SAMPLE DISTRIBUTION AGREEMENT (for a Multimedia Product) Table of Contents 1. Appointment 1.1 Producer Appoints the Distributor 1.2 Exclusive Appointment for On Line Service 1.3 license 2. Obligations of the Distributor 3. Delivery of Delivery Materials 3.1 Producer to Deliver Delivery Materials to Distributor 3.2 If Delivery Materials are not Delivered 4. Terms of Agreements between Distributor and Subscribers 4.1 Agreements with Subscribers 4.2 Producer's Consent 4.3 Supply 5. No Modifications or Bundling 5.1 No Modifications 5.2 Distributor's Name and Logo 5.3 No Bundling 5.4 license Terms 6. Payment 6.1 Producer's Royalty 6.2 Producer's Royalty Free from Expenses 6.3 Underlying Materials 6.4 Payments to Producer and Reports 6.5 Payment to Producer Less than Minimum Guarantee 6.6 Distributor to Account to Producer after Termination 6.7 Taxes 6.8 Government Approvals 7. Accounts, Audits and Inspection 7.1 Distributor to Keep Records 7.2 Producer's Right to Inspect Records 7.3 Producer's Right to Inspect for 7 years 7.4 Payment of Any Difference Revealed by Inspection 7.5 If Reports Not Delivered 7.6 Inspection of Distributor's Facilities 8. Warranties 8.1 General Warranties 8.2 Warranties by Producer 8.3 Producer does not Warrant 8.4 Warranties by Distributor 8.5 Amendment 9. Acknowledgment 10. Scope of Liability 10.1 Producers Indemnity 10.2 Distributor's Indemnity 10.3 Exclusion of Liability 10.4 Liability Limit 10.5 Notification of Claims 10.6 Keep Producer Informed 10.7 Producer to Conduct Litigation 10.8 Conduct of Litigation 10.9 Payment of Judgment against Distributor 10.10 Consent to Settlement 10.11 Payment of Sums under Indemnity 10.12 Suspension of Payment of Producer's Royalty 11. Marketing and promotion 11.1 Marketing Plan 11.2 Producer to Approve all Marketing Material 11.3 Producer's Approval 12. Withdrawal of Product 12.1 Suspension of Distribution 12.2 Distributor to Notify 12.3 If Producer is Unable to Rectify the Product 12.4 If Producer is Able to Rectify the Product 13. Clearance by Censor 13.1 Submission to Censor 13.2 No Alterations without Producer's consent 13.3 Termination if the Producer Does Not Consent to the Alterations 14. Confidentiality 14.1 Confidential Information 14.2 No Disclosure 14.3 No Unauthorized Copying 14.4 Return of Materials 14.5 Responsibility for Employees, Agents etc 15. Term and Termination 15.1 Initial Term 15.2 Notice to Terminate Initial Term 15.3 Automatic Renewal 15.4 Termination for Breach 15.5 Immediate Termination 15.6 Accrued Rights 15.7 Termination under Certain Clauses 16. Relationship of the Parties 16.1 No Partnership 16.2 No Representations of Authority 17. Publicity 18. Insurance 18.1 Distributor to Take Out Insurance 18.2 Producer's Interest 18.3 Delivery of copies 18.4 Claims 19. Notices 19.1 Legibility 19.2 Address 19.3 How a Notice May Be Served 19.4 When a Notice is Received by Post 19.5 When a Notice is Received by Fax 20. Enforceability 20.1 Ineffectiveness 20.2 Severance of Ineffective Parts 21. Waiver 21.1 No Waiver Except by Notice in Writing 21.2 No Waiver of Subsequent Breaches 21.3 No Waiver by Extension or Forbearance 22. Variation 23. Assignment 24. Any Further Steps 25. Entire Agreement 26. Counterparts 27. Survival 28. Legal Advice 29. Costs, Stamp Duty and Other Taxes 29.1 Costs 29.2 Stamp Duty and Taxes 30. Governing Law and Jurisdiction 30.1 Governing Law 30.2 Jurisdiction 31. Definitions and Interpretation 31.1 Definitions 31.2 Interpretation DISTRIBUTION AGREEMENT Details of the Agreement Date of the Agreement: This Agreement is made on (month, day, year) Parties to the Agreement: 1. "Producer" (#2#) and 2. "Distributor" Background to the Agreement A. The Producer has developed a multimedia product known by the title set out in Item 1(a) of the Schedule. B. The Producer wishes to appoint the Distributor to distribute the Product by way of online or other electronic forms of distribution and the Distributor has agreed to accept the appointment on the terms and conditions of this Agreement. The parties agree as follows: 1. Appointment 1.1 Producer Appoints the Distributor The Producer appoints the Distributor to distribute the Product for the Term through the Service, but only by the Delivery Mode, on the terms and conditions set out in this Agreement. 1.2 Exclusive Appointment for On Line Service (a) The Producer agrees not to appoint any other distributor to distribute the Product during the Term through an online Service. (b) For the avoidance of doubt, the Distributor is entitled to appoint any other person to distribute the Product otherwise than through an online Service. 1.3 License For the purposes of the appointment referred to in Clause 1.1, the Producer grants to the Distributor a license during the Term: (a) to reproduce all Underlying Materials embodied in the Product; (b) to apply the Trade Mark to the Product, but only in the manner as directed by the Producer from the names, photographs and likeness of any authors, producers, creators, performers, artists or other persons associated with the development or production of the Product, but only in the manner as directed by the Producer from time to time; and (d) to display the Product to prospective Subscribers in the course of reasonable promotion and marketing of the Service. 2. Obligations of the Distributor The Distributor will use its best endeavors: (a) to maintain and operate the Service; (b) to ensure that the Service is error free, virus free and uninterrupted; (c) to promote and market the Product in accordance with the Marketing Plan; (d) to distribute the Product through the Service; (e) to make the Product available to Subscribers to the Service by the Release Date; (f) to be competent and knowledgeable in and conversant with all aspects of the Product; (g) to ensure that any notices relating to Intellectual Property Rights appearing in or on the Product or literature relating to the Product are not altered or removed; (h) to inform the Producer of any matter which may affect or assist the promotion and marketing of the Product; (i) to act in good faith at all times towards the Producer and provide assistance and cooperation as practicable on request by the Producer; and (j) to furnish to the Producer, within two (2) Business Days of the Producer's request, any information sought by the Producer regarding the promotion and distribution of the Product in the Territory. 3. Delivery of Delivery Materials 3.1 Producer to Deliver Delivery Materials to Distributor The Producer will deliver the Delivery Materials to the Distributor in accordance with the Delivery Requirements on or before the Delivery Date unless otherwise agreed in writing. 3.2 If Delivery Materials are not Delivered If the Delivery Materials are not delivered to the Distributor by the Delivery Date, such an event will constitute a Termination Event and the provisions of Clauses 15.5 and 15.7 will apply. 4. Terms of Agreements between Distributor and Subscribers 4.1 Agreements with Subscribers The Distributor will include conditions in all agreements with its Subscribers which relate to the distribution of the Product whereby its Subscribers agree: (a) not to disseminate, distribute or make available the Product or any part of it via computer terminals or in machine readable form or otherwise without the prior written consent of the Distributor; (b) not to transfer the Product or any part of it to another information distribution network or publication system (whether in electronic form or otherwise) without the prior written consent of the Distributor; (c) not to use or permit the use of the Product for any unlawful purposes; and (d) to accept and agree to be bound by the license Terms. Upon request from the Producer, the Distributor will supply to the Producer a copy of its agreement with Subscribers. 4.2 Producer's Consent Where matters referred to in Clause 4.1 require the prior consent of the Distributor, the Distributor will provide details of such matters to the Producer and obtain the Producer's prior written approval before consenting to the Subscriber's request. 4.3 Supply The Distributor will not supply the Product to anyone other than a Subscriber and will not supply the Product to a Subscriber on terms that would allow that Subscriber to do any act or thing that the Distributor has agreed not to do under this Agreement. 5. No Modifications or Bundling 5.1 No Modifications The Distributor will not, without the prior written consent of the Producer modify, alter, adapt, disassemble, reverse engineer, decompile or amend the Product or any of the Underlying Materials in any way. 5.2 Distributor's Name and Logo The Distributor may, with the prior written approval of the Producer, affix the Distributor's name and logo on the Product in the manner approved by the Producer. 5.3 No Bundling The Distributor will not bundle, package or otherwise distribute the Product with, or as part of, any other product or collection of products without the prior written approval of the Producer. 5.4 License Terms The Distributor will not remove the license Terms from the Product or otherwise amend or modify the license Terms embodied in the Product or otherwise attached to the Product. 6. Payment 6.1 Producer's Royalty The Distributor will pay the Producer's Royalty to the Producer in respect of all exploitation of the Product through the Service. 6.2 Producer's Royalty Free from Expenses The Producer's Royalty will be free and clear of all expenses associated with the promotion, marketing and distribution of the Product including, but not limited to, costs of advertising, transmission, administration and all taxes. 6.3 Underlying Materials Subject to Clause 6.2, the Producer will be responsible for paying any fees, royalties or other payments due to the owners, exclusive licensees or assignees of any of the Underlying Materials which are payable in respect of the distribution of the Product, unless agreed to the contrary in writing by the parties. 6.4 Payments to Producer and Reports Within 30 days of the end of each Calendar Quarter during the Term the Distributor will: (a) remit to the Producer, in the manner as directed by the Producer in writing, the Producer's Royalty which amount shall equal or exceed the Minimum Guarantee for that Calendar Quarter; and (b) furnish to the Producer a report ("Report") detailing: (1) the number of Subscribers for the Product during the preceding Calendar Quarter; (2) the Gross Receipts for that Calendar Quarter; (3) a computation of the Producer's Royalty including details of any tax deducted under Clause 6.7; and (4) if requested by the Producer, copies of all invoices and other documents necessary to enable the Producer to verify the Distributor's statement of Gross Receipts. 6.5 Payment to Producer Less than Minimum Guarantee If any payment under Clause 6.4(a) is less than the Minimum Guarantee, then the Producer may, at its option: (a) continue this Agreement on a non-exclusive basis; or (b) elect to treat the failure to achieve the Minimum Guarantee as a Termination Event in which event the provisions of Clauses 15.5 and 15.7 will apply. 6.6 Distributor to Account to Producer after Termination Subject to the termination of this Agreement, however caused, the Distributor will continue to account to the Producer under Clause 6.4 for as long as the Producer continues to receive Gross Receipts in respect of the distribution of the Product during the Term. 6.7 Taxes The Distributor will deduct from the Producer's Royalty due to the Producer such taxes, levies or other charges as are required by the law of the Territory to be paid by or withheld from the Producer and will submit to the Producer receipts for any sum which has been paid or withheld. 6.8 Government Approvals The Distributor is responsible for obtaining all of the necessary government or other official permission for the release of the Producer's Royalty to the Producer. 7. Accounts, Audits and Inspection 7.1 Distributor to Keep Records The Distributor will keep all proper books, records and accounts ("Records") relating to the distribution of the Product and will retain such Records for a period of seven (7) years after the date of termination of this Agreement. 7.2 Producer's Right to Inspect Records (a) The Producer is entitled, on five (5) Business Days prior notice in writing to the Distributor, to attend (or appoint an independent accountant to attend) the Distributor's premises and inspect such of the Distributor's Records as may be reasonably necessary to verify the information contained in any Report delivered by the Distributor under Clause 6.4 of this Agreement. (b) The Distributor will permit any such inspection. 7.3 Producer's Right to Inspect for seven (7) years The Distributor may exercise the right of inspection under this Clause 7 at any time up to seven (7) years after termination of this Agreement. 7.4 Payment of Any Difference Revealed by Inspection (a) If an inspection under Clause 7.2 reveals that the total amount payable to the Producer in respect of any Calendar Quarter is a sum greater than the amount specified in the relevant Report or Reports, then the Distributor will pay to the Producer the difference within fourteen (1)4 days of demand in writing by the Producer which demand will be accompanied by a copy of any accountant's report. (b) If the amount payable to the Producer under this Clause 7.4 exceeds the amount specified in the relevant Report or Reports by 5% or more, then the Distributor will also pay the costs and expenses of that inspection. 7.5 If Reports Not Delivered (a) If the Distributor fails to deliver a Report or Reports within the time required by Clause 6.4, the Producer may appoint an independent accountant to examine the Records of the Distributor for the purpose of ascertaining the amount payable by the Distributor for the relevant Calendar Quarter. (b) The Distributor will permit that accountant to inspect the Distributor's Records. (c) The amount certified by that accountant to be payable in respect of any Calendar Quarter together with the costs and expenses of that inspection are payable by the Distributor within 14 days of demand by the Producer for that amount, such demand to be in writing and accompanied by a copy of the accountant's report. 7.6 Inspection of Distributor's Facilities In addition to the foregoing rights of inspection, the Producer may during regular Business Hours on not less than 5 Business Days' prior written notice inspect the Distributor's premises and facilities in order to verify the Distributor's compliance with any terms of this Agreement. 8. Warranties 8.1 General Warranties Each party warrants to the other that: (a) it has authority to enter and to perform its obligations under this Agreement; and (b) it has the ability to perform its obligations under this Agreement. 8.2 Warranties by Producer The Producer represents and warrants to the Distributor that: (a) the Product is not defamatory, obscene, false, misleading or deceptive and does not breach any statute; and (b) use of the Product in accordance with this Agreement will not infringe the rights, including the Intellectual Property Rights, of any person. 8.3 Producer does not Warrant The Producer does not represent and does not warrant to the Distributor that: (a) the Product is error free or virus free; (b) the use of the Product will be uninterrupted; or (c) the Product will provide any function not designated in any Product definition. 8.4 Warranties by Distributor The Distributor represents and warrants to the Producer that: (a) subject to Clauses 8.5 and 13, it is authorized by all necessary government and other agencies and authorities and will, throughout the Term, continue to be authorized to distribute the Product in the Territory; (b) that it will not alter the Delivery Mode without the prior approval of the Producer, which approval may be withheld by the Producer in its absolute discretion; and (c) the information provided to the Producer in relation to the subject matter of this Agreement before its entry into this Agreement is true and correct. 8.5 Amendment Subject to anything to the contrary, if compliance with the specified warranty in Clause 8.4 or any other term of this Agreement would require an amendment, variation or modification to the Product, then no such amendments, variations or modifications are to be made without the prior approval of the Producer, which approval may be withheld in its absolute discretion. If such approval is withheld, such an event will constitute a Termination Event and the provisions of Clauses 15.5 and 15.7 will apply. 9. Acknowledgment The Distributor acknowledges and accepts that it will not as a result of entering into this Agreement, acquire any Intellectual Property Rights in the Product, the Underlying Materials or the Delivery Materials or in any copies thereof. 10. Scope of Liability 10.1 Producers Indemnity The Producer will at all times indemnify and keep indemnified the Distributor and its sub-distributors and both their respective officers, employees and agents (in this Clause 10.1 referred to as "those indemnified") from and against any loss (including reasonable legal costs and expenses) or liability incurred by any of those indemnified arising from any claim, demand, suit, action or proceeding by any person against any of those indemnified where such loss or liability arose out of: (a) any breach of this Agreement by the Producer, excluding any breach of the warranties referred to in Clause 8.2; (b) any breach of the warranties referred to in Clause 8.2; and (c) any infringement or alleged infringement of the rights, including the Intellectual Property Rights of any person occurring by the use of the Product in accordance with this Agreement. 10.2 Distributor's Indemnity The Distributor will at all times indemnify and keep indemnified the Producer its officers, employees and agents (in this Clause 10.2 referred to as "those indemnified") from and against any loss (including reasonable legal costs and expenses) or liability incurred by any of those indemnified arising from any claim, demand, suit, action or proceeding by any person against any of those indemnified where such loss or liability arose out of: (a) any use of the Product by the Distributor and the sub-distributors otherwise than in accordance with this Agreement; and (b) any other breach of this Agreement by the Distributor. 10.3 Exclusion of Liability (a) The Producer acknowledges and accepts that, to the extent permitted by law, the Distributor will be under no liability to the Producer whatsoever, whether in: (1) contract or tort (including, without limitation, negligence); (2) breach of statute; or (3) any other legal or equitable obligation, in respect of any loss or damage referred to in Clause 10.3(b). (b) The loss or damage referred to in Clause 10.3(a) is loss or damage (including loss of profit or savings), however caused, which may be: (1) suffered or incurred or which may arise directly or indirectly in respect of any infringement by any End User or other person of the Intellectual Property Rights of the Producer or any other right of the Producer in or in relation to the Product; or (2) which may be caused directly or indirectly by any act or omission of any End User or any other person who may access the product, except to the extent that the Distributor has knowledge of, authorized or otherwise permitted such infringement, act or omission. 10.4 Liability Limit Except as provided in Clauses 10.1(b) and 10.1(c) the total liability of each party arising out of any particular breach of this Agreement for damages regardless of the cause of action, whether contract, tort (including, without limitation, negligence) or breach of statute or any other legal or equitable obligation is limited to the amount set out in Item 9 of the Schedule. 10.5 Notification of Claims The Distributor will notify the Producer in writing as soon as practicable and in any event within 2 Business Days of any claim or demand made, or action, suit or proceeding threatened or brought, against the Distributor arising from any breach of the warranties referred to in Clause 10.1(b) or from the infringement or alleged infringement referred to in Clause 10.1(c). 10.6 Keep Producer Informed After notice has been given under Clause 10.5 and upon the Licensor admitting its obligations under the indemnity in Clause 10.1(b) or 10.1(c) and, where requested by the Distributor, lodging security in a reasonable amount with the Distributor, the Distributor will: (a) continue to keep the Producer informed of all developments; and (b) to the extent permitted by law, act in accordance with the reasonable directions of the Producer in respect of those developments including in relation to application for leave to withdraw from the litigation and in relation to the settlement of claims or demands that do not result in litigation. 10.7 Producer to Conduct Litigation Where litigation is commenced against the Distributor in respect of any matter involving any breach of the warranties referred to in Clause 10.1(b) or any infringement or alleged infringement referred to in Clause 10.1(c), the Distributor will, on leave being granted, withdraw from the litigation and the Producer will, in its own name and its own expense, conduct the litigation. 10.8 Conduct of Litigation (a) Where leave is not granted to the Distributor to withdraw from the litigation and for the Producer to conduct litigation in its own name, the Distributor will: (1) upon the Producer admitting its obligations under the indemnity in Clause 10.1(b) or 10.1(c); and (2) to the extent that it is permitted by law, defend, arbitrate, appeal, settle or otherwise conduct the litigation as the Producer may from time to time reasonably direct. (b) For the purpose of Clause 10.8(a), the Producer will lodge security in a reasonable amount with the Distributor to off set the Distributor's costs of conducting the litigation at the Producer's direction. 10.9 Payment of Judgment against Distributor If a final judgment or award is made against the Distributor in the litigation referred to in Clause 10.8, or if a settlement is reached with the Plaintiff, which has been approved by the Producer, (in a situation where the Producer is providing an indemnity under Clause 10.1(b) or 10.1(c)), the Distributor will: (a) not less than five (5) Business Days before the date on which the Distributor must pay the amount referred to in the judgment, award or settlement; or (b) if no date for payment is fixed by that judgment, award or settlement, within five (5) Business Days of receipt of a notice in writing from the Distributor that it intends to pay the amount referred to in that judgment, award or settlement, pay to the Distributor by bank check a sum equal to the sum that the Distributor is required to pay. 10.10 Consent to Settlement The Distributor's approval to the settlement referred to in Clause 10.9 will not be unreasonably withheld. 10.11 Payment of Sums under Indemnity The Producer will pay to the Distributor all other sums required to be paid under the indemnity provided under Clause 10.1 within five (5) Business Days of receipt by the Producer of a notice from the Distributor requiring payment of those sums. 10.12 Suspension of Payment of Producer's Royalty Without prejudice to any other right or action or remedy which the Distributor may have, if the Producer fails to comply with this Clause 10, the Distributor will have the right to suspend payment of the Producer's Royalty due under this Agreement until such claim, demand, suit, action or proceeding has been resolved. 11. Marketing and promotion 11.1 Marketing Plan (a) The Distributor will comply with the Marketing Plan in relation to the publicity, advertising and marketing strategies of the Product in the Territory. (b) Any variations to the Marketing Plan will be agreed in writing by the parties. 11.2 Producer to Approve all Marketing Material The Distributor will submit all advertising, sales promotion and public relations material used from time to time by the Distributor and relating to the Product for the Producer's prior written approval. Subject to Clause 11.3, no such material may be used in conjunction with the promotion of the Product without the Producer's prior written approval. 11.3 Producer's Approval (a) The Producer will notify the Distributor within 10 Business Days following receipt of the material referred to in Clause 11.2 whether it approves, disapproves or requires any alteration to such material. (b) If no notification is received within the said period, the Producer will be deemed to have given its approval. (c) The Producer will not unreasonably withhold its consent to such material. 12. Withdrawal of Product 12.1 Suspension of Distribution The Producer may direct the Distributor in writing to suspend the distribution of the Product (and the Distributor will comply with that direction) for a period up to ninety (90) days ("Suspension Period") if: (a) the Product is defective; or (b) if the Producer is advised by its legal advisers that the Product: (i) infringes or may infringe the Intellectual Property Rights of any person; or (ii) is or may be defamatory, obscene, false, misleading or deceptive. 12.2 Distributor to Notify (a) If the Distributor becomes aware of any of the matters described in Clauses 12.1(a) or (b), the Distributor will immediately notify the Producer in writing and request the Producer to issue a direction under Clause 12.1. (b) The Producer will not be obliged to issue any such direction. 12.3 If Producer is Unable to Rectify the Product If the Producer is unable to rectify the Product within the Suspension Period, such inability will constitute a Termination Event and the provisions of Clauses 15.5 and 15.7 will apply. 12.4 If Producer is Able to Rectify the Product If the Producer is able to rectify the Product within the Suspension Period (or any extension thereof agreed by the parties) the Distributor must resume distribution of the Product. 13. Clearance by Censor 13.1 Submission to Censor (a) If the Producer has not already arranged a censorship classification for the Product, the Distributor will, as soon as practicable, submit a copy of the Product to the duly constituted censorship authorities if the Product is one which requires classification. (b) Any costs incurred by the Distributor in submitting the Product for classification and obtaining such classification are to be paid by the Distributor. 13.2 No Alterations without Producer's consent If the censorship authorities require any alterations to be made to the Product before permitting the Product to be distributed through the Service, the Distributor will not make any such alterations until the consent of the Producer has been obtained which consent may be withheld in its absolute discretion. 13.3 Termination if the Producer Does Not Consent to the Alterations If the Producer does not consent to the alterations referred to in Clause 13.2, such an event will constitute a Termination Event and the provisions of Clauses 15.5 and 15.7 will apply. 14. Confidentiality 14.1 Confidential Information The Distributor acknowledges that the Distributor, its employees or agents, may be given access to Confidential Information of the Producer in the course of negotiating or performing this Agreement. 14.2 No Disclosure The Distributor will keep the Confidential Information confidential and will not disclose it to any third party or use it otherwise than: (a) for the purposes of this Agreement; (b) as authorized in writing by the Producer; (c) as required by any law, judicial body or governmental agency; or (d) by way of disclosure to its professional advisors who have agreed to keep the Confidential Information confidential. 14.3 No Unauthorized Copying The Distributor will not copy any document containing Confidential Information except as necessary to perform this Agreement. 14.4 Return of Materials On termination of this Agreement, the Distributor will return all documents or copies of documents containing information which is, at the date of termination, Confidential Information to the Producer. 14.5 Responsibility for Employees, Agents etc The Distributor will ensure that its employees, agents, contractors and other Persons within its control comply with this Clause 14. 15. Term and Termination 15.1 Initial Term This Agreement commences on the date of this Agreement and continues for the Initial Term unless terminated under the terms of this Agreement, including without limitation under Clause 15.2. 15.2 Notice to Terminate Initial Term This Agreement will terminate at the expiry of the Initial Term provided that one party gives notice of termination to the other not less than ninety (90) days before the expiry of the Initial Term. 15.3 Automatic Renewal This Agreement will continue indefinitely on the same terms and conditions after the expiry of the Initial Term unless and until one party gives the other party at least ninety (90) days prior written notice that it wishes to terminate this Agreement if no notice is given under Clause 15.2. 15.4 Termination for Breach (a) If the Distributor is in breach of this Agreement, the Producer may give the Distributor a notice: (1) specifying the breach; and (2) requiring that party to rectify the breach within 10 Business Days of the date the party received the notice. (b) The Producer may terminate the Agreement if after the expiry of the notice the Distributor has not rectified the breach specified in the notice. 15.5 Immediate Termination This Agreement may be terminated by the Producer immediately by notice to the Distributor if a Termination Event occurs. 15.6 Accrued Rights The termination of this Agreement is without prejudice to any rights which have accrued to a party before the date of termination. 15.7 Termination under Certain Clauses In the event of a termination of this Agreement under Clauses 3.2, 6.5, 8.5, 12.3 and 13.3, the Distributor will be entitled to be paid by the Producer an amount which is equal to the costs incurred by the Distributor (including costs incurred to third parties) in fulfilling its obligations under this Agreement less the amount of all Gross Receipts (if any) received or accrued up to the date of termination after the deduction for the Distributor's Commission. The Distributor will on request by the Producer furnish to the Producer any and all documents necessary to verify its calculation of such costs. 16. Relationship of the Parties 16.1 No Partnership This Agreement does not create any partnership, joint venture or agency relationship between the parties. 16.2 No Representations of Authority The Distributor may not enter into any agreements or incur any liabilities on behalf of the Producer without the Producer's prior written consent and may not represent to any person that it has any authority to do so. 17. Publicity The parties will not make any public announcement or make any representation to any media representative about: (a) this Agreement; (b) the performance of this Agreement by any party; (c) any matter related to this Agreement; or (d) any other party, without the prior written consent of each of the other parties to this Agreement. 18. Insurance 18.1 Distributor to Take Out Insurance The Distributor will take out and maintain the insurance policies set out in Item 11 of the Schedule. 18.2 Producer's Interest The Distributor will cause the Producer's insurable interest (if applicable) to be noted on any policy of insurance taken out under this Clause. 18.3 Delivery of copies The Distributor will deliver copies of such policies or proof of their currency to the Producer as soon as practicable and in any event within twenty-eight (28) Business Days after the execution of this Agreement. 18.4 Claims The insurance policies will: (a) name the Producer and the Distributor as co-insured; (b) include a clause enabling one insured person to claim against the insurer where another insured person would have been entitled to claim against the insurer, but is precluded from doing so for any reasons, including but not limited to, a breach of the policy by that other insured person; and (c) include a cross liability clause enabling one insured person to claim against the insurer even if the party making the claim against the insured person is also insured under the policy. 19. Notices 19.1 Legibility A notice under this Agreement will be in legible writing and in English addressed to the party concerned at that party's address. 19.2 Address For the purpose of the notice under Clause 19.1, a party's address is the address specified at the commencement of this Agreement or as notified to each other party. 19.3 How a Notice May Be Served A notice may be served by giving it to the other party personally, by posting it by security post or by faxing it. 19.4 When a Notice is Received by Post If the notice is posted by security post it is deemed to be received by the receiving party two (2) Business Days after posting. 19.5 When a Notice is Received by Fax If the notice is faxed it is deemed to be received by the receiving party when the completed transmission report is received, unless: (a) the sending party's machine indicates a malfunction in transmission or, the receiving party within a reasonable time and in any event no later than two (2) Business Days, informs the sending party of an incomplete transmission; or (c) the transmission is completed outside Business Hours at the receiver's address in which case the notice is regarded as received at the commencement of business on the following Business Day in that place. 20. Enforceability 20.1 Ineffectiveness Any Clause or part a of Clause of this Agreement which is Ineffective in any jurisdiction is Ineffective only to that extent in that jurisdiction. 20.2 Severance of Ineffective Parts Where any Clause or part of that Clause is Ineffective it may be severed without affecting any other part of this Agreement. 21. Waiver 21.1 No Waiver Except by Notice in Writing No right under this Agreement is waived or deemed to be waived except by notice in writing signed by the party waiving the right. 21.2 No Waiver of Subsequent Breaches A waiver by one party under Clause 21.1 does not prejudice its rights in respect of any subsequent breach of this Agreement by the other party. 21.3 No Waiver by Extension or Forbearance A party does not waive its rights under this Agreement because it grants an extension or forbearance to the other party. 22. Variation A variation of this Agreement will be in writing and signed by each of the parties. 23. Assignment The Producer may assign its rights under this Agreement without the consent of the Distributor. The Distributor may not assign its rights or obligations under this Agreement without the prior written consent of the Producer, otherwise than to a Related Body Corporate of the Distributor. 24. Any Further Steps Each party will do all things and execute all further documents necessary to give full effect to this Agreement. 25. Entire Agreement This Agreement supersedes all previous agreements in respect of its subject matter and embodies the entire agreement between the parties. 26. Counterparts This Agreement may be executed in any number of counterparts. 27. Survival The terms of this Agreement survive its termination to the extent permitted by law. 28. Legal Advice Each party acknowledges that in relation to this Agreement it has received legal advice or has had the opportunity of obtaining legal advice. 29. Costs, Stamp Duty and Other Taxes 29.1 Costs Each party will bear its own costs and expenses in relation to the negotiation, preparation, execution, delivery and completion of this Agreement and any other related documentation. 29.2 Stamp Duty and Taxes The Producer will pay all stamp duty, taxes and other governmental charges payable or assessed on this Agreement and any other related documentation. 30. Governing Law and Jurisdiction 30.1 Governing Law This Agreement is governed by the laws of the State or Territory set out in Item 12 of the Schedule. 30.2 Jurisdiction The parties irrevocably submit to the non-exclusive jurisdiction of the courts of the State or Territory set out in Item 12 of the Schedule. 31. Definitions and Interpretation 31.1 Definitions In this Agreement unless a contrary intention appears: "Business Day" means a day on which the Commonwealth Bank of Australia is open for business in the place set out in item 12 of the Schedule. "Business Hours" means from 9.00 am to 5.00 pm on a Business Day. "Calendar Quarter" means successive periods of 3 months ending March 31th, June 30th, September 30th and December 31st and any part thereof. "Confidential Information" means all trade secrets, ideas, know-how, concepts and information whether in writing or otherwise relating in any way to: (a) either party, their sub-licensees, agents, employees or End Users; (b) the Product; (c) Intellectual Property Rights, the Delivery Materials or the Marketing Plan; (d) affairs or businesses, sales, marketing or promotional information; (e) the terms of this Agreement; or (f) the Producer's Royalty payable under this Agreement, but does not include information that: (g) is, or becomes part of, the public domain otherwise than by breach of this Agreement by either party; (h) is lawfully obtained by either party from another person without any restriction as to use and disclosure; or (i) was in either party's possession prior to disclosure to it by the other party. "Delivery Date" means the date the Delivery Materials will be delivered to the Distributor as set out in Item 4 of the Schedule. "Delivery Materials" means the materials that will be delivered to the Distributor so that the Distributor can distribute the Product as specified in Item 5 of the Schedule. "Delivery Requirements" means the manner in which the Delivery Materials are to be delivered to, or otherwise accessed by, the Distributor as set out in Item 6 of the Schedule. "Delivery Mode" means the mode of delivery of the Product as set out in Item 2 of the Schedule. "End User" means a Subscriber who accesses the Product for end use. "Force Majeure Event" means: (a) any act of God; (b) any outbreak or escalation of hostilities (whether or not war has been declared) or any other unlawful act against public order or authority; (c) any industrial dispute; (d) any governmental restraint; or (e) any other event which is not within the reasonable control of the parties. "Gross Receipts" means the total of all sums paid to, or payable to, the Distributor from the distribution of the Product without deduction or set off of any kind. "Initial Term" means the initial term of this Agreement as set out in Item 10 of the Schedule. "Ineffective" means void, illegal or unenforceable. "Insolvency Event" means, in relation to a party: (a) a receiver, receiver and manager, trustee, administrator, other controller (as defined in the Corporations Law) or similar official is appointed over any of the assets or undertaking of the other party; (b) the party suspends payment of its debts generally; (c) the party is or becomes unable to pay its debts when they are due or is or becomes unable to pay its debts or is presumed to be insolvent within the meaning of the Corporations Law; (d) the party enters into or resolves to enter into any arrangement, composition or compromise with, or assignment for the benefit of, its creditors or any class of them; (e) the party ceases to carry on business or threatens to cease to carry on business; (f) a resolution is passed or any steps are taken to appoint, or to pass a resolution to appoint, an administrator; or (g) an application or order is made for the winding up or dissolution of the other party, or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution of the other party, otherwise than for the purpose of an amalgamation or reconstruction that has the prior written consent of the first party. "Intellectual Property Rights" means any and all intellectual and industrial protection rights throughout the world including rights in respect of or in connection with: (a) any Confidential Information; (b) copyright (including future copyright and rights in the nature of or analogous to copyright); (c) performers protection; (d) Moral Rights; (e) inventions (including patents); (f) trade marks, service marks; and (g) designs, circuit layouts, whether or not now existing, and whether or not registered or registrable and includes any right to apply for the registration of such rights and includes all renewals and extensions. "License Terms" means the license detailed in Annexure A. "Marketing Plan" means the marketing plan specifying the publicity, advertising and marketing strategies of the Product in the Territory together with associated costs as detailed in Annexure B. "Minimum Guarantee" means the minimum dollar amount specified in Item 7 of the Schedule which the Distributor will pay to the Producer pursuant to Clause 6.4 in respect of the relevant Calendar Quarter. "Moral Rights" means moral rights, rights of integrity, rights of attribution and other rights of an analogous nature which may now exist or which may exist in the future in respect of the Product or Underlying Materials. "Online Service" means any service for carrying or transmitting data and/or communications by means of guided or unguided electromagnetic energy or both. "Producer's Royalty" means the royalty as set out in Item 8 of the Schedule. "Product" means the product set out in Item 1 of the Schedule. "Related Body Corporate" means, in relation to any party, a body corporate related to that party under section 50 of the Corporations Law. "Release Date" means the date set out in Item 3 of the Schedule. "Service" means the online Service operated by the Distributor. "Subscriber" means a person who is a subscriber to or recipient of the Service. "Term" means the term of this Agreement as determined in accordance with Clauses 15.1, 15.2 and 15.3. "Termination Event" means: (a) an Insolvency Event; (b) a warranty in Clause 8 made by the other party proving to have been false, icncorrect or misleading when made; (c) events specified in Clauses 3.2, 6.5, 8.5, 12.3 and 13.3; or (d) a Force Majeure Event continues for more than 28 Business Days. "Territory" means the territory specified in Item 13 of the Schedule. "Trade Mark" means the trade mark set out in Item 1(e) of the Schedule (whether or not the trade mark is now existing, and whether or not it is registered or registrable). "Underlying Materials" means all materials embodied in the Product, including but not limited to, sound recordings, musical works, literary works (including software), artistic works, cinematograph films, photographs, patents, designs and trade marks. 31.2 Interpretation In this Agreement: (a) headings and underlinings are for convenience only and do not affect the interpretation of this Agreement; (b) explanatory comments do not form part of this Agreement and are not legally binding; (c) a reference to this Agreement includes an Annexure, Exhibit or Schedule to this Agreement; (d) a provision of this Agreement will not be interpreted against a party just because that party prepared the provision; (e) a word or expression in the singular include the plural, and the other way around; (f) words importing a gender include any gender; (g) other parts of speech and grammatical forms of a word or phrase defined in this Agreement have a corresponding meaning; (h) a reference to a statute includes an amendment or re-enactment to that legislation and includes subordinate legislation in force under it; (i) a reference to a document includes an amendment or supplement to, or replacement or novation of, that document; (j) a reference to a party to this or any other agreement includes that party's successor and permitted assign; (k) a reference to an agreement other than this Agreement includes an undertaking, agreement or legally enforceable arrangement or understanding whether or not in writing; (l) a reference to a Clause, a Schedule, or an Annexure is a reference to a clause, a schedule or an annexure to this Agreement; (m) a reference to a Clause includes a reference to a sub-Clause; and (n) a reference to a person or words denoting a person includes a company, statutory corporation, partnership, joint venture, association, board, government or semi-government agency or authority and that person's successors and legal personal representative. Executed as an Agreement by the parties Signed for and on behalf of the Distributor By (name) _______________________ (title) _______________________ who warrants by his or her signing that he or she has authority to sign the Agreement. in the presence of Witness _______________________ Name of Witness _______________________ please print Signed for and on behalf of the Producer By (name) _______________________ (title) _______________________ who warrants by his or her signing that he or she has authority to sign the Agreement. in the presence of Witness _______________________ Name of Witness _______________________ please print SCHEDULE Item 1 - Product (Clause 1) (a) (title) (b) (duration) (c) (content) (d) (function) (e) (Trade Mark) Item 2 - Delivery Mode (Clause 1) Item 3 - Release Date (Clause 2): Item 4 - Delivery Date (Clause 3) Item 5 - Delivery Materials (Clause 3) Item 6 - Delivery Requirements (Clause 3) Item 7 - Minimum Guarantee (Clause 6) Item 8 - Producer's Royalty (Clause 6): ____% of the Gross Receipts Item 9 - Liability Limit (Clause 10.4) Item 10 - Initial Term (Clauses 15.1 and 15.2) Item 11 - Insurance Policies (Clause 18) 1. Type: Insurer: Costs: 2. Type: Insurer: Costs: Item 12 - Agreement is governed by the laws of the State or Territory: (Clause 30) Item 13 - Territory (Clause 2) ANNEXURE A License Terms VARIABLES #1# Name of the Product #2# Name of the owner of the Product #1# License Terms License: #1# (comprising software, data and documentation) is provided to you on the basis of a non-exclusive and non-transferable license for your own personal use only on a single computer accessible by only one user at a time. The license commences on payment of the license fee and continues perpetually unless terminated by notice from #2# if you breach these license Terms or become subject to any form of insolvency administration. License restrictions: You will not sell, loan, rent, transfer or sub-license #1# or your rights under these License Terms without the prior written consent of #2#. You will not use #1# for any third party's benefit by way of a service bureau or otherwise. You will not allow access to #1# by multiple users at any one time through networking arrangements or otherwise. You will not use #1# other than for your own personal use. To protect #2#'s intellectual property rights in #1# you will not, and will not allow or cause a third party, to decompile, disassemble, reverse engineer, copy or modify #1# or use the whole or any part of #1# to assist in the development of a similar or competitive product or otherwise use #1# except as provided in these #1# License Terms. You may make one copy of #1# for backup or archival purposes. You will take appropriate measures to prevent unauthorized use or access to #1#. Liability: To the extent permitted by law, #2# excludes all warranties and representations relating to #1#. Nothing in these License Terms will exclude, restrict or modify any condition, warranty, right or remedy implied or imposed by any statute or regulation to the extent that it cannot be lawfully excluded, restricted or modified. If any condition or warranty is implied into this license under a statute or regulation and cannot be excluded, the liability of #2# for a breach of the condition or warranty will be limited to the replacement of the product or the supply of the services again. Except to that extent, #2# will not be liable in contract or in tort (including negligence) or otherwise for any loss or damage (including indirect or consequential loss or damage) however caused, which may be suffered, or incurred or which may arise directly or indirectly in respect of the use of, or inability to use, #1#. ANNEXURE B Marketing Plan Distribution Agreement between [ ] ("Producer") and [ ] ("Distributor")