Exhibit 10.4
THIS AGREEMENT is made the 20th day of October, 1998.
BETWEEN.
ENTERTAINMENT WORLD LIMITED A.C.N. 006 222 395 being a company duly incorporated
pursuant to the Cowrations Law, the registered office of which is situated at
Suite 2.3. 000 Xx Xxxxx Xxxx, Xx Xxxxx in the State of Victoria. Australia (EWL)
of the one part
AND
ASIA LEARNING WORLD PTE LTD being a company duly incorporated pursuant to the
laws of Singapore and having its offices situated at Xx. 00-00/00, XXXXX, 000
Xxxxxxx Xxxx. Xxxxxxxxx 000000 (ALW)
of the second part
WHEREAS:
A. ALW provides pay Channels to customers in the Asian region.
B. EWL has expertise in developing and managing educational television
channels Including selecting and acquiring programs, scheduling,
technical and distance education operations
C. ALW has agreed to appoint EWL at its exclusive provider of Services in
relation to the Channel pursuant to the terms and conditions contained In
this Agreement.
NOW THIS AGREEMENT WITNESSES as follows:
1 DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this agreement including the recitals, unless the context
otherwise requires:
Agreement means this agreement including all annexures and
Schedules;
Channel means the television channel or channels which are within
the Territory which are developed or will be developed by ALW for
the purpose of telecasting the Programs;
Channel Schedule means the schedule of programs for the Channel
for each Quarter during the Term prepared by EWL from time to
time;
Clause means a clause of his Agreement;
Commencement Date means the date of this agreement;
Copyright Agencies means copyright owners societies, any
performing rights societies, mechanical rights societies
composers, authors, and music publishers in any country where the
Channel is telecast;
Fees means the fees to paid or payable to EWL In accordance with
this Agreement as set out in Clause 5. 1 (a);
Interstitials means the short segments between programs providing
for the opportunity to telecast promotions, logos, station
identifications and announcements regarding future Programming,
contact telephone numbers or any other promotional or marketing
material whether for the benefit of the Channel or otherwise;
Management Fee means be management fee payable by ALW to EWL in
respect of each Quarter being thirty-five per cent (35%) of the
total of all Fees excluding costs of Play-Out Facilities and costs
of licensing program intellectual property;
Party means each of ALW and EWL and Parties means them
collectively;
Play-Out Facilities mean; the facilities commonly referred to in
the pay television industry as play-out and up -link which enable
television signals to be telecast, including the provision of
satellite related services;
Program means a television program related to education or having
the purpose of educating Subscribers or customers of Subscribers;
Programming means the services as defined in Clause 3.1 (b);
Quarter means the three (3) calendar months ending 31st March,
30th June, 30th September and 31st December;
Schedule means a schedule attached to and forming part of this
Agreement;
Services means the services to be provided by EWL to ALW as more
fully set out in Clause 3;
Subscribers means the customers of ALW who have contracted with
ALW to supply them with television video; and information
services;
Term means the period sat out in Clause 6.1 and the period of any
renewal of the Contract under Clause 6.2 or such earlier date on
which this Agreement Is terminated in accordance with Clause 7:
Territory means the whole of Asia Including ail sovereign nations
or part thereof within Asia; and
Year means a consecutive period of 365 days or in a leap year a
consecutive period of 366 days.
1.2 Interpretation
In this agreement. including the recitals, unless the context otherwise
requires:
(a) a reference to legislation or to a legislative provision includes all
regulations, orders, proclamations, notices or other requirements under
that legislation or legislative provision. It also Includes any
amendments, modifications or re-enactments of the legislation or
legislative provision and any legislation or legislative provision
substituted for and any statutory instrument issued underthat legislation
or legislative provision;
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(b) a word denoting the singular number includes the plural number and
vice versa;
(c) a word denoting an individual or person includes a corporation, firm,
authority, government or governmental authority and vice versa;
(d) a word denoting a gender includes all genders;
(e) a reference to a recital, clause, schedule or annexure is to a
recital, clause, schedule or annexure of or to this Agreement;
(f) a reference to an i deed, agreement. licence, document or other
instrument (including this Agreement) includes a reference to that deed,
agreement, licence, document or other instrument as renewed, extended,
novated, varied or substituted from time to time;
(g) a reference to any party to this Agreement or to any other deed
agreement, licence, document or other instrument required under this
Agreement or for the purposes of this Agreement Includes that party's
executors, administrators, substitutes, successors and permitted assigns;
(h) a reference to a "related corporation" of a body corporate is a body
corporate which is related to it under s.50 of the Corporations Xxx 0000
(Cth) (Australia);
(i) a reference to "dollar" or "$" is to an amount in the lawful currency
of the United States of America.,
(j) a reference to a matter being to the knowledge of a person means that
the matter Is to the best of the knowledge and belief of that person
after proper enquiry Including enquiry which a reasonable person would be
prompted to make by reason of knowledge of a fact;
(k) where under or pursuant to this Agreement or anything done under this
Agreement the day on or by which any act, matter or thing Is to be done
is not a Business Day such act, matter or thing must be done on the
immediately preceding Business Day;
(l) where under or pursuant to this Agreement or anything done under this
Agreement the day on or by which any act, matter or thing is to be done
is the 29th, 30th or 31st, lay of any month in which such a day does not
occur, such act, matter or thing, must be done on the last day of that
month;
(m) references to clauses are references to clauses of this Agreement;
(n) a reference to winding up or bankruptcy includes bankruptcy, winding
up, liquidation, dissolution, becoming an insolvent under administration
(as defined in s.9 of the Corporations Law) and being placed under
official management, and to the circumstances and events giving rise to
or contributing to such condition or matters, and
1.3 Headings and parts of speech
In this Agreement, includiriq the recitals:
(a) headings are for convenience of reference only and do not affect
interpretations; and
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(b) where an expression is defined, another part of speech or grammatical
form of that expression have, a corresponding meaning.
2 APPOINTMENT OF EWL
2.1 ALW hereby appoints EWL exclusively to provide it with the Services for
the Territory during the Term.
2.2 EWL shall provide the Services exclusively to ALW within the Territory
and to no other party which may be a competitor of ALW unless otherwise
agreed by the parties.
3 PROVISION OF EWL SERVICE
3.1 In consideration of the payment of the Fees and in further consideration
of the exclusive agency granted to EWL under Clause 2, EWL will provide
the following services to AILW
(a) development of the corporate image of the Channel including corporate
and Channel logos and trade marks which shall become the intellectual
property of ALW;
(b) development, sourcing, production, acquisition and licensing of
Programs for the purpose of telecasting same on the Channels, Including
the following services:
(i) dubbing and sub-titling of Programs to be shown on the
Channel;
(ii) development of Program contents;
(iii) production of Programs and Interstitials for telecasting
during or between programs,
(iv) developing Program Scheduling and providing hard copies of
the Program Scheduling to meet censorship requirements, if
any, in the Territory, and
(v) provision to ALW, within reasonable time of a written
request by ALW, copies of all release forms, consents,
waivers, license, music cue sheets and all other contracts
or authorities required in order to telecast Programs en
the Channel;
(c) negotiating with local and International educational Institutions and
like bodies for the supply of Programs and courses for and on behalf of
ALW;
(d) developing a system of franchised outlets for ALW through which ALW
will provide educational services in the Territory;
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(e) provide or procure the provision of Play-Out Facilities;
(f) where ALW Is subject to any litigation or threat of litigation,
whether as plaintiff or defendant then EWL shall provide It with all
assistance reasonably required including the provision of any
documentation in EWL's possession;
(g) provision of ongoing support in conjunction with operating the
Channel Including provision of Information to subscribers of the Channel,
educational institutions and other providers of similar services to
promote the Channel generally except that nothing in this clause
derogates from the obligations of ALW under Clauses 4.2 and 4.3; and
(h) to provide an Annual Program Plan which is approved by ALW, such
approval not to be unreasonably withheld (for the purpose of this
sub-Clause, approval shall be deemed to be given by ALW within seven (7)
days of receipt of the Annual Program Plan unless otherwise notified to
EWL by notice in writing).
3.2 Notwithstanding anything a so contained herein, EWL shall not be required
to contribute to any costs of the Channel, whether of a capital nature or
otherwise, unless specifically required herein and ALW shall indemnify
EWL In respect of any amounts so paid or payable by EWL.
4 RESPONSIBILITIES OF ALW
ALW shall, in consideration of the Services provided by EWL under this document:
4.1 pay to EWL all of the Fees n accordance with Clause 5;
4.2 be responsible for all royalty or licence payments in respect of any
intellectual property including technology, computer software, commercial
film footage, music, talent, research and information database issued as
part of any ALW delivery platform and technology Integration, to any
Copyright Agency or any other entity; and
4.3 be responsible for all marketing, promotion, advertising and publicity of
the Channel and the other Services including all costs associated with
same.
5 FEES
5.1 In consideration of the provision of the Services, ALW shall pay to
EWL:
(a) all of the costs Incurred by EWL in respect of the provision of the
Services as agreed to by the parties; and
(b) Management Fees
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5.2 The Fees shall be pre-estimated on the basis of the following items:
(a) quarterly program; acquisition, Programming and licensing fees as
budgeted by the parties bi-annually;
(b) quarterly Play-Out Facility costs of operation as budgeted by the
parties bi-annually.,
(c) quarterly education al support costs of establishing and maintaining
a franchise network of learning centres, maintaining relations with
institutions and other educational providors as budgeted by the parties
bi-annually;
(d) quarterly staffing and overhead costs of EWL as budgeted by the
parties on a bi-annual basis; and
(e) quarterly costs relating to any other Services as budgeted by the
parties on a bi-annual basis.
5.3 ALW shall pay to EWL the pre -"estimate of Fees calculated under Clause
52 within seven (7) days of the commencement of each Quarter.
5.4 All payments to EWL under this Agreement shall be made by way of a
telegraphic transfer in cleared funds o the account of EWL at the ANZ
Banking Group Ltd, Melbourne, details of which will be advised In due
course.
5.5 Within one (1) week after the end of each Quarter:
(a) EWL shall provide a statement setting out the actual Fees Incurred by
it during the previous Quarter and the Management Fees payable by ALW in
respect of that Quarter (Statement);
(b) the Statement shat Include, among other things, copies of all
relevant invoices which support its claims set out in the Statement; and
wherever required or auditing purposes, EWL shall provide, within
reasonable time, originals of at invoices which support its claims set
out in the Statement.
5.6 Where the total amount owl id to EWL under the Statement (including the
Management Fees):
(a) exceeds the amount it actually paid to EWL in respect of the relevant
Quarter pursuant to Clause 5.2, then ALW shall pay the balance of the
amount owing to EWL within one (1) week of the date of the Statement; or
(b) is less than the amount actually paid to EWL in respect of the
relevant Quarter pursuant to Clause 5.2, then the parties shall adjust
the balance overpaid to EWL against the pi e-estimate of Fees payable by
ALW pursuant to Clause 5.2 In respect of the next Quarter.
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5.7 Without limiting EWLs legal rights for any breach of these provisions,
EWL shall be entitled to interest payable on demand at the rate of two
per cent (2%) per month or proportionately thereof for any amounts
outstanding to it by ALW calculated 30 days after the date due for
payment.
6 TERM
6.1 The agreement between AL.W and EWL shall commence on the Commencement
Date and unless terminated earlier by agreement between the parties,
shall continue until the date five (5) years after the Channel goes live
to air.
6.2 Subject to termination pursuant to Clause 7, the Agreement shall be
automatically renewed for further successive periods of three (3) Years
at the expiry of the initial term or any renewed term.
7 TERMINATION OF AGREEMENT
7.1 This Agreement shall be terminated:
(a) where either party this Agreement in its absolute discretion gives
written notice of its intention not to renew the Agreement under Clause
6.2 at least eighteen (18) months prior to the expiry date of that term,
on the expiry date of that term or
(b) where either party fails or neglects to discharge any obligation,
covenant, condition, term, agreement or warranty imposed by this
Agreement or otherwise and is provided written notice of such breach and
fails to remedy the breach within thirty (30) days of the date of the
notice, on the thirtieth day from the date of the notice.
7.2 Termination of this Agreement for any of the reasons set out in Clause
7.1 shall have the following effect:
(a) ALW shall pay to EWL all Fees, Management Fees and payments due under
the Agreement to EWL up to the date of termination; or
(b) EWL shall pay to ALW all surplus Fees, Management Fees and
over-payments due under the Agreement to ALW up to the date of
termination; and
(c) each party will remain entitled to enforce any claims against the
other party arising from any t, each of the Agreement that may have
occurred before termination.
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8 CONFIDENTIAL INFORMATION
8.1 ALW shall not. except as authorised or required by this Agreement, reveal
to any person or persons or company or any of them or make use for its
own benefit any of the trade secrets, secret or confidential operations,
processes or dealings or any Information concerning the organisation,
business, finances, transactions or affairs of EWL or any of its related
entities which may come to its knowledge during the term of this
Agreement and shall keep with complete secrecy all confidential
information entrusted to it and shall not use or attempt to use any such
Information in any manner which may Injure or cause loss, either directly
or indirectly, to EWL or its business or may be likely to do so.
8.2 The restriction contained in clause 8.1 shall continue to apply after the
termination of this Agreement without limit in point of time but shall
cease to apply to information which may come into the public domain.
8.3 ALW may also obtain during the course of this Agreement, by reason of
this Agreement, knowledge of the trade secrets or other confidential
Information of any related entity to EWL and ALW hereby agree that it
will at the request of such entity, and at the cost of EWL, enter into a
direct agreement or undertaking with any such entity whereby it will
accept restrictions corresponding with the restrictions contained in this
Agreement and the Program as such entity may reasonably require for the
protection of Its legitimate business Interests.
9 INTELLECTUAL PROPERTY RIGHTS
Notwithstanding anything else combined In this Agreement, all intellectual
property created by virtue or as a result of this Agreement shall vest in and
become the property of ALW unless otherwise agreed to in writing by the parties.
10 GENERAL
10.1 None of the terms or conditions of this Agreement, nor any act. matter or
thing done under or by virtue of, or In connection with, this Agreement
will operate as a merger of any of the rights and remedies of EWL or ALW
In or under this Agreement or otherwise. All such rights and remedies of
the EWL and ALW will continue in full force and effect.
10.2 Unless application is mandatory by taw, no statute, ordinance,
proclamation, rule, order, regulation. moratorium or decree of any
governmental or other authority. present or future, will apply to this
Agreement so as to abrogate, extinguish, impair, diminish, xxxxxx, delay
or otherwise prejudicially affect any rights, powers, remedies or
discretions given or accruing to EWL or ALW under this Agreement.
10.3 To the extent permissible a: law, ALW must immediately upon demand pay to
EWL an amount equivalent to any moneys paid by EWL in respect of any
liability imposed on ALW under or by virtue of this Agreement,
notwithstanding that any statute, ordinance, proclamation, rule, order
regulation, moratorium or decree of any governmental or other authority,
present or future, directly or indirectly, Imposes such liability upon
EWL.
10.4 Neither party may assign the benefit of this Agreement to any third party
until that party shall first obtain the written consent of the other
party which consent shall not be unreasonably withheld and in any event
ALW shall remain liable to EWL for all Its obligations hereunder
notwithstanding any such assignment.
10.5 If any provision of this Agreement is, or at any time becomes, prohibited
by, or unlawful under, any applicable law, regulation or other condition
actually applied or otherwise becomes void or unenforceable, it will be
severed from this Agreement and rendered ineffective so far as is
possible without modifying the remaining provisions of this Agreement and
the remaining provisions will, to the extent permitted by the relevant
law, regulation or other condition, continue in full force and effect.
10.6 Any prohibited, unlawful, void or unenforceable provision will be
replaced immediately by an allowable, lawful, effective and enforceable
provision which so far as possible achieves the same economic benefit
or burden for both parties as the prohibited, unlawful, void or
unenforceable provision was intended to achieve.
10.7 All obligations of ALW and EWL under this Agreement will survive the
expiration or termination of this Agreement to the extent required for
their full observance and performance.
10.8 Neither this Agreement nor any provision of this Agreement may be
amended, modified, waived, discharged or terminated orally.
10.9 No variation, modification or waiver of any provision of this Agreement
nor consent to any departure by any party therefrom, shall in any event
be of any force or effect unless the same shall be confirmed in writing,
signed by the parties, and then such variation, modification, waiver or
consent shall be effective only to the extent for which it may be made or
given.
10.10 If there is any defect in the execution of this Agreement by the parties,
that party will re-execute or ratify its purported execution. That
re-execution or ratification will relate back to the original purported
execution by that party.
10.11 This Agreement may be executed in any number of counterparts all of
which, when taken together, will constitute one and the same Instrument.
10.12 (a) A notice required or permitted to be given by one party to another
under this Agreement must be in writing and Is treated as being duly
given if It is transmitted by facsimile to that other party's facsimile
number.
(b) A notice given to a party, in accordance with this Clause Is treated
as having been duly given and received on the day of transmission (9 a
business day) or, if not a business day, on the next succeeding business
day (if given by facsimile and sent to the facsimile receiver number of
that party and no Intimation having been received that the notice had not
been received, whether that intimation comes from that party or from the
operation of facsimile machinery or otherwise).
10.13 This Agreement will be construed in accordance with the law of the State
of Victoria, Australia, and the law of the State of Victoria, Australia
will be the proper law of this Agreement. The parties agree to submit to
the non-exclusive jurisdiction of the courts of that State and any courts
which may hear appeals therefrom.
10.14 Each party to this Agreement shall do, sign and execute all deeds,
schedules, acts, documents and things as may reasonably be required by
the other party effectively to carry out and give effect to the terms and
intentions of this Agreement.
10.15 (a) All stamp duty on or in respect of this Agreement or the transfer or
assignment of any property or in respect of any instrument or transaction
contemplated by this Agreement shall be borne and paid by ALW
(b) Other than the costs referred to above. each party shall be
responsible for its own legal and financial advice relating to this
Agreement.
10.16 A waiver by either party of any of the terms and conditions of this
Agreement in any one instance shall not be deemed or construed to be a
waiver of such term or condition for the future or of any other or
subsequent breach thereof. All remedies, rights, undertakings,
obligations and agreements contained In this Agreement shall be
cumulative and none of them shall be in limitation of any other remedy,
right, undertaking, obligation or agreement of either party.
10.17 This Agreement contains the entire understanding of the parties hereto
relating to the subject matter herein contained and supersedes all prior
understanding and agreements of the parties hereto. Each party
acknowledges that no representation, inducement, promise or agreement
oral or written with reference to the subject matter hereof have been
made other than as expressly set forth herein. It is expressly agreed
that save as otherwise provided herein the contract is an entire contract
and neither party shall be entitled to demand performance until the
performance of their own obligations in their entirety.
10.18 This Agreement may only )a varied in writing executed by the parties
hereto or their assigns.
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10.19 References to any statutory enactment or code shall be construed as
including references to the enactment it or code as amended or modified
from time to time and in the event that the enactment or code Is repeated
shall Include references to any enactment or code which replaces the
subject enactment or code and any amendments or modifications thereto
from time to time.
10.20 The relationship between the parties hereto is that of principal and
independent contractor and nothing herein shall or is intended to create
the relationship between or render either party a joint venturer,
employee, partner or otherwise of the other party.
EXECUTED AS AN AGREEMENT
SIGNED FOR AND ON BEHALF of
ENTERTAINMENT WORLD LIMITE D XXXXX X. XXXX
ACN 006 222 395 its duly authorised
representative XXXXX X. XXXX
in the presence of:
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Witness - signature
Evan McClegon
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Witness - print name
SIGNED FOR AND ON BEHALF OF
ASIA LEARNING WORLD PTE LTD
by its authorised representative XXXXXXXX XXX
in the presence of: XXXXXXXX XXX
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Witness - signature
XXXXXX XXXXX
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Witness - print name
