EXHIBIT 10.17
DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT is entered into this 1 day of July 1996 by and
between BRILLIANT INTERACTIVE IDEAS PTY LTD ACN 061 288 668 of Xxx 0, 00 Xxx
Xxxxx, Xxxxx, XXX, 0000 (hereinafter referred to as "BII") and FUJITSU BASIC
SOFTWARE CORPORATION located at 0-00-00 Xxxxxxxx, Xxxxxx-Xx, Xxxxx 000, Xxxxx
(hereinafter referred to as "BSC").
WHEREAS BSC is in the business of publishing and distributing computer software
in Japan and other territories around the world and BII are in the business of
developing interactive multimedia software products. BSC is desirous of
translating and publishing and distributing the various software products as
listed in Appendix A hereto, in the Territories as defined in this agreement,
that BII have developed.
WHEREAS ACSES Pty Ltd. (A.C.N. 000 000 000), being a company incorporated in the
state of New South Wales, Australia and having its registered office in the said
state at Xxxxx 00 Xxxxxxxxx xxxxx, 000 Xxxxxx Xxxxxx, Xxxxxx, N.S.W., 2000,
hereinafter called "ACSES", has performed and will continue to perform certain
marketing functions for BII in the Territory as the agent of BII;
NOW THEREFORE THE PARTIES do agree as follows:
1. TERRITORY
Territory is defined as Japan.
2. PRODUCTS
BII have developed a range of CD-ROM software titles, hereinafter
referred to as the "Products" (as listed in Appendix A), which BSC wish
to convert into Japanese and distribute in the Territory
3. TRANSLATED PRODUCTS
The Products shall be delivered as unprotected code hereinafter referred
to as Source, that will allow BSC to translate the Products into
Japanese and once the translation is complete BSC will then create
object code versions in a form compatible with IBM PC running under
Windows V3.x and Windows 95, as well as Macintosh from Apple Computer -
such translated versions hereinafter referred to as the Translated
Products. No material changes may be made to the Translated Products
without the written approval of Bll. Such approval shall not be
unreasonably withheld.
4. TRANSLATION
The cost of translating the Products to Japanese will be borne totally
by BSC. Such costs of translation includes assistance provided by BII as
requested in writing by BSC, which shall be provided on a time and
materials basis at the following rates:
- senior Macromind Director assistance CONFIDENTIAL INFORMATION
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION yen per hour
- Macromind Director assistance CONFIDENTIAL INFORMATION OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION yen
per hour
- other technical assistance CONFIDENTIAL INFORMATION OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION yen
per hour
- graphical and or lay-up assistance CONFIDENTIAL INFORMATION OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
yen per hour
- any other support CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION yen per hour
or at such other amounts as agreed in writing between the parties.
5. COPYRIGHT OWNERSHIP OF PRODUCTS AND TRANSLATED PRODUCTS
It is agreed by BSC that the copyright and all intellectual property
rights in the Products and the Translated Products shall always remain
the property of BII and without limiting the generality of the preceding
it is acknowledged by BSC that the Products, Source and Translated
Products comprises confidential information and copyright subject matter
which is the property of BII and BSC shall not do, allow, permit or
cause to be done, allowed or permitted, whether by act of omission or
commission anything which is inconsistent with or in derogation of BII's
aforesaid proprietary rights. BSC further agrees to ensure that the
Source is stored in a safe place and that no unauthorised access will be
allowed to the Source.
6. CONFIDENTIALITY AGREEMENT
BSC agrees to execute the Confidentiality Agreement in Appendix B of
this Agreement.
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7. RETAIL DISTRIBUTION RIGHTS
BII grants to BSC the exclusive right to reproduce, publish, distribute,
display and sell the Translated Products in the Territory on the
Macintosh and Personal Computer platforms.
8. BSC shall not distribute or export directly or indirectly any copies of
the Translated Product outside the Territory and BSC shall not
distribute, sell or make available any copies of the Translated Product
to anyone in the Territory, whom BSC knows or ought to know, will export
copies of the Translated Product outside the Territory.
9. The rights as granted in clause 7 above are the exclusive retail rights
for the Territory and shall not conflict with any other rights granted
by BII.
10. BUNDLE AND OEM RIGHTS
BII further grants to BSC OEM and bundle rights to the Translated
Products for the Territory. These rights are independent of the other
rights as granted above.
11. ROYALTY PAYABLE
(a) BSC shall pay to BII a Net Royalty of CONFIDENTIAL INFORMATION
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION (CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION) yen for each
translated Product sold under clause 7 above and a royalty equal to
CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION% of the Net Revenue received by
BSC for each Translated Product sold under clause 10 above. Net
Royalty is defined as the royalty payable to BII after the
deduction of withholding tax or any other statutory or government
taxes that may be payable on royalties to BII. Net Revenue is
defined as gross revenue to which BSC is entitled from the sale of
Translated Products less cash and credit returns. No royalty shall
be due on Translated Products supplied at no charge to
distributors, sub distributors and dealers for promotional
purposes. All payments shall be in yen.
(b) Each of BII and BSC acknowledge and agree that royalties shall be
paid to ACSES (in Australia) as the payment agent of BII in the
event that BSC receives a notice in writing from BII requesting BSC
to do so.
12. BSC shall pay to BII, or to ACSES (in Australia) if it receives a notice
of the type referred to in clause 11(b) above, the royalties due under
clause 11(a) above, each calender quarter within 30 days after the end
of each calender quarter.
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13. CERTIFIED SALES AND ROYALTY REPORT
BSC shall provide BII a quarterly sales and royalty report, certified as
correct by an authorized officer of BSC (the Certified Sales and Royalty
Report) when remitting the royalty payments as detailed in clause 11
above. The Certified Sales and Royalty Report shall be supplied to BII
within 30 days from the end of each calendar quarter.
In the event that the Certified Sales and royalty report has not been
provided to BII within 45 days from the end of the calendar quarter then
BII shall be entitled to appoint an independent party to examine BSC's
records for the purpose of ascertaining the royalties due for the
relevant period. The cost of the independent party in determining the
royalties due plus any royalties due shall be paid to BII within 14 days
of BSC receiving written notification from BII of the amount due.
14. BSC shall use its best commercially reasonable endeavours to promote and
expand the sale of the Translated Products in all parts of the Territory
and in all sectors of the market on the maximum possible scale by all
reasonable means. BSC shall fulfil all orders for the Translated Product
within a reasonable time after receipt of the order and shall not make
any false, misleading or deceptive statements in respect of the
Translated Product.
15. ABILITY TO CONDUCT AUDIT
BSC shall keep complete and accurate records regarding the production,
replication and distribution of the Translated Products during the
period of this Agreement and for a period of 3 (three) years after the
expiry or termination of this Agreement and shall upon 10 business days
notice from BII allow BII or it's agent to inspect all of these records
and other related documents during normal working hours. In the event of
any discrepancies being noted BSC agree to pay BII within 10 days all
additional moneys owing and where the discrepancy from the time of the
previous audit exceeds 5% of the amount that is due to BII, BSC agrees
to pay all costs incurred by BII in conducting the inspection of BSC's
records. BII's ability to conduct the above mentioned inspection is
restricted to twice every year during the term of this agreement and on
termination of this Agreement for any reason whatsoever.
16. TERMINATION
BII may terminate this Agreement immediately upon giving written notice
to BSC if:
(a) BSC rails to make any payment when due or otherwise breaches a
major provision or warranty of this Agreement and has not rectified
such breach within thirty (30) days
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of receipt of notice from BII; or
(b) BSC dissolves, liquidates or if bankruptcy, insolvency or winding
up procedures are commenced by BSC or are brought against BSC and
such proceedings are not set aside within thirty (30) days of
their commencement.
17. BSC may terminate this Agreement Immediately upon giving written notice
to BII if BII dissolves, liquidates or if bankruptcy, insolvency or
winding up procedures are commenced by BII or are brought against BII or
if BII otherwise breaches a major provision or warranty of this
Agreement and does not rectify the breach within thirty (30) days
after receiving written notice of the breach from BSC.
18. If Agreement is terminated for any reason, BSC shall:
(a) immediately return all masters of the Products and Translated
Products to BII; and
(b) have the right to sell its existing stocks of the Translated
Product for a period of six (6) months from the date the
Agreement is terminated subject to:
(i) payment to BII of all royalties due under this agreement;
(ii) the wholesale selling price of the Translated Products shall
not be reduced by more than CONFIDENTIAL INFORMATION OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION to the wholesale selling price of the Translated
Products prior to the termination of the agreement;
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(c) at the expiration of the six month period referred to in clause
18(b) above BSC shall destroy all remaining stock of the Translated
Products held by BSC and provide BII with written notice certifying
that all remaining stock has been destroyed;
(d) In the event of the terms and conditions of clause 18 (b) not being
adhered to by BSC then BSC agrees to destroy all remaining stock of
the Translated Products held by BSC immediately on receipt of
written notice from BII and provide BII with written notice
certifying that all remaining stock has been destroyed;
19. BII shall be responsible for any and all other royalties due on the
Products to third parties including music royalties, animation royalties
and licensing royalties.
20. BII provides no warranty as to names being used including the name
Brilliant Interactive Ideas in the territories in which BSC distributes.
In the event a name change is needed for legal reasons then the parties
shall consult as to the new name and BII shall make the necessary
changes at it's expense.
21. The names used are the property of BII and BSC shall have no claim to
these or any other names being used.
BII retains any and all of the copyrights contained in the Products and
Translated Products and BSC shall have no rights in the copyrights or
other intellectual rights contained in the Products and Translated
Products. All Translated Products shipped shall reflect the appropriate
copyrights which shall be provided to BSC by BII. Any press releases or
advertisement for the Translated Products shall reference BII as the
developer and shall contain the appropriate copyright notices as
provided.
22. BII hereby permits BSC, at the discretion of BSC, to take any and all
action that BSC deems necessary to protect and enforce BII's copyright
in the Products and Translated Products. BSC shall notify BII in writing
of any and all action that BSC takes prior to the commencement of the
action and shall keep BII fully informed of the status and progress of
the action. Where as a result of such action by BSC damages are awarded
then BSC shall be entitled to recover from the damages all costs
incurred as a result of the action and any residual amount remaining
shall be split equally between BSC and BII.
23. REPRESENTATIONS AND WARRANTY'S
BII represents and warrants that:-
(a) the Products, as delivered to BSC, will not infringe the patent,
copyright, trademark, trade secret or other proprietary or privacy
rights of any third party. In the event that the Products as
delivered to BSC do infringe the patent, copyright, trademark,
trade secret or other proprietary or privacy rights of any
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third party then BII shall bear such costs as are required to
rectify the offending infringement. Such rectification to be
carried out by BII;
(b) that BII is a corporation duly incorporated and validly existing in
good standing under the laws of the state of its incorporation; and
has full rights, power, legal capacity and authority to enter into
this Agreement and to carry out the terms hereof and perform its
obligations hereunder;
(c) Each party shall fully indemnify the other (and its affiliates,
shareholders, directors, officers, employees and agents) against
all losses, costs, charges and expenses arising from such party's
negligence in connection with this Agreement;
24. ADDITIONAL RIGHTS
BII hereby grants to BSC and BSC hereby accepts the following additional
rights for the Territory and upon the terms and conditions of this
Agreement:-
(a) The right to make written summaries, extracts and synopses of the
Translated Products, for the purpose of advertising, exploiting and
publicising the Translated Products and to use, exhibit and or
broadcast excerpts of the Translated Products for the purpose of
advertising, publicising and otherwise promoting the Translated
Products including without limitation the right to incorporate
extracts in catalogues of all kinds, whether electronic or not;
(b) The right to create and prepare materials for the promotion
advertising and publicising of the Translated Products provided
that all advertising or publicity for the Translated Products shall
comply with all credit obligations of BII of which BSC shall have
been given prior written notice;
(c) The right to use the trademarks and designs on and in the Products
and Translated Products in association with the sale as permitted
by this Agreement.
25. END USER TECHNICAL SUPPORT
BSC shall provide end user technical support to all end users on the
Translated Products.
26. FREE SAMPLES
BII agrees to allow BSC to produce fifty (50) copies, or a greater
number of copies as agreed between BSC and BII, of Not For Resale units
of each Product for promotional purposes. No fees or royalties shall be
payable to BII for these Not For Resale units under the terms of this
agreement
27. BSC agrees to provide BII with up to 100 copies of Not For Resale units
of each Translated Product for BII's promotional purposes. Such Not for
Resale units to be provided to BII at BSC'S cost of producing the unit.
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28. CONFIDENTIALITY
Each party shall treat as confidential all information of a confidential
nature of the other party which comes into it's possession under this
Agreement.
BSC shall Keep absolutely secret and confidential at all times all
knowledge and information of which it, its employees or agents may
become aware relating to the Source and shall not use, communicate,
cause to be communicated, copy, make available or otherwise re-supply
any Source or any part thereof to any individual, corporation or firm
other than such employees, agents or representatives of BSC to whom
disclosure is necessary for the purposes of this Agreement, provided
always that BSC shall first take steps, with such employees, agents or
representatives, to ensure that no such employee, agent or
representative will make any use of any Source or disclose the same to
any other person without the prior written consent of BII.
29. The term of this Agreement shall be for a period of CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION (CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION) CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION from the date of first release of the Translated
Products (the Release Date) into the Territory and shall be extended for
a further CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION (CONFIDENTIAL INFORMATION OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION)
CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION (the Extended Period) provided that
(i) BSC have paid to BII royalties or at least CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION units of each of the Translated Products
(cross collateralised) in the CONFIDENTIAL INFORMATION OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION prior to the Extended Period
or
(ii) In the CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION prior to the Extended
Period if BSC has not paid royalties to BII on CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION units of each of the Translated Products
(cross collateralised), then BSC will pay the
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difference between what has been paid and that amount which is
payable on CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION units to BII within
30 days of the CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
anniversary of the Release Date
or
(iii) by written agreement between BSC and BII.
The terms and conditions governing any additional extensions of this
Agreement after the Extended Period shall be negotiated and agreed to in
writing between BSC and BII
30. ASSIGNMENT
This Agreement may not be assigned by either party without the express
written approval of the other party. Such approval may not be
unreasonably withheld.
31. NOTICES
31.1 Any notice, communication or other document authorized or required to be
given or served pursuant to this Agreement (herein referred to as a
"Notice") shall unless otherwise specifically provided by this Agreement
be in writing addressed as follows:-
TO BII: Xxxxx 0, 00 Xxx Xxxxx
Xxxxx
XXX 0000
Telephone: (000) 0000 0000
Facsimile: (000) 0000 0000
For the Attention of: Xxxx Xxxxxx
TO BSC: 0-00-00 Xxxxxxxx
Xxxxxx-Xx
Xxxxx 000
Xxxxx
Telephone: (000) 0000 0000
Facsimile: (000) 0000 0000
For the Attention of: Koy Onaway
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or such other address as the relevant addressee may hereafter specify
for such purpose to the other party to this Agreement by notice in
writing.
31.2 A notice includes communication by facsimile. The sender of any
communication by facsimile shall forthwith confirm the same by letter,
but failure by the addressee to receive the same shall not prejudice the
validity or effect of such facsimile.
31.3 A notice shall be signed or, in the case of a facsimile, purport to be
signed, by the party originating the notice or by an authorized officer
of the corporation.
31.4 A notice which is sent by prepaid mail shall be deemed to be received on
the tenth day following the day on which it was posted.
31.5 A notice which is sent by facsimile shall be deemed to be received at
the time printed on the log out by the machine on which the notice is
transmitted.
32. RELATIONSHIP OF PARTIES
Each party is acting as an independent contractor and not as an agent,
partner, or joint venturer with the other party for any purpose. Except
as provided in this Agreement, neither party shall have any right,
power, or authority to act or to create any obligation, express or
implied, on behalf of the other.
33. FORCE MAJEURE.
Neither party shall be responsible for delays or failure of performance
resulting from acts beyond the reasonable control of such party. Such
acts shall include, but not be limited to, acts of God, strikes,
walkouts, riots, acts of war, epidemics, failure of suppliers to
perform, governmental regulations, power failure(s), earthquakes, or
other disasters.
34. SURVIVAL OF CERTAIN PROVISIONS.
The confidentiality obligations set forth in the Agreement shall survive
the termination of the Agreement by either party for any reason.
35. HEADINGS.
The titles and headings of the various sections and paragraphs in this
Agreement are intended solely for convenience of reference and are not
intended for any other purpose whatsoever, or to explain, modify, or
place any construction upon or on any of the provisions of this
Agreement.
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36. ALL AMENDMENTS IN WRITING.
No provisions in either party's purchase orders, or in any other
business forms employed by either party will supersede the terms and
conditions of this Agreement, and no supplement, modification, or
amendment of this Agreement shall be binding, unless executed in writing
by a duly authorized representative of each party to this Agreement.
37. ENTIRE AGREEMENT.
The parties have read this Agreement and agree to be bound by its terms,
and further agree that it constitutes the complete and entire agreement
of the parties and supersedes all previous communications, oral or
written, and all other communications between them relating to the
license and to the subject matter hereof. No representations or
statements of any kind made by either party, which are not expressly
stated herein, shall be binding on such party.
38. WAIVER
Failure by either party to insist upon the performance of any or more of
the conditions hereof shall not be deemed to be a waiver of any rights
and remedies that that party may have and shall not be deemed a waiver
of any subsequent breach or default. No provision of this Agreement
shall be deemed to have been waived unless such waiver shall be in
writing and signed by a person being a director, manager, secretary or
other officer of the party giving notice in that behalf.
39. SEVERABILITY
If any clause or part hereof shall be held or be deemed invalid or
unenforceable for any reason whatsoever, then such clause or part
thereof shall be deemed to be deleted from this Agreement and the
Agreement shall otherwise remain in full force and effect. The parties
hereto agree to replace any invalid, illegal or unenforceable provision
with a provision which has the most similar permissible economic and
legal effect to the invalid, illegal or unenforceable provision.
40. WITHHOLDINGS
All amounts payable hereunder shall be subject to all laws and
regulations now or hereafter in existence requiring the deduction and /
or withholding of moneys for income, sales, or other taxes assessable
with respect to fees hereunder. BSC shall be entitled to withhold such
taxes and remit the same to the taxing entity within the Territory and
will furnish BII with certificates evidencing the withholding and
payment of any such taxes. The benefit of the resultant tax credits
arising from the payment of the withholding taxes shall accrue to BII.
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41. GOVERNING LAW
This Agreement shall be deemed to have been made in the state of New
South Wales, Australia and the continuation, validity and performance of
this Agreement shall be governed in all respects by the laws in force of
that state. The parties hereby submit to the exclusive jurisdiction of
the Courts of the State of New South Wales, Australia.
Any dispute when may arise among the parties to this Agreement in
relation to the Agreement shall be settled by arbitration. Arbitration
initiated by BII shall be held in Tokyo, Japan and arbitration initiated
by BSC shall be held in Sydney in the state of New South Wales,
Australia. All arbitration shall be conducted in accordance with the
rules of Conciliation and Arbitration of the International Chamber of
Commerce. The award made as a result of such arbitration shall be
binding on the parties.
By their signatures below the parties agree to be bound by the terms of this
Agreement.
/s/ Koy Onaway /s/ Xxxx Xxxxxx
____________________________ ____________________________
FUJITSU BASIC SOFTWARE BRILLIANT INTERACTIVE IDEAS
CORPORATION PTY LTD
ACN 061 288 668
Name: - Koy Onaway Name; - Xxxx Xxxxxx
Position: - President Position: - Managing Director
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Appendix A
The Products are:
1. The Gumball Shop
2. Dinosaur in the Garden
3. The Little Engine
00
XXXXXXXX X CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement is executed on the 1 July 1996
BETWEEN: BRILLIANT INTERACTIVE IDEAS PTY LIMITED (BII)
ACN 061 288 668
-of the one part
AND: FUJITSU BASIC SOFTWARE CORPORATION (BSC)
-of the other part
WHEREAS:
-------
A. BII is in the business of developing, conceiving of and causing to be
created and marketed, software and all things incidental thereto being
a business of a highly competitive and confidential nature.
B. BSC will have access, directly or indirectly, to technology, trade
secrets, confidential information and intellectual property of BII.
NOW THIS CONFIDENTIALITY AGREEMENT WITNESS THAT:
-----------------------------------------------
1. For the purpose of this Confidentiality Agreement:
A. 'Technology' means and includes technology as generally understood,
and all of the technology and know how in relation to computer
software developed by BII and the systems, designs and documents that
are or may be used in or in relation to the business of BII.
B. 'Trade Secrets' means and includes trade secrets as understood under
the general law, and, without restricting the generality of the
foregoing, also includes information, including a formula, design,
concept, idea, flowchart, pattern, compilation, program (other than a
computer program which is the subject of the description of Technology
as understood in this Confidentiality Agreement), method, technique or
process that is or may be used in relation to the business of BII or
which relates to the Technology and/or the Intellectual Property.
C. 'Confidential Information' means and includes confidential information
as under the general law and, without restricting the generality of
the foregoing, also includes all and any information which relates to
the Technology or the business of BII generally.
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D. 'Intellectual Property' means and includes Intellectual and Industrial
property as understood under the general law and all the innovations,
improvements, patents, patent applications, copyright, designs, trade
secrets, technology and know-how which have been created or acquired
by BII in relation to the Technology, Confidential Information or
Trade Secrets.
E. 'Documents' includes notes, working notes, manuals, diagrams, graphs,
software listings, charts, flow charts, documents, memoranda, lists,
projections, specifications, estimates, plans, proposals, designs,
market research information, customer lists; suppliers, and any other
written or recorded matter whether of a like or different nature.
F. 'Subject Matter of this Confidentiality Agreement' means all the
Technology, Trade Secrets, Confidential Information, Intellectual
Property, Documents, Products, Translated Products and Source or any
of them.
BSC agrees with BII that:
2.(a) The Subject Matter of this Confidentiality Agreement is the sole and
absolute property of BII and BSC hereby assigns transfers and makes
over to and in favour of BII all and any of the Subject Matter of this
Agreement as BSC may have had or in the future may have a connection
with in its creation or conception during and as part of or arising
from BSC's contact with the subject Matter of this Agreement and with
BII;
2.(b) If BSC during the operation of this Agreement, and arising directly or
indirectly out of carrying out its functions with BII, creates,
develops or evolves in whole or in part matter which may be the
subject of copyright, patents, designs, processes or any Intellectual
Property (whether of a like or different nature) BSC expressly agrees
and acknowledges that such copyright, patents, design, process or
Intellectual Property shall be deemed always to have been the property
of BII and that BSC has no claim whatsoever in respect thereof
(whether for remuneration or otherwise) and in so far as may be
necessary to give effect hereto BSC assigns, makes over and transfers
to the Company all of its right, title and interest in and to the
foregoing.
3.(a) All Documents and Source, or any other item of a potentially
confidential nature and which falls within The Subject Matter of this
Agreement, is and always shall have been deemed to be proprietary and
confidential to BII.
3.(b) During the operation of this Agreement and at all times thereafter BSC
shall not disclose any of The Subject Matter of this Deed, whether
directly or indirectly to any other firm, person, business or
corporation whether in Australia or anywhere else in the world.
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4. At any time upon the request of BII and, in any event, upon
termination or determination of BSC's involvement with BII, BSC shall
deliver or cause to be delivered to the company all Documents,
programs (including computer programs), object code, and source code,
in relation or connection thereto and all copies thereof in BSC's
custody, relating to or concerning The Subject Matter of this
Agreement to which BSC has access to or obtained during the course of
the operation of this Agreement or which BSC may have developed,
drafted or otherwise caused to come into existence and shall cause
same to be deleted from all BSC computer systems.
5. The provisions of this Agreement shall continue to apply after the
termination or determination of the involvement of BSC with BII
without limitation as to time but shall cease to apply to information
or knowledge which shall come into the public domain through proper
sources and not by breach of confidence or unauthorised disclosure by
BSC or any other person.
6. In this Agreement unless inconsistent with or repugnant to the
context:
(a) Reference to the singular number shall include the plural number
and vice versa.
(b) Reference to any particular gender shall include every other
gender.
(c) The word "person" shall include a corporation and vice versa.
By their signatures below the parties agree to be bound by the terms of this
Agreement.
/s/ Koy Onaway /s/ Xxxx Xxxxxx
____________________________ ____________________________
FUJITSU BASIC SOFTWARE BRILLIANT INTERACTIVE IDEAS
CORPORATION PTY LTD
ACN 061 288 668
Name: - Koy Onaway Name: - Xxxx Xxxxxx
Position: - President Position: - Managing Director
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