Attached files
| file | filename |
|---|---|
| 10-K - ANNUAL REPORT - Playlogic Entertainment, Inc. | playlogic10k123109_41510.htm |
| EX-14.1 - EXHIBIT 14.1 - Playlogic Entertainment, Inc. | playlogic10k123109x141_41510.htm |
| EX-10.7 - EXHIBIT 110.7 - Playlogic Entertainment, Inc. | playlogic10k123109x107_41510.htm |
| EX-31.1 - EXHIBIT 31.1 - Playlogic Entertainment, Inc. | playlogic10k123109x311_41510.htm |
| EX-10.6 - EXHIBIT 110.6 - Playlogic Entertainment, Inc. | playlogic10k123109x106_41510.htm |
| EX-32.1 - EXHIBIT 32.1 - Playlogic Entertainment, Inc. | playlogic10k123109x321_41510.htm |
| EX-31.2 - EXHIBIT 31.2 - Playlogic Entertainment, Inc. | playlogic10k123109x312_41510.htm |
| EX-32.2 - EXHIBIT 32.2 - Playlogic Entertainment, Inc. | playlogic10k123109x322_41510.htm |
Exhibit 10.5
Distribution
Agreement
Playlogic
International N.V.
-
U&I
Entertainment LLC
Page 1 of
15
Distribution
Agreement
THIS AGREEMENT is dated March
16, 2009 by and between U&I
ENTERTAINMENT, LLC, having his registered address at 251 1st Ave
N#2, Minneapolis, MN 55401, USA and Playlogic International
NV, a Dutch company having its registered address at World Trade Centre,
C-Tower 10th
Floor, Strawinksylaan 1041, 1077 XX, Amsterdam, the Netherlands.
RECITALS:
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A.
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U
& I is in the business of manufacturing, marketing and distributing
software and related products.
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B. Playlogic
is in the business of publishing software products.
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C.
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Playlogic
desires to deliver to U & I the software products described in
Addendum A for sale and distribution by U &
I.
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NOW, THEREFORE, in
consideration of the mutual promises set forth in this Agreement, the parties
agree as follows:
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1.
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Definitions.
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"Customers"
means any individual or entity to whom Units are or may be distributed by U
& I. Customers may include U & I, resellers and
retailers.
"Distribution
Fee" means an amount equal to the Net Proceeds multiplied by the applicable
percentage set forth in Addendum A.
"End
Users" means those persons who purchase for use one or more Units from
Customers.
“Customer
Specific Programs” means the costs associated with marketing and merchandising
programs that are either required or mutually agreed to at
Customer.
“Customer
Event Fees” means the costs associated with attending or exhibiting at Customer
specific events.
“Logistic
Fees” means the costs associated with logistics. The estimated amount is
approximately USD 1.25 (one dollar and twenty five cents) per unit.
“Future
Authorized Deductions” means all price protection and returns that have been
offered to retail customers but not yet deducted from receipts.
“Imminent
Deductions Hold Back” means a hold back from Gross Receipts based on potential
deductions from retail.
Page 2 of
15
"Marketing
Development Fund" or "MDF" means the costs associated with the marketing and
merchandising of each Version at Customer locations.
“Net
Proceeds” means Wholesale Proceeds received in any given calendar month minus
Price Protection minus MDF minus Pre-Approved Returns minus Customer Specific
Programs minus Customer Event Fees minus Placement Fees minus Future Authorized
Deductions minus Imminent Deductions Hold Back minus the Distribution
Fee.
“Placement
Fees” means the costs associated with securing retail shelf placement at
Customer.
“Price
Protection” means price reductions granted to Customers after order and delivery
of Units to the Customer to facilitate retail sale efforts.
"Pre-Approved
Returns" means Units of any Version of the Title returned by a Customer that are
pre-approved for return by Playlogic
"Term"
means the period during which this Agreement shall be in effect, as set forth in
Section 6 below.
"Territory" means reference Addendum
A.
"Title"
means each software product published by Playlogic and listed on
Addendum A, together with all printed artwork, booklets, manuals, pamphlets
or other materials, prepared by or on behalf of Playlogic, which refer to or
relate to each respective Title.
"Unit"
means one copy of one Version embodied on any storage device embodied on CD-ROM,
DVD, cartridge, or any other tangible medium now known or later devised, fully
packaged as a finished good and ready for shipment to Customers.
"Version"
means the Title as designed to operate with software or other interactive media
environment or platform now known or later devised. Examples of
Versions include software products developed for: the IBM PC platform
utilizing the Windows XP operating system; the Apple Macintosh platform; and
console platform versions such as Sony Playstation2, PSP, Microsoft Xbox, and
Nintendo Gamecube.
"Wholesale
Proceeds" means wholesale proceeds actually received by U & I from the
distribution of the Titles in any given calendar month.
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2.
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Grant of
Rights.
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a)
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Rights
Granted. With respect to each Title, Playlogic hereby
grants to U & I throughout the Territory, during the
Term:
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(i)
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exclusive
right to sell and distribute Units in North America and
Canada.
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b)
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the
non-exclusive right:
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(i)
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to
advertise, publicize and promote, in a manner reasonably acceptable to
Playlogic, each Version by any means and in all media now known or later
devised, subject to Playlogic’s prior written approval during the Term and
within the Territory.
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(ii)
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to
use, publish and permit others to use and publish Playlogic’s trademarks,
logos and other proprietary markings in conjunction with the advertising
and promotion of Units.
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3.
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Obligations of U &
I.
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3.1 Distribution and
Warehousing.
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a)
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U
& I shall use commercially reasonable efforts to distribute Units to
Customers.
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b)
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U
& I shall be responsible for distributing and shipping Units
to Customers.
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c)
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U
& I shall provide adequate and secure warehousing facilities for
all Units in
inventory.
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d)
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U
& I shall be responsible for all billing, invoicing and related
administrative procedures associated with order taking, distribution and
shipping of the Units.
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e)
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U
& I will promptly notify Playlogic in writing of any known
infringement of Playlogic’s propriety rights which comes to U & I’s
attention. U & I agrees to cooperate, at Playlogic’s
expense, in connection with Playlogic’s reasonable efforts to protect its
proprietary rights in the Titles.
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f
)
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For
the fence of doubt it is clear between Parties that U & I will be
responsible of the management and that Playlogic will be responsible for
the costs involved with the
logistic.
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3.2 Trade
Marketing.
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a)
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U
& I shall use commercially reasonable efforts to trade market the
Units to the Customers.
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b)
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U
& I shall provide recommendations and assist Playlogic in developing
strategies to be implemented by Playlogic to help stimulate the sale of
the Units, provided that U & I shall not be obligated to incur any
costs associated with retaining or employing third
parties.
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c)
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U
& I will provide Playlogic with regular reports which shall
include the following information, if available; a summary of the number
of Units distributed to each Customer, sold through, and the number of
Units returned since the last report
issued.
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d)
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U
& I shall advise Playlogic on matters relating to marketing,
placement, promotion and sell through of Titles by each
Customer.
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e)
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U
& I shall obtain approval from Playlogic prior to authorizing trade
marketing and MDF or Price Protection for a
Customer.
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3.3 Insurance
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a)
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U
& I shall undertake to maintain and keep in force, in adequate
amounts, an insurance on manufactured copies of the Titles described in
Addendum A to be delivered to U & I by Playlogic and to be stored by U
& I as stock, at a company accepted by Playlogic, that is common in
the videogame business, including a fire insurance and a extended coverage
insurance. In case of loss, the amount payable will be paid to Playlogic.
Playlogic may request to see the original of all policies and/or
certificates of insurance on the stock as described above during the
duration of this agreement and until the last payment and/or performance
of an obligation under this agreement including Logistic
Fees.
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4. Obligations of
Playlogic.
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4.1 Software.
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a)
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Playlogic
shall provide U & I with finished goods of the Title or Titles in each
Version.
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4.2 Technical
Support.
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a)
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Playlogic
will provide technical support for each Version in the Territory to U
& I, Customers and End Users. Technical support will
include, without limitation, warranty service and email
support. Playlogic will have personnel knowledgeable of the
technical and the application aspects of each Version available to answer
support questions during regular business hours. During the
Term of this Agreement, each party agrees to inform the other promptly of
any known defects or operational errors affecting any
Version.
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4.3 Testing.
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a)
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Prior
to the delivery of Titles to U & I , Playlogic agrees to test each
Version to make certain that each Version, to the best of Playlogic’s
knowledge, is bug-free and fully functional in the different
configurations in which the Version is designated to run and for all
peripherals with which each Version is designated to
work.
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4.4 Changes.
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a)
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Playlogic
will give U & I notice at least thirty (30) days prior to any material
modification to a Title or any Version, including, without limitation,
Playlogic’s decisions to discontinue or materially enhance any Title or
Version. Playlogic shall promptly provide U & I with master
disks embodying all updates and
enhancements.
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4.5 Marketing.
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a)
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Notwithstanding
U & I ’s rights set forth in Section 2.1, throughout the Term,
Playlogic will use its commercially reasonable efforts to advertise,
market and promote the Titles throughout the
Territory.
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b)
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Playlogic
shall provide to U & I thirty (30) days prior to the street date of
each Version and upon reasonable request thereafter, at no cost to U &
I, copies of each of the following materials for purposes of facilitating
the promotion of that Version by U & I: demonstration copies,
specification sheets, sell sheets and any other available promotional
material.
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4.6 Insurance.
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a)
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During
the Term of this Agreement, Playlogic will at all times maintain at its
own cost comprehensive general liability insurance, Playlogic’s liability
and errors and omissions insurance. Each policy shall have
coverage of at least one million dollars ($1,000,000) per occurrence/three
million dollars ($3,000,000) in the aggregate. Each policy
shall be in a form reasonably acceptable to U & I and shall be issued
by an insurance company with a rating of A or better as set forth in the
most current
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4.7 Best Insurance
Guide.
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a)
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At
the request of U & I, Playlogic shall add U & I as an additional
insured to each policy and furnish certificates evidencing that
insurance.
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4.8 Distribution.
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a)
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Playlogic
will be responsible for all fees associated with shipping Units including
handling, storage and freight. The amounts will be deducted from payment
as described under the definition of Net
Proceeds.
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5.
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Compensation.
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5.1.1
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Net Proceeds.
On the tenth day of each calendar month, U & I shall pay 100% of Net
Proceeds minus the Distribution Fee for the prior calendar month to
Playlogic. See Addendum B for sample
statement.
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5.2
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Accounting.
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5.2.1
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Along
with any Net Proceeds due, U & I shall submit a report to Playlogic
showing Wholesale Proceeds, Price Protection, MDF, Returns, the Logistic
Fees and any other costs permitted to be deducted under the terms of this
Agreement.
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5.2.2
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Playlogic
will have the right, exercisable not more than once every six (6) months,
at Playlogic’s expense, to examine or have its agents examine, such books,
records and accounts during U & I ’s normal business hours to verify
the payments due by U & I to Playlogic hereunder. If the examination
shows the amount paid was insufficient and the difference between the
actual amount paid due more than 5% than U & I will be responsible for
the costs of the examination.
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5.2.3
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On
a quarterly basis, U & I and Playlogic will discuss the Imminent
Deduction Hold Back amount from the previous quarter and will decide on a
mutually agreeable reconciliation if
appropriate.
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6.
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Term.
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Subject
to Section 7 below, the term of this Agreement shall commence as of the date
hereof and shall continue for six (6) months, and shall automatically renew for
additional renewal terms of six (6) months unless notice of termination is
received by any party at least thirty (30) days prior to the expiration of the
initial term or any renewal term.
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7.
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Termination.
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7.1
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Termination for
Breach. In the event of a material breach by either
party, which breach is not cured within thirty (30) days after written
notice by the non breaching party, the non breaching party may, upon
written notice to the breaching party, terminate this Agreement in its
entirety or only in respect to the Version to which the breach
applies.
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7.2
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Upon
termination, the non breaching party will have the right to pursue any
remedies it may have at law or in
equity.
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7.3
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Immediate
Termination. Either party may immediately terminate this
agreement if (i) a receiver is appointed for the other party or its
property; (ii) the other party becomes insolvent or is unable to pay its
debts as they mature, or makes an assignment for the benefit of its
creditors; (iii) the other party seeks relief or if proceedings are
commenced against the other party or on its behalf under any bankruptcy,
insolvency or debtor's relief law, and those proceedings have not been
vacated or set aside within sixty (60) days from the date of their
commencement; or (iv) if the other party is liquidated or
dissolved
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7.4 Vendor of Record Status
Termination. In the event that Playlogic secures vendor of
record status at Customer(s), Playlogic may terminate the agreement in respect
to the customer with which vendor of record status has been
secured.
7.5.
Early Termination by
Playlogic. Without prejudice to any other rights, either party may
terminate this Agreement in its entirety or with respect to 1 (one) or more
specific Titles at Playlogic’s sole discretion, after a period of 9 months from
the signing of this agreement, up until 6 (six) weeks before the respective
North American release date of said Title(s) as described in Addendum A, with or
without cause upon written notice (by certified mail) to U & I or such
termination, which shall be deemed effective when received by U & I.
Playlogic may remove a single title from the agreement, without cause, up until
8 (eight) weeks before the respective North American release date of said
title. No more than two titles may be removed from the agreement
during the initial nine months following execution of the
agreement. Playlogic agrees that U&I is allowed 30 (thirty) days
to match any offer that Playlogic receives from any party on any title that
Playlogic requests to remove during the term of this agreement.
7.6 Return of stock.
After termination of the Agreement for any reason, any Title that have been
delivered to U & I by Playlogic that, at the moment of termination, have not
been sold yet by Distributor, will be returned to Playlogic immediately
thereafter.
7.7 Effect of Termination. Upon
termination of this agreement:
(a) Upon
termination, Playlogic and U & I will establish a mutually agreeable payment
plan based on historic sell through patterns and any anticipated, imminent or
potential exposure at retail.
(b) U
& I may return all unsold units of product to manufacturer and/or sell
remaining inventory with Playlogic’s approval.
(c) Paragraphs
1, 5, 7.3, 8, 9, 10, 11, 12.1, 12.2, 12.6, and 12.09 shall survive termination
of this Agreement.
8. Freedom to
Compete.
Subject
to the rights granted to U & I herein, each party agrees that nothing in
this Agreement will be construed as restricting or prohibiting either party from
lawfully competing with the other party in any other aspects of its business,
including, without limitation, development of and/or distribution of other
software products and services. Without limiting the generality of
the foregoing, each party acknowledges that the other party is in the business
of creating and publishing software products for a variety of hardware platforms
and related hardware products, that the other party maintains and continually
seeks relationships with other parties, and that the other party maintains and
continually seeks licensing or similar arrangements with other
parties. Each party
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agrees
that nothing in this Agreement will be construed as restricting or prohibiting
the other party from continuing its business in any lawful manner and without
limitation the other party may at its sole discretion at any time during or
after the term of this Agreement (a) create, publish, manufacture, market and
distribute any other products, even if such products are competitive and similar
to the Titles; and (b) enter into and maintain relationships with any other
party, even if such parties are competitors, or licensors of the other
party.
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9.
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Representations and
Warranties.
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9.1.2.1
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Playlogic
represents and warrants to U & I
that:
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9.1.2.1.1
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It
has the full right, power and authority to enter into this Agreement, to
carry out its terms and to grant the rights, licenses and privileges
granted under this Agreement;
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9.1.2.1.2
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Playlogic
has all necessary rights, title and interest in and to the Titles and the
Versions and all other materials furnished to U & I under this
Agreement to grant U & I the rights granted
hereunder;
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9.1.2.2
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The
Titles and other materials furnished to U & I by and on behalf of
Playlogic, under this Agreement do not infringe upon, or misappropriate,
any copyright, trade secret or any other proprietary rights of any third
party;
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9.1.2.3
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Each
Version will perform substantially in accordance with Playlogic’s
specifications and express warranties for each respective
Version;
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9.1.2.4
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Playlogic
has not and shall not assign, transfer, lease, convey or grant a security
interest or otherwise similarly dispose of the Titles to a third party
unless such third party agrees to be bound by the terms of this Agreement;
and
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9.1.2.5
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Prior
to delivery of master disks or finished goods to Distributor, Playlogic
will obtain all necessary rights from any and all hardware manufacturers
(e.g. Microsoft, Sony and Nintendo) to perform its obligations with
respect to any Title or Version.
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9.1.3
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U
& I represents and warrants to Playlogic
that:
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(i)
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It
has the full right, power and authority to enter into this Agreement, to
carry out its terms and to grant the rights, licenses and privileges
granted in this Agreement.
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(ii)
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It
has all necessary rights, title and interest in and to the materials
furnished by it and incorporated into the
Units;
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(iii)
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Materials
furnished by U & I under this Agreement do not infringe upon or
misappropriate any copyright, trade secret or any other proprietary rights
of any third party.
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10.
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Indemnification.
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10.1
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Playlogic
Indemnity. Playlogic agrees to indemnify, hold harmless
and defend U & I, its subsidiaries, affiliates and their respective
officers, directors and employees from and against all claims, losses,
defense costs (including reasonable attorneys' fees), judgments and other
expenses related to or arising out of: (a) the breach of its
representations, warranties and covenants hereunder; (b) any product
liability with respect to any Title; (c) the alleged infringement or
violation of any trademark, copyright, trade secret, patent or other
proprietary right with respect to any Title; and (d) any unfair trade
practice, trade libel or misrepresentation based on any promotional
material, packaging, documentation or other materials provided by
Playlogic with respect to any Title, provided that Playlogic shall have no
indemnification obligations hereunder to the extent any such claims,
losses or costs relate to or arise out of U & I 's gross negligence,
willful misconduct or breach of this agreement. Playlogic's
obligation to indemnify is conditioned on (i) U & I notifying
Playlogic of any such claim as to which indemnification will be sought
promptly after U & I learns of such claim and (ii) providing Playlogic
reasonable cooperation in the defense and settlement
thereof. Playlogic shall have the right to control the defense
and settlement of any such claim at Playlogic's expense and to choose
counsel for such purpose, provided that (other than with respect to claims
for money damages for which U & I is indemnified hereunder) Playlogic
may not settle any such claim without U & I's prior written consent,
which consent shall not be unreasonably withheld or delayed. U
& I may retain counsel (at U & I 's sole option and expense) with
respect to any such claim, and Playlogic shall ensure that its counsel
reasonably cooperates with U & I 's counsel in the course of such
defense. If Playlogic does not fulfill its indemnification
obligations in good faith, U &I will have the right to defend and
settle any claim for which it was entitled to indemnification under this
agreement and to receive reimbursement from Playlogic for all of its
reasonable costs (including attorneys fees and costs) in defending and
settling such claim.
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10.2
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U & I
Indemnification. U & I agrees to indemnify, hold
harmless and defend Playlogic, its subsidiaries, affiliates and their
respective officers, directors and employees from and against all claims,
losses, defense costs (including reasonable attorneys' fees), judgments
and other expenses arising out of: (a) the breach of its
representations, warranties and covenants hereunder and (b) any unfair
trade practice, trade libel of misrepresentation based on any promotional
material, packaging documentation or other materials provided by U & I
with respect to any Title, provided that U & I shall have no
indemnification obligations hereunder to the extent any such claims,
losses or costs relate to or arise out of Playlogic's gross negligence,
willful misconduct, breach of this agreement or any materials provided by
Playlogic pursuant to this
agreement.
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U
& I 's obligation to indemnify is conditioned on Playlogic notifying U
& I of any such claim as to which indemnification will be sought
promptly after Playlogic learns of such claim, and providing U & I
reasonable cooperation in the defense and settlement
thereof. Provided that U & I is fulfilling its
indemnification obligations hereunder in good faith, U & I shall have
the right to control the defense and settlement of any such claim at U
& I 's expense and to choose counsel for such purpose, provided that U
& I may not settle any such claim without Playlogic’s prior written
consent, which consent shall not be unreasonably withheld or
delayed. Playlogic may retain counsel (as Playlogic’s sole
option and expense) with respect to any such claim, and U & I shall
ensure that its counsel reasonably cooperates with Playlogic’s counsel in
the course of such defense. If U & I does not fulfill its
indemnification obligations in good faith, Playlogic will have the right
to defend and settle any claim for which it was entitled to
indemnification and to receive reimbursement from U & I for all of its
reasonable costs (including attorneys fees and costs) in defending and
settling this claim.
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10.3
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LIMITATION OF
LIABILITY. BOTH PARTIES AGREE THAT TO THE EXTENT
PERMISSIBLE BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY
BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL
DAMAGES OR LOST PROFITS, ARISING IN CONNECTION WITH THIS AGREEMENT, OR, ON
ACCOUNT OF ITS TERMINATION, EVEN IF APPRAISED OF THE LIKELIHOOD OF SUCH
DAMAGES OCCURRING.
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11
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Confidentiality.
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11.1
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Confidential
Information. During the Term of this agreement,
Playlogic and U & I may be exposed to certain information that is
confidential to the other party and is not generally known to the public,
including without limitation (a) quantities, dollar volumes, and revenue
of Units, (b) the terms of this agreement including Wholesale Proceeds,
marketing funds and like information, and (c) business and marketing
plans, future products, research and development. Each party
agrees respectively, that for a period of three (3) years after its
initial receipt of the other party's confidential information it will not,
and will cause its employees, agents, contractors, and like entities to
not, use in any way for its own account or the account of any third party,
nor disclose to any third party, any such confidential information without
the prior written consent of the other party, except to employees, agents,
contractors and like entities solely as required to fulfill the purposes
of this Agreement, provided any such third parties agree in writing to be
bound by the confidentiality obligations under this
agreement. Playlogic and U & I agree that they will
safeguard the confidential information which each party may receive from
the other party for the period set forth above with the same degree of
care used to protect its own information of a like nature but in no
circumstances less than reasonable
care.
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11.2
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Non-Confidential
Information. Section 11.1 above shall not be
applicable to any information: (a) which is in the public
domain or which becomes part of the public domain through no fault on the
part of the receiving party; (b) which is known to the receiving party
prior to the disclosure thereof by the disclosing party, as established by
documentary evidence; (c) which is lawfully received by the receiving
party from a third party who provided, such information without breach of
any separate confidentiality obligation owed to the disclosing party; (d)
which is disclosed by the disclosing party to any third party without
restriction on further disclosure; (e) which is independently developed by
personnel having no access to the disclosing party's confidential
information as established by documentary evidence, or (f) which is
required to be disclosed pursuant to any governmental, judicial or
administrative order, subpoena or discovery request (in which case,
receiving party shall promptly notify disclosing party of such order and
reasonably cooperate with the disclosing party in seeking to enjoin the
disclosure of such information).
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11.3
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Notices. Any
notice required or permitted to be given or sent under this agreement will
be deemed delivered if hand delivered or if mailed, postage prepaid, by
registered, express or certified mail, return receipt requested, or by any
nationally-recognized private express courier, to either party at the
address listed below, or to such other address of which either party may
so notify the other, as of the date such notice is
received.
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If
to Playlogic:
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Playlogic
International N.V.
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World
Trade Centre
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Strawinskylaan
1041
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1077
XX Amsterdam
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Attn: Mr. C.Prak
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Phone: 0031620065747
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With
a copy to:
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Mr. Frank Dijkstra
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Dijkstra
Voermans advocatuur
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Winthonlaan
2
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3526
KV Utrecht
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Phone: 030-2850300
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If
to U &
I :
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U
& I, Inc.
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251
1st
Avenue North
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Minneapolis,
MN 55401
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Attn: Marty
Hawk
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Phone: (612)
333-5300
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|
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Fax: (612)
335-9604
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Page 12
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With
a copy to:
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Gray
Plant Mooty
|
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80
South Eighth Street, Suite 500
Minneapolis,
MN 55402
|
|
|
Attn: Barry
Clegg
|
|
|
Phone: (612)
632-3220
|
|
|
Fax: (612)
632-4220
|
|
11.4
|
Governing
Law/Forum. Parties agree that any and all disputes between the
parties arising from or related to this Agreement up to an amount of USD
200.000 DOLLAR shall be subject to the laws of Minnesota, USA and parties
submit to the jurisdiction of the Federal State courts located in
Minnesota. Parties agree that any and all dispute between the parties
arising from or related to this agreement above the amount of USD 200,000
DOLLAR shall be subject to the laws of the Netherlands and parties submit
to the jurisdiction of the Federal State courts located in Amsterdam.
Parties further agree that prior to either party submitting any concerns
or disputes to the courts of any nature related to this agreement, that
either has 60 days to resolve the issues as identified and described by
the other. Any such concerns are subject to the terms of
Notification herein.
|
|
11.5
|
Force
Majeure. Neither party will be deemed in default of this
agreement to the extent that performance of its obligations, or attempts
to cure any breach is delayed or prevented by reason of any act of God,
fire, natural disaster, accident, act of government, shortages of material
or supplies or any other cause not being under the control of such party
("Force Majeure"), provided that such party gives the other party prompt
written notice thereof promptly and uses its good faith effort to continue
to cure any breach. In the event that either party's
performance is delayed for more than thirty (30) days from the date such
Force Majeure arose, the party whose performance is not affected may
terminate this Agreement without further liability (but subject to either
party's obligation to pay the other party any amounts which have or will
become due) upon notice to the affected party if the Force Majeure is
continuing.
|
|
11.6
|
Amendment. No
amendment or modification of this agreement will be made except by an
instrument in writing signed by both parties. The failure of
either party to prosecute its right with respect to any single or
continued breach of this agreement will not act as a waiver of the right
of that party to later exercise any right or remedy with respect to that
breach or any other breach of this agreement by the other
party.
|
|
11.7
|
Relationship. The
relationship between U & I and Playlogic will be that of independent
contractors. Each party is not and shall not be deemed to be an
employee, agent, partner or legal representative of the other for any
purpose and shall not have any right, power or authority to create any
obligation or responsibility on behalf of the
other.
|
|
11.8
|
Severability. If
any provision of this agreement is found invalid or unenforceable pursuant
to judicial decree, such provision will be enforced
to
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Page 13
of 15
|
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the
maximum extent permissible and the remainder of this agreement will remain
in full force and effect according to its
terms.
|
|
11.9
|
Assignment. Neither
party may assign any of its rights hereunder without the prior written
consent of the non-assigning party, which will not be unreasonably
withheld, provided that either party may assign this agreement, without
the other party's consent, (a) to a parent company, a subsidiary of a
parent company or a subsidiary provided that such entity has similar
capabilities to perform the obligations to those of the assigning party or
(b) to a third party which acquires the assigning party, merges with the
assigning party or acquires all or substantially all of the assigning
party's assets.
|
|
11.10
|
Modification.
Modification to this Agreement (and the Appendices hereof) can be made in
writing, through an Addendum which has to be signed by both parties.
|
|
11.11
|
Goodwill. U
& I covenants that all goodwill associated with the trademarks
relating to the Titles, other than trademarks developed or owned by U
& I hall inure directly and exclusively to the benefit of Playlogic,
as the case may be. U &
I or Playlogic shall not at any time acquire or
claim any right, title or interest in the other's trademarks or service
marks other than those rights expressly granted. All right,
title or interest in either party's trademarks and service marks which
come into existence as a result, or during the term of, the exercise by U
& I or Playlogic of any right granted to it hereunder shall
immediately vest in the applicable
party.
|
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11.12
|
Entire
Agreement. This agreement and the Exhibits attached
hereto state the entire agreement between the parties relating to the
subject matter of this agreement and supersede any and all prior
agreements and communications, written or oral. This agreement
may be executed by facsimile and in counterparts and shall constitute a
valid, binding agreement.
|
IN WITNESS WHEREOF, the
parties hereto have executed the agreement by their duly authorized
representatives as set forth below.
|
U&I
Entertainment, LLC.
|
PLAYLOGIC
ENTERTAINMENT, INC.
|
|
By: /s/
Marty Hawk
Name:
Marty Hawk
Title:CEO
|
By: /s/ W.M.
Smit
Name: W.M.
Smit
Title:CEO
&
President
|
Page 14
of 15
ADDENDUM
A
Distribution
Fee: 6%
Accrual/Reserve for Price
Protections: 15% of gross revenue
(gross revenue = units sold times unit cost to retail). To be reconciled with
actuals every 3 months. If actuals are less than accrual, U & I will credit
Playlogic the balance. In the event price protections exceed 15(fifteen)%, U
& I will deduct actuals as they occur. With the exception of FairyTale
Fights X360, PS3 and PC – which will have a holdback amount of
10(ten)%.
Titles:
|
Building
& Co
|
PC
|
|
Sudoku
Ball
|
Wii,
DS, PC,
|
|
Infernal
|
XBOX
360
|
|
Obscure
|
DS
& PSP,
|
|
Worldshift
|
PC
|
|
They
Came From Upstairs
|
WII,DS,PS2,
PC,
|
|
Vertigo
|
PC,
WII
|
|
Zooloreto
|
DS,
PC
|
|
Pool
Hall
Pro
|
WII,
PC
|
|
Young
Archeologists
|
DS,
PC
|
|
Age
of Pirates
2
|
PC
|
|
Fairytale
Fights
|
XBOX
360, PS3, PC
|
* Any
additions, deletions or substitutions of Titles and/or Versions in this Addendum
A shall be made only in accordance with Section
Page 15
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