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EXHIBIT 10.21
METACREATIONS CORPORATION
INTERNATIONAL SOFTWARE DISTRIBUTION AGREEMENT
This INTERNATIONAL SOFTWARE DISTRIBUTION AGREEMENT ("Agreement") is entered
into as of the 1st day of August , 1997 ("Effective Date") by and between
METACREATIONS INTERNATIONAL, Ltd., a Dublin corporation ("MetaCreations"),
and Marubeni Corporation, a Japanese corporation ("Distributor") with
reference to the following:
MetaCreations is engaged in the business of developing, producing
and marketing software programs. Distributor has represented to MetaCreations
that it has the facilities, personnel and technical expertise to market and
license the MetaCreations products in the Territory defined herein.
Distributor wishes to obtain, and MetaCreations is willing to grant
Distributor, a license to market the MetaCreations products in the Territory.
The parties agree as follows:
1. DEFINITIONS
For purposes of this Agreement, the following terms shall have the
respective meanings indicated below:
1.1 The term "Software" shall mean, individually and/or collectively,
the computer programs encoded on software diskettes in the form generally
released by MetaCreations listed in and more fully described in Exhibit A
attached hereto.
1.2 The term "Documentation" shall mean the user guides, reference
manuals, and other materials developed by MetaCreations for use in connection
with the Software.
1.3 The term "Products" shall mean, individually and/or collectively,
the software packages comprised of the Software and Documentation listed on
Exhibit A.
1.4 The term "Territory" shall mean Japan.
1.5 The term "Person" shall mean and include any individual,
corporation, trust, estate, partnership, joint venture, company, association,
league, governmental bureau or agency, or any other entity regardless of the
type or nature thereof.
1.6 The term "Sub-Distributor" shall mean the subdistributors listed on
Exhibit A.
1.7 The term "End User" shall mean any Person who obtains copies of the
Products solely for its own internal use from a Subdistributor or dealer
network established in the territory.
1.8 The term "MetaCreations Standard End-User License Agreement" shall
mean the written license between MetaCreations and an End User pursuant to
which the End User obtains the limited right to use the Products attached
hereto as Exhibit C.
1.9 The term "Confidential Information" shall mean all data and
information of a confidential nature, including know-how and trade secrets,
relating to the business, the affairs, the Products, the development projects
or other products or services of MetaCreations. Confidential Information may
be
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communicated in writing or in any other recorded or tangible form. Data and
information shall be considered to be Confidential Information (1) if
MetaCreations has marked them as such, (2) if MetaCreations has advised
Distributor of their confidential nature in writing, or (3) if, due to their
character or nature, a reasonable person in a like position and under like
circumstances as Distributor would treat them as secret and confidential.
"Confidential Information" shall also mean all data and information of a
confidential nature and expressly marked "Confidential" provided by
Distributor to MetaCreations.
1.10 The term "Intellectual Property Rights" shall mean and include all
patents, copyrights, trademarks, trade secrets, trade names and other
proprietary rights or applications therefor which MetaCreations may at any
time own, adopt, use, or register with respect to the Products or its
business.
1.11 The term "Technical Assistance" shall mean and include advice,
training, information and other support regarding the selection,
installation, maintenance, and application of the Products.
1.12 The term "Distributor Discount" shall mean the percentage
discounted from the Suggested Japanese List Price for the Products set forth
in Exhibit A1 attached hereto.
1.13 The term "Purchase Price" shall mean the price in US dollars at
which Distributor will buy products from MetaCreations calculated by
subtracting the Distributor Discount from the Suggested Japanese List Price.
The Purchase Prices are listed on Exhbiti A1.
2. GRANT OF LIMITED DISTRIBUTION RIGHTS
2.1 Grant. Subject to the terms and conditions set forth in this
Agreement, MetaCreations hereby grants to Distributor and Distributor hereby
accepts from MetaCreations, a non-transferable right to distribute the
Products solely to Sub Distributors. This right shall be exclusive in the
Territory for Japanese and English language Products and non-exclusive
outside of the Territory for Japanese language Products. The Distributor
agrees that it will not distribute English language Products outside the
Territory. Furthermore, Distributor will not distribute directly to dealers
or End Users but will distribute solely to Sub Distributors which will
further distribute to dealers and End Users located in the Territory.
Distributor will distribute Products to Sub Distributors on a product
specific basis as defined in Exhibit A. MetaCreations hereby further grants
Distributor the right to use the Products, the Confidential Information and
MetaCreations' trademarks and tradenames, solely in connection with andsolely
to the extent reasonably necessary for, the marketing, distribution, and
support of the Products within the Territory.
2.2 Exclusivity. The exclusive rights granted herein are subject to
Distributor meeting the exclusivity targets defined in Exhibit B.
MetaCreations retains the right to market the Products, through OEM or bundle
arrangements, in the Territory to or through any third party or entity
conjunction with the Software Publishing OEM Agreement signed between the
parties on August 1st, 1997. In such instances the parties recognize the need
for distribution to supply marketing and/or support to third party companies
and/or end users of these OEM or bundled products. Distributor agrees to
provide such services in good faith and in exchange for these marketing
and/or support activities MetaCreations agrees to pay to Distributor an
amount equal to [**]% of MetaCreations net revenues derived from the
distribution of the Products in any OEM or bundle arrangements in Japan. In
addition, MetaCreations shall be responsible for all marketing and
development related expenses incurred by Distributor in the direct
fulfillment of such OEM contracts. The payment terms of such fees shall be
determined on a case by case basis reflecting the terms in which
MetaCreations receives such funds from the respective OEM or bundle partner.
[*] Confidential treatment requested
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2.3 Relationship. The relationship of MetaCreations and Distributor
established by this Agreement is of independent contractors, and nothing in
this Agreement shall be construed: (1) to give either party the power to
direct or control the daily activities of the other party, or (2) to
constitute the parties as principal and agent, employer and employee,
partners, joint ventures, co-owners or otherwise as participants in a joint
undertaking. MetaCreations and Distributor understand and agree that, except
as specifically provided for in this Agreement, MetaCreations does not grant
Distributor the power or authority to make or give any agreement, statement,
representation, warranty or other commitment on behalf of MetaCreations, or
to enter into any contract or otherwise incur any liability or obligation,
express or implied, on behalf of MetaCreations, or to transfer, release or
waive any right, title or interest of MetaCreations.
2.4 Reserved Rights. All rights not specifically granted to Distributor
hereunder are reserved by MetaCreations. Distributor shall have no right
whatsoever to utilize, receive, review, or otherwise have access to the
source code for Products distributed by MetaCreations in object code form
only, unless MetaCreations expressly grants such right in writing, if
MetaCreations, in its sole discretion, deems such access necessary for the
proper marketing, sale , support or service of the Products.
2.5 Changes in Products and Support. MetaCreations reserves the right at
any time with sixty (60) days written notice to (i) determine what
constitutes each Product, including, but not limited to its features,
characteristics, documentation, and related materials; (ii) discontinue its
distribution of any or all Products or discontinue distribution of any
Product to the retail channel in the event that MetaCreations determines that
further manufacturing and distribution of the product would be financially
harmful; (iii) change or terminate any of the features of the English
language Product, or (iv) change or terminate the level or type or support or
service which MetaCreations makes available for the English language Product.
In the event that MetaCreations discontinues the distribution of any of the
Products in conjunction with this subsection, Distributor shall use
commercially reasonable efforts to sell out its current inventory of said
Product; provided, however that any units of the Product remaining unsold may
be returned or destroyed for full credit of the original purchase price.
3. OBLIGATIONS OF METACREATIONS
3.1 Material. MetaCreations shall provide Distributor with the following
materials:
3.1.1 Three (3) copies of each Product for internal use, sales
demonstrations and training purposes; if any new Products are in short
supply, MetaCreations shall provide such versions as soon as economically
practicable for MetaCreations. The use of such Products shall be in
accordance with MetaCreations' Standard End User License Agreement.
3.1.2 A reasonable number of marked samples and evaluation
versions, if any, of the Products for distribution to journalists for product
reviews and to major prospective customers deemed strategic to Distributor's
success. Distributor shall promptly provide MetaCreations with the names and
addresses of the recipients of such samples and evaluation versions.
3.1.3 A reasonable number of copies of all English language
marketing and promotional materials that MetaCreations, at its sole
discretion, may prepare and distribute with respect to the Products.
3.2 Technical Assistance. MetaCreations shall provide to a designated
technical liaison person of Distributor a reasonable amount of Technical
Assistance (via telephone, fax or other electronic means), including support
materials and technical information at those levels reasonably necessary for
the Distributor to meet the needs of End Users in the Territory. Such support
shall be free of charge, except Distributor shall be responsible for paying
all applicable telephone toll charges on calls made to
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MetaCreations. MetaCreations shall promptly notify Distributor upon detection
of any defects or programming errors in the Products. MetaCreations will
consult with the Distributor and then, in its sole discretion, determine if
it is necessary to revise the Product code to remedy the programming error.
3.3 New Releases. All new Japanese and English language Products
released by MetaCreations during the term of this Agreement shall be
automatically added to the Products covered by this Agreement with the
exception of new versions of Infini-D, TextureScape, LogoMotion, and Collage
which are currently covered under a separate distribution agreement. Upon
release of a new version of an existing Product, for a period of one-hundred
twenty (120) days from release of the new version, Distributor shall have the
right to return to MetaCreations the units of the previous version in
inventory and receive credit for the amount paid for such units. At
MetaCreations sole discretion, a certificate of disposal may be sent in lieu
of the actual units of the product.
4. MARKETING AND SUPPORT OBLIGATIONS OF DISTRIBUTOR
4.1 Efforts. Distributor agrees that during the term of this Agreement
it shall use its best efforts to promote vigorously and aggressively the
marketing and distribution of the Products within the Territory, including
but not limited to advertising the Products in appropriate media,
implementing MetaCreations' marketing campaigns, and participating in trade
shows, conferences, expositions, and promotional seminars, all with due
consideration for the local marketing environment in the Territory.
Distributor shall be responsible for all expenses incurred in promoting,
marketing and distributing the Products within the Territory. However
MetaCreations agrees to pay to Distributor certain Marketing Development
Funds ("MDF") as outlined on Exhibit A1. Distributor shall conduct its
marketing activities in a lawful manner with the highest standards of fair
trade, fair competition, and business ethics, and shall cause its employees
to do the same. Distributor shall use its best efforts to utilize all
promotional materials supplied by MetaCreations. MetaCreations may, but is
under no obligation to, engage in additional public relations activities
which will be coordinated with efforts of the Distributor.
4.2 Policies. Distributor shall use commercially reasonable efforts to
adhere to the policies set by MetaCreations from time to time for the
marketing of the Products; provided, however, that Distributor shall be free
in establishing the resale prices charged for the Products and, subject to
Section 4.8 of this Agreement, the terms and conditions of distribution.
Attached to this Agreement as Exhibit A is the list of MetaCreations's
Suggested Japanese List Prices for the Products within the Territory.
4.3 Stock. Distributor shall use commercially reasonable efforts to
cause Sub-Distributors to at all times maintain a stock of Products which is
reasonably sufficient to meet the anticipated demand therefor throughout the
Territory. Distributor shall not distribute any component of the Products
separately from the other Product components, apart from the routine exchange
or replacement of defective Product components. Distributor may balance its
stock up to [**] percent ([**]%) of the prior quarters purchases. All
shipping costs, duties and taxes with regards to such replacement shall be
paid by Distributor.
4.4 Offices. Distributor shall use commercially reasonable efforts to
cause each Sub-Distributor to maintain offices within the Territory adequate
to market and support the Products in the Territory. Distributor shall
further use commercially reasonable efforts to cause Sub-Distributors to
retain and have at its disposal at all times in each country within the
Territory an adequate staff of trained and qualified personnel (including at
least one (1) full-time product manager dedicated to the Products, two (2)
software sales persons, and two (2) technical support persons) to perform its
obligations under this Agreement.
[*] Confidential treatment requested
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4.5 Sub-Distributors. Distributor shall use commercially reasonable
efforts to establish an efficient network of Sub-Distributors in order to
optimize the distribution of the Products in the Territory; provided that
Distributor shall not directly employ or utilize any sub-distributor, or
should any sub distributor directly employ a dealer without first having
entered into, with such sub-distributor or dealer, a written agreement which
is as protective of MetaCreations's Intellectual Property Rights and
Confidential Information as this Agreement.
4.6 Marketing Materials. Distributor shall use commercially reasonable
cause Sub-Distributors to prepare Product descriptions, promotional and
marketing and such other materials, including translations of the English, or
other language, promotional materials supplied by MetaCreations in accordance
with Section 3.1.3 of this Agreement, as are reasonable and appropriate for
the successful marketing of the Products in the Territory; provided, however,
that Distributor shall provide MetaCreations with copies of all such
materials prior to their release and shall not distribute them without
MetaCreations's prior written approval and provided that the expenses for
such materials shall be paid for by Distributor or by the MDF funds provided
for by this Agreement unless otherwise agreed upon by the parties.
4.7 Marks. Distributor agrees to maintain and respect the trademark and
trade name of the Products in identifying, advertising and marketing the
Products. Distributor agrees to use the appropriate notation for registered
or other trademarks.
4.8 Packages. Distributor shall distribute the Products only as part of
a sealed software package including a MetaCreations Standard End-User License
Agreement.
4.9 Sales and Support. Distributor agrees to use its best efforts to
cause Sub-Distributors to set up at its offices at least one telephone
support line dedicated to the support of the Products, and Distributor will
publish the phone number of such support line on Product packaging and in
advertising, as post sales and support services for the Products distributed
by Distributor. Technical support should be commercially reasonable for the
market and made available during the standard work week.
4.10 Guarantees. Distributor agrees to purchase a minimum amount of
product from MetaCreations during each quarter throughout the term of this
Agreement. The minimum purchase amount for each quarter shall be [**]% of the
exclusivity target for that respective quarter as outlined in Exhibit B. In
the event that Distributor's orders during any calendar quarter do not equal
the minimum purchase amount for that quarter the difference between the
minimum purchase amount and the actual purchase amount shall become payable
within 30 days from the last day of such quarter.
5. ASSISTANCE TO METACREATIONS
5.1 Rules and Regulations. Distributor shall use commercially reasonable
efforts to advise MetaCreations of any legislation, rule, regulation or other
law (including but not limited to any customs, tax, trade, intellectual
property, or tariff law) which, to the Distributors best knowledge, is in
effect or which may come into effect in the Territory or parts thereof after
the date of this Agreement and which affects the importation of the Products
into, or the use and the protection of the Products and the Intellectual
Property Rights therein within, the Territory, or which has a material affect
on any provision of this Agreement.
[*] Confidential treatment requested
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5.2 Errors. Distributor shall promptly prepare and forward to
MetaCreations a list of all errors in the Products of which it becomes aware
or of which it receives notification. In the event that Distributor receives
notification of any major problem with the Products, it shall immediately
notify MetaCreations by telephone and fax. The list of errors provided to
MetaCreations shall indicate a priority of the problems to be resolved and,
as best as possible, the circumstances under which such errors occur. Where
such errors have been noted to MetaCreations, MetaCreations shall offer such
assistance as is necessary for the Distributor to provide customer service of
the Products. MetaCreations's assistance shall include bug fixing,
modification of the manuals, if required, and personnel training for the
Distributor. The ultimate determination of a bug and modification of the
manuals and a resolution shall be determined solely by MetaCreations in
consultation with the Distributor.
5.3 Customer Information. Distributor agrees to make commercially
reasonable efforts to provide MetaCreations with such additional information
pertaining to potential End Users, products and activities of competitors and
market reactions as MetaCreations may reasonably request from time to time.
6. INSPECTION, RECORDS AND REPORTING
6.1 Reports. Distributor shall provide MetaCreations with monthly
operations reports of Distributor's activities in marketing the Products in
the Territory. Each such report shall be due within thirty (30) days after
the end of the month to which it relates and shall include, among other
things:
6.1.1 A summary of all of the Distributor's marketing activities
with respect to the Products.
6.1.2 Upon MetaCreations's request, a summary of competitor's
product introductions and activities in the Territory.
6.1.3 A sell-through report which details the number of Products
shipped from Distributor's warehouse to sub-distributors and or resellers, on
a monthly basis.
6.1.4 Upon the reasonable request of MetaCreations, any
additional information concerning the distribution of Products within the
Territory.
6.2 Registered Users. MetaCreations agrees to place a user registration
card for the respective Sub-Distributor into each unit of the Product
manufactured by MetaCreations. Distributor shall use commercially reasonable
efforts to cause Sub-Distributors to collect such cards from users and
register them in a reasonable electronic format. Distributor further agrees
that these register user databases are the exclusive property of
MetaCreations and that copies of such data shall be provided to MetaCreations
upon xxxxxx (30) days of written request.
6.3 Inventory. By the tenth (10th) day of each month during the term of
this Agreement, Distributor shall provide MetaCreations with and inventory
on-hand report for the previous month, broken down by product SKU.
6.4 Forecast. By the tenth (10th) day of each new month during the term
of this Agreement, Distributor shall provide MetaCreations with an inventory
forecast in the format approved by MetaCreations from time to time. This will
include a 90-day rolling forecast to be updated monthly.
6.5 Accounting Records. At all times during the term of this Agreement,
Distributor shall maintain at its principal place of business full, complete
and accurate books of account and records with
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regard to its activities under this Agreement. Upon reasonable notice,
Distributor shall grant MetaCreations access during normal business hours to
any premises of Distributor in order that MetaCreations, at its expense, may
inspect Distributor's books and premises and verify compliance by Distributor
with its obligations under this Agreement; provided, however, that
Distributor shall reimburse MetaCreations for the full amount of the
inspection costs if any inspection under this Section 6.3 reveals any
underpayment of license fees exceeding USD ten thousand ($10,000) due
hereunder or any material breach by Distributor of this Agreement.
7. SUGGESTED JAPANESE LIST PRICES, PAYMENT, SHIPMENT
7.1 Suggested Japanese List Price. MetaCreations's current Suggested
Japanese List Prices for the Products are set forth in Exhibit A to this
Agreement. Any changes in the Suggested Japanese List Price shall be subject
to prior consulation with Distributor. The parties agree that a change in the
Suggested Japanese List Price for any products will cause a change in the
purchase price of said products. MetaCreations agrees to credit Distributors
account the difference between the Distributors purchase price and the new
purchase price for any units held in inventory by Distributor at the time of
such price reduction. In the event of a price increase, MetaCreations agrees
that said price increase will be for only those orders which are placed after
the date of such price increase.
7.2 Price Lists. Price lists are set forth in Exhibit A. The price list
shall be updated on the first day of each new calendar month throughout the
term of this Agreement using the TTS yen/dollar conversion rate in effect as
of the close of business on the last day of the preceeding month as defined
by the Wall Street Journal; provided, however, that the price list will also
be updated in the event of a fluctuation of more than five (5) yen per dollar
during any given month. All prices are determined using the price in effect
at the time of placement of the order with MetaCreations.
7.3 Payment & Currency. Payment for Products hereunder will be
denominated and made net and in US Dollars, through wire transfers to
MetaCreations's account, within 30 days from the date of shipment, provided
credit terms are established with Distributor
7.4 Interest. Interest shall accrue on any delinquent amounts owed by
Distributor for the Products at the rate of one and one-half percent (1 1/2%)
per month, or 2% over the base rate of a significant Japanese national bank ,
whichever is less.
7.5 Taxes. Purchase Price to Distributor do not include taxes of any
nature, including but not limited to any value- added, sales, use, excise,
property or other tax, tariff, duty or assessment levied or imposed by any
governmental authority (including without limitation any country, state, city
or county) arising out of or related to the transactions contemplated under
this Agreement which MetaCreations is at any time obligated to pay or collect
(other than any tax based on MetaCreations' net income), provided that the
Distributor shall be entitled to deduct the amount of withholding tax from
amounts payable to MetaCreations pursuant to laws and regulations of the
Territory, as stated in section 7.6 of this Agreement. Distributor will pay
such taxes when invoiced by MetaCreations or will supply appropriate tax
exemption certificates in a form satisfactory to MetaCreations.
7.6 Withholding. If Distributor is required to withhold any taxes on
amounts payable to MetaCreations in accordance with this Agreement, pursuant
to the laws and regulations of the Territory, Distributor shall be entitled
to deduct and withhold such taxes, unless MetaCreations shall furnish to
Distributor duly executed forms sufficient under the laws of the Territory to
exempt sums payable to MetaCreations hereunder from such taxes. The amount
payable to MetaCreations shall not be reduced by any withholding taxes unless
Distributor furnishes MetaCreations with a certificate of deduction and
withholding and a true copy of the governmental receipt establishing the
payment thereof. Distributor
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shall obtain and furnish to MetaCreations on a timely basis official tax
receipts or such other evidence of payment as MetaCreations may be required
to submit in order to establish its right to a foreign tax credit against its
United States federal income tax liability.
If the Distributor determines that withholding is required under local tax
laws then it will provide MetaCreations with advance notice, by facsimile or
otherwise to apply for exemption from the same. The Distributor also agrees
to work with MetaCreations to minimize withholding taxes, if applicable.
MetaCreations agrees to pay for any outside accounting and legal advice
MetaCreations deems necessary to accomplish such minimization
7.7 Shipment. MetaCreations agrees to make all shipments of the Products
hereunder at the earliest available date after each individual purchase
contract is entered into between MetaCreations and Distributor pursuant to
Section 8 hereof. Shipments will be on the basis of FOB (as defined in
INCOTERMS 1990) and be made to Distributor' identified facilities or freight
carrier, unless otherwise agreed in advance by Distributor and MetaCreations
in writing; provided, however, that all title and all risk of loss or damage
for any Product, will pass to Distributor or other party or parties as may
have been designated to MetaCreations by Distributor in writing prior to the
shipment of the Products upon delivery by MetaCreations to the freight
carrier, such other designated party, or Distributor which ever first occurs.
Unless specified in Distributor's order, MetaCreations will select the mode
of shipment and the carrier. Distributor will be responsible for and shall
pay all shipping, freight and insurance charges, which charges MetaCreations
may require Distributor to pay in advance. Except as otherwise may be
provided herein, Distributor may not return any Product shipped by
MetaCreations hereunder.
7.8 Export License. MetaCreations shall make all arrangements for any
export licenses or permits which may be required in a timely manner to enable
MetaCreation to make shipments in accordance with the shipping schedule set
forth in each individual purchase contract.
7.9 Partial Delivery. MetaCreations may, upon consulation wth
Distributor, make partial shipments of Distributor's orders, to be separately
invoiced and paid for when due.
7.10 Short Shipments. In the event that Distributor receives any short
shipment of Products from MetaCreations, Distributor must notify
MetaCreations of its claim associated with such short shipment within fifteen
(15) working days of Distributor's receipt of shipment, and shall confirm
such claim in writing.
7.11 Delivery Schedule and Delays. MetaCreations shall use commercially
reasonable efforts to meet Distributor's requested delivery schedules for the
Products, but MetaCreations reserves the right to refuse, cancel or delay
shipment to Distributor when Distributor's credit is impaired, when
Distributor is delinquent in payments or fails to meet other credit or
financial requirements established by MetaCreations, or when Distributor has
failed to perform any other of its obligations under this Agreement. Should
orders for the Products exceed MetaCreations' available inventory,
MetaCreations will allocate its available inventory and make deliveries on a
basis MetaCreations deems appropriate, in its sole discretion, and without
liability to Distributor on account of the method of allocation chosen or its
implementation. In any event, MetaCreations shall not be liable for any
damages, direct, consequential, incidental, special or otherwise, to
Distributor, Dealer or to any other person for failure to deliver or for any
delay or error in delivery of the Products for any reason whatsoever.
MetaCreations agrees that should it be aware of any reason why it would not
be able to ship the ordered Product, or otherwise fulfill its obligations
under this Agreement, it will notify the Distributor as soon as possible.
8. PURCHASE CONTRACTS
8.1 Purchase. The detailed terms and conditions of each individual
purchase by the Distributor
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in conjunction with this Agreement shall be confirmed by both parties by
execution of a separate "Confirmation of Purchase Contract" for each order
placed by Distributor. A copy of the standard Confirmation of Purchase
Contract is attached hereto as Exhibit D. Each Confirmation of Purchase
Contract shall be deemed to incorporate all of the terms and conditions
hereof and the terms and conditions of this Agreement shall have precedence
over those contained in the Confirmation of Purchase Contract.
8.2 Countersignature. MetaCreations shall use commercially reasonable
efforts to return to Distributor a countersigned copy of the Confirmation of
Purchase Contract within 5 business days of its receipt of such document. In
the event that Distributor has verified receipt of the Confirmation of
Purchase Contract by MetaCreations and not received the countersigned copy of
the Confirmation of Purchase Contract or correspondence from MetaCreations
disputing its contents from within 10 days of receipt thereof by
MetaCreations, it shall be deemed accepted by MetaCreations.
9. COVENANTS OF DISTRIBUTOR
9.1 Distributor shall not:
(a) Copy. Reproduce, reverse engineer, disassemble, decompile,
customize or otherwise modify the Products without prior written consent of
MetaCreations
(b) Translate. Translate or otherwise adapt the Products in any way
whatsoever, except as may be provided for in a separate agreement, if any,
between the parties.
(c) Reproduction. Enter into agreements with other Persons which
grant such Persons the right to reproduce copies of the Products; except as
may be provided for in a Reproduction Agreement, if any, between the parties.
9.2 Distributor agrees that if Sub-Distributors license or otherwise
market any software products which compete with MetaCreations' Products
Distributor will use commercially reasonable efforts to ensure that adequate
resources and staff are set aside exclusively to sell, market and support
MetaCreations Products.
9.4 The parties agree that Products that are currently covered by the
existing Software Publishing Agreement dated August 1, 1997 between
Distributor and MetaCreations may be converted to Products of this Agreement
as soon as practical as mutually agreed by the parties. MetaCreations agrees
that existing stocks of all manufactured and unsold products will be utilized
before such conversion.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 MetaCreations Rights. Distributor acknowledges MetaCreations'
exclusive right, title and interest in and to any and all Intellectual
Property Rights, and Distributor will not at any time do or cause to be done
any act or thing impairing or tending to impair any part of said right, title
and interest; provided, however, that a legal challenge of MetaCreations'
patents, if any, shall not be deemed an act impairing any part of said right,
title and interest. Distributor acknowledges and agrees that all of these
Intellectual Property Rights shall remain the exclusive property of
MetaCreations.
10.2 Notices. Distributor shall not remove MetaCreations' copyright
notices and/or trademarks from any copy of the Products or market or license
the Products under any other name, sign or logo. Distributor also agrees that
during the term of this Agreement or at any time thereafter it will not
register or use, in association with any products other than the Products,
any of MetaCreations' trademarks or trade names or any word, symbol or design
confusingly similar thereto, as part of its corporate name. At
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MetaCreations' request, Distributor will assist MetaCreations in obtaining
registration of the trade names and trademarks in MetaCreations' name or, if
necessary, Distributor's rights to make use of MetaCreations's trade names
and trademarks as part of Distributor' marketing activities. All associated
legal fees and expenses connected with advice, search, registration and other
maintenance thereof will be at the expense of MetaCreations.
10.3 Objections. Distributor shall promptly notify MetaCreations (i) of
any claims or objections that its use of the Intellectual Property Rights in
connection with the marketing, licensing, support or service of the Products
may or will infringe the copyrights, patents, trademarks or other proprietary
rights of another Person; and (ii) of any and all infringements, imitations,
illegal use, or misuse, by any Person, of the Intellectual Property Rights
which come to its attention; provided, however, that Distributor will not
take any legal action relating to the protection of any Intellectual Property
rights without the prior written approval of MetaCreations; provided further
that Distributor shall render, at the sole expense of MetaCreations, all
reasonable assistance in connection with the protection of the Intellectual
Property Rights, whether in the courts, administrative agencies, or
otherwise.
10.4 Infringement. MetaCreations shall defend, or at its option settle,
any legal action or other proceeding brought against Distributor in so far as
such legal action or other proceeding is based upon a claim that the Products
or any part thereof delivered to Distributor hereunder infringes any
copyright, trade secret, patent, or trademark right in the Territory, and
shall indemnify and hold Distributor harmless from and against any loss,
damage, cost, expense, claim or liability to the extent arising therefrom;
provided that Distributor notifies MetaCreations of such legal action or
other proceeding, provides MetaCreations with such assistance and cooperation
in the defense thereof as MetaCreations may reasonably request; and provides
MetaCreations with sole control over any such legal action or other
proceeding.
10.5 Remedy. In the event that the use of Products or any part thereof
in the Territory is enjoined by a court of competent jurisdiction,
MetaCreations shall, at its option, (i) modify the Products so that they are
non-infringing, or (ii) replace the Products with functionally equivalent
non-infringing substitute products, or (iii) authorize the return for full
credit of those units of such infringing Product that may be deemed
unsellable due to such infringement.
11. NONDISCLOSURE OF CONFIDENTIAL INFORMATION
11.1 Restrictions. During the course of performance of this Agreement,
both parties will disclose certain Confidential Information to each other in
connection with this Agreement. Each party shall refrain from using or
exploiting any and all Confidential Information for any purposes or
activities other than those specifically authorized by MetaCreations or
Distributor in this Agreement. Both parties agree that such Confidential
Information shall be kept secret during the term of this Agreement and for 2
years after the expiration hereof.
11.2 Materials. All files, lists, records, documents, drawings,
specifications, equipment and computer programs which incorporate or refer to
all or a portion of the Confidential Information of MetaCreations shall
remain the sole property of MetaCreations. Such materials shall be promptly
returned (i) upon MetaCreations' reasonable request, or (ii) in accordance
with Section 18.2 of this Agreement upon termination of this Agreement,
whichever is earlier.
11.3 Public Domain. The provisions of this Section 11 shall not apply,
or cease to apply, to Confidential Information supplied if it (I) was already
known to the receiving party at the time of disclosure; (ii) has come into
the public domain without breach of confidence by the receiving party or an
other Person; (iii) was received by the receiving party from a third party
without restrictions on its use; (iv) is required to be disclosed pursuant to
any statutory or regulatory provision or court order; or (v) are no longer
considered confidential by MetaCreations; provided that the Distributor shall
have the burden
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of establishing any of the foregoing exceptions by conclusive evidence.
12. METACREATIONS LIMITATION OF WARRANTY
12.1 Limited Warranty. MetaCreations warrants the magnetic or optical
media, the encoding of the data and the physical documentation to be free of
defects in material and workmanship for a period of ninety (90) days from the
date of delivery of the Products to the End User. Should MetaCreations
receive a written notice of defect from Distributor within such period,
MetaCreations will replace the medium and/or the physical documentation at no
cost to Distributor.
For defective returns requiring replacement shipments, MetaCreations may, at
its sole discretion, require Distributor to return the defective products or
supply MetaCreations with a certified letter of disposal of such units.
12.2 No Further Warranty. METACREATIONS DOES NOT WARRANT THE OUTPUT OF
THE PRODUCTS TO MEET THE STANDARDS OR REQUIREMENTS WHICH MAY BE APPLICABLE TO
ANY END USER'S BUSINESS. EXCEPT AS HEREIN PROVIDED, METACREATIONS DOES NOT
MAKE OR GIVE ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE USEFULNESS OR
THE EFFICIENCY OF THE PRODUCTS, IT BEING UNDERSTOOD THAT THE DEGREE OF
SUCCESS WITH WHICH EQUIPMENT, SOFTWARE PROGRAMS AND MATERIALS CAN BE APPLIED
TO DATA PROCESSING IS DEPENDENT UPON MANY FACTORS, MANY OF WHICH ARE NOT
UNDER METACRETIONS' CONTROL.
12.3 Warranty Disclaimer. TO THE FULL EXTENT PERMITTED BY LAW, APART
FROM THE FOREGOING WARRANTIES, ALL CONDITIONS, WARRANTIES, REPRESENTATIONS,
LIABILITIES AND OBLIGATIONS WHETHER EXPRESS OR IMPLIED ARISING FROM
NEGLIGENCE OR IMPOSED BY STATUTE OR OTHERWISE, IN RESPECT OF THE SUPPLY AND
OPERATION OF THE PRODUCTS AND ANY RELATED SERVICES, INCLUDING ANY WARRANTIES
AS MERCHANTABILITY, FITNESS FOR PURPOSE, OR NON-INFRINGEMENT ARE HEREBY
DISCLAIMED.
IN NO EVENT WILL METACREATIONS BE LIABLE FOR INDIRECT, SPECIAL OR
CONSEQUENTIAL DAMAGES UNDER THIS SECTION EVEN IF METACREATIONS HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. METACREATIONS' LIABILITY FOR
DAMAGES SHALL NOT EXCEED THE PURCHASE PRICE RECEIVED BY METACREATIONS FOR THE
USE OF THE PRODUCTS THAT ARE THE BASIS OF METACREATIONS' LIABILITY.
FURTHERMORE, ANY CAUSE OF ACTION ON ANY MATTER FOR WHICH METACREATIONS IS
LIABLE HEREUNDER MUST BE BROUGHT BY DISTRIBUTOR WITHIN TWELVE (12) MONTHS
AFTER THE DATE HEREOF, DISTRIBUTOR HEREBY WAIVING ANY OTHER STATUTE OF
LIMITATIONS WHICH MAY BE APPLICABLE.
13. INDEMNIFICATION
Each party hereby agrees to indemnify and hold the other party harmless
against any and all losses, claims, damages, liabilities, costs and expenses,
including legal expenses and reasonable counsel fees, arising out of any
breach by such party of any representation or warranty in this Agreement.
14. COMPLIANCE WITH APPLICABLE LAWS
14.1 Export Laws. In the performance of their respective obligations
under this Agreement, MetaCreations and Distributor shall, at all times,
strictly comply with all laws, regulations and orders of the United States
and the Territory. Without limiting the generality of this Section 14,
Distributor specifically acknowledges that the Products and the Confidential
Information supplied to Distributor in
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accordance with the terms of this Agreement are subject to the United States
Export Controls. At MetaCreations' request, Distributor shall agree, and
cause each End User to agree by means of packaged License Agreements, that it
will not export or re-export the Products, the Confidential Information or
any direct product thereof, directly or indirectly to, or for use in, any
country outside the Territory without the prior written authorization of
MetaCreations and the United States government.
14.2 Authorizations. Distributor shall, at its own expense, make,
obtain, and maintain in force at all times during the term of this Agreement,
all filings, registrations, reports, licenses, permits and authorizations
(collectively "Authorizations") required under applicable law, regulation or
order in the Territory in order for Distributor to perform its obligations
under this Agreement. MetaCreations shall provide Distributor with such
assistance as Distributor may reasonably request in making or obtaining any
such Authorizations. In the event that the issuance of any such Authorization
is conditioned upon an amendment or modification to this Agreement which is
unacceptable to MetaCreations, MetaCreations shall have the right to
terminate this Agreement without further obligation whatsoever to Distributor
except those obligations which may be provided for elsewhere in this
Agreement.
14.3 Filing Requirements. If it is necessary to file either this
Agreement or MetaCreations' Standard End-User License Agreement with a
governmental authority the Distributor will provide all necessary assistance
to effect such registration. MetaCreations will reimburse Distributor for all
out-of-pocket costs in support of such registration.
15. ASSIGNMENT
This Agreement and the rights and obligations hereunder shall not be
assigned in whole or in part by either party without the prior written
consent of the other and any purported assignment without such written
consent shall be void and of no effect.
16. FORCE MAJEURE
Neither party shall be liable to the other party for any delay or
omission in the performance of any obligation under this Agreement other than
an obligation to pay money where the delay or omission is due to any cause or
condition beyond the reasonable control of the party obliged to perform,
including, but not limited to, strikes or other labor difficulties, acts of
God, acts of government, including the inability to obtain a validated export
license under the United States Export Control laws or regulations, war,
riots, embargoes, communication failures or inability to obtain supplies.
17. CHOICE OF LAW AND FORUM
17.1 Governing Law. This Agreement, and any disputes arising out of or
in connection with this Agreement, shall be governed by and construed in
accordance with the laws of the State of California, excluding its rules
governing conflicts of laws. The English language text of this Agreement
shall control over any translation hereof.
17.2 Arbitration. Except as it may relate to any breach or dispute
regarding Confidential Information; MetaCreations and Distributor hereby
agree that all claims, disputes or controversies arising between the parties
out of or in relation to this Agreement or breach thereof, which cannot be
satisfactorily settled by the parties, shall be finally settled by
arbitration upon the written request of either party. The arbitration
proceedings shall be conducted in the state of California, in accordance with
the existing Rules of Arbitration of the American Arbitration Association,
with three arbitrators. The award shall be final and binding upon both
parties. Judgment upon the award may be entered in any court having
jurisdiction thereof. Disputes regarding Confidential Information
MetaCreations and Distributor hereby agree shall be addressed as outlined in
section 17.1 and 17.3.
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17.3 Courts. The Federal and state courts within the State of California
shall have exclusive jurisdiction to adjudicate any disputes arising out of
or in connection with this Agreement. Distributor hereby expressly consents
to the personal jurisdiction of the Federal and state courts within the State
of California.
17.4 Fees. The prevailing party in any legal proceeding brought by one
party against the other party and arising out of or in connection with this
Agreement shall be entitled to recover its legal expenses, including court
costs and reasonable attorneys' fees.
18. TERM AND DURATION
18.1 Term. This Agreement shall enter into full force and effect as of
the Effective Date and shall remain in force until the 31st of December of
1998. Both parties agree to negotiate in good faith an extension, before the
expiration of this Agreement. Notwithstanding other provisions of this
subparagraph 18.1, or any other provisions of this Agreement, and in addition
to any other rights to terminate set forth in this Agreement, this Agreement
may be terminated prior to the expiration of its stated term, with cause, as
set forth below.
18.2 Defaults. In the event that either party is in default or commits a
breach of this Agreement, and if such default or breach shall not be cured or
good faith attempts to cure shall not have commenced within thirty (30) days
after written notice of such default or breach is given by the non-defaulting
party and received by the defaulting party, then at any time after the
expiration of such thirty (30) days, the non-defaulting party may give
written notice to the defaulting party of its election to terminate this
Agreement. Thereupon, the Agreement shall terminate on the date specified in
such notice, which shall not be less than fifteen (15) days following the
receipt of such written notice. Such right of termination shall not be
exclusive of any other remedies or means of redress to which the
non-defaulting party may be lawfully entitled.
18.3 If either party: (a) becomes insolvent, (b) files a voluntary
petition for bankruptcy, or, (c) ceases to do business, the other party, at
its option, may terminate this Agreement upon thirty (30) days notice.
19. RIGHTS AND OBLIGATIONS UPON TERMINATION
19.1 Accrued Obligations. In the event of expiration or termination of
this Agreement, regardless of the cause thereof, the parties shall abide by
and uphold any rights or obligations accrued or existing on the date of
termination. The parties agree to continue cooperating with each other and to
carry out an orderly termination of their relations. Distributor, at its
discretion, shall retain the right to continue marketing its stock of the
Products currently in inventory of the date of termination for three (3)
months after termination of this Agreement.
19.2 Orders. Upon expiration or termination, the due date of all
outstanding invoices for the Products delivered by MetaCreations to
Distributor will automatically be accelerated so that they become due and
payable (at amounts equal to the fees on the Distributor's Purchase Order) on
the effective date of expiration or termination, even if longer terms had
been provided previously. All orders or portions thereof remaining un-shipped
as of the effective date of expiration or termination shall automatically be
canceled, unless Distributor is obligated to deliver such order to a Sub
Distributor under an existing firm written purchase order.
19.3 Return. Within thirty (30) days after the effective date of
expiration or termination of this Agreement, Distributor shall return to
MetaCreations, or any other Person designated by MetaCreations, all Products
and related materials in Distributor's possession and any and all
Confidential Information
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which is in written, recorded or other tangible form but only to the extent
that Distributors purchases of products exceed the minmum guarantees
described in Section 4.10 and represent purchases made up to 90 days prior to
the termination of the Agreement. Distributor hereby expressly waives and
agrees not to assert any right of detention whatsoever with respect to such
Products, materials, and Confidential Information. Distributor shall furnish
MetaCreations with a written declaration of an authorized corporate officer
certifying that all copies of the Products and related materials have been
returned or destroyed. MetaCreations shall pay Distributor for all returned
Products in new and resaleable condition an amount equal to the fees paid by
Distributor to MetaCreations.
19.4 Waiver. The waiver by any party of any breach or default of any
provision of this Agreement by the other party shall not constitute a waiver
by such party of any succeeding breach of the same or other provision.
19.5 Debts Survive. In the event of termination or expiration of this
Agreement, neither party shall be relived of their respective financial
obligations under this Agreement. Should there be any outstanding financial
obligations to distributor, these obligations shall be met by electronic
transfer of the outstanding amounts to a bank account specified by
Distributor.
19.6 Further Obligations. Upon expiration or termination of this
Agreement, either party shall have no further obligation to the other party
other than those set forth in this Section 19. Both parties obligations under
Section 11(for 2 years), 10, 13, 17 and 20 of this Agreement shall survive
the termination of this Agreement.
20. GENERAL PROVISIONS
20.1 Waiver and Delay. The waiver by either party of a breach or default
in any of the provisions of this Agreement by the other party shall not be
construed as a waiver of any succeeding breach of the same or other
provisions; nor shall any delay or omission on the part of either party to
exercise or avail itself of any right, power or privilege that it has or may
have hereunder operate as a waiver of any breach or default by the other
party.
20.2 Notices. All notices required or permitted by this Agreement shall
be in writing and in English and may be delivered personally, or may be sent
by cable, telex, telecopy, or air mail, return receipt requested, sent to the
following addresses, unless the parties are subsequently notified of any
change of address in accordance with this Section 20.2:
If to MetaCreations:
MetaCreations International, Ltd.
Xxxxxx Xxxxx, Xxxxxx Xxxxx
Xxxxxx 0, Xxxxxxx
Attn: Xxxx Xxxxxxxx
Fax: 000-0-000-0000
with copy to:
MetaCreations, Corporation
0000 Xxxxxxxxxxx Xxx.
Xxxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxx
Fax: 000-000-0000
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If to Distributor:
Marubeni Corporation
0-0 Xxxxxxxxx 0-Xxxxx
Xxxxxxx-xx, Xxxxx, Xxxxx
Attn: Ryouichi Watanabe
Fax: 00-0000-0000
Any notice shall be deemed to have been received as follows: (i) personal
delivery, upon receipt; (ii) telecopy, twenty-four (24) hours after
transmission; (iii) registered airmail, ten (10) days after delivery to the
postal authorities by the party serving notice.
20.3 Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes
all prior agreements between the parties, whether written or oral, relating
to the same subject matter. No modification, amendments or supplements to
this Agreement shall be effective for any purpose unless in writing, signed
by each party. Authorizations, approvals or consents hereunder of a party
shall also be in writing.
20.4 Acceptance. This Agreement shall become effective only after it has
been signed by Distributor and has been accepted by MetaCreations at its
principal place of business, and its Effective Date shall be the date on
which it is signed by MetaCreations.
20.5 Severability. In the event that any of the terms of this Agreement
are held by a court of competent jurisdiction to be contrary to any laws, the
invalidity or illegality of such provision shall not invalidate the whole of
this Agreement or any other provisions and this Agreement shall be construed
as if it did not contain the invalid provision.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first shown above.
METACREATIONS INTERNATIONAL, LTD. MARUBENI CORPORATION
Signature /s/XXXX XXXXXXXX Signature /s/XXXXXX XXXXXXX
-------------------------------- ---------------------------------
Print Xxxx Xxxxxxxx Print Xxxxxx Xxxxxxx
-------------------------------- ---------------------------------
Title VP and General Manager Title General Manager, Electronics Dept.
-------------------------------- ---------------------------------
Date August 1, 1997 Date August 1, 1997
-------------------------------- ---------------------------------
Signature /s/XXXXXXX X. XXXXXXXXX
--------------------------------
Print Xxxxxxx X. Xxxxxxxxx
--------------------------------
Title Director
--------------------------------
Date August 1, 1997
--------------------------------
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EXHIBIT A
PRODUCTS, SUBDISTRIBUTORS AND PRICES
Products. During the term of this Agreement the products listed below shall
be the Products covered by this Agreement.
- Painter Mac/Win English and Japanese
- Poser Mac/Win English and Japanese
- Detailer Mac/Win English and Japanese
- Expression Mac/Win English and Japanese
- Art School Dabbler Mac/Win English and Japanese
- Xxx Xxxxx Designer Mac/Win English and Japanese
- Xxx Xxxxx Studio Mac/Win English and Japanese
- Bryce 3 Mac/Win English and Japanese
Sub-Distributors. During the term of this Agreement the companies listed
below are the subdistributors covered by this Agreement. Sub-Distributors may
be added or deleted from this list by Distributor upon prior consultation
with MetaCreations
Fortune Hill, Inc.
Mediavision, Inc.
The products exclusively subdistributed by Fortune Hill are:
- Xxx Xxxxx Designer Mac/Win
- Xxx Xxxxx Studio Mac/Win
- Expression Mac/Win
The products exclusively subdistributed by Mediavision are:
- Painter Mac/Win
- Poser Mac/Win
- Detailer Mac/Win
- Art School Dabbler Mac/Win
- Bryce 3 Mac/Win
Distributor shall distribute such products only to the Sub-Distributor set
for the above, provided, however, that, Distributor may change product
allocation to Sub-Distributors upon prior consultation with MetaCreations.
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EXHIBIT A1 September
MDF
With the exception of the products listed below, MDF is equal to [**]% of
purchase price for Retail, Educational, Sidegrade and OEM units. MDF funds are
not applied to Upgrade and NFR units.
RETAIL-[**]% off of JSRP SUGGESTED
JAPANESE DISTRIBUTOR
LIST PRICE DISCOUNT PURCHASE PRICE MDF
---------- ----------- -------------- ---
Painter 4J Mac [**] [**] [**] [**]%
Painter 4J Win [**] [**] [**] [**]%
Dabbler 2J Hyb [**] [**] [**] [**]%
Poser 2J Mac [**] [**] [**] [**]%
Poser 2J Win [**] [**] [**] [**]%
Detailer X Xxx [**] [**] [**] [**]%
Detailer J Win [**] [**] [**] [**]%
Expressions X Xxx [**] [**] [**] [**]%
Expressions J Win [**] [**] [**] [**]%
Designer 4.1 M/W [**] [**] [**] [**]%
Studio 4.1 M/W [**] [**] [**] [**]%
Jag II [**] [**] [**] [**]%
Add Depth [**] [**] [**] [**]%
Part and Props [**] [**] [**] [**]%
ACADEMIC-[**]% off of Academic SUGGESTED
JSRP JAPANESE DISTRIBUTOR
LIST PRICE DISCOUNT PURCHASE PRICE MDF
---------- ----------- -------------- ---
Painter 4J Mac [**] [**] [**] [**]%
Painter 4J Mac 5 User [**] [**] [**] [**]%
Painter 4J Win [**] [**] [**] [**]%
Painter 4J Win 5 User [**] [**] [**] [**]%
Poser 2J Mac [**] [**] [**] [**]%
Poser 2J Win [**] [**] [**] [**]%
Detailer X Xxx [**] [**] [**] [**]%
Detailer J Win [**] [**] [**] [**]%
Expressions X Xxx [**] [**] [**] [**]%
Expressions J Win [**] [**] [**] [**]%
Studio 4.1X X/W [**] [**] [**] [**]%
Dabbler 2.0 CP [**] [**] [**] [**]%
[*] Confidential treatment requested
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UPGRADES-[**]% off of JSRP SUGGESTED
JAPANESE DISTRIBUTOR
LIST PRICE DISCOUNT PURCHASE PRICE MDF
---------- ----------- -------------- ---
Painter 4J Mac [**] [**] [**] [**]%
Painter 4J Win [**] [**] [**] [**]%
Dabbler 2J Hyb [**] [**] [**] [**]%
Poser 2J Mac [**] [**] [**] [**]%
Poser 2J Win [**] [**] [**] [**]%
Studio 4.1X X/W [**] [**] [**] [**]%
Painter 5J Mac [**] [**] [**] [**]%
SIDEGRADES-[**]% off of JSRP. SUGGESTED
White Box. JAPANESE DISTRIBUTOR
LIST PRICE DISCOUNT PURCHASE PRICE MDF
---------- ----------- -------------- ---
Painter 4J Mac [**] [**] [**] [**]%
Painter 4J Win [**] [**] [**] [**]%
Poser 2J Mac [**] [**] [**] [**]%
Poser 2J Win [**] [**] [**] [**]%
Detailer X Xxx [**] [**] [**] [**]%
Detailer J Win [**] [**] [**] [**]%
Expressions X Xxx [**] [**] [**] [**]%
Expressions J Win [**] [**] [**] [**]%
Designer 4.1 M/W [**] [**] [**] [**]%
Studio 4.1 M/W [**] [**] [**] [**]%
NFR-[**]% off of JSRP SUGGESTED
JAPANESE DISTRIBUTOR
LIST PRICE DISCOUNT PURCHASE PRICE MDF
---------- ----------- -------------- ---
Painter 4J Mac [**] [**] [**] [**]%
Painter 4J Win [**] [**] [**] [**]%
Dabbler 2J Hyb [**] [**] [**] [**]%
Poser 2J Mac [**] [**] [**] [**]%
Poser 2J Win [**] [**] [**] [**]%
Detailer X Xxx [**] [**] [**] [**]%
Detailer J Win [**] [**] [**] [**]%
Expressions X Xxx [**] [**] [**] [**]%
Expressions J Win [**] [**] [**] [**]%
Designer 4.1 M/W [**] [**] [**] [**]%
Studio 4.1 M/W [**] [**] [**] [**]%
[*] Confidential treatment requested
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EXHIBIT B
EXCLUSIVITY TARGETS
Exclusivity Targets. The Exclusivity Targets for the first two 3-month
periods are set forth below.
July-Sept 1997: USD [**]
Oct-Dec 1997: USD [**]
The above Exclusivity Targets shall be the total target sums for purchases
under this agreement and royalties reported to MetaCreations under all other
Agreements currently effective between MetaCreations and Distributor.
In the event that Distributor fails to meet the Exclusivity Target for 2
consecutive quarters, MetaCreations shall have the right to terminate the
exclusivity of this agreement.
Such Exclusivity Targets are based on certain assumptions such as product
shipments, product launches and relative stableness in the economy and on
non-negative effect of MetaCreations' OEM arrangement in the Territory.
The July-Sept Exclusivity Target is based on the following new products being
available for sales during the quarter:
Painter 5.0X Xxx/Win
Painter 5.0X Xxx/Win Upgrades
Kai's Photo Soap 1.0X Xxx/Win
The October-December Exclusivity Target is based on the following new
products being available for sales during the quarter:
Bryce 3.0 X Xxx/Win
Bryce 3.0X Xxx/Win Upgrades
RayDream Studio 5.0X Xxx/Win
RayDream Studio 5.0X Xxx/Win Upgrades
Xxx Xxxxx Designer 5.0X Xxx/Win
Xxx Xxxxx Designer 5.0X Xxx/Win Upgrades
In the event any of these products ( or funcional equivalents thereof) are
not released by MetaCreations, the parties shall renegotiate the above
Exclusivity Target in good faith, In the event the parties cannot agree on
such renegotiated Exclusivity Target, the Exclusivity Target shall be reduced
by the number of products, devided by the total number of products covered by
the Agreements.
For all quarters during the term of any of the Agreements subsequent to the
quarters listed above, Exclusivity Targets will be set by mutual agreement
before the beginning of each such quarter.
[*] Confidential treatment requested
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