EXHIBIT 10.7
DATED APRIL 27, 2004
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(1) PEAK ENTERTAINMENT LTD
(2) CADACO
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DISTRIBUTION AGREEMENT
NO. DIST030
COUNTIN SHEEP
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This AGREEMENT is made on the 27th day of April 2004
BETWEEN
1. PEAK ENTERTAINMENT LTD whose registered office is at ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇ Hill, Bakewell, Derbyshire, DE45 1DL, England ("Peak")
AND
CADACO, whose registered office is at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇ ("Distributor")
BACKGROUND
(A) Peak owns or controls rights to the Products in the Territory and
manufactures the products through its Affiliate Jusco Toys Limited.
(B) The Distributor is experienced in marketing and selling in the Territory
and has agreed to act as the Distributor in the Territory.
(C) Peak wishes to appoint the Distributor as an exclusive distributor in the
Territory for the Products upon the Terms and Conditions of this
Agreement.
IT IS HEREBY AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement unless the context otherwise requires the following
words shall have the following meanings:
"ADVANCE" an initial non-refundable advance Royalty
payment.
"AFFILIATE" any person which is, in relation to a
company, its parent undertaking or its
subsidiary undertaking, or a subsidiary
undertaking of its parent undertaking or
any other person controlled by or under
the same control either directly or
indirectly. "Parent Undertaking" and
"subsidiary undertaking" shall have the
meanings attributed to them in sections
258 and 259 Companies ▇▇▇ ▇▇▇▇.
"AGREED PERCENTAGE" 10% of Net Selling Price
"BUSINESS DAY" any other day other than Saturday or
Sunday or a public or bank holiday in
England or the USA.
"COMMENCEMENT DATE" The date hereof.
"CONFIDENTIAL INFORMATION" all information in respect of the business
of Peak or its Affiliates including,
without prejudice to the generality of the
foregoing any ideas; business methods;
finance; prices, business, financial,
marketing, development or manpower plans;
customer lists or details; computer
systems and software; products or
services, including but not limited to
know-how or other matters connected with
the Products; and information concerning
Peak's and its Affiliates relationships
with actual or potential clients,
customers or suppliers and the needs and
requirements of Peak and its Affiliates
and of such persons.
"CUSTOMER" any person with whom the Distributor
enters into a contract for the sale and
purchase of the Products.
"GUARANTEED ROYALTY" being the minimum Royalty payable
by the Distributor during the Term of this
Agreement.
"INTELLECTUAL PROPERTY RIGHTS" any and all patents, trade marks, trade
names, service marks, copyright, moral
rights, rights in design, rights in
databases, know-how, Confidential
Information and all or any other
intellectual or industrial property rights
whether or not registered or capable of
registration and whether subsisting in the
Territory or any other part of the world
together with all or any goodwill relating
thereto.
"PRODUCTS" the `Countin' Sheep' products listed in
SCHEDULE 1 and such other toy product
manufactured from time to time by Jusco
Toys Limited (an affiliate of Peak) for
Peak. It shall not include products, which
have been licensed for manufacture, or are
subsequently licensed for manufacture, by
Peak to third parties and/or products,
which third parties have licensed to Peak
or Jusco Toys Limited to manufacture.
"PROPERTY" a property created and/or controlled by
Peak during the currency of this Agreement
in respect of which Peak or Jusco Toys
Limited manufacture Products and
Properties shall be interpreted
accordingly.
"ROYALTY" the royalty payable by the Distributor to
Peak pursuant to CLAUSE 11.
"TERM" from the Commencement Date until 31t
December 2006
"TERRITORY" United States of America
"TRADE MARKS" Trade Marks registered by Peak or
its Associates in the Territory in
relation to the Products.
1.2 The headings used in this Agreement are included for convenience only and
are not to be used in construing or interpreting this Agreement.
1.3 In this Agreement any reference to the plural includes the singular and
vice versa, any reference to one gender includes all genders and any
reference to a person includes companies, partnerships, firms, and any
other unincorporated associations.
1.4 Any right or power conferred in this Agreement may be exercised and any
duty imposed by this Agreement is to be performed from time to time, as
occasion requires.
2 APPOINTMENT OF DISTRIBUTOR
2.1 Peak hereby appoints the Distributor as its sole and exclusive
distributor for the sale of the Products in the Territory for the Term
and the Distributor agrees to act in that capacity subject to the terms
and conditions of this Agreement.
2.2 Peak reserves the right to supply Products direct to retailers and buyers
within the Territory in the event that the Distributor fails to market
Products to retailers who have specifically requested Product in the
Territory within 6 months from acceptance by the Distributor of the
Products in accordance with the Products listed in Schedule 1, from the
Commencement date Peak will not directly canvas business and if any
retailer approaches Peak directly or indirectly, Peak shall make the
Distributor aware of any such request (and for the avoidance of doubt in
such event Peak shall not pay commission referred to above to the
Distributor)
2.3 The Distributor is entitled to describe itself as Peak's "Authorised
Distributor" for the Products in the Territory but shall not hold itself
out as Peak's agent for sales of the Product or as being entitled to bind
Peak in any way.
2.4 Peak shall not be liable to the Distributor if any of the Products are
sold in the Territory by any third party, unless that third party is
acting with the actual consent of Peak given in breach of the Terms of
this Agreement. Peak shall use its reasonable endeavours to prevent any
unauthorised distribution in the Territory by third parties.
2.5 Nothing in this Agreement shall entitle the Distributor to any priority
of supply in relation to the Products against Peak's other distributors
or customers.
3 GRANT AND PAYMENT
3.1 In consideration of the rights granted hereunder by Peak the Distributor
shall place a minimum opening order on the date of signing this
Agreement.
3.2 The royalties due on the opening order shall be treated as an advance
payment of the Royalty and shall be off set against the Royalty payable
during the Term of this Agreement, but shall be non-refundable.
3.3 The Distributor shall purchase the Products from Peak in accordance with
the Terms and Conditions of telegraphic transfer of payment after receipt
of document copies including the following: Invoice, ▇▇▇▇ of Lading, and
Packing Slip. Upon receipt of the payment, Peak will instruct their
vendor to release the original paperwork to the distributor, free and
clear. In the event of any conflict between the Terms and Conditions and
the provisions of this Agreement, the latter shall prevail.
4. PROHIBITIONS ON THE DISTRIBUTOR
4.1 The Distributor shall use its reasonable endeavours to procure that
during the currency of this Agreement: 4.1.1 not to purchase the Products
from anyone other than Peak during the Term of this Agreement; or
4.1.2 sell Products to any person outside the Territory without prior
written consent of Peak. Peak reserves the exclusive right to
solicit orders for Products from any person not in the Territory
save where it has allocated that right to a third party.
4.2 During the currency of this Agreement the Distributor will not:
4.2.1 knowingly do anything which will harm the reputation of Peak;
4.2.2 pledge the credit of Peak in any way or bind or attempt to bind
it by contractor otherwise;
4.2.3 use any marketing or promotional materials or attended any
marketing events with respect to the Products which have not
been approved by Peak in writing (such approval not to be
unreasonably withheld or delayed);
4.2.4 modify or alter the Products or their packaging in any way save
as required by law unless agreed in writing by Peak;
4.2.5 make any representations about the Products save as agreed in
writing in advance by Peak;
4.2.6 register any domain name relating to the Products and so nearly
resembling the Trade Marks as to be likely to deceive or cause
confusion for use on the
Internet except with the prior written consent of Peak, such
consent not to be unreasonably withheld or delayed.
5. GENERAL UNDERTAKINGS BY THE DISTRIBUTOR
5.1 The Distributor shall during the continuance of this Agreement:-
5.1.1 (subject to Peak complying with its obligations in Clauses 6.10,
7.1 and 7.2) diligently and faithfully serve Peak in the
Territory and shall use its reasonable endeavours to improve the
goodwill of Peak in the Territory and to increase the sales of
the Products in the Territory.
5.1.2 not to do anything that may prevent the sale or deter the
development and increase the sales of the Products in the
Territory;
5.1.3 ensure that it conforms with all legislation, rules, regulations
and statutory requirements existing in the Territory from time
to time in relation to the Products;
5.1.4 not to procure any third party to manufacture the Products;
5.1.5 leave in position and not to cover or erase any notices or other
marks (including without limitation details of notices that a
trade ▇▇▇▇ design or copyright relating to the Products) which
Jusco places on or affixed to the Products;
5.1.6 provide such reasonable information as Peak may require. ;
5.1.7 keep adequate records of Customers and prospective Customers and
orders placed for the Products and provide on request details of
their names and copies of correspondence with them to Peak; and
5.1.8 maintain adequate stock of the Products to meet the
Distributor's reasonably anticipated customer demand at all
times.
5.1.9 Refer promptly to Peak any enquiries the Distributor received
from prospective customers outside the Territory.
6. DISTRIBUTORS OBLIGATIONS AS TO MARKETING AND PEAK'S OBLIGATION TO
SUPPORT.
6.1 The Distributor shall only market and solicit orders for the Products
within the Territory.
6.2 The Distributor shall ensure that the Products shall be on sale to the
public within three months of the date of shipment of the Product by Peak
unless otherwise agreed in writing.
6.3 The Distributor shall ensure so far as it is reasonably practicable that
the Products are not supplied for sale as an integral part of any other
Product and shall not be supplied
either directly or indirectly to other manufacturers or to ▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ vendors and the like or to any person intending
to distribute the products gratuitously unless agreed in writing by Peak.
6.4 It is agreed by the Distributor that the Products will be sold to
recognised wholesale firms for resale to retail firms or to retail firms
for resale to the public or direct to the public.
6.5 The Distributor shall at all times use its reasonable endeavours to sell
and promote the sale of the Products throughout the Territory (subject to
Peak complying with its obligations in clauses 6.10, 7.1 and 7.2).
6.6 The Distributor shall reasonably observe all reasonable directions and
instructions given by Peak in relation to the promotion and marketing of
the Products and dealings with Customers and prospective Customers.
6.7 All advertisements and promotions carried out and all advertising,
promotional and sales material for the Products used by the Distributor
shall be subject to the prior written approval of Peak, such approval to
be given promptly.
6.8 In the event that the Distributor fails to offer or promote any of the
Products for a period of 60 days at any time following acceptance
thereof, Peak shall be entitled to immediately withdraw the rights for
each Product not offered or promoted by giving the Distributor written
notice of 30 days.
6.9 The Distributor undertakes to Peak to support the marketing the Products
in respect of the properties to a level that is representative of the
sales forecasts. Such marketing spend to be allocated throughout the Term
of this Agreement as agreed between the parties.
6.10 Peak shall use its reasonable endeavours to promptly supply to the
Distributor with up-to-date samples, catalogues, brochures and such
information relating to Products and/or Properties as the Distributor
shall reasonably request or which Peak shall consider relevant, and Peak
shall use its reasonable endeavours to assist the Distributor in the
placement of Products within major accounts.
6.11 Peak shall at all times during the continuance of this Agreement act
towards the Distributor dutifully and in good faith.
7. SUPPLY OF PRODUCTS
7.1 Peak shall promptly supply the Distributor with samples of the Products
prior to order by the Distributor, such supply to be at the reasonable
expense of the Distributor.
7.2 Subject to CLAUSE 8, Peak shall use its reasonable endeavours to supply
the Products to the Distributor in accordance with the Distributor's
orders and deliver the same in accordance with the Distributor's
directions.
7.3 Peak shall supply to the Distributor where the Distributor so requests,
certified copies of any relevant Toy Safety Certificates relating to the
Products ordered and warrants
that all Products shall be of satisfactory quality and will comply with
the specifications agreed (subject to clause 7.4). In addition, Peak will
allow the Distributor to perform factory audits to assess compliance and
quality checks and inspections. The Distributor will not be obliged to
purchase the Products should the factory audits fail any compliance
tests.
7.4 Peak is not under any obligation to continue the manufacture of all or
any of the Products and shall be entitled to make such alterations to the
specifications of the Products as it may think fit but will consult with
the distributor and only make changes on 30 days prior written notice
following the consultation with the distributor, but will not
unreasonably stop or later production.
7.5 The Distributor shall in respect of each order for the Products placed
with Peak be responsible for:-
7.5.1 ensuring the accuracy of orders
7.5.2 providing Peak with any information which is necessary in order
to enable Peak to fulfil the order and to comply with all
labelling, marketing and other applicable legal requirements in
the Territory; and
7.5.3 obtaining any necessary import licences or other requisite
documents and paying all applicable custom duties and taxations
in respect of the importation of the Products into the Territory
and their resale in the Territory.
7.6 The Distributor shall give Peak reasonable written notice of its
estimated requirements of the Products in each month and shall promptly
notify Peak of any changes in circumstances, which may affect its
requirements.
7.7 Risk of damage to or loss of the Products shall pass to the Distributor
upon delivery to the Distributor's freight forwarder at the named port of
shipment.
7.8 Peak shall keep the Distributor advised of anticipated delivery dates and
will use its reasonable endeavours to meet delivery dates advised to the
Distributor.
8. PRICE AND PAYMENT
8.1 The Distributor shall pay to Peak the Price for the Products which, for
the avoidance of doubt, shall include the Royalty Rate. A royalty rate of
10% will be paid in accordance with clause11.
8.2 The Price shall be in accordance with Peak's standard price list from
time to time applicable that will be agreed with the Distributor. Peak
may amend the price list after agreeing this with the Distributor and
will not change the pricing unless full agreement is met by the
distributor in writing.
8.3 In accordance with clause 8.2 Peak shall supply to the Distributor up to
date copies of all prices lists for the Products and give the Distributor
immediate notice in writing of its intention to alter prices and of the
prices to be altered and the prices so altered shall apply to all
Products ordered on or after the applicable dates of increase or decrease
provided the Distributor agrees the price alterations.
8.4 All Prices are exclusive of any applicable sales or importation taxes for
which the Distributor shall be additionally liable. The Price is
calculated on a FOB royalty free basis.
8.5 All payments will be made dollars in USA or in such other currency and
place, as Peak shall from time to time specify in writing.
8.6 If the Distributor fails to pay within 30 days of the due date any amount
which is payable to Peak under this Agreement then, without prejudice to
any other rights set out in this Agreement:
8.6.1 that amount shall bear interest from the due date until payment
is made in full, both before and after any judgement, at 4 per
cent per annum over Lloyds TSB Plc base rate from time to time;
8.6.2 Peak shall be entitled to suspend deliveries of the Products
until the outstanding amount has been received by Peak from the
Distributor.
9. PREMIUMS
9.1 The Distributor shall not sell or otherwise dispose of any Products as
premiums to any person whatsoever.
9.2 Peak shall notify the Distributor of any premium promotions.
9.3 The right of sale as premiums is expressly reserved by Peak and if the
Distributor shall receive any approach for the purpose of the use of sale
of the Products as a premium it shall forthwith notify Peak and furnish
it with the names and full particulars of the person making the approach.
9.4 For the purposes of this clause "premium" means a Product or Product
combined with a service which is sold or supplied in association with the
sales promotional activities of retailers, wholesalers or manufacturers
associations with incentive programmes of all kinds.
10. DISTRIBUTOR'S STAFF
The Distributor shall employ during the continuance of this Agreement
sufficient staff appropriate training and quality to sell, distribute and
promote the sale of the Products throughout the Territory and perform in
a timely and satisfactory manner the Distributor's obligations under this
Agreement and in particular shall employ and maintain a sales force of
sufficient size from time to time to fulfil the Distributor's obligations
under this Agreement in relation to the sale and marketing of the
Products.
11. ROYALTIES
11.1 In consideration of the rights granted by Peak the Distributor shall pay
Peak a royalty of the Agreed Percentage of the net selling price to
retail as estimated in SCHEDULE 2.
11.2 The Distributor shall send to Peak by the thirtieth day following the end
of March, June, September and December during the continuance of this
Agreement a report of sales made of the Products in the Territory since
the last statement showing the total royalty payable (if any) to Peak and
at the same time deliver to Peak a remittance for the full amount of that
Royalty together with any marketing or other information in relation to
the operation of the Agreement as Peak may reasonably require including
details of the Customer of the Distributor and stock levels as at the
date of the report.
11.3 All sums payable by the Distributor pursuant to this Agreement shall be
paid free and clear of all deductions or withholdings whatsoever save
only as may be required by any applicable law.
11.4 If any deductions or withholdings are required by law to be made from any
of the sums payable pursuant to this Agreement, the Distributor shall be
obliged to pay to Peak such sum as will, after deduction or withholding
has been made, leave Peak with the same amount as it would be entitled to
receive in the absence of any such requirement to make a deduction or
withholding.
11.5 The Distributor shall keep and maintain separate and detailed accurate
accounts and records so as to show the quantity and net sales price of
the Products sold for each Royalty period giving separately the figures
for each Product. Peak shall have the right, at reasonable hours, and on
giving the Distributor reasonable notice, to appoint a representative
(being a qualified, certified or chartered accountant) to audit the said
accounts and records and if such audit reveals a discrepancy, it shall be
collected forthwith. It is further agreed that if such discrepancy is 10%
or more in the Distributor's favour the Distributor shall pay Peak's
reasonable auditing fees and expenses (including travel and
accommodation) in addition to any other payments due and interest on the
discrepancy at 2% above the base lending rate from time to time of
Lloyd's TSB Plc.
12. INTELLECTUAL PROPERTY
12.1 Peak authorises the Distributor to use the Trade Marks in the Territory
in relation to the Products for the purposes only of exercising its
rights and performing its obligations under this Agreement.
12.2 The Distributor shall ensure that each reference to and use of any of the
Trade Marks by the Distributor is in a manner from time to time approved
by Peak and accompanied by an acknowledgement in a form approved by Peak
(such approval not to be unreasonably withheld or delayed), that the same
is a Trade ▇▇▇▇ of Peak.
12.3 The Distributor shall not:
12.3.1 modify, remove or tamper with any Trade ▇▇▇▇ or any copyright
statement on the Products or their packaging;
12.3.2 use any of the Trade Marks in any way which might prejudice
their distinctiveness or validity or the goodwill of Peak;
12.3.3 use in relation to the Products any trade marks or names other
than the Trade Marks without obtaining the prior written consent
of Peak; or
12.3.4 use in the Territory, any trademarks or names so resembling the
Trade Marks as to be likely to cause confusion or deception.
12.4 The Distributor shall not apply to register any of the Intellectual
Property Rights in the Products nor any trademarks or trade names so
nearly resembling the Trade Marks as to be likely to deceive or cause
confusion.
12.5 Except as expressly provided in this Agreement the Distributor shall have
no rights in respect of Intellectual Property Rights however used by Peak
in relation to the Products and the Distributor hereby acknowledges that
he shall not acquire any rights in respect thereof and that all such
Intellectual Property Rights are and shall remain vested in or controlled
by Peak.
12.6 The Distributor will immediately inform Peak in writing of any actual,
threatened or suspected infringement of the Intellectual Property Rights
of Peak relating to the Products or of any claim that the Products
infringe the Intellectual Property Rights of a third party, but the
Distributor shall take no steps or enter into any proceedings with
respect to such infringement or claim without the prior written consent
of Peak.
12.7 The Distributor shall at the expense of Peak take all such steps as Peak
may reasonably require to assist Peak in maintaining the validity and
enforceability of the Intellectual Property Rights of Peak during the
Term of this Agreement PROVIDED THAT Peak shall indemnify the Distributor
against all costs, claims, damages, expenses and other liabilities
arising from or in connection with such steps and FURTHER PROVIDED THAT
Peak shall be entitled to all damages recovered.
12.8 The Distributor shall not do or authorise any third party to do any act,
which would or might invalidate or be inconsistent with any Intellectual
Property Rights of Peak and shall not omit or authorise any third party
to omit to do any act, which, by its omission, would have that effect.
12.9 Distributor acknowledges that any and all Intellectual Property Rights
created, developed or subsisting in connection with the Products and any
modifications thereto shall be and remain the sole property of Peak and
Distributor shall do all acts and execute all documents (and procure that
its employees do likewise) necessary to perfect or vest the ownership
thereof in Peak.
2.10 Peak warrants to the Distributor that:
12.10.1 it has been granted the rights to use all Intellectual Property
Rights necessary to allow it to manufacture, supply and sell the
Products; and
12.10.2 the manufacture and sale of the Products by Peak and the rights
granted by this Agreement does not infringe the Intellectual
Property Rights of any third party in so far as Peak is aware.
And Peak shall indemnify the Distributor in respect of any breach of the
warranties in this clause 12.10.
13. TERMINATION
13.1 Either party may by notice in writing served on the other terminate this
Agreement forthwith if the other:
13.1.1 shall be in continuing or material breach of any of the terms of
this Agreement and, where the breach is capable of remedy, the
other party fails to remedy such breach within 30 days' service
of a written notice (or if not practicable, within such a period
as is practicable) from the party not in breach specifying the
breach and requiring it to be remedied;
13.1.2 being a company, summons a meeting of its creditors, suffers a
proposal for a voluntary arrangement, becomes subject to any
voluntary arrangement, is unable to pay its debts within the
meaning of section 123 Insolvency ▇▇▇ ▇▇▇▇, has a receiver,
manager, administrator or administrative receiver appointed over
its assets, undertaking or income, has passed a resolution for
its winding-up (save for the purpose of voluntary reconstruction
or amalgamation previously approved in writing by the party
serving notice), has a petition presented to any Court for its
winding-up (save for the purpose of a voluntary reconstruction
or amalgamation previously approved in writing by the party
serving notice), has a provisional liquidator appointed, has a
proposal made for a scheme of arrangement under section 245
Companies ▇▇▇ ▇▇▇▇ or is subject of a notice to strike off the
register at Companies House or for an administration order.
13.1.3 has any distraint, execution or other process levied or enforced
on any of its property;
13.1.4 ceases or threatens to cease to trade;
13.1.5 in the case of the Distributor only, has a change in its
management and/or control involving 25% of its shares being
transferred to a person who is not a shareholder of the
Distributor at the Commencement Date unless such shares are
transferred to an Affiliate; or
13.2 As from the date of termination the Distributor will cease to hold itself
out as Distributor for Peak and for the sale and marketing of the
Products provided always that for a period of 120 days immediately
following the date of termination of this Agreement howsoever arising the
Distributor will be entitled, to sell Products which are in the
Distributor's stock as at the date of termination.
13.3 On termination of this Agreement, howsoever arising, the Distributor will
forthwith return to Peak all documents and other materials or things on
loan or issued from Peak and any copies thereof made by the Distributor
which are in the Distributor's possession, custody or control as at the
date of termination.
13.4 On termination of this Agreement, both parties shall meet to conclude any
outstanding matters.
13.5 Any order for the Products in the progress of manufacture at the time of
termination shall be paid for by the Distribution and shipped to the
Distribution in accordance with the Terms and Agreement, the sale of such
Products by the Distributor to be in accordance with clause 13.2.
13.6 Upon termination of this Agreement the Distributor shall:-
13.6.1 pay to Peak the balance of any Royalties accrued up to the date
of termination and the balance of the Guaranteed Royalty not
already paid (less any Advance already paid) if appropriate
under this Agreement. There shall be no further sums payable by
the Distributor to Peak under this Agreement apart from those
that may become due in accordance with Clauses 11, 13.2 and
13.5.
13.6.2 if required to do so by Peak supply Peak with a list of the
Customers for the Products; and
13.6.3 assign to Peak free of charge all permission consents and
licences (if any) relating to the marketing and/or distribution
and/or sale of the Products in the Territory and execute all
documents and so all the things necessary to ensure that Peak
enjoys the benefit of those permissions, consents and licences
after the termination of this Agreement to the entire exclusion
of the Distributor.
13.7 The termination of this Agreement howsoever arising is without prejudice
to the rights, duties and liabilities of either party accrued prior to
termination. The clauses in this Agreement with expressly or impliedly
have effect after termination shall continue to be enforceable
notwithstanding termination.
14. INDEMNITY AND INSURANCE
14.1 The Distributor shall indemnify and hold harmless Peak from and against
any liability, loss, claim or proceedings whatsoever arising under any
statute or at common law in respect of personal injury or damage to any
property real or personal arising from the sale of the Products unless
such liability arises from the negligent act or omission or breach of
contract of Peak or its Affiliates, employees, agents or officers.
14.2 The Distributor shall have in force Public and Product Liability
Insurance for not less than(pound)1 million satisfactory to Peak.
14.3 The Policies of insurance shall be shown to Peak whenever it requests
together with satisfactory evidence of payment of premiums.
15. CONFIDENTIALITY
15.1 The Distributor undertakes to Peak:
15.1.1 to use its reasonable endeavours to keep confidential all
Confidential Information (whether written or oral) which it
has obtained or received as a result of the discussions
leading up to or the entering into, or obtains or receives in
performance of, this Agreement;
15.1.2 not to disclose the Confidential Information in whole or in part
to any other person without Peak's written consent, save those
of its employees, agents and sub-contractors involved in the
implementation of this Agreement and who have a need to know the
same and are bound to keep it confidential; and
15.1.3 to use the Confidential Information solely in connection with
the performance of this Agreement and not otherwise or for the
benefit of any third party.
15.2 The provisions of CLAUSE 15.1 shall not apply to the whole or any part of
the Confidential Information which is:
15.2.1 lawfully obtained after the Commencement Date free of any duty
of confidentiality otherwise than directly or indirectly from
Peak;
15.2.2 already in the Distributor's possession other than as a result
of a breach of this CLAUSE 15.1;
15.2.3 in the public domain (other than as a result of a breach of this
CLAUSE 15.1);
15.2.4 necessarily disclosed pursuant to a statutory obligation;
15.2.5 disclosed to the professional advisors, auditors and bankers of
the Distributor under the terms of confidentiality; or
15.2.6 disclosed with the prior written consent of Peak.
15.3 Save as otherwise set out in this Agreement, no announcement, circular,
advertisement or other publicity in connection with this Agreement, its
subject matter or any ancillary matter shall be made or issued by or on
behalf of the Distributor without the prior written consent of Peak.
16. ASSIGNMENT AND SUB-CONTRACTING
16.1 The Distributor may not assign the benefit (including any present, future
or contingent interest or right to any sums or damages payable by Peak
under or in connection with this Agreement) or otherwise mortgage, charge
or otherwise transfer any or all of its rights and obligations under this
Agreement without the prior written consent of Peak which shall not be
unreasonably withheld.
16.2 The Distributor shall not subcontract any or all of its rights and
obligations under this Agreement and shall not be entitled to appoint any
sub-distributors without the prior written consent of Peak.
17. WAIVER OF RIGHTS
17.1 The failure or delay by Peak in exercising any right, power or remedy of
Peak under this Agreement shall not in any circumstances impair such
right, power or remedy nor operate as a waiver of it. The single or
partial exercise by Peak of any right, power or remedy under this
Agreement shall not in any circumstances prelude any other or further
exercise of it or the exercise of any other right, power or remedy.
17.2 Any waiver of a breach of, or default under, any of the terms of this
Agreement shall not be deemed a waiver of any subsequent breach or
default and shall in no way affect the other terms of this Agreement.
18. ENTIRE AGREEMENT
This Agreement contains all the terms and refers to all the documents
which the parties have agreed in relation to the subject matter of this
Agreement and supersedes any prior written or oral agreements,
representations or understanding between the parties relating to such
subject matter save for the licence agreements and the variation deeds
referred to in clause 1.5. Neither party to this Agreement has been
induced to enter into this Agreement or any of those documents by a
statement or promise which they do not contain, save that this clause
shall not exclude any liability which one party would otherwise have to
the other party in respect of any statement made fraudulently by that
party.
19. VARIATION
No variation to this Agreement shall be effective unless in writing
signed by a Director or other duly authorised officer of each of the
parties.
20. INVALIDITY
20.1 If at any time any clause or part of this Agreement is found by any
court, tribunal or administrative body of competent jurisdiction to be
wholly or partly illegal, invalid or unenforceable in any respect under
the law of any jurisdiction:
20.2 That shall not affect any other provisions of this Agreement which shall
remain in full force and effect and;
20.3 The parties shall in good faith amend, and if necessary, novate this
Agreement to reflect nearly as possible the spirit and intention behind
that illegal, invalid or unenforceable provision so that the amended
clause complies with the laws of that jurisdiction.
21. NOTICE
2.1 Any notice in connection with this Agreement shall be in writing and may
be delivered by hand, pre-paid first class post (but not by email),
addressed to the recipient at its registered office or its address as the
case may be stated in CLAUSE 21.3 below (or such addresses as may be
notified in writing from time to time) in accordance with this clause 21
and in the case of notices sent to Peak such notices shall be marked for
the attention of ... or such other individual as Peak shall notify the
Distributor in accordance with this Clause 21.
21.2 The notice shall be deemed to have been duly served:
21.2.1 If delivered by hand, when left at the proper address for
service;
21.2.2 if given or made by prepaid first class post 48 hours after
being posted or in the case of Airmail 14 days after being
posted (excluding days other than Business Days);
provided that, where in the case of delivery by hand such delivery occurs
either after 4.00pm on a Business Day, or on a day other than a Business
Day. Service shall be deemed to occur at 9.00am on the next following
Business Day (such times being local time at the address of the
recipient).
21.3 The addresses for the parties are as follows:
Peak Entertainment Ltd Cadaco
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Bakewell USA
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
21.4 For the avoidance of doubt, where proceedings to which the Civil
Procedure Rules apply have been issued, the provisions of Civil Procedure
Rule 6 must be complied with in respect of the service of documents in
connection with those proceedings.
22. FORCE MAJEURE
22.1 Neither party to this Agreement shall be deemed to be in breach of this
Agreement or otherwise liable to the other party in any manner whatsoever
for any failure or delay in performing its obligations under this
Agreement due to Force Majeure.
22.2 If a party's performance of its obligations under this Agreement is affect
by Force Majeure:
22.2.1 It shall give written notice to the other party, specifying the
nature and extent of the Force Majeure, within seven days of
becoming aware of the Force Majeure and will at all times use
all reasonable endeavours to mitigate the severity of the Force
Majeure;
22.2.2 subject to the provisions of CLAUSE 22.3, the date for
performance of such obligation shall be deemed suspended only
for a period equal to the delay caused by such event;
22.2.3 it shall not be entitled to payment from the other party in
respect of extra costs and expenses incurred by virtue of the
Force Majeure event.
22.3 If the Force Majeure in question continues for more than three months,
either party may give notice in writing for the other to terminate this
Agreement. This notice to terminate must specify the termination date,
which will not be less than 15 days after the date on which notice is
given, and once such notice has been validly given, this Agreement will
terminate on that termination date.
23. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
The parties to this Agreement do not intend that any of its terms will be
enforceable by virtue of the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇
by any person not a party to it.
24. COUNTERPARTS
This Agreement may be executed in two counterparts each executed by one
party hereto and in such event the counterparts shall together constitute
one agreement.
25. JURISDICTION
The formation, existence, construction, performance, validity and all
aspects whatsoever of this Agreement or of any term of this Agreement
shall be governed by English law. The English courts shall have exclusive
jurisdiction to settle any disputes, which may arise out of or in
connection with this Agreement, and the parties agree to submit to such
jurisdiction.
26. ENTIRE UNDERSTANDING AND VARIATION
26.1 this agreement constitutes the entire Agreement between the Parties
in respect of the subject matter contained or referred to herein and
supersedes any and all promises, representations, warranties or other
statements whether written or oral made by or on behalf of one party to
the other of any nature whatsoever.
26.2 no variation or amendment of this Agreement or oral promise or
commitment related to it shall be valid unless committed to in writing
and signed by a director of Peak and a director of the Distributor.
SIGNED BY: /s/ ▇▇▇▇ ▇▇▇▇▇
.............................................
ON BEHALF OF PEAK ENTERTAINMENT LIMITED
PRINT NAME ▇▇▇▇ ▇▇▇▇▇
.............................................
PRINT POSITION MANAGING DIRECTOR
.............................................
SIGNED BY: /s/ ▇▇▇▇ ▇. LINDEAY
.............................................
ON BEHALF OF CHARACTER OPTIONS LIMITED
PRINT NAME ▇▇▇▇ ▇. LINDEAY
.............................................
PRINT POSITION PRESIDENT
........................................
SCHEDULE 1
PRODUCTS
Countin' Sheep plush
PROPOSED LINE PLAN AND COSTING
--------------------------------------------------------------------------------------------------------
Estimated Target FOB Price
Description Display Cube Retail $
--------------------------------------------------------------------------------------------------------
Countin' Sheep Plush Bulk with ear tag 96 pieces per outer
(25"x16"x10.5") $2.50 $1.45
gross 5.73kg
--------------------------------------------------------------------------------------------------------
SCHEDULE 2
PRODUCTS
Countin' Sheep Plush
ESTIMATED ROYALTIES INCLUDED IN FOB PRICE
---------------------------------------------------------------------------------------------------------
Estimated FOB Estimated
Description Display Cube ROYALTY
---------------------------------------------------------------------------------------------------------
Countin' Sheep Plush Bulk 96 pieces per outer
(25"x16"x10.5") $1.45 $0.30
gross 5.73kg
---------------------------------------------------------------------------------------------------------
