Exhibit 10.16
GLOBAL MEDIA CORP. DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT (this "Agreement") is entered this 14th day
of May, 1999 by and between Global Media Corp., a Nevada Corporation having an
address at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ("Company") and
▇▇▇▇▇ & ▇▇▇▇▇▇, INC., ("B&T"), a Delaware corporation having an address at ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
WITNESSETH:
For valuable consideration, the receipt and legal sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. DEFINITIONS
As used throughout this Agreement the following terms have the
following meanings:
1.1 "Effective Date" means May 14, 1999.
1.2 "Initial Termination Date" means the day preceding the first
anniversary of the Effective Date.
1.3 "Customers" or "Customer" means customers of Company within
the United States who order Products (hereinafter defined) from Company by means
of Company's online retail store doing business over the Internet.
1.4 "Products" means [books, spoken word audio products,]
pre-recorded video products in VHS, laser disc and DVD formats, multi-media
products, and music audio products.
2. TERM
2.1 This Agreement will begin on the Effective Date and will
expire on the Initial Termination Date, unless terminated on an earlier date
pursuant to the express terms of this Agreement or unless extended pursuant to
thc terms of Section 2.2.
2.2 Unless one of the parties (the "Notifying Party") to this
Agreement notifies the other party not less than 60 days prior to the Initial
Termination Date or any subsequent Termination Date (hereinafter defined) that
the Notifying Party wishes that this Agreement not be renewed, and if this
Agreement otherwise is in full force and effect and no Event of Default
(hereinafter defined) has occurred, this Agreement automatically may be renewed
for not more than five (5) consecutive periods of one (1) year each (each such
period, a "Renewal Term") without further action by either party and on the same
terms and conditions as set forth herein. If the Notifying Party notifies the
other party before the 60 day period that it does not wish that this Agreement
be renewed, this Agreement automatically will expire on the Initial Termination
Date or on the next succeeding Termination Date. As used herein, "Termination
Date" means the anniversary of the Initial Termination Date in a Renewal Term to
which the same relates. As used herein, "Term" means the period beginning on the
date hereof and ending on the Initial Termination Date or a Renewal Term, as the
case may be.
3. ORDER FULFILLMENT
3.1 Company will transmit orders in batches via the Internet to
B&T at B&T's Internet mailbox location by file transfer protocol ("FTP"). The
frequency of batched orders transmitted to B&T will be determined by the
parties' mutual agreement. Each order transmitted by Company to B&T will contain
the following information: (a) the Customer's name and shipping address, (b) the
method by which Products ordered must be shipped to the Customer, (c) whether or
not the order may be fulfilled in multiple shipments of Products to the Company
or if the order may only be fulfilled when B&T has all Products ordered in
stock, and (d) the text of any special messages to the Customer. B&T will
furnish Company with specifications for FTP communications. B&T may change such
specification from time to time on not less than 30 days' prior written notice
to Company.
3.2 After receipt of an order, B&T will (a) fill the order from
inventory of Products in stock at such of B&T's facilities in the United States
as B&T from time to time may designate collectively, ("Shipping Facilities"),
(b) print the text of any special message requested by Company on the standard
packing slip included in the order, (c) include any additional packing slips
requested by Company in the order, (d) pursuant to Company's instructions, and
based upon availability of Products in stock, ship the order to Customer either
as a multiple shipment or as one shipment, (e) promptly place any Products
ordered by Company which B&T does not have in stock on a backorder report for
review by B&T's account manager for Company, after which time such Products will
be promptly ordered by B&T (collectively, "Backordered Products"), and (f) ship
any Backordered Products, when received by B&T, pursuant to the terms of the
preceding clauses (a)-(d) and the following two sentences. B&T will ship on the
same business day all orders received by 1:00 P.M. Eastern time from Company on
such business day for Products which B&T then has in stock at a Shipping
Facility. Any orders received by B&T after 1:00 P.M. Eastern time will be
shipped on the following business day. As used in this Section, "business day"
means Monday through Friday, but excluding any Holidays. As used herein,
"Holiday" means any recognized holiday on which the approved carrier or shippers
providing services under this Agreement are closed for business.
3.3 B&T will print all packing slips, will insert all packing
slips and will print and affix shipping labels on orders being shipped to
Customers as part of its fulfillment obligations hereunder and at no expense to
Company, other than the fulfillment fee specified below.
3.4 Company acknowledges that it does not expect B&T to maintain
in stock a complete inventory of all Products that may be ordered by Customers.
B&T will maintain, and will update on a weekly basis, stock availability for
Products. In addition, B&T will provide stock availability to Company on demand
by FTP transmission.
3.5 Invoices enclosed in shipments by B&T to Customers will be
customized in accordance with Company's specifications. Company's specifications
will not exceed the capabilities of B&T's invoice printers.
2
3.6 (a) B&T will provide the following reports to Company:
(i) On a daily basis, B&T will transmit to \Company
a Ship Complete Report which details, by order, all orders
received from Company for the preceding week, all Products
contained in each order from Company, the fulfillment status of
each such order, and the number of days elapsed since the order
was made.
(ii) On a daily basis and on a weekly basis, B&T
will deliver to Company a Daily Log and a Weekly Log,
respectively, which details (x) all Product returns (identified by
invoice number) processed by B&T for the preceding business day or
for the preceding week, as the case may be, and indicating
quantity and amount, and (y) by order, all orders filled by B&T on
the preceding business day or the preceding week, as the case may
be, and which includes the following information for each such
order: the order number, the Customer's name and address, an
itemization of Products shipped, the price charged by B&T to
Company for each Product, and shipping and handling charges to
Customers and to Company.
(iii) On a daily basis, B&T will deliver to Company
a Canceled Order Report which specifies all orders canceled each
day during the previous week and includes the following
information for each cancelled order: the order number, the
Customer's name, the title of each Product, the quantity of all
Products, and the name of the person who cancelled the order on
behalf of the Customer.
(iv) on a daily basis, B&T will deliver to Company
an Inactive Product Report which specifies all orders of Products
which are on backorder during the previous week and for which any
Product contained in the order has been flagged as "inactive" in
B&T's inventory system. As used herein, "inactive" means all
Products which are out of print or otherwise permanently
unavailable for sale.
(v) On a monthly basis, B&T will deliver to Company
a statement of account which itemizes (x) all invoices sent to
company hereunder during the prior calendar month, (y) all
payments received from Company hereunder during the prior calendar
month which have been applied against invoices and (z) all
invoices unpaid by Company hereunder.
(b) The preceding reports will be delivered by FTP
transmission to Company's Internet address at no additional charge to Company.
3.7 If any Products ordered by a Company are placed on moratorium
by the vendor, B&T will notify Company and will supply the Product only while
B&T's supplies last, after which time B&T will cancel the order. If a shipment
from any vendor to B&T of any Products ordered by Customers is delayed, B&T will
notify Company within one (1) business day after being notified by the vendor of
the delay. B&T will not be liable for delays arising from the failure of any
freight carrier to meet its respective delivery standards. As used herein,
"placed on moratorium" means Products which are designated by the vendor as
being indefinitely unavailable for purchase from the vendor.
3
4. RETURNS
4.1 (a) As used in this Agreement:
(i) "Defective Products" means Products which contain
manufactured defects which prevent them from being used for their
intended purpose;
(ii) "Damaged Products" means Products which are
damaged during shipment to Customers which prevent them from being
used for their intended purpose; and
(iii) "Unmerchandisable Products" means Products which
are shopworn and/or soiled.
(b) Each shipment of Products to Customers will include
Company's return policy, including instructions that Customers are to make
returns of Products to Company at B&T's return center address. Within three (3)
business days of B&T's receipt of the same, all returned Products will be
received into B&T's inventory, the Products will be logged as having been
received, Company will be issued a credit by B&T for the price paid by Company
to B&T for the returned Products and B&T will provide company with information
in reasonably sufficient detail to allow Company to properly credit Customers
for such returns. Company will reimburse B&T for any freight costs incurred for
Products returns within 30 days after receipt of B&T's invoice therefor, except
for returns of Defective Products, Unmerchandisable Products and/or Products
shipped erroneously to Customers, in which case B&T promptly will issue a credit
to Company equal to the U.S. Postal Service charge for shipment from Customers
to B&T of such Products, and B&T will be responsible for any freight costs to
ship replacement Products. On not less than 30 days' prior notice to B&T,
Company may elect to process all returns of Products from Customers after the
date specified in such notice.
(c) B&T will not be obligated to accept any returns of
Products submitted more than 60 days after shipment of such Products to a
Customer in the United States (or, if such Products have been shipped outside
the United States, more than 90 days after such shipment) including returns of
Defective Products, Damaged Products, Unmerchandisable Products and/or
erroneously shipped Products.
4.2 If returns of Products (other than returns of Defective
Products, Unmerchandisable Products or Products erroneously shipped by B&T)
during any calendar quarter exceed five percent (5%) of the total price charged
by B&T to Company of all Products shipped during the prior calendar quarter,
Company will pay B&T a return fee equal to seven and one-half percent (7.5%) of
the price charged by B&T to Company for such Products. Payment of any return
fees will be made within 30 days after Company's receipt of B&T's invoice
therefor. Credit memos for returns will be processed by B&T and delivered to
Company within 15 days after B&T's receipt of the returned product. Credits
issued to Company under any such credit memos will be applied immediately to
payables incurred by Company.
4.3 All Product returned to B&T (except for returns of Defective
Products and/or Unmerchandisable Products) during any calendar quarter must be
with the original packaging intact (including manufacturer's shrink wrap for
video and audio Products). Returns of any
4
Products which are not in compliance with the preceding sentence will be subject
to a repackaging fee of $.40 per unit. Payment of any repackaging fees will be
made within 30 days after Company's receipt of B&T's invoice therefor.
4.4 (a) B&T will use commercially reasonable efforts to
not ship Unmerchandisable Products to Customers. If Unmerchandisable Products
are shipped by B&T to Customers, B&T's sole liability hereunder will be to
accept returns of the same within the time period specified above and, subject
to availability, promptly replace the same for Customers at no additional cost
to them or to Company. If replacement Products are not available, B&T promptly
will issue a credit to Company in the amount theretofore invoiced to Company for
the same.
(b) B&T will package for shipment to Customers in a
manner which is commercially reasonable to prevent damage during shipment. If
Products are damaged during shipment to Customers, B&T will accept a return of
the same made within the time period specified above and, subject to
availability, replace the same for Customers at no additional cost to Customers
within a reasonable period of time. If replacement Products are not available,
B&T promptly will issue a credit to Company in the amount theretofore invoiced
to Company for the same. Company will reimburse B&T for the freight charges
incurred by B&T for the return of such Products to B&T and for shipment of
replacement Products to Customers. Such reimbursement will be made within 30
days after Customer's receipt of B&T's invoice therefor. Company also will pay
B&T a fulfillment charge for supplying replacement Products in accordance with
the terms of Section 6.3(a) below. Company will not be responsible for
reimbursing B&T for the cost of replacement Products. B&T promptly will file a
claim with the carrier that shipped the Damaged Products (if permitted by such
carrier's terms), and will use commercially reasonable efforts to prosecute any
such claim. If any portion recovered by B&T from a carrier with respect to a
claim filed by B&T is specifically identified as reimbursement for freight
charges, B&T will issue a credit to Company in such amount within 30 days after
B&T's receipt thereof.
5. PRICING AND PAYMENT TERMS
5.1 (a) Company will pay B&T for all Products ordered by
Customers, and Company will pay all fees and reimbursables payable to B&T
herein, within 30 days after Customer's receipt of B&T's invoice therefor
(subject to financial review). All payments made to B&T will be in good funds
and delivered by check or wire transfer to the order of B&T pursuant to B&T's
instructions. Company may not reduce and set off amounts payable hereunder
against any indebtedness or any other claim that Company may have against B&T,
however or whenever arising, except as expressly provided herein.
(b) The purchase price payable by Company for Products
ordered by Customers during the Term will be the following:
(i) for VHS video products (other than for Disney
Classics having a list price of $26.9X) purchased for sale (i.e.,
for which the suggested retail price for a single unit is under
$30, or which is designated with "E" for the product group in B&T's
ordering system) the list price at the time an order is placed,
less a discount of 37%;
5
(ii) for VHS video products which are designated
with "R" for the product group in B&T's ordering system, the list price
at the time an order is placed, less a discount of 33%;
(iii) for DVD video products, the list price at
the time an order is placed, less a discount of 30%;
(iv) for Laser Disc video products, the list
price at the time an order is placed, less a discount of 33%, except
those items designated as non-discountable;
(v) for music audio compact discs and music
audio cassettes, the published list price at the time an order is
placed, less a discount of 30% and 34% respectfully;
5.2 As Used in this Agreement, "list price" means, respectively, the
publisher's, studio's or audio label's published list price with respect to a
Product, unless the same does not exist, in which case "list price" means B&T's
published list price for such Product.
5.3 (a) Company will pay B&T an order fulfillment fee for each order
placed by a Company equal to $1.25 for the first unit in each order and $0.75
for each additional unit in each order, regardless of the number of shipments
made for each order or the number of locations from which the shipments are
made.
(b) Company will pay B&T a transmission fee of $0.18 per order for
all orders of Products made by Company to B&T by means of electronic data
interchange transmission through a value added network. No fee will be payable
if Company transmits orders to B&T by FTP.
(c) Company will reimburse B&T for all mail orders from Customers
to B&T at the rate of $1.00 for the first unit in each order and $0.30 for each
additional unit in each order.
5.4 Company and B&T have entered into a separate license agreement
by which B&T is licensing its database of Products to Company (the "License
Agreement"). If, during the Term, B&T fulfills orders from the Company, on a net
basis, for more than $10,000 in the aggregate, B&T will rebate to Company the
license fee paid by Company to B&T under the License Agreement.
5.5 Except as provided in Section 5 concerning returns of
Defective Products, Unmerchandisable Products and or erroneously shipped
Products, Company will pay all freight costs for all product shipments to, and
Product returns from, Customers. Freight costs will be at the carriers'
published rates. Company acknowledges that such freight charges are subject to
change.
5.6 The cost of any custom reporting functions or custom packaging
requested by Company and supplied by B&T hereunder will be determined by the
agreement of the parties from time to time.
6
5.7 A volume rebate will be available to Company to be paid on a
quarterly basis based on monthly net purchases from B&T. Purchases of items with
special discounted prices from B&T shall be excluded from the net purchase base
for the rebate calculation.
Quarterly Purchases Rebate
----------------------------------------- -------------
[Subject to request for confidential treatment
filed with the SEC on July 30, 1999]
6. WARRANTY OF TITLE
6.1 B&T warrants that it has good title to the Products delivered
to Customers pursuant to this Agreement. EXCEPT FOR THE FOREGOING WARRANTY,
THERE ARE NO OTHER EXPRESS WARRANTIES, AND THERE ARE NO IMPLIED WARRANTIES.
EXPRESSLY EXCLUDED ARE ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY B&T OR ITS
AGENTS OR EMPLOYEES WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF
THE FOREGOING WARRANTY.
6.2 NEITHER B&T NOR COMPANY WILL NOT BE LIABLE FOR ANY DIRECT,
INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF
BUSINESS PROFITS, BUSINESS INTERRUPTION, AND THE LIKE) ARISING OUT OF ANY
CUSTOMER'S USE OF, OR INABILITY TO USE, ANY PRODUCTS, EVEN IF EITHER PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The only liability B&T will
have with respect to any Defective Products, damaged Products, Unmerchandisable
Products and/or Products erroneously shipped will be the return rights of
Customers described herein.
6.3 The provisions of this Section shall survive the termination
or expiration of this Agreement.
7. TERMINATION
7.1 Either party may terminate this Agreement forthwith upon the
occurrence of an Event of Default by the other party. As used herein, an "Event
of Default" means the defaulting party's failure to cure, after receipt of not
less than 30 days' prior written notice from the non-defaulting party, of any of
the following: (i) failure of the defaulting party to observe or perform any
condition or obligation imposed on the defaulting party under this Agreement
(including payment obligations), (ii) breach of any warranty made by the
defaulting party under this Agreement, and/or (iii) filing of a voluntary
petition in bankruptcy or having an involuntary petition filed against the
defaulting party, the appointment of a receiver or trustee for the defaulting
party, or the execution of an assignment for the benefit of creditors of the
defaulting party. The option to terminate this Agreement shall be in addition
to, and not in lieu of, any other
7
remedy available to the terminating party under this Agreement or at law or
equity, all such remedies being cumulative.
7.2 Termination of this Agreement upon either party's default, or
the expiration of this Agreement will not affect:
(a) the rights of either party with respect to any breach
of this Agreement, or
(b) the obligations of either party already accrued prior
to the effective date of expiration or termination (including obligations with
respect to returned Products).
(c) those obligations of the parties that, by their
terms, survive termination or expiration of this Agreement.
7.3 In the event of the expiration or a termination of this
Agreement, the parties promptly will reconcile accounts payable and receivable
and bring the balance owed, it any, current and up-to-date to the party
concerned.
8. CONFIDENTIALITY.
The parties acknowledge that each may be exposed under this Agreement
to confidential information relating to the other party's business, including
but not limited to, the terms of this Agreement, quantities of Products, dollar
volumes, revenues of Products, wholesale prices and similar information. The
parties agree that, during the Term and for a period of three (3) years after
the termination or expiration of this Agreement, neither party will disclose to
any third party (except to the party's employees, agents, contractors, directors
and similar entities solely required to fulfill the terms of this Agreement) any
such confidential information without the prior written consent of the other
party, only if such third parties agree to be bound by the confidentiality
provisions hereof. The confidential information which each party may receive
from the other party for the above period will be treated with the same degree
of care used to protect its own confidential business information. The
confidentiality obligations between the parties will not apply to any
information (a) which is in the public domain or which becomes part of the
public domain through no fault of the party receiving the confidential
information (the "receiving party"); (b) which is known by the receiving party
prior to the disclosure thereof by the disclosing party (as established by
documentary evidence); (c) which is lawfully received by the receiving party
from a third party who provided such information without breach of any separate
confidentiality obligation owed to the disclosing party; (d) which is disclosed
by the disclosing party to any third party without restriction on further
disclosure; or (e) which is independently developed by personnel having no
access to the disclosing party's confirmation information (as established by
documentary evidence). Confidential information also may be disclosed to third
parties as may be required by law in the reasonable judgment of the receiving
party's attorneys. In the event of disclosure under the preceding sentence, the
receiving party promptly will notify the disclosing party of the same so that
the disclosing party may seek a protective order or other appropriate remedy,
and the receiving party will not oppose action by the disclosing party to obtain
such an order or remedy.
8
9. MISCELLANEOUS.
9.1 The risk of loss for Products shall pass from B&T when the
Products are delivered to the carrier for shipment to Customers.
9.2 Sales Tax. Company shall be responsible for collecting all
applicable sales taxes from Customers and remitting such sales taxes to the
appropriate taxing authorities. Company shall indemnify and hold harmless B&T
for any sales tax due to a government entity on products shipped to the Customer
on behalf of the Company.
9.3 Neither party will be liable for any failure to perform, or
delay in the performance of, any of its obligations hereunder (nor will the same
constitute in an Event of Default) if and to the extent the failure or delay is
caused, directly or indirectly, by events beyond its control, such as acts of
God, acts of the public enemy, acts of any governmental body in its sovereign or
contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes
or other labor disputes (except strikes or labor disputes that are not industry
wide but are brought against Company or B&T solely), freight embargoes, and/or
unusually severe weather. Lack of funds by either party will not excuse its
timely performance of its obligations hereunder. In the event of an occurrence
described in the first sentence, the non-performing party affected will be
excused from further performance or observance of the obligation(s) so affected
for as long as such circumstances prevail and if the party continues to use its
best efforts to recommence performance or observance whenever and to whatever
extent possible without delay.
9.4 This Agreement shall be construed in accordance with the laws
of the State of Illinois, without giving effect to the conflict of laws
provisions thereof.
9.5 The parties agree to bring any dispute, controversy or claim
arising out of this Agreement or the matters provided for in this Agreement and
which has not been resolved by the parties through an informal process within 45
days after either party notifies the other that a matter is in dispute, for
arbitration and settlement in Chicago, Illinois, in accordance with the Rules of
the American Arbitration Association (the "Rules"). Each party will bear its own
legal expenses, attorneys' fees and disbursements and costs of all experts and
witnesses called by it. However, if the claim of either party is upheld by the
arbitrators in all material respects, then the prevailing party promptly will be
reimbursed by the other party for its reasonable attorneys' fees and
disbursements and the reasonable costs of its experts and witnesses, and the
non-prevailing party also will pay all fees, costs and expenses of the
arbitration. Any award rendered will be final and conclusive upon the parties.
Any judgment thereon may be enforced in any court having jurisdiction. Both
parties will continue to perform their respective obligations under this
Agreement during any arbitration proceedings. Notwithstanding the Rules, the
arbitrator's determination will only be in favor of one party's position.
9.6 No representation, promise, inducement or agreement relating
to the transactions contemplated by this Agreement has been made by either party
that is not set forth in this Agreement, and neither party shall be bound by or
liable for any representation, promise, inducement or agreement not so set
forth.
9
9.7 All notices, demands, consents, approvals and requests given
by either party hereunder shall be in writing and shall be sent by a nationally
recognized overnight courier with receipt acknowledged and provision for payment
made, or by registered or certified mail (return receipt requested), return
postage prepaid, to the parties at the following addresses:
If to B&T: ▇▇▇▇▇ & ▇▇▇▇▇▇, Inc.
c/▇ ▇▇▇▇▇ & ▇▇▇▇▇▇ Entertainment
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
If to Company: Global Media Corp.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attn.: L. ▇▇▇▇▇ ▇▇▇▇▇▇
All notices given by courier will be deemed delivered when received at
the notice address and all notices given by registered or certified mail will be
deemed delivered five (5) days after deposit with the U.S. Postal Service.
Either party may change its notice address from time to time by notification in
writing to the other party, however any such notification will not be deemed
given until actually received by the recipient Party.
9.8 Either party (the "Auditing Party") may, on reasonable prior
notice to the other party (the "Audited Party"), at the Auditing Party's own
expense, during the Audited Party's regular business hours and at the place
where the Audited Party regularly keeps them, examine the books and records of
the Audited Party relating to the Audited Party's performance of its obligations
hereunder.
9.9 The waiver or failure of either party to exercise in any
respect any right provided for herein will not be deemed a waiver of any further
right hereunder.
9.10 The provisions of this Agreement shall be binding upon, and
shall inure to the benefit of, the parties hereto and each of their respective
successors and assigns. Neither party may assign its interest in this Agreement
without the prior written consent of the other party, which consent will not be
unreasonably withheld or delayed. Notwithstanding the preceding sentence, either
party shall have the right, upon contemporaneous notice given to the other
party, and provided the assignee assumes all of the assigning party's
obligations under this Agreement accruing after the date of such assignment, to
assign this Agreement to any entity to which the assigning party may transfer
all or substantially all of its assets (or, in the case of B&T, the assets of
its operating unit presently known as ▇▇▇▇▇ & ▇▇▇▇▇▇ Entertainment).
9.11 Nothing contained in this Agreement shall be deemed or
construed to create a partnership or joint venture of or between Company and
B&T, or to create any other relationship between the parties other than that of
independent contractors.
10
9.12 The captions used herein are for convenience of reference only
and are not part of this Agreement, and shall in no way be deemed to define,
limit, describe, or modify the meaning of any provision of this Agreement.
9.13 If any term or provision of this Agreement or applications
thereof to any person or circumstances is, to any extent, held to be invalid or
unenforceable, the remaining terms and provisions of this Agreement, or the
applications of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, will not be affected
thereby, and each term and provision of this Agreement will be valid and
enforced to the fullest extent permitted by law.
9.14 If Company fails to make any payment to B&T within 30 days
after payment is due hereunder with respect to an invoice actually delivered to
Company, then Company will pay B&T the amount due, together with interest
thereon until paid, calculated at the rate of twelve percent (12%) per annum.
9.15 This Agreement contains and embodies the entire agreement of
the parties hereto, and no representations, inducements, or agreements, oral or
otherwise between the parties not contained in this Agreement, if any, will be
of any force or effect. This Agreement may not be modified, changed or
terminated in whole or in part in any manner other than by an agreement in
writing duly signed by both parties.
9.16 This Agreement may be signed in counterparts both of which
taken together shall be deemed one original. Telecopied facsimiles of a signed
counterpart of this Agreement from one party to the other will be deemed to be
delivery of a signed counterpart by the party sending the telecopied facsimile.
9.17 IN WITNESS WHEREOF, the parties have signed and delivered this
Agreement on the date first above written.
▇▇▇▇▇ & ▇▇▇▇▇▇, INC.
by ▇▇▇▇▇ & ▇▇▇▇▇▇ Entertainment
By: /s/
---------------------------------------------
Name:
-------------------------------------------
Title:
-------------------------------------------
Global Media Corp.
By: /s/ L. ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------------
Name: L. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer
11
