlichen Rechts,
and its members
and
TME GmbH
Imation Europe B.V.
GlassBridge Enterprises, Inc. (formerly: Imation, Corp.)
between
| (1) | Zentralstelle für private Überspielungsrechte (ZPÜ) Gesellschaft des bürgerlichen Rechts, with business address at Xxxxxxxxxxx Xxx. 00, 00000 Xxxxxxx, represented by its member GEMA – Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte which is representeded by its Members of the Board Xx. Xxxxxx Xxxxx, Xxxxx Xxxxxx and Xxxxxxx Xxxxxxxxx (“ZPÜ”), |
acting on its own behalf and on behalf of its members
GEMA – Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte with registered business address at Xxxxxxxxxx Xxxxxx 00-00, 00000 Xxxxxx (“GEMA”);
GVL – Gesellschaft zur Verwertung von Leistungsschutzrechte mbH with registered business address at Xxxxxxxxxxxxxxx 00, 00000 Xxxxxx (“GVL”);
GÜFA – Gesellschaft zur Übernahme und Wahrnehmung von Filmaufführungsrechten mbH with registered business address at Xxxxxxxxxxxxx 00, 00000 Xxxxxxxxxx (“GÜFA”);
GWFF – Gesellschaft zur Wahrnehmung von Film- und Fernsehrechten mbH with registered business address at Xxxxxxxxxxxxxx 0, 00000 Xxxxxx (“GWFF”);
VFF – Verwertungsgesellschaft der Film- und Fernsehproduzenten mbH with registered business address at Brienner Straße 26, 80333 Munich (“VFF”);
VGF – Verwertungsgesellschaft für Nutzungsrechte an Filmwerken mbH with registered business address at Xxxxxxxxxxx 0, 00000 Xxxxxx (“VGF”);
VG BILD-KUNST – Verwertungsgesellschaft Bild-Kunst with registered business address at Xxxxxxxxxxx 00, 00000 Xxxx (“VG BILD-KUNST”);
VG WORT – Verwertungsgesellschaft WORT with registered business address at Xxxxxx Xxxxxxxxxxxx 0, 00000 Xxxxxx (“VG WORT”);
TWF – Treuhandgesellschaft Werbefilm mbH with registered business address at Xxxxxx-Xxxxxx-Xxxx 0, 00000 Xxxxxx (“TWF”);
(collectively “Collecting Societies”)
and
| (2) | TME GmbH with business address Xxxxxxx Xxxxxxxxxx 00, 00000 Xxxxxxxxx, represented by its Director Xxxxx Xxxxx (“TME”); |
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| (3) | Imation Europe B.V. with business address at GlassBridge Enterprises, Inc., 0000 Xxxxx Xxx Xxxxx # 000, Xxxxxxx, Xxxxxxxxx 00000, XXX, represented by Xxxxx Xxxxx (“Imation Europe”); |
| (4) | GlassBridge Enterprises, Inc. (formerly: Imation, Corp.) with business address 0000 Xxxxx Xxx Xxxxx # 000, Xxxxxxx, Xxxxxxxxx 00000, XXX, represented by its Chief Executive Officer Xxxxx Xxxxx (“GlassBridge”) |
(TME, Imation Europe and GlassBridge collectively: “Imation”)
Preamble
| (A) | This agreement applies to all companies of the Imation / GlassBridge group which ultimately has the same parent company GlassBridge Enterprises, Inc. and any future successors in interest or assignees of the same (collectively the “Imation Group”) as well as customers of the Imation Group. |
| (B) | TME, Imation Europe and other members of the Imation Group have distributed various analogue and digital storage media (CDs, DVDs, BluRay, floppy discs, audio tapes, video tapes, camcorder tapes, DAT tapes, data cartridges, flash cards) and devices (flash drives, solid state drives and hard disk drives) under the brand names “Imation”, “Exabyte”, “IBM”, “StorageTek”, “HP”, “Memorex”, “TDK”, “XtremeMac, “SUN” and “Nexsan” in Germany (the “Imation Products”). The members of the Imation Group have ended their German business by the end of 2015. |
| (C) | From 1 January 2003 to 30 June 2008, Imation Deutschland GmbH (which was merged to TME at the end of 2010) imported and distributed Imation Products into and within Germany. Imation Deutschland GmbH organized its distribution activities into two separate distribution channels: commercial end customers were serviced via the commercial distribution channel (“Commercial Channel”) and private end customers were serviced via the consumer distribution channel (“Consumer Channel”). Imation Deutschland GmbH has paid a total of EUR 11,819,331.00 in copyright levies to ZPÜ in the period from 1 January 2003 to 30 June 2008. This total amount includes an amount of EUR 4,481,500.00 which Imation Deutschland GmbH paid exclusively as levies on the sales in the Commercial Channel and which was claimed back by TME from ZPÜ in arbitration proceedings before the Arbitration Board according to the Act on the Protection of Copyright and Neighbouring Rights (“Arbitration Board”) with request filed on 30 December 2013 (case no. Sch-Urh 61/13). ZPÜ denies such separation and allocation of payments. The Arbitration Board has proposed that ZPÜ shall pay, by way of compromise, EUR 2.52 Mio to TME on 27 February 2017. TME and ZPÜ have both opposed against the Arbitration Board’s decision. Currently, court proceedings are pending before the Higher Regional Court of Munich (case no. 6 Sch 12/17 WG) where TME requests reimbursement of EUR 4,481,500.00 plus interests in the amount of 5% p.a. above the base interest rate (i.e., as of 29 May 2018, a total of EUR 5,298,602.09) against ZPÜ (the “Reimbursement Action”). |
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| (D) | There is an additional court proceeding pending between ZPÜ and TME before the Higher Regional Court of Munich (case no. 6 Sch 27/15 WG) where ZPÜ asserts a claim for reporting on sold hard disk drives (the “Reporting Action”). |
| (E) | ZPÜ has invoiced copyright levies for Imation Products directly to customers of the Imation Group. Furthermore there are arbitration proceedings pending before the Arbitration Board between ZPÜ and customers of the Imation Group where ZPÜ asserts claims for copyright levies against real,- SB Warenhaus GmbH (case no. Sch-Urh 147/14), Euronics Deutschland GmbH (case no. Sch-Urh 116/14), ElectronicPartner Handel SE (case nos. Xxx-Xxx 000/00, Xxx-Xxx 132/16 and Sch-Urh 133/16) and Müller Großhandels Ltd. & Co. KG (case no. Sch-Urh 160/16) (collectively: the “Customer Arbitration Proceedings”). On 8 February 2018, the Arbitration Board has provided its settlement proposal in further proceedings (case no. Sch-Urh 149/14) between ZPÜ and Euronics Deutschland GmbH whereas Euronics Deutschland GmbH has filed an objection against this settlement proposal on 22 March 2018. |
| (F) | There are currently no court proceedings pending between ZPÜ and customers of the Imation Group with regard to copyright levies for Imation Products, apart from the proceedings between ZPÜ and Euronics Deutschland GmbH before the Higher Regional Court of Munich (case no. 6 Sch 21/18 WG), resulting from the objection of Euronics Deutschland GmbH against the settlement proposal in the aforementioned proceedings case no. Sch-Urh 149/14. |
| (G) | The Collecting Societies and Imation have reached an amicable settlement agreement in order to resolve all pending and potential disputes regarding payment and reimbursement of copyright levies for Imation Products. |
Therefore, the Collecting Societies and Imation (together the “Parties”, each a “Party”) agree as follows (the “Agreement”):
| 1. | Pending Reimbursement Action |
| 1.1 | The Parties agree to terminate the Reimbursement Action before the Higher Regional Court of Munich (case no. 6 Sch 12/17 WG) by filing submissions by means of which (i) the proceeding is jointly declared fully completed (“übereinstimmende Erledigungserklärung”) and (ii) the Higher Regional Court of Munich is advised of the cost rule set forth in Section 1.2 of this Agreement. |
| 1.2 | TME and ZPÜ shall each bear 50 % of the court fees and each Party shall bear its own costs and expenses with regard to the Reimbursement Action, including, without limitation attorney fees and travel and translation expenses. The Parties hereby agree to refrain from filing any motions for cost reimbursement with regard to the Reimbursement Action. |
| 1.3 | TME shall use its best efforts to file the submission pursuant to Section 1.1 within 5 Business Days (i.e., days that are not (i) a Saturday, (ii) a Sunday, (iii) any other day on which commer-cial banks in Germany, or the USA are required by applicable Laws to be closed, or (iv) any 24 or 31 December. after signature of this agreement by all Parties, a “Business Day”). ZPÜ shall use its best efforts to file the submission pursuant to Section 1.1 within 5 Business Days after receipt of the scan of the signed execution copy of this Agreement. |
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| 2. | Pending Reporting Action |
| 2.1 | The Parties agree to terminate the Reporting Action before the Higher Regional Court of Munich (case no. 6 Sch 27/15 WG) by filing submissions by means of which (i) the proceeding is jointly declared fully completed (“übereinstimmende Erledigungserklärung”) and (ii) the Higher Regional Court of Munich is advised of the cost rule set forth in Section 2.2 of this Agreement. |
| 2.2 | TME and ZPÜ shall each bear 50 % of the court fees and each Party shall bear its own costs and expenses with regard to the Reporting Action, including, without limitation attorney fees and travel and translation expenses. The Parties hereby agree to refrain from filing any motions for cost reimbursement with regard to the Reporting Action. |
| 2.3 | ZPÜ shall use its best efforts to file the submission pursuant to Section 1.1 within 5 Business Days after receipt of the scan of the signed execution copy of this Agreement. TME shall use its best efforts to file the submission pursuant to Section 1.1 within 5 Business Days after receipt of a scan of the submission filed by ZPÜ pursuant to the preceding sentence. |
| 3. | Pending Customer Arbitration Proceedings and Court Proceedings |
| 3.1 | ZPÜ agrees to use its best efforts to withdraw the Customer Arbitration Proceedings pending before the Arbitration Board (case nos. Xxx-Xxx 000/00, Xxx-Xxx 116/14, Xxx-Xxx 000/00, Xxx-Xxx 132/16, Sch-Urh 133/16 and Sch-Urh 160/16) and the court proceedings pending before the Higher Regional Court of Munich case no. 6 Sch 21/18 WG within 5 Business Days after receipt of the scan of the signed execution copy of this Agreement. |
| 3.2 | ZPÜ and Imation shall each bear 50 % of the board / court fees of each of the Customer Arbitration Proceedings and the court proceeding case no. 6 Xxx 00/00 XX. Each Party shall bear its own costs and expenses with regard to the Customer Arbitration Proceedings and the court proceedings case no. 6 Sch 21/18 WG, including, without limitation attorney fees and travel and translation expenses. ZPÜ hereby agrees to refrain from filing motions for cost reimbursement with the Arbitration Board and with the Higher Regional Court of Munich with regard to the Customer Arbitration / Court Proceedings. Imation shall see to it (steht dafür ein) and procure (sorgt für) that the respective customer who is party to the Customer Arbitration / Court Proceedings will not request cost reimbursement from ZPÜ. |
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| 4. | Settlement Payment |
| 4.1 | Imation shall make a final lump sum payment of EUR 150,000.00 by way of a bank transfer to ZPÜ’s bank account: |
Commerzbank München
IBAN: XX00 0000 0000 0000 0000 00
Swift/BIC: DRES DE FF 700
| 4.2 | Imation shall make the payment pursuant to Section 4.2 without undue delay after receipt of the signed execution hardcopy of this Agreement and release of restricted cash at Imation’s bank (which will be released after confirmation by the relevant customer), at the latest by 31 January 2019. |
| 5. | Waiver of claims by Imation |
| 5.1 | Provided that ZPÜ fully complies with its duties under this Agreement, Imation irrevocably waives and abandons any and all claims, demands, and causes of action, known or unknown, existing now or in the future, against the Collecting Societies for reimbursement of copyright levies for Imation Products, whether already invoiced by ZPÜ or not, whether already paid by Imation or its customers or not. |
| 6. | Waiver of claims by Collecting Societies |
| 6.1 | Provided that Imation fully complies with its duties under this Agreement, ZPÜ on its own behalf and on behalf of its members, irrevocably waives and abandons any and all claims, demands, and causes of action, known or unknown, existing now or in the future, against Imation and the Customers (as defined in section 6.4) of the Imation Group, arising out of or relating to copyright levies for the Imation Products imported and/or distributed to/within the territory of Germany by Imation and procured by the Customers, each between 1 January 2003 and 31 December 2015, whether already invoiced by ZPÜ or not. |
| 6.2 | ZPÜ shall see to it (steht dafür ein) and procure (sorgt für) that any of its members also waive and abandon any and all claims, demands, and causes of action known or unknown, existing now or in the future, against Imation and the Customers (as defined in section 6.4) of the Imation Group, arising out of or relating to copyright levies for the Imation Products imported and/or distributed to/within the territory of Germany by Imation and procured by the Customers, each between 1 January 2003 and 31 December 2015, whether already invoiced by ZPÜ or not and hereby agrees undertake to indemnify Imation Europe (and its affiliates) from any such claim, demand and cause of action. |
| 6.3 | Sections 6.1 and 6.2 shall apply and operate as agreements for the benefit of third parties within the meaning of Section 328 (1) of the German Civil Code (BGB) (echter Vertrag zugunsten Dritter) for a Customer whereas such Customer is not entitled to claim reimbursement of copyright levies already paid for Imation Products imported and/or distributed to/within the territory of Germany by Imation and procured by the respective Customer, each between 1 January 2003 and 31 December 2015, against ZPÜ and/or any of its members except for any reimbursement of copyright levies based on an adjustment of levy rates in tariffs and/or collective agreements. |
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| 6.4 | A list of companies (the “Customers”) who have procured Imation Products from an Imation Group company, directly or via resellers and/or distributors, is attached as Appendix to this Agreement. Customers within the meaning of this Agreement also include (i) group entities of the respective Customer that may have purchased, imported or distributed Imation Products instead of the respective named Customer (e.g., where one Customer purchased Imation Products and a group company of this Customer has distributed these Imation Products in Germany), and/or (ii) group entities of the respective Customer that have succeeded or have been succeeded by the Customers listed in the Appendix. Where the Appendix refers to a non-German entity, the Agreement only applies to activities of such Customer that have been carried out in Germany. |
| 7. | Miscellaneous |
| 7.1 | This Agreement represents a settlement and compromise. The Parties agree that this Agreement fully and comprehensively settles any disputes with regard to copyright levies for the Imation Products imported and/or distributed to/within the territory of Germany by Imation between 1 January 2003 and 31 December 2015. |
| 7.2 | Nothing in this Agreement shall be construed as evidence of, or any admission of, any liability or omission of any kind or as acknowledgement of any legal opinion or any levy rates as adequate or inadequate by any Party. |
| 7.3 | The Parties shall keep the content of this Agreement confidential. The Parties may, however, disclose this Agreement (i) if legally required to do so, (ii) to Collecting Societies, (iii) to customers of the Imation Group, and (iv) to a competent authority to the extent necessary to enforce their rights under this Agreement. Also, the Parties may disclose that the disputes regarding copyright levies for Imation Products were settled without disclosing details of this settlement. |
| 7.4 | This Agreement contains the full understanding and the complete and exclusive statements of the terms and conditions of the Parties’ agreements with respect to the subject matter hereof and supersedes any prior oral or written agreements and understandings between the Parties with respect thereto. |
| 7.5 | Any provision of this Agreement may be amended or waived only if such amendment or waiver is effected in writing and explicitly refers to this Agreement. This requirement also applies to any amendment or waiver of this Section 7.5 itself. |
| 7.6 | This Agreement shall be governed by and construed in accordance with the laws of Germany and excluding any conflict-of-law rules. The courts of Munich shall have exclusive jurisdiction to settle any disputes or claims arising under or in connection with this Agreement, including its validity and termination. |
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Signatures
| Zentralstelle für private Überspielungsrechte (ZPÜ) Gesellschaft des bürgerlichen Rechts: |
| Date: | Date: | |||
| Name: | Name: | |||
| Position: | Position: |
| TME GmbH | Imation Europe B.V. | |||
| Date: | Date: | |||
| Name: | Xxxxx Xxxxx | Name: | Xxxxx Xxxxx | |
| Position: | Director | Position: | Representative | |
| GlassBridge Enterprises, Inc. | ||||
| Date: | ||||
| Name: | Xxxxx Xxxxx | |||
| Position: | Director | |||
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Appendix
(Customers)
|
| Actebis Peacock GmbH | CDA Datentrager Albrechts GmbH | EXTRA Objekgesellschaft mbH & Co KG | ||
| Actidata GmbH | Citti Markt GmbH & Co KG | Famila Handelsbetriebe GmbH | ||
| ADVEO Deutschland GmbH | Cl. Bergmann GmbH & Co. KG | Famila Handelsmarkt | ||
| Aldi GmbH & Co KG | Computerwelt | Fiege Deutschland Stiftung & Co KG | ||
| Xxxxxxxxx Xxxxxxx GmbH & Co KG | Conrad Electronic SE | Freecom Technologies GmbH | ||
| ALKA GmbH & Co KG | COOP Eingetragene Genossenschaft | Xxxxxxxxx Xxxxx | ||
| ALSO Deutschland GmbH | Copymedia Dienstleistungs- und Maschinenvertriebs GmbH | Funkstrom Grosshandels GmbH | ||
| Amazon EU Sarl | Copytec Mast Kassettendienst | Futura Media Service GmbH & Co | ||
| Xxxxxxxx Xxxxxxxxxx | COS Distributions GmbH | Gaefgen Elektrogrosshandel GmbH | ||
| Xxxxx Xxxxxxxxx | CPI Computer Partner Handels GmbH | Galeria Kaufhof GmbH | ||
| Aqipa GmbH | Despec Supplies GmbH | Xxxxx Xxxxx Xxxx GmbH & Co | ||
| Arlt Computer Produkte GmbH | Dexxon Data Media and Storage GmbH | Heix GmbH & Co. KG | ||
| AV Com GmbH | Diagramm Halbach GmbH & Co KG | Hillmann & Ploog GmbH & Co KG | ||
| B Com Computer AG | Digigear Inc | Home Video Produktion | ||
| BDT Media Automation GmbH | DK Data Nordic OU | INCOM Storage GmbH | ||
| Bonn Xxxxx Xxxxxxxx | Duttenhofer GmbH & Co. KG | Xxxxxx Xxxxxxx GmbH | ||
| Brommelhaupt Grosshandels GmbH | E Neumerkel EK | Kaisers Tengelmann AG | ||
Buenting Handel Und Dienstleistung GmbH und Co. KG |
E&K Data AG | Kanzenel & Beisenherz | ||
| Bueromarkt Xx Xxxxxxxxxxx XxxX | Xxxxx Xxxxxxxxxxxxxxxxxxxxxxx Xxx (XX) | Xxxxxxxx Xxxxxxxxx XxxX XX | ||
| Büroring EG | Electronic Partner Handel SE | Kaufhof Warenhaus AG. | ||
| C & C Grossmarkt Balanstrasse | Elektronik Neumerkel GmbH | Keldenich & Weinberg GBR | ||
| C & X Xxxxxxxx GmbH | Xxxxx Xxxxxx GmbH & Co KG | Knoll Elektro Grosshandel GmbH & Co KG | ||
| Cancom Deutschland GmbH | Euronics Deutschland eG | Komet Electronic GmbH | ||
| Xxxx Xxxxxxx | EWS | KSK Elektro Handelsges mbH & Co KG | ||
| CD Rohling up GmbH | Expert Warenvertriebs GmbH | Lyreco Deutschland GmbH |
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| MeCan Distribution GmbH & Xx.XX | REWE Unterhaltungselektronik GmbH | |||
| MEDIA MARKT TV-HiFi-Elektro GmbH | REWE Zentral AG | |||
| MediaCom IT Distibution GmbH | Rexel Deutschland EFGH GmbH | |||
| Media-Saturn Verwaltung Deutschland GmbH | Rimage Europe GmbH | |||
| Medimax Electronic | Ringfoto GmbH & Co | |||
| Metro Cash & Carry Deutschland GmbH | Saturn Techno Markt Handels GmbH | |||
| Minipreis Laeden GmbH | SBK Selbstbed GmbH & Co KG | |||
| Misco Germany Inc | Schimek Electronics Vertriebsgesellschaft MbH | |||
| Mitegro GmbH & Co KG | Siemens AG | |||
| Mueller Grosshandels Ltd. & Co. KG. | Sinus Gesellschaft f. EDV-Zubehoer mbH | |||
| MÜLLER Ltd & Co KG | SK Kassetten GmbH & Co. KG | |||
| Müller Service Ltd. & Co. KG | Soennecken LogServe GmbH | |||
| Multi-Center Warenvertriebs GmbH | Soft Carrier Computerzubehoer GmbH | |||
| Nierle Media GmbH & Co KGa | Software Partner GmbH | |||
| Noesse Datentechnik GmbH | Spicers Deutschland GmbH | |||
| NORMA GmbH & Co. KG | Spicers Ltd Deutschland | |||
| Office Depot International B V | Staples (Deutschland) GmbH | |||
| OHG Fegro Selgros | Ströbelt GmbH & Co | |||
| Open Storage AG | TAROX Systems & Services GmbH | |||
| Patz GmbH | TDK Electronics Europe GmbH | |||
| Xxxx Xxxxx & Co GmbH | UFP Deutschland GmbH | |||
| Photo Dose GmbH | Verbatim Limited | |||
| PPI Trading | Xxxxxx Xxxxxxx GmbH & Co KG | |||
| Pressezentrum Lübeck GmbH & Co KG | Wave Distribution & Computersysteme GmbH | |||
| Printus Fachvertrieb für Bürobedarf GmbH | Wessling | |||
| ProMarkt Handels GmbH | Xxxxxxx Xxxx GmbH | |||
| Ratio Handel GmbH & Co KG | Xxxxxxx Xxxx GmbH & Co KG | |||
| REAL SB-WARENHAUS GMBH | Wortmann AG | |||
| Reichelt Elektronik GmbH & Co. KG | Zander GmbH & Co | |||
| Relcom-Teh | ||||
| Rewe Grossfl. Mainz-Kastel Toom |
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