EXHIBIT 10.11
[This Agreement now between Xxxxxx Circulation Company (as successor to Xxxxx
Distributing Company) and Princeton Publishing, Inc., as assignee of GT
Publications, Inc.]
AGREEMENT
This agreement (hereinafter referred to as "Agreement") is entered into this
31 day of August, 1992 by and between XXXXX DISTRIBUTING COMPANY, a Division
of L.F.P., INC., whose principal place of business is located at 0000 Xxxxxxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxxxxx, 00000 (hereinafter referred
to as "XXXXX") and GT PUBLICATIONS, INC., a New York corporation, whose
principal place of business is located at 000 0xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (hereinafter referred to as "PUBLISHER").
In consideration of the covenants and agreements hereinafter contained, the
parties hereto do hereby agree as follows:
1. DEFINITIONS.
a. PUBLICATIONS: The term "Publications" shall individually and
collectively mean the publications listed and described in Exhibit "A"
attached hereto and incorporated herein by this reference. It is hereby
understood that publications may be added to Exhibit "A" from time to time by
either written amendment or by actual publication and sale to Customers.
b. ON-SALE DATE: The term "on-sale date" shall mean the date each issue of
the Publication is scheduled to be placed on display and made available for
sale to the general public by retailers and dealers. The on-sale date shall
be determined by Publisher subject to the approval of Xxxxx, whose approval
shall not be unreasonably withheld.
c . OFF-SALE DATE: The term "off-sale date" shall mean the date each issue
of each Publication which has been made available for sale to the general
public is scheduled to be removed from display by the retailers and dealers,
pursuant to off-sale dates published within Xxxxx'x allotment notices to its
Customers.
d. CUSTOMER: The term "Customer" shall mean all persons or entities (except
for Xxxxx) who sell Publications, wholesale, retail, or otherwise, directly or
indirectly on behalf of Publisher.
e. AFFILIATE: The term "affiliate" includes parent, subsidiary and
"brother-sister" corporations.
2. RIGHTS GRANTED.
a. EXCLUSIVE WORLDWIDE RIGHTS: Publisher hereby grants to Xxxxx the
exclusive worldwide rights and licenses to provide for the distribution and
sale of the Publications to Customers, except as to subscriber copies which
may be marketed directly by Publisher. Xxxxx shall be the sole recipient of
all orders for each of the Publications; it being understood that any orders,
except those for subscriber copies received by Publisher, or its agents, or
its direct wholesale and retail customers that are not customers of Xxxxx, are
to be turned over to Xxxxx for fulfillment.
b. RIGHT QF FIRST REFUSAL. Publisher further grants to Xxxxx the right of
first refusal to provide for the distribution and sale of any other
publications produced by the Publisher, its agents or any other person or
entity owned or controlled, in whole or in part, by the same person or persons
who manage or control Publisher, except as to subscriber copies.
c. RIGHT TO COMMINGLE ACCOUNTS. Xxxxx shall have the right to commingle
all accounts of Publisher, and its affiliates, and/or related companies and to
make the necessary off-sets and credits with respect to all Publisher, its
affiliates, and/or related companies.
3. PARTY RELATIONSHIP.
a. INDEPENDENT CONTRACTOR AND DEBTOR/CREDITOR RELATIONSHIP: This
Agreement
does not create any employer-employee, agency, joint venture, or partnership
relationship between Publisher and Xxxxx. The relationship of Xxxxx and
Publisher shall only be that of creditor and debtor and independent
contractors.
b. PROHIBITED ACTS: Publisher shall not permit the doing of any act which
would indicate or tend to indicate that (i) Publisher, or any place of
business controlled or used by Publisher is a branch, subsidiary or part of
Xxxxx or (ii) that the status of Xxxxx is anything other than that of an
independent contractor and creditor and/or debtor.
4. PRINTING, SHIPMENT AND DISTRIBUTION.
a. PUBLISHING AND PRINTING: Publisher shall publish and cause to be
printed, for distribution and sale, each issue of each Publication at least
four (4) weeks prior to the on-sale date of each particular issue. Each
Publication shall conform to (i) the specifications for such Publication as
set forth in Exhibit "A" and (ii) the specimen copy of each such Publication
set forth in Exhibit "A", which specimen copy shall be attached hereto as an
Exhibit and incorporated herein by this reference. Each Publication shall be
of original content and shall not reuse previously published material.
occasionally, however, Publisher may publish and Xxxxx may distribute certain
"Special" issues or "Annual" issues or "One-Shot" issues that contain
previously published material. After each issue of each Publication is
printed, Publisher shall immediately deliver to Xxxxx five (5) specimen copies
of each such issue. If those specimen copies do not substantially conform to
the specifications for each Publication as set forth in Exhibit "A" and the
specimen copy attached hereto, Publisher shall not receive and shall not be
due the initial payments for that issue of that Publication as otherwise
provided for herein.
b. NUMBER OF COPIES: The number of copies of each issue of each of the
Publications to be distributed is to be determined by Xxxxx and by specific
orders from its Customers subject to the approval of the Publisher, whose
approval shall not be unreasonably withheld. Excluding the copies for
subscriptions, Publisher agrees to cause to be printed for each issue the
number of copies so determined.
c. DELIVERY: Publisher shall, at least fifteen (15) days before the on-sale
date, deliver to the Customers the number of copies of each issue of each of
the Publications as determined by Xxxxx. Any deviation from that number must
be consented to by Xxxxx. Delivery of Publications shall not be deemed
completed until actual receipt by customers, or receipt by designated national
shipping agent of Publisher. No shipments shall be made by Publisher to any
Customers without written instructions from Xxxxx pursuant to Paragraph 5a.
d. SHORTAGES IN DELIVERY: In the event Publisher delivers less than the
total designated number of copies of any issue of any of the Publications to
any Customers, Xxxxx shall make a downward adjustment in the amounts it would
otherwise pay Publisher pursuant to Xxxxxxxxx 0x (1) and (2).Xxxxx shall in no
way be responsible for any shortages in the number of Publications shipped by
Publisher or received by Customers. Xxxxx will supply all necessary
documentation and reports of such shortages to Publisher so that Publisher may
file claims against shippers.
e. CONDITIONS OF COPIES DELIVERED: All copies that are delivered by
Publisher must be in saleable condition, free of all liens and/or
encumbrances.
f. TRANSPORTATION CHARGES: Xxxxx shall advance on behalf of Publisher any
transportation charges or costs related to delivery of the Publications to
Customers.
g. CONTENTS OF PUBLICATIONS: Publisher shall not publish any issue of any
of the Publications if, in its opinion, any such Publication or any portion of
its contents is obscene, libelous, scandalous or invades the privacy of any
person or is any way violative of any applicable laws, rules or regulations,
or if the post office refuses to mail the Publication under the Publisher's
second class entry privilege.
x. XXXXX'X RIGHTS CONCERNING CONTENTS OF LIABILITY: Notwithstanding
anything to the contrary in this Agreement, Xxxxx may, at any time without
prior notice, and without incurring any liability therefor, refuse to provide
for the distribution and sale of any issue or issues of any of the
Publications covered by this Agreement, or at Xxxxx'x sole option terminate
this Agreement without incurring any liability therefore, if at any time it
shall be brought to Xxxxx'x attention that such issue or issues may contain
possible libelous, privacy invading, obscene or indecent material, or, any
matter of any kind that is in violation of law, civil or criminal, or if such
issue or issues shall be refused the use of the mail by the United States
postal authorities or such public corporation as may exist for the handling of
mail. Inasmuch as Xxxxx (i) does not, and is not capable of having, any
editorial involvement in the Publications, and (ii) does not receive copies of
the Publications until after they are printed and shipped, therefore Xxxxx'x
performance under this Agreement does not, and shall not, establish nor
constitute approval by Xxxxx of the contents of said issue or issues.
i. TITLE AND RISK OF LOSS: On all shipments to Customers, title and risk of
loss shall pass from Publisher to Customer at Customer's named point of
destination. The loss, damage, or destruction of copies of Publications, or
evidence of returns of unsold copies of Publications while in transit or in
Xxxxx'x or in Customer's possession shall be at the sole risk of Publisher.
j. RETURN PRIVILEGES: Retailers may return copies of the Publications to
wholesalers who will return them to Xxxxx who will, in turn, return them to
Publisher. Xxxxx shall have the right, at any time for any reason to return
to Publisher any copies of the Publications that have been previously sold to
Customers. Publisher shall, at the discretion of Xxxxx, either pay Xxxxx for
all such returns at the price Xxxxx invoiced the Customers, less Xxxxx'x fee
pursuant to Paragraph 5 (b), or in the alternative, Xxxxx shall receive a
credit for such returns on any amounts due or to become payable to Publisher
by Xxxxx pursuant to this Agreement. Front cover headings, or affidavit
returns may be accepted, in Xxxxx'x discretion, from customers in lieu of full
copy returns and shall constitute conclusive evidence of such returns.
k. WHOLE COPY RETURNS: If Publisher shall desire whole copy returns,
Publisher shall give Xxxxx written notice of the quantities thereof desired
not less than thirty (30) days prior to the on-sale date of such issue. Upon
receipt of such written notice, Xxxxx shall make a request for the same from
Customers. Upon receipt of such whole-copy returns from Customers and
Publisher's request to warehouse, Xxxxx shall, at its sole discretion and
judgment decide if it desires to warehouse such returns, and shall furnish
Publisher statements of said returns which shall be accepted by Publisher as
conclusive evidence thereof. Nothing herein contained shall require Xxxxx to
take any other action with respect to such written request. If Xxxxx shall
not agree to warehouse the whole-copy returns requested, Publisher shall
specify in the aforementioned written request where such returns are to be
sent. Publisher will pay all transportation costs and customer handling
charges with respect to any and all returns, in any form whatsoever.
Publisher shall fully reimburse Xxxxx in the form of a credit on any and all
amounts due or to become due to Publisher for any and all Customer charges for
whole-copy returns. If Xxxxx shall choose to warehouse the whole-copy returns
requested and received, Publisher will pay to Xxxxx its usual warehousing
charges in effect at the time of warehousing said return.
1. RETURN INFORMATION: Notwithstanding anything to the contrary herein
contained, Xxxxx may not destroy wholesaler statements and/or affidavits of
returns for a period of one (1) year from the date of receipt by Xxxxx of such
statements and/or affidavits of returns. All wholesaler statements and/or
affidavits of returns ("Return Information") may be destroyed by Xxxxx at its
expense unless Publisher shall serve Xxxxx with a written objection and
perform an audit pursuant to the terms and conditions of sub-paragraphs 5f (i)
and (ii). Said written objection shall also request that the Return
Information not be destroyed. Unless Publisher shall have served Xxxxx with
such written notice requesting such an audit and shall have actually completed
such an audit within sixty (60) days from the date of such written notice,
Xxxxx may at its discretion destroy the Return Information. Any Return
Information which is destroyed shall be deemed conclusively binding upon
Publisher, accurate and not subject to any further objection by Publisher.
m. RECEIVABLE RIGHTS: Xxxxx shall have the irrevocable, right to invoice
for, and to receive, all collections from Customers for Publications. In that
regard, and in consideration of Xxxxx providing Publisher with Customer
information, Publisher hereby irrevocably assigns to Xxxxx all of its right,
title and interest in and to billing rights, proceeds of sale and accounts
receivable with respect to distribution and sale of the Publications.
Publisher hereby grants Xxxxx the right to adjust claims for shortages in
deliveries of the Publications made by or to Customers; it being specifically
agreed that such adjustments actually made by Xxxxx shall be conclusively
binding upon Publisher.
n. Publisher shall assume outstanding debt to Xxxxx incurred by Grand
International Communications, Inc., CIN, Inc. and The Xxxxxxx Group, aka:
Xxxxxxx Hills Bluebook, Inc. This outstanding debt was the result of
overpayments by Xxxxx to Grand International Communications, Inc., CIN, Inc.
and The Xxxxxxx Group, aka: Xxxxxxx Hills Bluebook, Inc. The outstanding debt
balance is $325,784.05. This balance may or may not increase once currently
unsettled issues of Jock magazine, CIN magazine, Trade magazine or Jock
Collectors Edition magazine, Dream magazine, Stars magazine, obsessions
magazine or Iniquity magazine become due for settlement. Publisher will pay
back Xxxxx at a rate of $5,000.00 per month out of the proceeds of each
settlement payment by Xxxxx or each advance payment by Xxxxx scheduled for
payment during the month. Xxxxx will deduct $5,000.00 from each payment, but
never deduct greater than $5,000.00 per calendar month in total, no matter how
many payments are made to Publisher during calendar month.
5. PRICE AND PAYMENT.
a. BILLING, COLLECTION, SHIPPING AND CUSTOMS: Xxxxx shall xxxx to and
collect from Customers for all sales of the Publications by Publisher to
Customers. Xxxxx shall furnish shipping instructions and information to
Publisher and/or Publisher's printer or shipping agent in order to provide for
the sale of the Publications by Publisher to Customers. Xxxxx will furnish
Publisher and/or Publisher's printer or shipping agent with a list of the
exact number of copies of each issue of each of the Publications to be shipped
to each Customer. Xxxxx shall have, in its sole discretion, the right to
designate or eliminate Customers from time to time.
b. NET SALES AND FEES: Xxxxx shall remit to Publisher the amount of the net
sales (defined as Xxxxx'x gross xxxxxxxx to Customers less actual returns and
other deductions pursuant to this Agreement) as computed by Xxxxx for each
issue of each of the Publications, at the per copy charge billed to the
Customer (defined as sixty percent (60%) of the cover price per copy of each
Publication) less Xxxxx'x fee of six and one-half percent (6.50%) per copy
computed on the Publisher's price as set forth on the cover of each
Publication. The cover price of any of Publisher's Publications shall remain
unchanged unless Xxxxx shall first give prior approval of such change, whose
approval shall not be unreasonably withheld.
C. PAYMENTS: Xxxxx shall pay to Publisher, the amount determined by
Paragraph 5b above, as follows:
(1) INITIAL PAYMENTS FOR THE FIRST THREE ISSUES: An initial payment of
twenty percent (20%) ("initial payment") of Xxxxx'x gross xxxxxxxx to
Customers less Xxxxx'x fee; payable ten (10) days after receipt of a sworn
affidavit from the Publisher's printer or shipping agent that the number of
copies shipped to each Customer was in accordance with Xxxxx'x shipping
instructions and that the copies met all of the specifications of Exhibit "A"
and the specimen copy(ies) attached hereto as an exhibit(s); provided,
however, that if the Publisher's printer and/or shipping agent is owned or
controlled, in whole or in part, by Publisher, its agents or any other person
or entity owned or controlled, in whole or in part, by Publisher, or by the
same person or persons who manage, own, or control, in whole or in part, by
Publisher then such payment shall be subject to Xxxxx'x verification that the
copies are actually in transit to or have been received by the Customers. The
above initial payments are payable for only the first three (3) issues of each
of the Publications distributed hereunder. This twenty percent (20%) initial
payment formula excludes those Publications specifically listed on the
attached Exhibit "A" dated May 13, 1992 since those specific Publications have
already been distributed by Xxxxx for greater than three (3) prior issues and
therefore receive an initial payment formula as outlined in Paragraph (2)
below.
(2) INITIAL PAYMENTS BEGINNING WITH FOURTH ISSUE: Notwithstanding the
foregoing Xxxxxxxxx 0x (0), and providing Publisher is not indebted to Xxxxx
except for the debt specifically outlined in Paragraph 4 (n) of this
Agreement, initial payments for the fourth (4th) through sixth (6th) issues
shall be eighty percent (80%) of Xxxxx'x estimate of the average final copy
sales of available prior issues distributed by Xxxxx. The initial payment for
each issue of each Publication shipped to Customer hereunder for the seventh
(7th) issue and for each issue thereafter shall be eighty percent (80%) of
Xxxxx'x estimate of the average final copy sales for the last three (3) issues
which are more than one hundred twenty (120) days off-sale for each issue of
each Publication.
(3) INTERIM SETTLEMENT (2ND PAYMENT): A second payment, if any, shall be due
for each issue approximately sixty (60) days after the off-sale date of such
issue, calculated at eighty percent (80%) of Xxxxx'x estimate of final sale of
such issue.
(4) FINAL SETTLEMENT PAYMENT: A settlement payment, if any, shall be due,
for each issue approximately one-hundred (100) days after the off-sale date of
such issue, which will include returns to ninety (90) days after the off-sale
date.
(5) CANADIAN TRANSACTIONS: All Canadian transactions will be billed in U.S.
dollars and paid by Customer in Canadian dollars substituted for U.S. dollars
on a dollar for dollar basis. The resulting exchange differential, if any, at
the time of payment by Customer to Xxxxx will be used to adjust the amounts
due Publisher or Xxxxx as a result of Xxxxx paying the Publisher in U.S.
dollars. The foregoing adjustment will be made in such a way as to insure
that Xxxxx does not incur any loss or expenses as a result of the exchange
differential and paying the Publisher in U.S. dollars.
d. RETURN CREDITS: Xxxxx will have the right to receive immediate credit or
payment (at Xxxxx'x option) for returns of the Publications received or
processed at any time after the settlement. Such returns may be deducted by
Xxxxx from any payment for any later issues of any of the Publications, or if
after termination of this Agreement, Publisher shall make prompt payment to
Xxxxx upon receipt of Xxxxx'x statement of amount due. Xxxxx shall not accept
any returns from its U.S. Customers which Xxxxx receives after three hundred
sixty five (365) days after off-sale. There will be no time limit, however,
on returns made by foreign Customers operating outside the United States.
e. FINAL PAYMENT ON LAST ISSUE: Final payment on the last issue of each
Publication shipped to Customer hereunder shall be payable approximately three
hundred sixty-five (365) days after the off-sale date and shall include
returns up to three-hundred fifty five (355) days after the off-sale date of
such terminated Publication. The off-sale date shall be the later of the
first day of the month designated by the cover month or thirty (30) days after
the on-sale date should no month be specified on the cover.
f. SETTLEMENTS, STATEMENTS, AND ACCOUNTS RENDERED: Publisher shall be
deemed to have consented to and approved all Xxxxx'x settlements, statements
of settlements, and/or all other accounts rendered, which shall be deemed
conclusively binding on Publisher, accurate, and not subject to any objection
by Publisher for any reason, unless (i) specific objection in writing by
registered or certified mail, return receipt requested, or by telegram,
stating the specific items objected to and the precise basis for objecting to
each such item, including, but not limited to, the dollar amount each such
objection and why such amount of each such objected item is inaccurate, shall
be given to Xxxxx within' thirty (30) days from the date such settlements,
statement of settlements, and all other accounts rendered are mailed to
Publisher, and (ii within sixty (60) days from the date of such written
objection Publisher shall have requested and completed, at its sole expense
and at Xxxxx'x offices in Los Angeles, an audit of such objected settlements,
statements of settlement and/or other accounts rendered, and (iii) Publisher
files suit against Xxxxx based on such specific objections in accordance with
Paragraph 17a of this Agreement within one (1) year after Xxxxx'x receipt of
written notice pursuant to this paragraph. Notwithstanding the foregoing, if
any dispute arises between the parties respecting the accuracy of Xxxxx'x
claims for credits as set forth in any statement of settlement or other
account rendered, the credits issued by Xxxxx to Customers as reflected on the
books of Xxxxx shall be conclusively binding upon, and not subject to any
objection by Publisher for the purpose of determining credits to which Xxxxx
shall be entitled to receive from the Publisher.
g. RIGHT TO OFFSET OR IMMEDIATE PAYMENT UPON DEMAND: Notwithstanding
anything herein to the contrary, Xxxxx shall have the right, in its sole
discretion and judgment, to offset any and all amounts due directly or
indirectly, from Publisher (or any other person, corporation, or entity owned
or controlled, in whole or in part, by Publisher or owned or controlled, in
whole or in part, by the same person or persons or entities that own or
control, in whole or in part, Publisher) to Xxxxx against any and all sums
directly or indirectly due to Publisher hereunder or otherwise, except for the
debt specifically outlined in Paragraph 4n of this Agreement. Without
limiting the generality of the foregoing provision, all sums payable to Xxxxx
by Publisher shall be refunded or paid by Publisher to Xxxxx immediately upon
demand by Xxxxx. In addition to the foregoing, should Xxxxx conclude that
based upon the intermediate sales reports the net sales of any unsettled issue
might be less than the amounts paid to Publishers pursuant to Xxx-Xxxxxxxxx 0x
(1) and/or 5c (2) above and, therefore, result in a deficiency payable by
Publisher to Xxxxx, Xxxxx may withhold making any initial payments, interim
payments or final payments to Publisher until deficiency has been paid by
Publisher to Xxxxx.
h. INITIAL PAYMENTS FOR FINAL TWO ISSUES: Should either party serve a
notice of termination as herein provided, no initial payments shall be made
for the final.,two (2) issues of any Publications shipped hereunder; said
final two (2) issues to be determined by the effective date of said
termination as determined by Xxxxx in its sole discretion and judgment. If
Publisher is not indebted to Xxxxx at time of termination, no initial payments
shall be made for the final one (1) issue shipped hereunder.
i. PAYMENTS FOR LAST ISSUE:- Notwithstanding anything to the contrary in
this Agreement, Publisher shall not be entitled to any initial or interim
payment as provided for in this Agreement, and the final settlement of such
issue shall be made three-hundred sixty five (365) days after the off-sale
date if Xxxxx believes that said issue will be the last issue of said
Publication to be published.
6. PUBLISHER'S INDEMNIFICATION: Publisher hereby agrees to indemnify and
promptly reimburse Xxxxx and Customers, their affiliates and their officers,
agents, and representatives against any losses, damages, fines, judgments,
expenditures or claims, or cross-claims, including attorney's fees as well as
any and all other costs incurred by Xxxxx and Customers in connection with
Xxxxx providing for the sale of any issue(s) covered by this Agreement when
the same is questioned or objected by any federal, state and/or governmental
agency or authority or in defending or settling any claim, civil action or
proceeding and/or criminal prosecution and/or supplementary proceedings
instituted as a result of and/or arising out of the publication, shipment,
and/or sale of-any issue(s) covered by this Agreement. Should any of such
events occur, Xxxxx shall have the right to retain any monies otherwise
payable by Xxxxx to Publisher for the performance by the Publisher of its
obligations pursuant to this paragraph. Xxxxx shall give to Publisher notice
of any claims, demands, suits or actions against Xxxxx or any of the Customers
of which Xxxxx has been apprised; and, in the event Xxxxx shall have received
any notice of claim or summons or other process instituting such claim or suit
or action, then Xxxxx shall deliver the same promptly to the Publisher.
7. LIMITATION OF LIABILITY, WARRANTIES, REPRESENTATIONS AND REMEDIES:
Xxxxx
will furnish Publisher and/or its agents with (i) names and addresses of
Customers, (ii) numbers of copies of each issue of Publication to be shipped
to each customer, and (iii) information as determined by Xxxxx concerning the
sales and returns for each issue of each Publication. In no event, however,
will Xxxxx be liable to Publisher for any losses, expenses, costs, or damages
(special, consequential, or otherwise) caused by, or resulting from, Xxxxx'x
failure to perform and/or failure to properly and/or timely perform any of its
obligations under this Agreement (other than the payment of monies due);
regardless of whether such failure of performance and/or delay and/or
nonperformance (and/or failure to give notice of failure of performance and/or
delay or nonperformance) was caused by or resulted from negligence. Xxxxx'x
sole obligation and Publisher's sole and exclusive remedy for failure to pay
monies when due (for which Xxxxx has no right to withhold under the provisions
of this Agreement) shall be (i) a suit to recover such money plus interest at
the legal rate; and/or (ii) to terminate this Agreement after giving Xxxxx
fifteen (15)days prior written notice to cure any such default. Xxxxx shall
not be liable for any claim of any kind whatsoever with respect to late
performance or nonperformance (or failure to give notice of late performance
or nonperformance), and whether or not based upon, or resulting from,
negligence unless (i) Xxxxx receives written notice of such claim from
Publisher by certified or registered letter, return receipt requested, or by
telegram, within thirty (30) days after Publisher knows, or reasonably should
have known of such claim, and (ii) Publisher files suit against Xxxxx based
upon such claim in accordance with Paragraph 17a of this Agreement within one
(1) year after Xxxxx'x receipt of written notice pursuant to this sub-
paragraph.
8. FORCE MAJEURE: Without limiting the generality of other damage exclusion
and/or disclaimer provisions in this Agreement, Xxxxx shall not, in any manner
whatsoever, be liable for delay in performing, or failing to perform (or
failing to give notice of such delay or failure to perform), any obligation
caused, in whole or in part by circumstances beyond Xxxxx'x reasonable
control.
9. ALLOWANCES, CIRCULATION ANALYSIS, DISPLAY EQUIPMENT.
a. PAYMENT FOR SPECIAL ALLOWANCES: For Publisher's sole benefit, Xxxxx may
in its discretion, pass on special discounts, allowances, and/or incentives to
Customers payable by Publisher in accordance with the terms herein. The
following special charges and allowances are to be borne by Publisher on any
issue of any of the Publications:
(1) The actual charges for all reshipping agencies.
(2) Any cash discount, cash allowance, special allowance, rack allowance,
returns allowance or pricing differential granted to Customers.
Xxxxx will supply Publisher with a listing of current recipients of such
special allowances and will seek Publisher's approval of future allowances
granted, whose approval shall not be unreasonably withheld.
b. ANALYSIS OF CIRCULATION: A charge of $2,500 will be made if an analysis
of circulation by county population of any of the Publications is requested by
Publisher or required for the Audit Bureau of Circulation report. No charge
will be made for the State Circulation analyses which are customarily made
twice a year for the Publications.
c. DISPLAY EQUIPMENT: Subject to Publisher's approval, Xxxxx shall have the
right to furnish display equipment to Customers. Xxxxx shall charge the cost
thereof to Publisher in the form of a credit to Xxxxx on any and all amounts
due, or to become payable, to Publisher.
10. TERM AND TERMINATION.
a. INITIAL TERM AND RENEWAL: The initial term of the Agreement shall be for
seven (7) years from the date hereof. The Agreement shall automatically be
renewed for successive three (3) year periods upon the same terms and
conditions, except that either party may prevent renewal of this Agreement by
giving written notice of non-renewal to the other party by certified or
registered mail, return receipt requested, at the address first above given,
or at such address as may hereinafter be designated in writing, at least one-
hundred twenty (120) days prior to the expiration of the initial term or any
renewal term thereof.
b. TERMINATION: Notwithstanding anything in this Agreement to the contrary,
either party shall have the right to terminate this Agreement upon written
notice by certified or registered mail, return receipt requested, at the
address first above given or at such address as may be hereinafter designated
in writing, to the party sought to be charged therewith upon the occurrence of
any of the following events:
(1) The party sought to be charged therewith is adjudicated a bankrupt or
becomes insolvent or invokes the jurisdiction of any of the remedies of the
bankruptcy court.
(2) The party sought to be charged therewith is convicted or pleads guilty
or no contest to a charge of violating any law relating to the Publication or
sale of any of the Publications.
c. LIMITATION OF PUBLISHERS RIGHT TO TERMINATE: Notwithstanding anything in
this Agreement to the contrary, Publisher shall not have the right to
terminate this Agreement at any time if the Publisher is indebted to Xxxxx for
any reason whatsoever, without first reimbursing and/or paying Xxxxx the full
amount of such indebtedness.
11. PUBLISHER WARRANTIES AND REPRESENTATIONS: Publisher warrants and
represents to Xxxxx that Publisher is not under any disability, restriction,
or prohibition with respect to Publisher's right to enter into this Agreement
and perform all of the terms and conditions thereof, and that this Agreement
will not constitute a breach of any other existing agreement to which
Publisher is, or was, a party. Publisher further warrants and represents that
Publisher is the owner and/or licensee of each of the titles to and logos
and/or trademarks to be used in connection with the Publications covered by
this Agreement and there are no liens or encumbrances on those titles, logos,
and trademarks. Publisher also agrees not to permit any liens or encumbrances
against such titles, logos, and/or trademarks without Xxxxx'x prior written
consent.
12. WAIVER: No omission or delay on the part of any party hereto in
requiring a due and/or punctual fulfillment by the other party shall be deemed
to constitute a waiver by the omitting or delaying party of any of its rights
and/or remedies to require such due and/or punctual fulfillment of any other
or future obligations hereunder, whether similar or otherwise, or a waiver of
any remedy it might have hereunder.
13. ASSIGNMENT: This Agreement shall be binding upon the parties hereto and
their respective heirs and assigns provided that Publisher may not assign this
Agreement or any sums payable to it by Xxxxx to any third party without the
prior written consent of Xxxxx.
14. NOTICES: Any notices to be given to the parties hereto shall be deemed
to have been given when sent by registered or certified mail, return receipt
requested, or by telegram, to the respective addresses of the parties as above
provided or at such address as shall be designated by notice given to the
other party as provided herein.
15. ENTIRE AGREEMENT: This Agreement shall constitute the entire agreement
between the parties and shall supersede any and all agreements heretofore
entered into between Xxxxx and Publisher, or any of their predecessors,
pertaining to the sale and shipment of the Publications. This Agreement may
not be changed or modified in any manner whatsoever unless such change or
modification is in writing and executed by the parties hereto.
Notwithstanding anything herein to the contrary, in the event that Xxxxx
actually provides for the shipment and sale of any publication not set forth
in Exhibit "A" such actual performance by Xxxxx shall constitute a binding
amendment-in-fact and shall result in such publication being subject to all
the terms and conditions of this Agreement.
16. APPLICABLE LAW, JURISDICTION, VENUE, LITIGATION COSTS AND WAIVER
OF JURY
TRIAL.
a. APPLICABLE LAW, JURISDICTION, VENUE AND LITIGATION COSTS: The
validity, performance, and interpretation of this Agreement shall only be
governed by the laws of the State of California. Both parties hereby agree to
submit to the jurisdiction of the Courts in and of the State wherein Xxxxx'x
corporate headquarters are located (including the U.S. District Court in that
State) and hereby agree that any dispute, claim, or cause of action arising
under this Agreement shall only be submitted to the Courts in and of the State
wherein Xxxxx'x corporate headquarters are located (including the U.S.
District Court in that State) and the venue shall lie exclusively in the
County wherein Xxxxx'x corporate headquarters are located. The prevailing
party in any action brought hereunder shall be entitled to recover all its
litigation costs and expenses in connection therewith, including, but not
limited to, attorneys' fees.
17. INVALIDITY OF PROVISIONS: If any provision of this Agreement is declared
by a Court to be invalid, said invalidity shall not affect the remaining
provisions herein.
18. COMMENCEMENT OF AGREEMENT: A valid contract binding upon the parties
hereto shall come into being only upon execution of this Agreement by a duly
authorized agent, officer, or representative of all the parties hereto.
The effective date shall be that which is set forth in the introduction above.
GT PUBLICATIONS, INC.
By: /s/ Xxx Xxxxx,,President
XXXXX DISTRIBUTING COMPANY,
a Division of L.F.P., INC.
By: /s/
EXHIBIT A
MINIMUM MINIMUM
NUMBER OF NUMBER OF
FREQUENCY OF COVER 4-COLOR PAGES OF
TITLES SIZE DISTRIBUTION PRICE PAGES BODY TEXT
Jock 8-3/8" x Monthly $5.50 US 84* 84*
10-7/8" $6.95 CAN
Jock 8-3/811 x Nine (9) $5.50 US 80* 80*
Collectors 10-7/8" Times $6.95 CAN
Edition Per Year
Stars 8-3/8" x Nine (9) $5.95 US 84* 84*
10-7/8" Times $6.95 CAN
Per Year
Obsessions 8-3/8" x Nine (9) $5.95 US 100* 100*
10-7/8" Times $6.95 CAN
Per Year
Iniquity 8-3/811 x Nine (9) $5.95 US 84* 84*
10-7/8" Times $6.95 CAN
Per Year
*Includes cover
Paper Stock: Body Text 44#
Cover 70#
Prepared June 19, 1992
RDA RIDER
This rider (hereinafter referred to as "RDA RIDER") is entered into this
31 day of August, 1992 by GT PRODUCTIONS, INC. (hereinafter referred to as
"Publisher") and XXXXX DISTRIBUTING COMPANY, a Division of L.F.P., INC.
(hereinafter referred to as "Xxxxx"). The parties hereby agree as follows:
Publisher has determined that it would be in its best interest to make
available a Retail Display Allowance ("RDA") to all retailers displaying any
of its Publications listed on Exhibit "A" to the Agreement and any "special
issues" related thereto (hereinafter referred to as "RDA program").
The RDA program would be implemented in the following manner:
1. Xxxxx will pay to participating Customers on a calendar quarterly basis
the sum of thirty cents ($0.30) of the cover price per copy for each copy of
any of the Publications sold by such Customers. Xxxxx will charge to
Publisher all RDA payments made on behalf of Publisher by Xxxxx to Customers
by deducting equivalent sums from remittances it would otherwise make to
Publisher under this Agreement. In that regard, Xxxxx shall deduct from
remittances made by Xxxxx to Publisher the sum of four cents ($0.04) per copy
of each of the Publications for all copies sold, so as to create a reserve to
fund the RDA program. In order to defray its costs of administering the RDA
program, Xxxxx will be compensated from the RDA fund at the rate of one cent
($0.01) per copy sold by participating Customers.
2. Should said four cents ($0.04) per copy sum to be withheld by Xxxxx
prove to be inadequate at any time to fund the RDA program, then additional
sums as needed may be deducted from any payment due Publisher by Xxxxx under
the terms of the Agreement. If at any time followings quarterly RDA payment
by Xxxxx to participating Customers the fund has a surplus based on its
current balance and projections of contributions before the next quarter RDA
payments are made, then said surplus or a substantial portion thereof shall be
returned to Publisher, or expended in such programs as Publisher and Xxxxx may
hereafter agree upon.
3. For purposes of determining any surplus or shortage in the fund; the
Publisher and Xxxxx shall review the RDA fund within thirty (30) days
following the close of each calendar year.
4. Publisher appoints Xxxxx to act as special attorney-in-fact for the
purpose of signing, executing or acknowledging RDA agreements with retailers.
Publisher hereby agrees to indemnify and hold harmless Xxxxx, its affiliates,
officers, agents, and representatives against any losses, damages, judgments,
expenditures or claims, or cross-claims, including attorney's fees as well as
any and all other costs incurred by Xxxxx in connection with Xxxxx so acting.
5. Publisher agrees to provide the requisite notice to all Customers cf the
RDA program by printing such notice in the first release of each of the
Publications.
6. Xxxxx shall not xxxx any obligation, of any kind or nature whatsoever,
to audit or review, in any manner whatsoever, the Customer's claims for
payment pursuant to the RDA program. Accordingly, Xxxxx shall have the right
to accept and pay such claims when received from Customers and such claims
when paid by Xxxxx shall be deemed accurate and conclusively binding upon
Publisher.
7. Publisher shall indemnify and hold harmless Xxxxx from any and all
claims, causes of action, suit, or other proceedings brought or made to
enforce any participating Customer's claim for payment pursuant to this RDA.
IN WITNESS WHEREOF, the parties hereto have duly executed this Rider to
the Agreement on the day and year first above written.
GT PRODUCTIONS, INC. XXXXX DISTRIBUTING COMPANY,
a Division of L.F.P., INC.
By:/s/ Xxx Xxxxx By:/s/
Xxx Xxxxx, President
