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PUBLISHING AGREEMENT 12-1-94

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Sectors: Media
Governing Law: New Zealand
Effective Date: December 01, 1994
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EXHIBIT 10.16







PUBLISHING AGREEMENT





In consideration of the mutual promises contained in this PUBLISHING AGREEMENT, Shortland Publications Limited, of 360 Dominion Rd, Auckland 3, Zealand, a New Zealand Corporation ("Licensor"), and Brilliant Interactive Ideas Pty Limited ACN 061 228 668, of Level 1, 17 The Corso, Manly, New South Wales, Australia, 2095, an Australian corporation ("Licensee"), agree as follows:



1. DEFINITIONS



For purposes of this Agreement:



(a) "Agreement" means this PUBLISHING AGREEMENT, together with Exhibits A and B and any other addenda attached hereto and each supplemental Exhibit A signed by both parties, as the same may be amended from time to time in accordance with this Agreement.



(b) "Effective Date" shall mean the date upon which this Agreement has been executed by both parties.



(c) "License Fees" shall mean the license fees payable by Licensee for the rights granted herein as set forth in Exhibit A.



(d) "Licensed Materials" means the copyrighted materials identified in Exhibit B, including all updates, revisions, new volumes and sequels thereto.



2. GRANT OF LICENSE



Without limiting the foregoing the Licensor grants the Licensee the worldwide non exclusive right to publish, reproduce, perform in public, broadcast, transmit to subscribers under a diffusion service, broadcast and adapt (and do all the foregoing in relation to such adaptation) the Licensed Materials electronically, including without limitation, on computer disc and magnetic medium, CD-ROM, CD-I, ROM-cartridge.



3. EFFECTIVE DATE AND TERM



The term of this Agreement and of each license granted under this Agreement shall begin on the Effective Date and shall continue thereafter for a period of CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION (CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION) years or until this Agreement is terminated under Section 12 below. So long as Licensee is in compliance with the terms and conditions of this Agreement, this Agreement shall be automatically renewed for subsequent



CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION (CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION) year terms.



4. PAYMENT, REPORTING AND AUDIT



(a) For the rights granted herein, Licensee shall pay Licensor the License Fees set forth in Exhibit A. License Fees shall be based upon gross amounts received by Licensee and payable for each copy of the Licensed Materials for which Licensee receives compensation from Licensee's customer. Licensee shall be entitled to a credit equal to the License Fees previously paid by Licensee for Licensed Materials returned to Licensee by Licensee's customers. The Licensee shall be entitled to deduct any withholding tax from the License Fees and shall advise the Licensor of the amount and particulars of any deduction in order that the Licensor may apply for any applicable foreign tax credit.



(b) Within twenty-five (25) days after each calendar quarter, Licensee shall provide Licensor with a report setting forth the number of copies of Licensed Materials distributed by Licensee during the preceding calendar quarter and the gross amount received by Licensee from Licensee's customers for Licensed Materials. At the time such report is submitted to Licensor, Licensee shall pay Licensor the License Fees then due.



(c) In order to enable Licensor to audit the statements submitted by Licensee under this Agreement, Licensee shall maintain at Licensee's place of business referenced in the Agreement complete and accurate books and records, examination of which would enable an independent chartered accountant, agreed to by the parties, to audit the statements submitted by Licensee under this Agreement. Once a year and upon thirty (30) days written notice, the said independent chartered accountant may conduct, at Licensor's sole cost and expense, such audits as reasonably necessary to determine Licensee's compliance with its reporting and payment obligations under this Agreement. Licensee agrees to reasonably cooperate with the independent chartered accountant in performing such audits. Such audits as are conducted shall be subject to such reasonable scrutiny procedures and limitations as Licensee may impose, and the independent chartered accountant and Licensor and respective employees, agents and contractors shall make no use of any information obtained in the course of such audits other than for the purposes hereof. Independent chartered accountant and Licensor and respective employees, agents or contractors shall retain no copies of any materials or data obtained in the course of such audits other than that reasonably necessary to verify Licensee's performance. If such audits reveal that Licensee has under-reported the number of copies of Licensed Materials for which Licensee received compensation from Licensee's customers on any report submitted pursuant to Section 4(b) above, Licensee shall pay to Licensor the appropriate License Fees due and owing and bear the cost of the audit.



5. SHIPMENT AND DELIVERY



Licensor will ship the Licensed Materials, in hard copy, to Licensee within thirty (30) days after the Effective Date. All shipments hereunder shall be F.O.B. Licensee.



6. LICENSEE'S OBLIGATIONS



(a) Licensee agrees to use its reasonable efforts to publish and market the Licensed Materials as deemed appropriate in Licensee's sole discretion.



(b) Notwithstanding Section 6(a) above, Licensee shall be entitled to discontinue marketing the Licensed Materials, or any portion thereof. Further, Licensee, in its sole discretion, shall be entitled to determine the method and form of marketing, distribution and publication of the Licensed Materials, as the same may be changed by Licensee.



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9. PROPRIETARY RIGHTS

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