EXHIBIT 10.7
C-3D DIGITAL, INC.
AFFILIATION AGREEMENT
AGREEMENT made as of April 25th, 1999 by and between C-3D Digital,
Inc. a Utah corporation with offices at 00 Xxxx 000 Xxxxx, Xxxxx 000, Xxxx
Xxxx Xxxx, Xxxx 00000 ("C-3D") and 3D Television Co., LTD. a Japan
corporation with offices at 0-00-00-000, Xxxxx-Xxxxxxxx, Xxxxxxxx-xx, Xxxxx,
Xxxxx ("Affiliate").
WHEREAS, Affiliate distributes television networks in Japan; and
WHEREAS, C-3D desires to make available to Affiliate the
programming services known as the "C-3D Service" for retransmission to
Affiliate's subscribers, and to provide certain other related services upon
the terms and conditions set forth herein; and
WHEREAS, Affiliate desires to make available to its subscribers the
C-3D Premium Television Network;
NOW, THEREFORE, it is mutually agreed as follows:
1. DEFINITIONS. The following terms shall have the meanings set
forth below when used in this Agreement.
1.1 "EVENT" shall mean a motion picture, pre-recorded
film, program, production or other event transmitted on the C-3D
Service.
1.2 "GROSS REVENUES" shall mean the sum of all charges for
Events, whether or not collected by Affiliate, paid or payable by each
"Subscriber" (defined below) for the privilege of viewing each
exhibition of an Event (or package of Events) exhibited by the "System"
(defined below without reduction or offset of any kind.
1.3 "PAY-PER-VIEW BASIS" shall mean the exhibition of one (1)
Event chosen by a Subscriber over the facilities of a System for
televison viewing for which exhibition the Subscriber is required to
pay an individual, per Event, per exhibition fee or a "Subscription
Basis" (defined below).
1.4 "C-3D SERVICE" shall mean the single channel satellite
delivered entertainment programming service currently featuring one (1)
Event (and, if time permits - 5 various interstitial programming every
ninety (90) minutes, twenty-four (24) hours per day, seven (7)
days per week.
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1.5 "SUBSCRIBER" shall mean a private residential home or
other dwelling unit (including a private residential apartment,
condominium, mobile home, house or rentable guest room in a hotel,
motel, inn or lodge), the residents of which have ordered an Event(s)
for viewing on a Pay-Per-Block Basis or on a Subscription Basis.
1.6 "SUBSCRIPTION BASIS" shall mean the exhibition of Events
chosen by a Subscriber over the facilities of a System for television
viewing on a monthly basis for which exhibitions the Subscriber is
required to pay a package fee.
1.7 "SYSTEM" shall mean each Direct to Home ("DTH") satellite
television system and cable television system in the Territory (defined
below).
1.8 "TERRITORY" shall mean Japan, its territories and
possessions.
2. LICENSE.
2.1 EXHIBITION C-3D hereby grants to Affiliate and
Affiliate hereby accepts, subject to the terms and conditions herein, a
limited, exclusive license to exhibit the C-3D Service on a Pay-Per-View
Basis, a Pay-Per-Block Basis and on a subscription basis to Affiliate
Subscribers over the facilities of the System(s). Affiliate may include
additional DTH satellite systems and cable television systems by written
amendment to Schedule A hereto, provided that C-3D consents in writing in
advance to all such additions. Affiliate shall exhibit the C-3D Service on a
24 hour 7 days a week basis during the terms of this Agreement.
2.2 PROHIBITIONS. Unless otherwise expressly agreed to by
C-3D in writing, this license does not grant to Affiliate the right
to duplicate or copy an Event by any means whatsoever, or to
exhibit, authorize or permit the exhibition of the C-3D Service (a)
to any cable of DTH satellite television system not set forth in
Schedule A hereto; (b) other than on a Pay-Per-View Basis, a
Pay-Per-Block Basis and on a Subscription Basis (c) on any channel
which makes commercial advertising or promotional time available to
third parties; (d) in any location with is not a private residential
home or other dwelling unit, including, without limitation, places
where an admission fee is charged, places of public access or
accommodation, bars, lounges, restaurants, lobbies or hallways, or
(e) in, or to transmit the Event for reception in: (i) any
commercial establishment or other non-residential building (such as
a bar, restaurant or fraternal organization); (ii) any public
gathering area in an otherwise residential building (such as an
apartment house lobby, a ballroom or a public xxxx in a hospital or
nursing home); or (iii) any other public place or any place where an
admission fee is charged. Affiliate shall not have or exercise any
rights whatsoever with respect to an Event other than those
specifically licensed to Affiliate herein. Upon any breach of this,
Xxxxxxxxx 0, X-0X shall have all of its rights and remedies at law
and in equity, including, without limitation, the right to enjoy any
exhibition or exploitation of the C-3D Service; suspend the
transmission of the C-3D Service; terminate this Agreement and/or
declare this
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Agreement breached, declare all amounts payable hereunder, and exercise
all rights and remedies on account of such breach, including, without
limitation, the right to recover damages caused C-3D in connection with
such breach.
3. TERM OF LICENSE. The term of this Agreement and the rights granted
to Affiliate hereunder shall be for a period of five (5) years from the
date first above written (the "Initial Term"). The Initial Term of this
Agreement shall expire on the same date for all of the Affiliate's
Systems listed in Schedule A hereto regardless of when any individual
System launches the C-3D Service hereunder. The termination of this
Agreement shall not: (a) abrogate Affiliate's obligation to pay C-3D
the sums set forth herein; (b) impair or affect C- 3D's rights of
withdrawal, audit or indemnification; or (c) abrogate, impair or affect
any warranty, representation, indemnity or undertaking on the part of
each party hereunder. It is understood that the Term of License will
not be applicable to GGS Hawaii, Inc. and GGS Co., Inc.
4. LICENSE FEES AND REPORT.
4.1 In consideration of the rights herein granted to
Affiliate, Affiliate shall pay C-3D the license fees ("License
Fees") set forth in Schedule B hereto. Affiliate shall remit to C-3D
within thirty (30) days of the end of each month all License Fees
due for such month. Together with each payment of such amounts,
Licensee shall deliver to C-3D a monthly statement in the form of
Exhibit A attached hereto. All payments and statements hereunder
shall be made to C-3D at its address herein above set forth. All
amounts due and unpaid shall thereafter accrue interest at the rate
of one and one-half percent (1-1/2%) per month, OR the maximum
lawful rate compounded monthly, whichever is less, from the due date
until payment is received. Acceptance of any payment by C-3D after
its due date shall not constitute a waiver by C-3D of any of its
rights hereunder.
4.2 On no less than one hundred eighty (180) days prior
written notice to Affiliate ("Amended Fee Structure Notice") C-3D shall
have the right to adjust, from time to time during the terms of this
Agreement, the rates set forth in Schedule B hereto with respect to
License Fees on the date ("Effective Date") specified in the Amended
Fee Structure Notice, if the rates become unreasonable compared with
the standard of the industry at that time. In such event, Affiliate
may, by written notice at least ninety (90) days prior to the Effective
Date, terminate this Agreement as of the Effective Date; provided,
however, that such termination by Affiliate shall not take effect and
shall be of no force or effect if C-3D withdraws the increase by
written notice to Affiliate no later than fifteen (15) days prior to
the Effective Date.
4.3 In the event of a dispute between Affiliate and C-3D
as to any amount properly due from Affiliate to C-3D, Affiliate
shall pay that portion of the amounts not in dispute in accordance
with the terms of Paragraph 4.1 above and before or at the time of
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payment, shall notify C-3D of the grounds for disputing the remaining
unpaid balance. Interest shall not accrue on such balance for a period
of fourteen (14) days during which the parties shall use their
reasonable best efforts to negotiate a settlement.
4.4 In connection with any interruption or other failure in
the transmission, reception or distribution of the C-3D Service which
interruption or failure could reasonably have been prevented by C-3D,
Affiliate shall have recourse and a remedy against C-3D only if
Affiliate shall have given its affected Subscribers a credit or rebate
as a result of such interruption or failure, in which case the sole and
exclusive remedy of Affiliate against C-3D shall be a credit for no
more than the amount of the License Fee which would have been payable
by Affiliate to under the foregoing or any other circumstances, be
liable for incidental, consequential or special damages, including,
without limitation, loss of profits or revenues, damage to or loss of
personal property or claim of any Subscriber.
4.5 Within ninety (90) days following the end of each of the
Affiliate's fiscal years during any portion of which this Agreement is
in effect, Affiliate shall furnish to C-3D a letter addressed to C-3D
signed by Affiliate's Chief Operating Officer or Chief Financial
Officer which attests to the completeness and accuracy of all reports
and statements supplied to C-3D. Affiliate's obligation to supply such
letter shall continue after the termination of this Agreement, until
C-3D receives the required letter with respect to the last fiscal year
during any portion of which this Agreement is in effect.
4.6 Affiliate shall keep and maintain, at Affiliate's
principal place of business complete and accurate books and records
relating to this Agreement in accordance with generally accepted
accounting principles. During the term of this Agreement and for two
(2) years hereafter, at C-3D's expense, C-3D by its representative,
accountants and/or designated agents shall have the right, at
Affiliate's office and during regular business hours, to audit and
check Licensee's books and records for the purpose of verifying and
confirming the accuracy of the statements delivered to C-3D by
Affiliate and the amount of the License Fees paid or payable under this
Agreement and to make copies of relevant excerpts of any such books and
records. The exercise by C-3D of any right to check or to audit at any
time or the acceptance by C-3D of any statement or payment shall be
without prejudice to any other rights or remedies available to C-3D and
shall not bar C-3D from thereafter disputing the accuracy of any such
payment or statement and Affiliate shall remain fully liable for any
balance due under the terms of this Agreement. If any audit discloses
an underpayment of five (5.0%) percent or more with respect to the
amount of License Fees set forth on any of Affiliate's statements.
Affiliate agrees, in addition to re- computing and making immediate
payment of the License Fees based on the true items, together with
interest thereon at one hundred and ten (110%) percent of the prime
rate announced from time to time by Citibank (the "Prime Rate"), to pay
all costs and expenses incurred by C-3D for such audit, checking an
attorney's fees incurred by C-3D in
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connection therewith or with the enforcing the collection thereof.
Neither C-3D's acceptance of any information, or inspection or audit of
Affiliate's records or accounts, will prevent C-3D from later disputing
the accuracy or completeness of any payments made or of information
supplied by Affiliate.
5. TRANSMISSION AND DISTRIBUTION
5.1 Affiliate shall be solely responsible for the
reception of the video and audio signals of the C-3D Service from
the satellite used by C-3D to the headend or other receiving device
of the System(s) and for the transmission therefrom to its
Subscribers. Affiliate shall employ adequate security systems to
prevent theft, pirating, copying, duplication or unauthorized
exhibition of the C-3D Service, and shall ensure that the C-3D
Service is made available only to Subscribers. Affiliate shall
continuously maintain transmission quality of the C-3D Service at
least equivalent to the best transmission quality of other
programming transmitted by Sky Perfect TV.
5.2 C-3D will transmit the C-3D Premium Network to Japan on a
mutually acceptable digital platform. The cost of the transmission will
be the responsibility of 3D Television of Japan. However, C-3D will
discount its subscription fees by 50% until 50% of the transmission
cost is offset by C-3D.
5.3 All C-3D Service programming decisions shall be at the
sole discretion of C-3D, including the selection, substitution or
withdrawal of any scheduled Events or portions thereof. Affiliate shall
exhibit and shall require each system to exhibit the C-3D Service in
its entirety, without any interruptions, including all titles, credits
and copyright notices and shall not cut, alter, modify, add to, delete
from or revise the C-3D Service. If transmission cost exceeds that of
video distribution and playback costs then C-3D will provide videos to
Affiliate to play on their own video platform.
6. ADVERTISING AND PROMOTIONAL MATERIALS.
6.1 Affiliate shall use its reasonable best efforts to
promote the C-3D Service to the subscribers of each System, with the
aim of maximizing the number of C-3D Service Subscribers and the
rate at which they purchase the C-3D Service.
6.2 For each month of the term of this agreement, no later
than thirty (30) days prior to the exhibition of the C-3D Service for
such month, C-3D shall make available to Affiliate such trailers and
other publicly materials as C-3D may have available (the "Promotional
Materials") to be used for advertising and publicity of the C-3D
Service for such month. Affiliate shall have the right, at its sole
cost and expense, to make copies of the Promotional Materials solely
for use by each System.
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6.3 Affiliate shall not use the name, image or likeness of
any character, person or entity appearing in or connected with the
production of any Event included in the C-3D Service separate and
apart from the advertising and promotion of the C-3D Service, and no
name, image or likeness shall be used by Affiliate so as to
constitute an endorsement or testimonial, express or implied, of any
party, product, service or commercial venture, Affiliate
acknowledges that its fight to use the names, images, likeness of
persons or entities appearing in or connected with the production of
any Event is subject to various limitations and restrictions
contained in contracts with third parties. Following the exhibition
of the C-3D Service in any month during the term of this Agreement,
Affiliate shall not use, transmit, exhibit, circulate or otherwise
publish any Promotional Materials provided by C-3D for such month.
6.4 In all advertising and publicity issued by Affiliate for
the C-3D Service, Affiliate shall comply with all instructions of C-3D
regarding advertising or contained in any promotion package provided by
C-3D.
6.5 The parties understand and agree that the implementation
of this Agreement will necessitate that the staff and employees,
servants and agents of each party shall make themselves and the
necessary equipment, sites and locations available upon reasonable
notice to the staff, employees, servants and agents of the other party
at all times from the date of the signing of this Agreement until its
termination. The parties further agree to afford all reasonable
cooperation to each other towards the proper implementation of this
Agreement so long as it remains in force and effect.
7. TAPING AND PHYSICAL MATERIAL.
7.1 Affiliate shall have the right upon notification to C-3D,
to tape the satellite transmission of Events for playback on a "stand
alone" basis by Systems provided that: (a) Affiliate shall bear all
costs and expenses associated with the taping of each such Event, (b)
all rights, title and interest in the visual and audio elements of such
Event contained in such tapes shall, at all times, remain the property
of Affiliate subject only to Affiliates's right to make use of such
tapes in accordance with the terms of this Agreement; and (c) Affiliate
assumes all responsibility as to the quality of such tapes.
7.2 At the end of each month during the term of this
Agreement, Affiliate shall return to C-3D all Promotional Materials
referred to in Paragraph 6 above. In addition, Affiliate shall erase or
destroy any tapes made in accordance with paragraph 7.1 above and shall
promptly furnish C-3D with an affidavit to that effect sworn to by a
duly authorized officer of Affiliate (the "Certificate"). The ownership
of such tapes from the time of transferal of the visual and audio
elements of each Event shall remain with C-3D until such time as
Affiliate erases or destroys such tapes and C-3D is in receipt of the
Certificate.
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7.3 Affiliate shall employ adequate security systems to
prevent the loss, theft, pirating, copying, unauthorized duplication or
unauthorized exhibition of such tapes and materials furnished by C-3D,
and shall carry fire and theft insurance covering the loss of any such
materials.
7.4 Affiliate shall remain liable in all respects regarding
the loss, theft or unauthorized duplication of C-3D's materials in
Affiliate's possession. In the event of loss, Affiliate will deliver to
C-3D an affidavit sworn to by a duly authorized officer of Affiliate
setting forth in detail the circumstances relating to such loss within
seventy-two (72) hours after such loss has been discovered.
7.5 Affiliate shall not, by any act, or any failure to act,
suffer or permit lien, charge, pledge, mortgage or encumbrance to
attach to this C-3D Service ro the physical materials relating to any
Event.
8. WARRANTIES AND INDEMNIFICATION.
8.1 C-3D warrants and represents that: (a) it has the power
and authority to enter into this Agreement and to fully perform its
obligations hereunder; (b) the material contained in the C-3D Service
and in the Promotional Materials supplied to Affiliate hereunder will
not violate any copyright, right of privacy or publicity or literary or
dramatic right of any person; provided, however, that such warranties
and representations by C-3D are only as broad as and coextensive with
those provided to C-3D by C-3D's program suppliers.
8.2 Affiliate warrants and represents that: (a) Affiliate has
the power and authority to enter into this Agreement and to fully
perform its obligations hereunder; (b) Affiliate has obtained, and
shall maintain in full force and effect during the term of this
Agreement, such federal and state, local and/or private authorizations
as necessary to operate each system in the Territory and to retransmit
the C-3D Service pursuant to this Agreement; (c) Affiliate will
immediately notify C-3D in the event that Affiliate loses, or becomes
aware of circumstances that it may lose, any necessary authorizations;
(d) any material contained in promotional material developed by
Affiliate will not violate any copyright, right of privacy or publicity
or literary or dramatic right of any person; and (3) Affiliate shall
not use, and shall require each System not to use any Event for any
unlawful purpose or for any purpose not permitted hereunder.
8.3 Affiliate shall indemnify, defend and hold harmless C-3D,
its parent, subsidiaries and affiliated companies and their respective
officers, directors, employees, agents and shareholders from and
against any and all claims, losses or damages, costs and expenses
(including, without limitation, reasonable attorneys' fees and
expenses) (collectively "Claims") relating to or arising our of any
breach or alleged breach of any of
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the representations, warranties, agreement, covenants or obligations
made by Affiliate pursuant to this Agreement.
8.4 C-3D shall indemnify, defend and hold harmless Affiliate,
its parent, subsidiaries and affiliated companies and their respective
officer, directors, employees, agents and shareholders from and against
any and all Claims relating to or arising our of any breach or alleged
breach of any of the representations, warranties, agreements, covenants
or obligations made by C-3D pursuant to this Agreement.
8.5 Each party seeking indemnity hereunder (the "Indemnified
Party") agrees to give prompt notice to the other party (the
"Idemnifying Party") of any circumstances which may give rise to a
Claim under this Paragraph 8 as soon as the indemnified Party knows of
such circumstances: provided, however, that the failure to give such
notice shall not relieve the indemnifying party of its obligation to
indemnify the Indemnified party under this Paragraph 8 except to the
extent that such failure increases the Indemnified Party's liability
hereunder. The Indemnifying Party shall have the right to participate
in, and, with the consent of the Indemnified Party, which consent shall
not be unreasonably withheld, to control the contest and defense of any
claim by a third party as to which notice is given by the Indemnified
Party under this Paragraph 8 at its own cost and expense, including the
cost and expense of attorneys' fees in connection with such contest and
defense. The Indemnified Party shall not settle or compromise any such
Claim without the prior written consent of the Indemnifying Party. If
the Indemnified Party settles or compromises any such Claim without the
Indemnifying Party's prior written consent, the Indemnifying Party
shall be relieved of its obligations to indemnify the Indemnified Party
under this Paragraph 8 with respect to such Claim.
9. SERVICE MARKS.
Affiliate acknowledges that the name and xxxx "C-3D" and any
other service marks and any logos and variations used to identify the
C-3D Service are the exclusive property of C-3D, and that Affiliate has
not and shall not acquire any proprietary rights thereto by reason of
this Agreement. Materials used by Affiliate may refer to "C-3D" or the
C-3D Service and other names, marks and logos of C-3D only if it is
clear that the names, marks and logos used are service marks for the
C-3D Service which Affiliate distributes. Such use shall be in
accordance with any further instructions that may be issued by C-3D
from time to time. Affiliate shall promptly make available to C-3D, at
it requires, all original promotional or advertising material that uses
the aforesaid names, marks or logos in publicizing the C-3D Service and
shall keep copies of all such original material, Affiliate shall not
publish or disseminate any material which violates any restrictions
imposed by C-3D or C-3D's program suppliers and disclosed by Affiliate
by C-3D.
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10. TERMINATION.
10.1 Either party may terminate this Agreement by giving the
other party at least ninety (90) days prior written notice, in the
event that the other party has made any material misrepresentation
herein or materially breaches any of its obligations hereunder,
including, without limitation, the obligation to make all payments when
due and payable, and such material misrepresentation or beach (which
shall be specified in such notice) is not or cannot be cured within
sixty (60) days or receipt of such notice. The right of either party to
terminate this Agreement in any such case shall be in addition to any
other remedies such party may have.
10.2 Affiliate may terminate this Agreement with respect to a
particular System as a result of a change by C-3D in the satellite
transmitting the C-3D Service signal to another communications
satellite ("Satellite Switch") only if: (a) no other signal received by
the System's earth station(s) prior to the Satellite Switch is
scheduled to be transmitted by the satellite newly designated to carry
the C-3D Service signal; and (b) as a result of the Satellite Switch,
the System is required to obtain and install one or more additional
earth stations for the sole purpose of receiving the C-3D Service
signal. Under these conditions, Affiliate shall have the right within
ten (10) days (or such lesser time as the circumstances may require) of
receipt of notice from C-3D of a proposed Satellite Switch to notify
C-3D in writing of Affiliate's intention to terminate this Agreement
with respect to such system as of the effective date of the Satellite
Switch.
10.3 During the term of this Agreement, with respect to each
System listed in Schedule A (as amended from time to time), Affiliate
covenants that it shall promptly notify C-3D in writing of any
reduction below fifty (50%) percent in Affiliate's ownership of any
such system. Upon receipt of such notice, C-3D may, at its option,
advise Affiliate and such system in writing that, effective of the date
of such change, such System shall no longer be subject to this
Agreement and shall immediately cease the distribution of the C-3D
Service in such System. The distribution of the C-3D Service in such
system shall be covered by a separate Affiliation Agreement. The
provisions of this paragraph shall be in addition to any other rights
or remedies that C-3D may have.
11. FORCE MAJEURE. In the event Affiliate is prevented from
exhibiting the C-3D Service, or C-3D is prevented from transmitting
the C-3D Service, by reason of any act of God, fire, strike,
boycott, transportation failure, satellite interruption or other
occurrence beyond the reasonable control of the party whose
performance is prevented, neither party shall be responsible to the
other for nay damages, costs, expenses or loss of profit's thereby.
C-3D shall have the right to terminate this Agreement upon written
notice to Affiliate if, by reason of this paragraph, Affiliate is
prevented from exhibiting the C-3D Service for more than two (2)
consecutive weeks.
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12. MISCELLANEOUS.
12.1 Affiliate and its employees and agents shall
maintain, in confidence, the terms and conditions of this Agreement,
as well as all data, summaries, reports and information of all
kinds, whether oral or written, acquired, devised or developed in
any manner by or from C-3D personnel or C-3D's files, and have not
and will not reveal the same to any persons not employed by C-3D
except: (a) at the written direction of C-3D; (b) to the extent
necessary to comply with law or a valid order of a court of
competent jurisdiction, in which event Affiliate shall so notify
C-3D as promptly as practicable (and, if possible, prior to making
any disclosure) and shall in all cases seek confidential treatment
of such information; (c) as part of its normal reporting or review
procedure to its parent company, auditors and its attorneys,
provided such parent company, auditors and attorneys agree to be
bound by the provisions of this paragraph; or (d) in order to
enforce its rights pursuant to this Agreement.
12.2 Neither this Agreement nor any rights or obligations
hereunder may be assigned by Affiliate without the prior written
consent of C-3D, which consent shall not be unreasonably withheld. Such
assignment shall not relieve Affiliate of its obligations incurred
prior to the date of any such assignment hereunder. Any purported
assignment without such consent shall be null and void and not
enforceable against C-3D. This Agreement and the rights and obligations
of the parties hereunder shall be binding upon and shall inure to the
benefit of C-3D and Affiliate and their respective legal
representative, successors in interest and permitted assigns.
12.3 Any waiver by either party of any breach of any term or
condition hereof shall be effective only if in writing and such writing
shall not be deemed to be a waiver of any subsequent or other breach,
term or condition of this Agreement.
12.4 Notwithstanding anything to the contrary contained
herein, if Affiliate fails to fully and timely perform any material
obligation or any covenant hereunder, including, without limitation,
Affiliate's failure to timely fulfill any of its payment obligations
hereunder, or if Affiliate becomes insolvent, or if a petition under
any bankruptcy shall be filed by or against Affiliate (which petition,
if filed against Affiliate, or if Affiliate shall not have been
dismissed within thirty (30) days thereafter); or if Affiliate takes
advantage of any applicable insolvency or any other like statute, or
executes a general assignment for the benefit of creditors; or if a
receiver, liquidator or trustee (or equivalent under any applicable
statute) is appointed for the assets or affairs of Affiliate, than upon
the occurrence of any of the foregoing. C-3D may exercise any or all of
the following options, none of which shall be a waiver of the other or
of any other rights or remedies which C-3D may have at law, in equity
or otherwise: (a) C-3D may terminate this Agreement by giving prior
written notice of termination to Affiliate; (b) C-3D may cease
licensing the C-3D Service to Affiliate; and/or (c) C-3D may suspend
the transmission of
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the C-3D Service to Affiliate and/or the right to transmit the C-3D
Service by Affiliate until such default is ended or remedied. If C-3D
exercised any or all of the foregoing options, C-3D shall be entitled
to declare all unpaid and payable amounts to C-3D immediately due and
payable and to recover from Affiliate all payment past due from
Affiliate to C-3D hereunder, together with interest at the prime Rate,
plus all attorneys' fees, costs and expenses, including collection
agency fees, incurred by C-3D to enforce the provisions hereof.
Notwithstanding anything to the contrary contained herein, no
termination of this Agreement for any reason shall relieve or
discharge, or be deemed or construed as relieving or discharging,
Affiliate from any duty, obligation or liability hereunder which
accrued as of the date of such termination (including, without
limitation, the obligation to pay any amounts payable hereunder and to
furnish a statement with respect to any such payment which accrued as
of such date of termination).
12.5 Affiliate and C-3D acknowledge that the licenses for
Events have been separately negotiated and individually priced, that
C-3D did not directly or indirectly condition the granting of the
license of any one or more of the Events upon the licensing of any
other Event, and that the inclusion of any such Events in one agreement
was merely for the convenience of the parties.
12.6 With respect to the subject matter of this Agreement,
this Agreement and the schedules hereto: (a) set forth the entire
Agreement between the parties and any parties who have in the past or
who are now representing either of the parties, and (b) supersede all
prior understandings and communications between the parties, oral or
written. Each of the parties acknowledges and represents that this
Agreement is entered into after full investigation and that neither
party is relying upon any statement or representation made by the other
which is not specifically set forth in this Agreement. Each of the
parties acknowledges that it shall have no right to rely upon any
amendment, promise, modification, statement or representation made or
occurring subsequent to the execution of this Agreement, unless such
amendment, promise, modification, statement or representation is
expressly set forth in a written instrument signed by a duly authorized
representative of the other and dated subsequent to the date of the
execution and delivery of this Agreement.
12.7 The provisions of this Agreement are not intended to be
for the benefit of any third party, whether Subscribers or otherwise,
and no third party (including, without limitation, any Subscriber)
shall be deemed to have any privity of contract with either of the
parties hereto by virtue of this Agreement or the delivery of the C-3D
Service.
12.8 This Agreement and the rights and obligations of the
parties hereunder shall be governed by and construed in accordance with
the laws of the State of Utah applicable to contracts entered into and
fully performed therein. Affiliate hereby: (a) agrees that any
litigation, action or proceeding arising out of or relating to this
Agreement
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be instituted in a state or federal court in the City of Salt lake City
and the State of Utah; (b) waives any objection which Affiliate might
have now or hereafter to the venue of any such litigation, action or
proceeding; (c) irrevocably submits to the jurisdiction of any such
court in any such litigation, action or proceeding; and (d) hereby
waives any claim or defense of inconvenient forum. For all purposes of
this Agreement, Affiliate hereby submits to the venue and jurisdiction
of the Courts in the State of Utah (Federal and State), irrevocably
consents to personal jurisdiction by such courts, and further agrees
that service of process of Affiliate may be affected pursuant to
Paragraph 12.10 below.
12.9 Nothing in this Agreement shall be deemed to create a
relationship of joint venture, principal-agent or partnership between
the parties, and neither shall hold itself out in its advertising or in
any other manner that would indicate any such relationship between
the parties.
12.10 Any notice, requires, demand, consent, waiver or other
communication which either party may wish to serve or may be required
to serve on the other party hereunder shall be in writing and shall be
served by personal delivery, by facsimile, by prepaid recognized
overnight air express delivery, by prepaid certified mail, return
receipt requested or by prepaid telegraph at the above stated addresses
of Affiliate and C-3D. Any notice to C-3D shall be sent to the
attention of the Chief Executive Officer, and Vice president, Sales and
Marketing. Any notice to Affiliate shall be sent to the attention of
Chief Executive Officer and Vice President. All notices shall be deemed
received, the same business day transmitted if sent by facsimile as
evidenced by a copy of the facsimile and the "answer back" thereto
indicating the date and time of transmission thereof to the receiving
party); the same business day delivered is personally delivered to the
party to whom addressed three (3) business days after the same is
deposited, postage paid in the United States Postal Service; or one (1)
business day after the same is delivered to the telegraph service or to
the air express company. Either party may from time to time change its
address for the purpose of notice by giving like notice in accordance
with this paragraph.
12.11 C-3D shall not be liable for, and Affiliate shall pay
and forever hold C-3D harmless from, any and all sales, use, excise,
income, franchise, corporate and similar taxes (including, without
limitation, any fees payable to local or state franchising authorities)
and other charges which are or may be imposed upon or assessed against
Affiliate or any System and/or which are based upon or measured by
revenues derived by Affiliate from the exploitation of the rights
granted to Affiliate pursuant to this Agreement (including, without
limitation, any tax or charge based upon any goods or services
furnished to Affiliate by C-3D which goods or services are then passed
on to Affiliate's Subscribers).
12.12 All license, rights and interests in, to and with
respect to Events and the C-3D Service and means of exhibition not
specifically granted to Affiliate shall be and are
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specifically and entirely reserved to C-3D. The license, rights and
interests granted to Affiliate herein are exclusive, and accordingly,
they may be fully exploited and utilized by C-3D, without regard to the
extent to which any such rights may be competitive with Affiliate or
the license, rights and interests granted hereunder.
12.13 Paragraph headings used herein are for convenience only
and shall not be deemed to define, limit or construe the contents of
any provision of this Agreement.
12.14 Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of the prohibition without invalidating the
remaining provisions herein. Any prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the date and year first above written.
C-3D Digital, Inc.
By:
----------------------------------------
J. Xxxxxxx Xxxx, CEO
3D Television Co., LTD.
By: /s/ Hisatake Togoe
-----------------------------------------
Xx. Xxxxxxxx Togoe, President & CEO
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SCHEDULE A
AFFILIATE-SYSTEM(S)
SYSTEM NAME
ADDRESS
AREA(S) SERVED
3D TELEVISION SERVICE LAUNCH DATE
TELEPHONE NUMBER
LAUNCH DATE
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SCHEDULE B
LICENSE FEES
In accordance with the terms and conditions as set forth in Section 4.1 of
the Affiliate Agreement, C-3D will receive the following compensation from
Affiliate.
1. 10% of the net amount of revenue Affiliate collects from subscriptions
to the Network or $1.70 per subscriber per month, whichever is greater.
The new amount of fees is the amount of which is on a Pay-Per-View
Basis, Pay-Per-Block Basis and on a Subscription Basis minus the
transmission charges to DTH or cable television systems (usually 30% of
the fees which are collected from subscriptions).
2. All compensation paid to C-3D from Affiliate shall be paid in US funds
as described in Section 4 of this Agreement.
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