ACQUISITION AND DISTRIBUTION AGREEMENT
Acquisition and Distribution Agreement dated October 27, 2003 between Hairmax
International, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, a Nevada
Corporation, and Revenge Games, Inc., a Nevada corporation, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. Subject to the provisions set forth
hereinafter, Hairmax agrees to purchase, acquire and distribution of Revenge
Games for the sum of two million (2,000,000) shares.
1. PICTURE: The term ''Picture'' refers to the Motion Picture set forth in
this agreement.
2. TERRITORY AND TERM:
(a) Territory: The territory covered hereby (''Territory'') is United
States and Worldwide distribution.
(b) Distribution Term: The term of this Agreement and the rights granted
Distributor hereunder for each country or place of the Territory shall
be the period of time specified in Schedule ''A'' (''Distribution
Term''). If Distributor makes any advances, which are not recouped
during the Distribution Term, the Distribution Term shall continue
until such advances are fully recouped for each country or place of
the Territory. The term of this Agreement shall commence on the date
hereof and expire upon the expiration of the Distribution Term as
extended unless sooner terminated as provided herein.
3. RIGHTS GRANTED:
(a) Grant: Production Company hereby grants to Distributor throughout the
Territory the exercise of all rights of theatrical, non-theatrical
exhibition and distribution with respect to the Picture and Trailers
thereof, and excerpts and clips therefrom, in any and all languages
and versions, including dubbed, subtitled and narrated versions. The
rights granted herein shall include without limitation the sole and
exclusive right:
(1) Titles: To use the title or titles by which the Picture is or may
be known or identified and subject to the written approval of
Production Company, to change the title of the Picture.
(2) Music and Lyrics: To use and perform any and all music, lyrics
and musical compositions contained in the Picture and/or recorded
in the soundtrack thereof in connection with the distribution,
exhibition, advertising, publicizing and exploiting of the
Picture;
(3) Versions: To make such dubbed and titled versions of the Picture,
and the Trailers thereof, including without limitation, cut-in,
synchronized and superimposed versions in any and all languages
for use in such parts of the Territory as Distributor may deem
advisable.
(4) Editing: To make such changes, alterations, cuts, additions,
interpolations, deletions and eliminations into and from the
Picture and trailer subject to prior written approval of
Production Company or as Distributor's licensees may deem
necessary or desirable for the effective marketing, distribution,
exploitation or other use of the Picture.
(5) Advertising and Publicity: To publicize, advertise and exploit
the Picture throughout the Territory during the Distribution
Term, including without limitation, the exclusive right in the
Territory for the purpose of advertising, publicizing and
exploiting the Picture to:
(A) Literary Material: Publish and to license and authorize
others to publish in any language and in such forms as
Distributor may deem advisable, synopses, summaries,
adaptations, novelizations, resumes and stories of and
excerpts from the Picture and from any literary or dramatic
material included in the Picture or upon which the Picture
is based in book form and in newspapers, magazines, trade
periodicals, booklets, press books and any other periodicals
and in all other media of advertising and publicity
whatsoever not exceeding 7,500 words in length taken from
the original material;
(B) Radio and Television: Broadcast by radio and television for
advertising purposes and to license and authorize others to
so broadcast, in any language, or any parts or portions of
the Picture not exceeding five minutes in length, and any
literary or dramatic material included in the Picture or
upon which the Picture was based alone or in conjunction
with other literary, dramatic or musical material; and
(C) Names and Likenesses: Use, license and authorize others to
use the name, physical likeness and voice and any simulation
or reproduction of any thereof of any party rendering
services in connection with the Picture for the purpose of
advertising, publicizing or exploiting the Picture,
including commercial tie-ins.
(6) Use of Name and Trademarks: To use Distributor's name and
trademark and/or the name and trademark of any of Distributor's
licensee's on the positive prints of the Picture and in Trailers
thereof, and in all advertising and publicity relating thereto,
in such a manner, position, form and substance as Distributor or
its licensees may elect.
(7) Commercials: To permit commercial messages to be exhibited
before, during and after the exhibition of the Picture.
(8) Trailers: To cause trailers of the Picture and prints thereof and
of the Picture to be manufactured, exhibited and distributed by
every means, medium, process, method and device now or hereafter
known.
(b) Grant of Other Rights: Production Company hereby grants to Distributor
throughout the Territory the sole and exclusive right, license and
privilege to exercise all literary publishing rights, live television
rights, merchandising rights, Home/Commercial video, VCD/DVD, Pay TV,
Free TV, electronic transmission systems (including cable, direct
broadcast satellite, microwave and master antenna), internet, music
publishing rights, soundtrack recording rights, radio rights,
additional motion picture rights, remake rights and sequel motion
picture rights subject to the terms and conditions of the agreements
pursuant to which Production Company acquired the foregoing rights
with respect to the literary, dramatic and/or musical material used by
Production Company in connection with the Picture and rights in all
medium now known or hereafter devised. Production Company agrees that
at the request of Distributor, Production Company will execute and
deliver to Distributor for recordation purposes a separate document
pursuant to which Production Company confirms the transfer and
assignment to Distributor of said rights.
(c) Rights Free and Clear: The above-stated rights are granted by
Production Company to Distributor without qualification and free and
clear from any and all restrictions, claims, encumbrances or defects
of any nature and Production Company agrees that it will not commit or
omit to perform any act by which any of these rights, licenses,
privileges and interests could or will be encumbered, diminished or
impaired, and that Production Company will pay or discharge, and will
hold Distributor harmless from, any and all claims that additional
payments are due anyone by reason of the distribution, exhibition,
telecasting, or re-running of the Picture or the receipt of its
proceeds. Production Company further agrees that during the
Distribution Term with respect to each country or place, Production
Company shall neither exercise itself nor grant to any third party the
rights granted to Distributor pursuant to the terms hereof.
4. DELIVERY: Delivery of the Picture shall consist of delivery by Production
Company at its expense to Distributor, or at such place Laboratory as
Distributor shall designate, the following:
(a) Master Negative, or a first generation interpositive master or
internegative of the Picture together with sound track negative
suitable for the manufacture of commercially acceptable first-class
positive release prints of the original and dubbed versions of the
Picture and the Trailer and that such laboratory will manufacture and
deliver positive release prints of the Picture and the Trailer to
Distributor upon its order.
(b) Delivery Schedule: The materials and items specified in schedule "A."
(c) Credits: Distributor shall comply with the statement of credits in
Schedule "A.". All claims, actions and causes of action arising as a
result of failure of Production Company to deliver such statement to
Distributor or as a result of compliance with such statement by
Distributor or as a result of any error in any such notice shall be
deemed to be claims, actions and causes of action with respect to
which Distributor is to be indemnified by Production Company. No
casual or inadvertent failure by Distributor or any of its
subdistributors or licensees to comply with the statement of credits
shall constitute a breach of this Agreement. Production Company shall
not be entitled to assert any claim or cause of action of any kind
against Distributor because of the failure or alleged failure by
Distributor or any of its subdistributors or licensees to comply with
the statement of credits unless and until Production Company has given
Distributor written notice of such failure or alleged failure and
Distributor after receipt of such written notice fails to comply with
such notice.
5. PRODUCTION COMPANY'S WARRANTIES AND REPRESENTATIONS: Production Company
represents and warrants to Distributor, its successors, licensees and
assigns as follows:
(a) Quality: The Picture when delivered will be completely finished, fully
edited and titled and fully synchronized with language dialogue, sound
and music and in all respects ready and of a quality, both artistic
and technical, adequate for general theatrical release and commercial
public exhibition.
(b) Content: The Picture consists or will consist of a continuous and
connected series of scenes, telling or presenting a story, free from
any obscene, vulgar, salacious, controversial and partisan political
matters and suitable for exhibition to the general public.
(c) Unrestricted Right to Grant: Production Company is the sole and
absolute owner of the Picture, the copyright pertaining thereto and
all rights associated with or relating to the distribution, exhibition
and exploitation thereof, and has the absolute right to grant to and
vest in Distributor, all the rights, licenses and privileges granted
to Distributor under this Agreement, and Production Company has not
heretofore sold, assigned, licensed, granted, encumbered or utilized
the Picture or any of the literary or musical properties used therein
in any way that may affect or impair the rights, licenses and
privileges granted to Distributor hereunder and Production Company
will not sell, assign, license, grant or encumber or utilize the
rights, licenses and privileges granted to Distributor hereunder.
(d) Discharge of Obligations: All the following have been fully paid or
discharged or will be fully paid and discharged by Production Company
or by persons other than Distributor:
(1) All claims and rights of owners of copyright in literary,
dramatic and musical rights and other property or rights in or to
all stories, plays, scripts, scenarios, themes, incidents, plots,
characters, dialogue, music, words, and other material of any
nature whatsoever appearing, used or recorded in the Picture;
(2) All claims and rights of owners of inventions and patent rights
with respect to the recording of any and all dialogue, music and
other sound effects recorded in the Picture and with respect to
the use of all equipment, apparatus, appliances and other
materials used in the photographing, recording or otherwise in
the manufacture of the Picture;
(3) All claims and rights with respect to the use, distribution,
exhibition, performance and exploitation of the Picture and any
music contained therein throughout the Territory, and
(4) All payments or claims for exhibition or re-running or reissue of
the Picture in all media throughout the Territory.
(e) No Infringement: Neither the Picture nor any part thereof, nor any
materials contained therein or synchronized therewith, nor the title
thereof, nor the exercise of any right, license or privilege herein
granted, violates or will violate or infringe or will infringe any
trademark, trade name, contract, agreement, copyright (whether common
law or statutory), patent, literary, artistic, dramatic, personal,
private, civil or property right or right of privacy or ''moral rights
of authors'' or any other right whatsoever of or slanders or libels
any person, firm, corporation or association whatsoever. In connection
therewith, Production Company shall supply Distributor with a script
clearance in a form acceptable to Distributor.
(f) No Advertising Matter: The Picture does not contain any advertising
matter for which compensation, direct or indirect, has been or will be
received by Production Company or to its knowledge by any other
person, firm, corporation or association.
(g) No Impairment of Rights Granted: There are and will be no agreements,
commitments or arrangements whatever with any person, firm,
corporation or association that may in any manner or to any extent
affect Distributor's rights hereunder or Distributor's share of the
proceeds of the Picture. Production Company has not and will not
itself, or pursuant to authority granted to any other Party, exercise
any right or take any action which might tend to derogate from, impair
or compete with the rights, licenses and privileges herein granted to
Distributor.
(h) Contracts: All contracts with artists and personnel, for purchases,
licenses and laboratory contracts and all other obligations and
undertakings of whatsoever kind connected with the production of the
Picture have been made and entered into by Production Company and by
no other party and no obligation shall be imposed upon Distributor
thereunder and Production Company shall indemnify and hold Distributor
harmless from any expense and liability thereunder. All such contracts
are in the form customarily in use in the Motion Picture industry and
are consistent with the provisions of this Agreement, particularly
with reference to the warranties made by Production Company and the
rights acquired by Distributor hereunder. Said contracts shall not,
without Distributor's prior written consent, be terminated, cancelled,
modified or rescinded in any manner which would adversely affect
Distributor's rights hereunder.
(i) All Considerations Paid: All considerations provided to be paid under
each and all the agreements, licenses or other documents relating to
the production of the Picture have been paid in full, or otherwise
discharged in full, and there is no existing, outstanding obligation
whatsoever, either present or future, under any of said contracts,
agreements, assignments or other documents,
(j) Full Performance: All terms, covenants and conditions required to be
kept or performed by Production Company or Production Company's
predecessor in title under each and all of the contracts, licenses or
other documents relating to the production of the Picture have been
kept and performed and will hereafter be kept and performed by
Production Company and there is no existing breach or other act of
default by Production Company under any such agreement, license or
other document, nor will there be any such breach or default during
the term hereof.
(k) No Release/No Banning: Neither the Picture nor any part thereof has
been released, distributed or exhibited in any media whatsoever in the
Territory nor has it been banned by the censors of or refused import
permits for any portion of the Territory.
(l) Valid Copyright: The copyright in the Picture and the literary,
dramatic and musical material upon which it is based or which is
contained in the Picture will be valid and subsisting during the
Distribution Term (as extended) with respect to each country or place
of the Territory, and no part of any thereof is in the public domain.
(m) Peaceful Enjoyment: To the extent actually known by Production Company
or which could have been known in the exercise of reasonable prudence
at the time of execution of this Agreement, Distributor will quietly
and peacefully enjoy and possess each and all of the rights, licenses
and privileges herein granted or purported to be granted to
Distributor throughout the Distribution Term (as extended) for each
country or place of the Territory without interference by any third
party.
(n) Guild-Union-Performing Rights Society-Participation Payments: Any
payments required to be made to any performing rights society or to
any body or group representing authors, composers, musicians, artists,
any other participants in the production of the Picture, publishers or
other persons having legal or contractual rights of any kind to
participate in the receipts of the Picture or to payments of any kind
as a result of the distribution or exhibition of the Picture and any
taxes thereon or on the payment thereof will be made by Production
Company or by the exhibitors and need not be paid by Distributor.
(o) Music Performing Rights: The Performing rights to all musical
compositions contained in the Picture are: (i) controlled by the
American Society of Composers, Authors and Publishers (ASCAP),
Broadcast Music, Inc., (BMI) or similar organizations in other
countries such as the Japanese Society of Rights of Authors and
Composers (JASEAC), the Performing Right Society Ltd. (PRS), the
Society of European Stage Authors and Composers (SESAC), the Societe
des Auteurs Compositeurs Et Editeurs de Musique (SACEM), Gesellscraft
fur Misikalische Auffuhrungs und Mechanische Vervielfaltigungsrechte
(GEMA) or their affiliates, or (ii) in the public domain in the
Territory, or (iii) controlled by Production Company to the extent
required for the purposes of this Agreement and Production Company
similarly controls or has licenses for any necessary synchronization
and recording rights.
(p) Television Restriction: The Picture will not be exhibited in or
telecast in or cablecast in or into the Territory during the
Distribution Term for each country or place of the Territory by anyone
other than Distributor or its licensees.
(q) Authority Relative to this Agreement: Production Company has taken all
action necessary to duly and validly authorize its signature and
performance of this Agreement and the grant of the rights, licenses
and privileges herein granted and agreed to be granted.
(r) Financial Condition: Production Company is not presently involved in
financial difficulties as evidenced by its not having admitted its
inability to pay its debts generally as they become due or otherwise
not having acknowledged its insolvency or by its not having filed or
consented to a petition in bankruptcy or for reorganization or for the
adoption of an arrangement under Federal Bankruptcy Act (or under any
similar law of the United States or any other jurisdiction, which
relates to liquidation or reorganization of companies or to the
modification or alteration of the rights of creditors) or by its not
being involved in any bankruptcy, liquidation, or other similar
proceeding relating to Production Company or its assets, whether
pursuant to statute or general rule of law, nor does Production
Company presently contemplate any such proceeding or have any reason
to believe that any such proceeding will be brought against it or its
assets.
(s) Litigation: To Production Company's knowledge, there is no litigation,
proceeding or claim pending or threatened against Production Company
which may materially adversely affect Production Company's exclusive
rights in and to the Picture, the copyright pertaining thereto or the
rights, licenses and privileges granted to Distributor hereunder.
(t) Securities Act Compliance: Production company is acquiring the shares
of common stock for investment purposes, and not with a view to the
distribution thereof. In addition, Production Company acknowleges that
the shares are being issued by Distributor to Production Company in an
exempt private placement under the Securities Act of 1933, as amended
6. INDEMNITY: Production Company does hereby and shall at all times indemnify
and hold harmless Distributor, its subdistributors and licensees, its and
their officers, directors and employees, and its and their exhibitors,
licensees and assignees, of and from any and all charges, claims, damages,
costs, judgments, decrees, losses, expenses (including reasonable
attorneys' fees), penalties, demands, liabilities and causes of action,
whether or not groundless, of any kind or nature whatsoever by reason of,
based upon, relating to, or arising out of a breach or failure or claim of
breach or failure of any of the covenants, agreements, representations or
warranties of Production Company hereunder or by reason of any claims,
actions or proceedings asserted or instituted, relating to or arising out
of any such breach or failure or conduct or activity resulting in a breach
or claim of breach. All rights and remedies hereunder shall be cumulative
and shall not interfere with or prevent the exercise of any other right or
remedy which may be available to Distributor. Upon notice from Distributor
of any such claim, demand or action being advanced or commenced, Production
Company agrees to adjust, settle or defend the same at the sole cost of
Production Company. If Production Company shall fail promptly to do so,
Distributor shall have the right and is hereby authorized and empowered by
Production Company to appear by its attorneys in any such claim, demand or
action, to adjust, settle, compromise, litigate, contest, satisfy judgments
and take any other action necessary or desirable for the disposition of
such claim, demand or action. In any such case, Production Company, within
fifteen (15) days after demand therefor by Distributor, shall fully
reimburse Distributor for all such payments and expenses, including
reasonable attorneys' fees. If Production Company shall fail so to
reimburse Distributor, then, without waiving its right to otherwise enforce
such reimbursement, Distributor shall have the right to deduct the said
amount of such payments and expenses, or any part thereof, from any sums
accruing under this Agreement or any other agreement, to or for the account
of Production Company. Also, in the event of any matter to which the
foregoing indemnity relates, Distributor shall have the right to withhold
from disbursements to or for the account of Production Company a sum which
in Distributor's opinion may be reasonably necessary to satisfy any
liability or settlement in connection with such matter, plus a reasonable
amount to cover the expenses of contesting or defending such claim and
shall have the further right to apply the amount withheld to the
satisfaction of such liability or settlement and to reimbursement of such
expenses.
7. COPYRIGHT:
(a) Ownership: Production Company warrants that Production Company has not
heretofore transferred its ownership in and to all copyrights
pertaining to the Picture throughout the world, including without
limitation the rights to secure copyright registration anywhere in the
world with respect to all copyrights in the Picture and to secure any
renewals and extensions thereof wherever and whenever permitted.
Production Company warrants that upon delivery of the Picture to
Distributor, Production Company will own all copyrights in the Picture
throughout the world for the full period of copyright and all
extensions and renewals thereof. The negative of the Picture shall
contain a copyright notice complying with all statutory requirements
of the copyright laws of the United States or any country which is a
party to the Berne Union or Universal Copyright Convention, such
notice to appear in the main or end titles of the Picture. Production
Company and Distributor shall not have the right to change the
copyright notice contained in the Picture.
(b) Defense of Copyright: Production Company hereby agrees to take all
reasonable steps to protect such copyrights from infringement by
unauthorized parties and in particular, at the request of Distributor,
to take such action and proceedings as may be reasonable to prevent
any unauthorized use, reproduction, performance, exhibition or
exploitation by third Parties of the Picture or any part thereof or
the material on which it is based which may be in contravention of the
exclusive rights granted to Distributor in respect to the Picture. For
the purpose of permitting Distributor to defend and enforce all rights
and remedies granted to Distributor hereunder, and to prevent any
unauthorized use, reproduction, performance, exhibition or
exploitation of the Picture or any part thereof or the material on
which it is based, Production Company hereby irrevocably appoints
Distributor its sole and exclusive attorney-in-fact, to act in the
Production Company's name or otherwise. Distributor agrees consistent
with commercially acceptable practices in the Motion Picture industry,
in its own name or in the name of Production Company, to take all
reasonable steps to enforce and protect the rights, licenses and
privileges herein granted, under any law and under any and all
copyrights, renewals and extensions thereof, and to prevent the
infringement thereof, and to bring, prosecute, defend and appear in
suits, actions and proceedings of any nature under or concerning all
copyrights in the Picture and to settle claims and collect and receive
all damages arising from any infringement of or interference with any
and all such rights, and in the sole judgment of Distributor exercised
in good faith to join Production Company as a party plaintiff or
defendant in such suit, action or proceeding. Production Company
hereby irrevocably appoints Distributor as its sole and exclusive
attorney-in-fact, during the Term of this Agreement, with full and
irrevocable power and authority to secure, register, renew and extend
all copyrights in the Picture and all related properties upon each
thereof becoming eligible for copyright, registration, renewal and
extension. In the case of any renewal or extension of any such
copyright, during the Term of this Agreement, Distributor shall be
deemed to have automatically acquired, and is hereby granted and
assigned, under any such renewed or extended copyright, and for the
full term of any renewal and extension of any such copyright, all the
same rights in the Picture and all related properties as are granted
to Distributor under this Agreement, and on the request of
Distributor, Production Company shall duly execute and deliver to
Distributor any instruments that may be necessary, proper or expedient
to establish the vesting in Distributor of all such rights under such
extension and renewal and during the extended or renewed period.
Production Company hereby appoints Distributor its sole and exclusive
attorney-in-fact with full and irrevocable power and authority in
Production Company's name and on Production Company's behalf to
execute, acknowledge, deliver, file, register and record all such
documents and do any and all acts and things as Distributor may deem
necessary to secure, register, renew and extend all copyrights in the
Picture and all related properties, whether or not referred to herein.
The rights of Distributor under this Clause 7(b) constitute a power
coupled with an interest and are irrevocable.
(c) Limitation of Liability: Distributor shall not be liable, responsible
or accountable in damages or otherwise to Production Company for any
action or failure to act on behalf of Production Company within the
scope of authority conferred on Distributor under this Clause 7,
unless such action or omission was performed or omitted fraudulently
or in bad faith or constituted wanton and willful misconduct or gross
negligence.
8. ERRORS AND OMISSIONS INSURANCE: Production Company shall obtain and
maintain or cause to be obtained and maintained throughout the Distribution
Term (as extended), Motion Picture Production Company and Distributor
Errors and Omissions Insurance in a form acceptable to Distributor, from a
qualified insurance company acceptable to Distributor naming Distributor
and Production Company and each and all the parties indemnified herein as
additional named insureds. The amount and coverage shall be for a minimum
of $ 1,000,000/$ 3,000,000 with respect to any one or more claims relating
to the Picture. The policy shall provide for a deductible no greater than $
10,000 and thirty (30) days notice to Distributor and Production Company
before any modification, cancellation or termination.
9. INSTRUMENTS OF FURTHER ASSURANCE: Production Company shall execute and
deliver to Distributor, promptly upon the request of Distributor therefor,
any other instruments or documents considered by Distributor to be
necessary or desirable to evidence, effectuate or confirm this Agreement,
or any of its terms and conditions.
10. NO DISTRIBUTOR REPRESENTATIONS AND/OR WARRANTIES: Production Company
acknowledges and agrees that Distributor makes no express or implied
representation, warranty, guaranty or agreement as to the gross receipts to
be derived from the Picture or the distribution, exhibition or exploitation
thereof, nor does Distributor guarantee the performance by any
subdistributor, licensee or exhibitor of any contract for the distribution,
exhibition or exploitation of the Picture, nor does Distributor make any
representation, warranty, guaranty or agreement as to any minimum amount of
monies to be expended for the distribution, advertising, publicizing and
exploitation of the Picture. Production Company recognizes and acknowledges
that the amount of gross receipts which may be realized from the
distribution, exhibition and exploitation of the Picture is speculative,
and agrees that the reasonable business judgment of Distributor and its
subdistributors and licensees regarding any matter affecting the
distribution, exhibition and exploitation of the Picture shall be binding
and conclusive upon Production Company. Under no circumstances shall
Distributor be liable or responsible for any breach of contract or lack of
good faith on the part of any of its subdistributors or licensees.
Production Company agrees that it will not make any claim or bring any
action, suit, or proceeding against Distributor, or any subdistributor or
licensee, whether in law or equity, or otherwise based upon or arising
from, in whole or in part, any claim that Distributor or subdistributor or
licensee has not properly distributed the Picture or caused the Picture to
be distributed, or that better prices or terms could have been obtained or
more business could have been done than was actually obtained or done by
Distributor or any subdistributor or licensee. Notwithstanding, Distributor
will use its best business efforts in the distribution of the Picture.
11. DISTRIBUTION AND EXPLOITATION OF THE PICTURE: Distributor shall have the
complete, exclusive and unqualified control of the distribution,
exhibition, exploitation and other disposition of the Picture directly or
by any subdistributor or licensee in the media granted to Distributor
hereunder throughout the Territory during the Distribution Term (as
extended) with respect to each country or place, in accordance with such
sales methods, plans, patterns, programs, policies, terms and conditions as
Distributor in its sole business judgment may determine proper or
expedient. The decision of Distributor in all such matters shall be final
and conclusive. The enumeration of the following rights of distribution and
exploitation shall in no way limit the generality or effect of the
foregoing:
(a) Terms: Subject to the prior written approval of Production Company
which shall not be unreasonably withheld or delayed, Distributor
shall, at all times, have full control in its sole and absolute
discretion over the manner and terms upon which the Picture shall be
marketed, distributed, licensed, exhibited, exploited or otherwise
disposed of, and all matters pertaining thereto and the decision of
Distributor on all such matters shall be final and conclusive.
Production Company shall have no control whatsoever in or over (i) the
manner or extent to which Distributor or its subdistributors or
licensees shall exploit the Picture, (ii) the terms and provisions of
any licenses granted by Distributor to third Parties or (iii) to the
sufficiency or insufficiency of proceeds from the Picture.
(b) Refrain from Distribution, Exhibition or Exploitation: Distributor may
refrain from the release, distribution, re-issue or exhibition of the
Picture at any time, in any country, place or location of the
Territory, in any media, or in any form as Distributor in its sole
business judgment exercised in good faith may determine. Production
Company acknowledges that there is no obligation to exploit the
soundtrack recording rights or music publishing rights or
merchandising rights or literary publishing rights, it being agreed
that Distributor may elect to exercise any or all of said rights as
Distributor in its sole business judgment may determine.
(c) ''Outright Sales'': Distributor may make outright sales of the Picture
as Distributor in its sole business judgment may determine, whether or
not Distributor maintains its own distributing organization in the
country, place or location of the Territory involved. Only net monies
actually received and earned by Distributor with respect to outright
sales of the Picture shall be included within gross film rentals.
(d) Contracts and Settlements: Distributor may distribute the Picture
under existing or future franchise or license contracts, which
contracts may relate to the Picture separately or to the Picture and
one or more other Motion Pictures distributed by or through
Distributor. Distributor may, in the exercise of its sole business
judgment, make, alter or cancel contracts with exhibitors,
subdistributors and other licensees and adjust and settle disputes,
make allowances and adjustments and give credits with respect thereto.
(e) Means of Release: Distributor may exhibit or cause the Picture to be
exhibited in theatres or other places owned, controlled, leased or
managed by Distributor. Distributor may enter into any agreement or
arrangement with any other distributor for the distribution by such
other distributor of all or a substantial portion of Distributor's
motion pictures. Distributor may also enter into any agreement or
arrangement with any other distributor or any other party for the
handling of the shipping and inspection activities of Distributor's
exchanges or the handling of other facilities in connection with the
distribution of motion pictures.
(f) Time of Release: The initial release of the Picture in any part of the
Territory shall commence on such date or dates as Distributor or its
subdistributors or licensees in their respective sole judgment and
discretion may determine. Such releases shall be subject to the
requirements of censorship boards or other governmental authorities,
the availability of playing time in key cities, the securing of the
requisite number of motion picture copies, and delays caused by reason
of events of force majeure or by reason of any cause beyond the
control of Distributor or its subdistributors or licensees. If any
claim or action is made or instituted against Distributor or any of
its subdistributors or licensees as to the Picture, Distributor or
such subdistributors or licensees shall have the right to postpone the
release of the Picture (if it has not then been released) or to
suspend further distribution thereof (if it has been released) until
such time as such claim or action shall have been settled, and for
such time thereafter as may be reasonably necessary in the judgment of
Distributor or of such subdistributor or licensee to commence or
resume distribution.
(g) Duration of Release: Distribution of the Picture shall be continued in
the Territory or any part thereof in which it is released by
Distributor or its licensees only for so long as Distributor or its
subdistributors or licensees may deem desirable in the exercise of
their sole discretion. Distributor shall not be obligated to reissue
the Picture at any time in the Territory but shall have the right to
do so from time to time as it may deem desirable.
(h) Withdrawal of the Picture: Should Distributor or its subdistributors
or licensees in its or their sole judgment deem it inadvisable or
unprofitable to distribute, exhibit or exploit the Picture in the
Territory or any part thereof, Distributor or its subdistributors or
licensees shall have the right to withhold or withdraw the Picture
from such Territory or any part thereof.
(i) Banning of Release: If by reason of any law, embargo, decree,
regulation or other restriction of any agency or governmental body,
the number or type of motion pictures that Distributor is permitted to
distribute in the Territory or any part thereof is limited, then
Distributor may in its absolute discretion determine which motion
pictures then distributed by Distributor will be distributed in the
Territory or any part thereof, and Distributor shall not be liable to
Production Company in any manner or to any extent if the Picture is
not distributed in the Territory or any part thereof by reason of any
such determination.
(j) Collections: Distributor shall in good faith audit, check or verify
the computation of any payments and/or press for the collection of any
monies which, if collected, would constitute gross receipts. There
shall be no responsibility or liability to Production Company for
failure to audit, check, or verify or to collect any monies payable.
(k) Advertising: Distributor shall not be obligated to expend any minimum
or maximum amount with respect to the advertising and publicizing of
the Picture. Any amount expended by Distributor shall be recouped from
50% of Gross Receipts until fully recouped. Any amount expended by
Production Company shall be recouped from 50% of Gross Receipts until
fully recouped.
(l) Expenses: Distributor may incur any expenses which Distributor, in the
exercise of its sole business judgment, deems appropriate with respect
to the Picture or the exercise of any of Distributor's rights
hereunder.
(m) No Preferential Treatment: Anything herein contained to the contrary
notwithstanding, Production Company agrees that nothing herein shall
require Distributor to prefer the Picture over any other motion
picture produced or distributed by Distributor or shall restrict or
limit in any way Distributor's full right to distribute other motion
pictures of any nature or description whether similar or dissimilar to
the Picture.
12. IMPORT PERMITS: Distributor shall be under no duty to obtain any necessary
licenses and permits for the importation and distribution of the Picture in
any country or locality nor to utilize for the Picture any licenses or
permits available to Distributor in limited quantity. Production Company
shall on request use its best efforts to secure for Distributor any such
licenses or permits. Distributor shall be entitled to the benefit of all
import and/or export licenses and/or quotas and/or similar benefits of
Production Company with respect to the Picture which would entitle the
Picture to be imported into any country or territory. Production Company
shall notify Distributor of such licenses and/or quota benefits and
transfer and assign the same to Distributor upon request. If it is not
legally permissible to make such transfer and assignment, the same shall be
held in trust for the sole benefit of Distributor. The foregoing provision
shall apply to all future arrangements which may come into being under
international trade arrangements and/or other treaties or other favorable
arrangements for the foreign importation of films.
13. MOTION PICTURE PRINTS: Distributor shall be entitled to obtain such prints,
dupe negatives and master prints of the Picture which Distributor in its
sole discretion shall deem advisable for distribution of the Picture in the
Territory. All such prints shall remain the property of Distributor.
Distributor shall not be required to carry any insurance on any such prints
and negatives and shall not be liable for their damage or destruction.
14. CENSORSHIP OR FORCE MAJEURE:
(a) Adjustment of Distribution Expenses: If Distributor is for any reason
unable to distribute the Picture in any country or area of the
Territory and Distributor has incurred any Distribution Expenses in
connection with the distribution of the Picture in such country or
area, Producer will, on demand, reimburse Distributor therefor or, at
Distributor's election, Distributor shall be repaid by Production
Company from any sum thereafter due from Distributor to Production
Company.
15. DISTRIBUTOR'S DEFAULT: Production Company shall not be entitled to bring
any action, suit or proceeding of any nature against Distributor or its
subdistributors or licensees, whether at law or in equity or otherwise,
based upon or arising from in whole or in part any claim that Distributor
or its subdistributors or licensees has in any way violated this Agreement,
unless the action is brought within one (1) year from the date of
Production Company's discovery of such alleged violation. It is agreed that
if Distributor breaches this Agreement and fails to begin to remedy such
breach within a period of sixty (60) days after receipt by Distributor of
written notice from Production Company specifying the alleged breach fails
to diligently pursue a cure of such alleged breach if it cannot be cured
within a period of sixty (60) days, or if after delivery of the Picture,
Distributor shall fail to make any payments at the time and in the manner
provided and Production Company has given Distributor twenty (20) days
written notice to that effect and Distributor fails to make such payment
within (20) days, then in either of such events, Production Company shall
have the right to proceed against Distributor for monies due to Production
Company. In no event, however, shall Production Company have any right to
terminate or rescind this Agreement, nor shall the rights acquired by
Distributor under this Agreement be subject to revocation, termination or
diminution because of any failure or breach of any kind on the part of
Distributor or its subdistributors or licensees. In no event shall
Production Company be entitled to an injunction to restrain any alleged
breach by Distributor or its subdistributors or licensees of any provisions
of this Agreement. If Production Company fails to recover a final judgment
in any such suit or proceeding, Production Company agrees to pay
Distributor promptly all sums reasonably expended by Distributor for
counsel fees or other expenses in connection with such suit or proceeding.
16. WAIVER: No waiver of any breach of any provision of this Agreement shall
constitute a waiver of any other breach of the same or any other provision
hereof, and no waiver shall be effective unless made in writing.
17. RELATIONSHIP OF PARTIES: Nothing herein contained shall be construed to
create a joint venture or partnership between the parties hereto nor a
third party beneficiary relationship as to any third party. Neither of the
parties shall hold itself out contrary to the terms of this provision, by
advertising or otherwise nor shall Distributor or Production Company be
bound or become liable because of any representations, actions or omissions
of the other.
18. ASSIGNMENT: Distributor may assign this Agreement to and/or may distribute
the Picture through any of its subsidiaries, parents or affiliated
corporations or any agent, instrumentality or other means determined by
Distributor, provided that Distributor shall not thereby be relieved of the
fulfillment of its obligations hereunder unless otherwise provided.
Production Company may assign the right to receive payment hereunder to any
third party; provided, however, that Production Company shall not be
permitted to assign any of its obligations hereunder.
19. NOTICES: All notices from Production Company or Distributor to the other,
with respect to this Agreement, shall be given in writing by mailing or
telegraphing the notice prepaid, return receipt requested, and addressed to
Distributor or Production Company, as appropriate, at the address set forth
in the preamble hereof. A courtesy copy of any notice to Production Company
shall be sent to Business and Legal Affairs at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. Distributor or Production Company may change
such address by written notice to the other at the address stated in the
preamble hereof.
20. GOVERNING LAW: This Agreement shall be governed by the laws of the State of
California, County of Los Angeles, without giving effect to principles of
conflict of laws thereof.
21. CAPTIONS: The captions of the various paragraphs and sections of the
Agreement are intended to be used solely for convenience of reference and
are not intended and shall not be deemed for any purpose whatsoever to
modify or explain or to be used as an aid in the construction of any
provisions.
22. AMENDMENTS IN WRITING: This Agreement cannot be amended, modified or
changed in any way whatsoever except by a written instrument duly signed by
authorized officers of Production Company and Distributor.
23. ARBITRATION: Any dispute concerning this agreement shall be resolved by
binding arbitration.
24. ENTIRE AGREEMENT: This Agreement, which is comprised of the general terms
above (''Main Agreement'') and the attached Schedule and Exhibits,
represents the entire agreement between the parties with respect to the
subject matter hereof and this Agreement supersedes all previous
representations, understandings or agreements, oral or written, between the
parties regarding the subject matter hereof.
By signing in the spaces provided below, the parties accept and agree to all the
terms and conditions of this Agreement as of the date first above written.
Revenge Games Inc,
(''Production Company'')
By: _________________
Its: President
Hair Max International Inc
(''Distributor'')
By: _________________
Its: President
By: _________________
Its: Chief Financial Officer
