EXHIBIT 10.28
RIGHTS ACQUISITION AGREEMENT
AGREEMENT made as of the 1st day of December 2003, by and between MediaNet
Group, organized and existing under the laws of the State of, located and doing
business at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(hereinafter "MediaNet") and Madacy Entertainment, a Corporation organized and
existing under the laws of the Canada, having executive offices at ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇. ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ (hereinafter "Madacy").
WHEREAS, MediaNet owns or controls the rights to certain audio visual works; and
WHEREAS, desires to be licensed by MediaNet to manufacture and distribute such
audio visual works in the United States, its territories, possessions and
military installations and Canada (hereinafter the "Territory").
NOW, THEREFORE, in consideration of the mutual covenants herein contained and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. GRANT OF RIGHTS.
1.1 Videos: That portion of the entire library of the television series
"HOWDY ▇▇▇▇▇", the rights to which are owned or controlled by MediaNet, the
titles of which are set forth in Schedule A annexed hereto and made a part
hereof, to which certain rights are herein granted to Madacy, shall be
hereinafter collectively "Videos" and individually "Video".
1.2 Manufacture: MediaNet hereby grants to Madacy the exclusive right,
license and privilege to manufacture or arrange for the manufacture of "Video
Devices" of the Videos. As used herein "Video Devices" shall mean copies of the
Videos in all videocassette formats, including without limitation eight
millimeter, Beta, VHS, VHS/C and super VHS, and compact discs and videodiscs or
any other analogous medium, whether now known or hereafter devised, designed to
be used with a reproduction device which causes a visual image (whether or not
synchronized with sound) to be seen on the screen of a television receiver or
computer or any comparable device now known or hereafter devised for use in the
home.
1.3 Distribution: MediaNet hereby grants to Madacy the exclusive right,
license and privilege to sell, distribute, advertise, publicize and otherwise
market and exploit such Video Devices throughout the Territory through any and
all retail channels of trade and via the internet and to authorize others to do
so during the Term hereof.
1.4 Editing: Madacy may not edit, change, add to or delete from the
Videos without MediaNet's prior written approval, but may put multiple Videos on
a single Video Device and may
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incorporate its name, trademark and/or the appropriate presentation logos into
the Video Devices preceding the main title and/or following the end titles.
1.5 Marketing and Exploitation: In addition to the other rights granted
hereunder MediaNet hereby grants to Madacy the following rights:
1.5.1 Madacy shall have sole, full and complete discretion
concerning the marketing and other exploitation of all Video Devices in
accordance with the terms and conditions of this Agreement.
1.5.2 Madacy shall have sole, full and exclusive right to
negotiate, enter into, alter and cancel contracts involving the distribution,
sale, or rental of Video Devices, the right to adjust and settle all disputes
with distributors, purchasers and other contracting parties, and the right to
make allowances and give credits to such parties.
1.5.3 Madacy shall have the right to advertise, publicize
and/or promote the Videos by any means, in any media, and for said purposes, may
utilize excerpts of the Videos and/or excerpts, synopses, summaries and resumes
of the literary material upon which the Videos are based.
1.5.4 Madacy shall have the right to use and authorize others
to use the name, physical likeness (whether by photograph or otherwise) and/or
voice of any party rendering services in connection with the Videos, for the
purposes of advertising, marketing and/or exploiting the Video Devices.
1.5.5 Madacy shall have the right to close caption and dub
and/or subtitle the Videos in any language deemed appropriate for distribution
of Video Devices in the Territory. In the event that MediaNet owns or controls
any dubbed, subtitled or closed caption versions of the Videos, MediaNet shall
include such versions in MediaNet's Delivery as outlined in Section 5 hereunder,
if requested by Madacy.
1.5.6 Madacy may insert cross promotions or advertisements for
any of its products or the products of others into the packaging of the Video
Devices and/or on the Video Devices before or after the Videos.
1.5.7 Madacy shall prepare packaging, advertising and
promotional materials from the Delivery Materials provided by MediaNet in
accordance with Section 5 hereinbelow and Madacy shall have the right to use and
authorize others to use said advertising and publicity material.
1.5.8 MediaNet acknowledges that for advertising purposes
jacket artwork may be used in media which may be viewed outside the Territory
and MediaNet will not deem this usage a violation of any of its rights.
1.6 Reserved Rights: All rights to the Videos which have not
specifically been granted to Madacy are reserved to MediaNet. Further, the
parties acknowledge that the Howdy ▇▇▇▇▇ Videos which are licensed hereunder
have been licensed to Madacy Entertainment for replication and distribution in
the Territory only in boxed sets.
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2. TERM.
2.1 Duration of Rights: The rights granted under this Agreement shall
commence upon full execution of this Agreement and continue for a period of five
(5) years from the earlier of release of the release of the first Video released
hereunder or (hereinafter the "Term"). Madacy shall release the Videos when, in
its opinion, market conditions would be most favorable for such release. In the
event that MediaNet has not received a minimum of fifty thousand ($50,000.00)
dollars in royalties within the first two (2) years of the Term, all rights
granted to Madacy herein shall terminate and revert to MediaNet subject to the
Sell Off set forth in Section 2.5 herein below.
2.2 Extension of Term: In the event MediaNet has received a minimum of
two hundred and fifty thousand ($250,000.00) dollars in royalties during the
Term, the Term of this Agreement shall automatically renew for a period of Three
(3) years.
2.3 Early Termination: Notwithstanding anything to the contrary
contained herein, (a) if Madacy fails to account or make payments hereunder when
required and such failure is not cured within thirty (30) days after written
notice thereof to Madacy, or (b) if Madacy shall file a petition in bankruptcy
or make an assignment for the benefit of creditors, or if any bankruptcy
proceeding or assignment for benefit of creditors, shall be commenced against
Madacy and not be discharged within sixty (60) days after the date of its
commencement, then in any of such events, MediaNet, in addition to such other
rights or remedies which it may have at law, equity or under this Agreement, may
elect to terminate this Agreement forthwith, without prejudice to any rights or
claims it may have, and all rights hereunder shall thereupon terminate, revert
to and be vested in MediaNet.
2.4 Return of Masters: At the expiration of the Term or any extension
thereof, Madacy shall cease further replication of Video Devices and shall
promptly return any and all video or other recording masters of the Videos which
it might then have in its possession to MediaNet.
2.5 Disposal of Video Devices: Notwithstanding any other provision of
this Agreement, Madacy shall have an additional one (1) year period, commencing
immediately after the expiration of the Term or any extensions thereof or
earlier termination of this Agreement (hereinafter "Sell Off"), to sell-off or
otherwise market, distribute or dispose of any Video Devices which it may then
have in its possession or which may be returned to it by its distributors,
dealers or customers. Should Madacy still have possession of any Video Devices
at the end of said Sell Off, Madacy shall either erase or destroy same or sell
to MediaNet at cost, F.O.B. Jersey City, New Jersey.
3. FINANCIAL OBLIGATIONS.
3.1 Royalties:
3.1.1 Retail Sales: MediaNet shall be paid a Royalty of twelve
and a half (12.5%) percent of the "net wholesale price" for all Video Devices
sold and not returned. As used herein "net wholesale price" shall mean Madacy
invoice price to its customers, less customary discounts and allowances.
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3.1.2 Royalty Computation: Royalties shall accrue on all Video
Devices sold by Madacy' Point of Sale customers at the time of actual sell
through; Royalties shall accrue on all Video Devices shipped to Madacy' non
Point of Sale customers at the time of shipment; Madacy may take a reserve for
returns not to exceed ten (10%) percent for Point of Sale customers and twenty
five (25%) percent for Point of Sale Customers, which reserve shall be
reconciled and liquidated in six (6) months. As used herein "Point of Sale"
customers are those customers of Madacy which report actual sales by selection
number to Madacy via computer and scan their sales by UPC codes at cash
registers.
3.1.3 Direct Response Sales: In the event Video Devices are
sold via direct response, such as catalogs, television ads, print ads or the
like, MediaNet shall be paid twelve and a half (12.5%) percent of the revenue
received by Madacy, exclusive of amounts separately charged for shipping and
handling. Madacy may maintain a five (5%) percent reserve for returns.
3.1.4 Royalty Free Distribution: No Royalties shall be payable
on a reasonable number of Video Devices not to exceed five (5%) percent
distributed free of charge for promotional purposes or in connection with
marketing plans.
3.1.5 No Warranty with Respect to Royalties: MediaNet
acknowledges that the sales volume on which Royalties shall be calculated
hereunder is speculative and that Madacy therefore makes no representations or
warranties with respect to the amount of same.
3.2 MediaNet Samples and Purchases: MediaNet shall be supplied with
fifty (50) Video Devices of each Video free of charge on a royalty free basis. A
reasonable number of additional Video Devices of each Video may be purchased by
MediaNet, FOB New Jersey, at fifteen (15%) percent above Madacy actual cost.
3.3 No trust: No monies due or payable to MediaNet hereunder shall be
deemed to be held in trust by Madacy for MediaNet.
4. ACCOUNTING.
4.1 Rendition of Statements: Madacy shall account to MediaNet with
regard to transactions hereunder within thirty (30) days following the
conclusion of each calendar quarter. Each statement shall show the appropriate
calculations relating to the computation of Royalties, and Royalties payable to
MediaNet hereunder shall be remitted with the particular statement indicating
such amount to be due. All statements hereunder shall be deemed rendered when
deposited, postage prepaid, in the United States mail, addressed to MediaNet at
the notice address set forth in Section 10 herein below.
4.2 Finality of Statements: Each statement and all items contained
therein shall be deemed correct and shall be conclusive and binding upon
MediaNet upon the expiration of one (1) year from the date rendered, unless,
within such one (1) year period, MediaNet delivers written notice to Madacy
objecting to one or more items of such statement and such notice specifies in
reasonable detail the items to which MediaNet objects and the nature of and
reason for MediaNet's objection thereto. In such event MediaNet may exercise its
audit rights under subsection 4.3 herein below, provided said audit commences
within six (6) months from the date Madacy receives written notice objecting to
the statement.
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4.3 Books of Account and Audits: Madacy shall keep books of account
relating to the distribution of Video Devices on the same basis and in the same
manner and for the same periods as such records are customarily kept by Madacy.
MediaNet may, upon reasonable notice and at its own expense, audit the
applicable records at Madacy' office, in order to verify statements rendered
hereunder. Any such audit shall be conducted only by a certified public
accountant or accounting professional, and take place during reasonable business
hours and in such manner so as not to interfere with Madacy' normal business
activities. However, no audit may be conducted during the first three (3) weeks
of any calendar quarter. All of the information contained in Madacy' books and
records shall be kept confidential, and MediaNet agrees that such information
inspected and/or copied on behalf of MediaNet hereunder shall be used only for
the purpose of determining the accuracy of the statements, and shall be revealed
only to such officers, directors, employees, agents and/or representatives of
MediaNet as necessary to verify the accuracy of the statements. Madacy shall be
furnished with a copy of MediaNet's auditor's report within thirty (30) days
after the completion of such report. In no event shall an audit with respect to
any statement rendered hereunder commence after the date on which such statement
has become incontestable pursuant to subsection 4.2 above nor shall any audit
continue for longer than ten (10) consecutive business days nor shall audits be
made hereunder more frequently than once annually nor shall the records
supporting any such statements be audited more than once.
5. DELIVERY MATERIALS.
5.1 Masters: Within 30 (30) days after the full execution of this
Agreement, MediaNet shall deliver to Madacy those program masters set forth in
Schedule A attached hereto and made a part hereof (hereinafter the "Masters"),
which MediaNet acknowledges to be commercially acceptable and in technically
satisfactory condition so that Video Devices of technically acceptable quality
may be manufactured there from. The Masters shall be duplicated by Madacy, at
its expense and returned to MediaNet within two (2) months of acceptance by
Madacy.
5.2 Acceptance of the Masters: Madacy shall have a period of fifteen
(15) business days from its receipt of the Masters to inspect same and notify
MediaNet of its acceptance or rejection, with explanation. MediaNet shall make
arrangements to pick up any rejected Masters during reasonable business hours,
and in the event Madacy elects to provide MediaNet with an opportunity to
redeliver, Madacy shall have an inspection period of five (5) business days
under the same terms and conditions as heretofore stated. In the event that the
Masters, upon initial delivery or any subsequent delivery permitted by Madacy,
are technically unsatisfactory, as determined by Madacy in its sole and absolute
discretion, Madacy shall have the right and shall be entitled to rescind this
Agreement and the parties hereto shall have no further rights or obligations
hereunder or otherwise to each other.
5.3 Failure to Deliver Acceptable Masters: Failure to deliver any of
the Masters when required hereunder shall be deemed a material breach of this
Agreement by MediaNet.
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5.4 Artwork and Promotional Materials: Within twenty (20) days after
the full execution of this Agreement, MediaNet shall also deliver to Madacy, for
copying and use, at Madacy' expense, such photographs, transparencies, slides
and stills, and such promotional materials (hereinafter collectively
"Materials") MediaNet may have in its possession or to which it has access and
which Madacy desires to use in implementing its rights hereunder. These
materials shall be retained by Madacy for as long as may be reasonably required
for Madacy' use thereof in accordance with this Agreement. MediaNet shall have
final approval rights to Madacy packaging and such approval shall not be
unreasonably withheld.
5.5 Credit and Copyright Notice Requirements: MediaNet shall deliver to
Madacy, concurrently with the Materials, the exact form of credits and notices
required by MediaNet to be placed on packaging and promotional materials. It is
understood that should said credits and notices not be provided, Madacy shall be
under no obligation to include same on the packaging and promotional materials.
5.6 Title to Materials: Title to the Masters and Materials made
available by MediaNet to Madacy hereunder shall be and remain vested in
MediaNet, subject to the rights of Madacy to use same in manufacturing, selling,
distributing, leasing, advertising, promoting and otherwise exploiting the Video
Devices. Madacy shall exercise reasonable care in handling, storing and
safeguarding the Masters and Materials delivered in order to prevent
unauthorized duplication or reproductions of same. Madacy shall own all rights
in the tangible materials manufactured by Madacy hereunder.
5.7 Delivery Materials: As used in this Agreement, Delivery Materials
shall include Masters, Materials and the credit and copyright notices.
6. MEDIANET'S REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
6.1 Authority: MediaNet represents that it is duly incorporated, valid
and existing and in good standing under the laws of the jurisdiction in which it
was incorporated and that MediaNet has the full right, power, legal capacity and
authority to enter into this Agreement, to carry out the terms hereof, and to
grant to Madacy the exclusive rights, licenses and privileges herein granted,
and, further, no third party owns any proprietary rights in or to any of the
Materials or Videos or in or to any work or performance incorporated in whole or
in part in any of the Materials or Videos or, if any third party does own any
such rights, then all steps have been taken, including but not limited to
receipt of consents or clearances, so that the Materials and Videos do not
infringe on any such rights, and Madacy shall not be responsible for payment of
any amounts which may be due to any and all such third parties in order to
utilize the work or performance of any person or entity which is incorporated in
whole or in part in any of the Materials and Videos.
6.2 Non-infringement: Neither the Videos, nor anything contained
therein nor the exercise of any right, license or privilege herein granted
shall, at any time during the Term or any extension thereof, violate or infringe
upon any service ▇▇▇▇, trademark, tradename, contract, agreement, copyright,
literary, artistic, dramatic, personal or property right or right of publicity
or privacy, or other right whatsoever of, nor constitute unfair competition or
defamation against any person or entity.
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6.3 No Liens: There are not now and during the Term and any extension
thereof there shall be no liens, claims, encumbrances, legal proceedings,
restrictions, agreements or understandings which might conflict or interfere
with, limit or be inconsistent with or otherwise affect any of the provisions of
this Agreement or the enjoyment by Madacy of any rights granted or purported to
be granted to Madacy hereunder. Without limiting the generality of the
foregoing, all obligations with respect to the Videos, and the production,
distribution and exploitation thereof, including, but not limited to salaries,
royalties, license fees, service charges, residuals, laboratory charges, fees
and costs associated with the use of music have been or will be fully paid by
MediaNet, and Madacy will have no responsibility therefore.
6.4 Financial Obligations: Madacy shall not have any obligation for
past, current or future salaries, royalties, residuals, deferments, license
fees, service charges laboratory charges or similar payments incurred by
MediaNet. All fees, payments, costs and charges associated with the use of the
Videos, including without limitation, all fees, payments, costs or charges or
payments payable to any producer, director, writer, actor, composer, musician or
any other person who performed services or furnished material in connection with
the Videos or to any guild, union, performing rights society, publisher or owner
of master recordings by reason of the exercise by Madacy of any of the rights
granted to it hereunder shall be paid by MediaNet and shall under no
circumstances be the responsibility of Madacy. The parties acknowledge and agree
that the obligations referred to herein are those obligations incurred by
MediaNet in the creation and production of the Masters supplied to Madacy.
6.5 Ownership: MediaNet owns and controls, and throughout the Term and
any extension thereof shall own and control, subject to Section 9 hereinbelow,
without any limitations, restrictions or encumbrances whatsoever, performance,
exhibition, advertising and all other rights granted or purported to be granted
to Madacy hereunder, including without limitation all rights in and to all
literary, dramatic and musical material contained in the Videos and MediaNet has
obtained all necessary licenses and permissions as may be required for the full
and unlimited exercise and enjoyment by Madacy. Madacy shall own, possess and
enjoy such rights without hindrances on the part of any person, firm or entity
whatsoever throughout the full Term and any extension thereof. MediaNet agrees
to supply to Madacy, upon the execution of this Agreement, with copies of all
licenses, permissions or other documents described above or required in
connection with the representations made in this subsection. Without limiting
the generality of the foregoing, all music contained in or synchronized with the
Videos was composed as a "work for hire" for MediaNet or its predecessors in
interest with respect to the Videos, except for those compositions with respect
to which appropriate licenses have been supplied to Madacy upon request.
6.6 Legal Requirements: In the production of the Videos all laws,
statutes, ordinances, rules and regulations of each country, state, city or
other political entity having jurisdiction have been or shall be complied with,
as well as the rules regulations and requirements of any union or guild having
jurisdiction thereof.
6.7 Copyrights: The Videos and all components thereof are not in the
public domain and the subject of valid copyrights within the Territory and will
not be allowed to fall into the public domain anywhere in the Territory prior to
the termination of this Agreement. The Videos, as delivered, will contain all
proper copyright notices required or permitted under the applicable United
States Copyright Act and the Universal Copyright Convention.
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6.8 Names and Likenesses: All persons, firms and corporations connected
with the production of the Videos and all other persons whose names, voices,
photographs, likenesses, work, services and materials have been used in the
Videos have authorized the use of their names, voices, photographs, likenesses,
performances and biographical data in connection with the advertising, promotion
and exploitation of the Videos and the Video Devices manufactured hereunder.
6.9 Credits: The credit lists and other materials delivered to Madacy
under this Agreement will be complete and accurate and Madacy will incur no
liabilities to any third parties arising out of its use of such lists and use of
such materials.
6.10 Distribution After Term: Should MediaNet, after the termination of
this Agreement, distribute any of the Videos, MediaNet represents and warrants
that the artwork and text used on the packaging therefore shall be redesigned so
as to be substantially dissimilar from the packaging used by Madacy.
6.11 Term of Representations and Warranties: MediaNet's warranties,
representations and agreement are the essence of this Agreement and shall
survive the expiration of the Term and any extension thereof. None of MediaNet's
warranties, representations or agreements shall in any way be limited by reason
of any investigation made by Madacy or on behalf of Madacy.
7. PROTECTION OF PROPRIETARY RIGHTS.
7.1 MediaNet and Madacy shall each have the right, but not the
obligation, at its own expense but subject to reimbursement as set forth below,
to bring, prosecute and appear in suits and proceedings of any nature related to
or concerning the Videos, Materials, Video Devices and the proprietary rights in
or related to any of them, or concerning any infringement of or interference
with any of the rights granted to Madacy pursuant to this Agreement, and
MediaNet and Madacy shall each also have the right, but not the obligation to
take such action as it may deem advisable to otherwise enforce, protect and/or
defend any of such rights. If any such action is taken each party agrees to
cooperate with the other in good faith in providing information and/or
documentation requested by the other in connection therewith. In the event that
it is necessary or desirable that any such suit, proceeding or action be taken
in the name of MediaNet or under a right of MediaNet, or that MediaNet be joined
as a party thereto, then MediaNet may be joined as a party to such suit,
proceeding or action. All recoveries from such suits, proceedings or actions,
including settlements, after reimbursement of documented legal fees and other
expenses incurred by MediaNet and Madacy in connection therewith, shall be
equally divided and MediaNet shall retain eighty five (85%) percent and shall
remit fifteen (15%) percent to Madacy. To the extent that any such recovery is
insufficient to reimburse MediaNet and Madacy for all such legal fees and
expenses, MediaNet and Madacy shall be reimbursed in amounts pro rata in
proportion to their respective interest.
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8. INDEMNIFICATIONS.
8.1 Each party ("Indemnifying Party") will protect, indemnify and hold
harmless the other, its successors and assigns and those acting on behalf of the
other ("Indemnitees") from and against any and all claims, losses, liabilities,
judgments, damages and expenses (including legal fees) arising from any breach
by the Indemnifying Party of this Agreement of any of its representations,
warranties or agreements contained herein. Upon learning of any claim to which
said indemnity relates, the Indemnitee shall immediately notify the Indemnifying
Party of the same and the Indemnifying Party shall defend the same at its
expense by its counsel. The Indemnitee shall have the right to participate in
the defense of such claim at its expense by counsel of its own choosing. If an
Indemnitee shall settle or compromise any such suit, claim or proceeding, the
cost thereof, including reasonable attorney and expert witness fees and
expenses, shall be charged to the Indemnifying Party for immediate payment if
such settlement or compromise was made with the Indemnifying Party's prior
written approval, which approval shall not be unreasonably withheld. In
connection with any such suit, claim or proceeding, Madacy may exercise any and
all offset and similar rights against MediaNet and Madacy may at any time
withhold and reserve from any monies payable to MediaNet hereunder sums
reasonably sufficient to secure Madacy against MediaNet's liability hereunder.
9. ASSIGNABILITY.
9.1 MediaNet and Madacy may assign this Agreement or any of its rights,
licenses or privileges hereunder to any person, firm, corporation or other
entity only with consent of the other party, which consent shall not be
unreasonably withheld, except that the rights granted to Madacy pursuant to this
Agreement may be assigned to or otherwise exercised by Madacy' affiliates or
subsidiaries or may be sublicensed in connection with production or distribution
agreements entered into by Madacy with others without MediaNet's consent.
10. NOTICES.
10.1 Any notice which either party is required to give hereunder shall
be given the other at the address set forth in the preamble of this Agreement,
or at such other address as may be designated in writing in a notice given in
the manner prescribed in this paragraph. All notices shall be sent by recorded
delivery or certified mail with return receipt requested, or personally
delivered to the party for whom intended at that party's notice address. Notice
by certified mail shall be deemed given three (3) days after the date of mailing
thereof; notice by personal delivery or recorded delivery shall be deemed given
on the day of actual delivery. Copies of notices sent by mail may be sent
simultaneously by fax for information purposes only.
11. REMEDIES OF THE PARTIES.
11.1 Except as otherwise specifically provided for herein, in the event
Madacy is in default or in breach of any of the material provisions of this
Agreement, including but not limited to a breach of any of its representations
or warranties hereunder, and Madacy shall fail to cure such default or breach
within thirty (30) days after written notice of such breach or default by
MediaNet, MediaNet shall be entitled to bring an action, suit or proceeding only
at law for damages. Except as otherwise specifically provided for herein, in the
event MediaNet is in default or in breach of any of the material provisions of
this Agreement, including but not limited to a breach of any of its
representations or warranties hereunder, and MediaNet shall fail to cure such
default or breach within thirty (30) days after written notice of such breach or
default by Madacy, Madacy shall be entitled to bring an action, suit or
proceeding for damages and/or an injunction based upon such breach or default
and/or to rescind or terminate the Agreement.
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12. MISCELLANEOUS.
12.1 Force Majeure. Neither party hereto shall be liable to the other
for any loss, damage or default occasioned by strike, civil disorder,
governmental decree or regulation, acts of God or any other force majeure.
12.2 Relationship of Parties: This Agreement shall not be construed to
create a joint venture, partnership or the relationship of principal and agent
between the parties hereto, nor to impose upon either party any obligations for
any losses, debts or other obligations incurred by the other party except as
expressly set forth herein.
12.3 No Waiver: No waiver of any default or breach of this Agreement by
either party shall be deemed a continuing waiver or a waiver of any other breach
or default, no matter how similar.
12.4 Laws and Jurisdiction: Irrespective of the place of execution or
performance, this Agreement shall be governed, construed and enforced in
accordance with the laws of the State of Florida applicable to agreements
entered into and wholly performed therein. The parties agree to submit to the
exclusive jurisdiction of the Federal and State Courts located in the State of
Florida in any action which may arise out of this Agreement and all matters
related thereto. MediaNet waives any right to institute or try any action or
proceeding elsewhere. In any action between the parties to enforce any of the
terms of this Agreement, or of any other contract relating to the subject matter
of this Agreement, the prevailing party shall, in addition to any other award of
damage or other remedy, be entitled to reasonable attorney's fees.
12.5 Severability of Provisions: If any provisions herein contained
shall be held by any court of competent jurisdiction to be illegal, void or
unenforceable, such provision shall be of no force or effect while such
infirmity shall exist, but such infirmity shall have no effect whatsoever upon
the binding force or effectiveness of any of the other provisions hereof, it
being the intention of the parties hereto that had they, or either of them,
known of such infirmity, they would have entered into a contract, each with the
other, containing all of the other provisions hereof.
12.6 Entire Agreement: This Agreement constitutes and contains the
entire agreement between the parties with respect to the subject matter hereof
and supersedes any prior oral or written agreements. Nothing herein contained
shall be binding upon the parties until this Agreement has been executed by an
officer or agent of each and has been delivered to the parties. This Agreement
may not be changed, modified, amended or supplemented, except in writing signed
by all parties to this Agreement. Each of the parties acknowledges and agrees
that the other has not made any representations, warranties or agreements of any
kind, except as may be expressly set forth herein.
12.7 Section Headings: The Section headings used in this Agreement are
for convenience only and shall have no legal effect whatever.
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THE FOREGOING IS FOR DISCUSSION PURPOSES ONLY AND SHALL NOT BE DEEMED TO BE A
BINDING AGREEMENT UNLESS AND UNTIL EXECUTED BY APPROPRIATE PARTIES.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
MEDIANET GROUP TECHNOLOGIES, INC. MADACY ENTERTAINMENT
___________________________________ ___________________________________
By: By:
___________________________________
TAX ID NUMBER
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SCHEDULE A
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SCHEDULE B
MADACY ENTERTAINMENT
DELIVERY REQUIREMENTS -
VIDEO MASTERS
18612
ARTWORK MATERIALS
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