THIS DISTRIBUTION AGREEMENT is entered into on XXX
BETWEEN
1. CynemaTV [insert name of your company] whose principal place of
business is at [insert address], XXX (the Company)
2. XXX Film Distribution Company whose principal place of business is
at P O BOX XXX
XXX, XXX (the Distributor)
WHEREAS
A. The Company wishes to extend the area in which sales are made to
Territory you indicate when prompted on the Program Site.
B. The Distributor is willing to distribute for the products listed in Schedule 1
to this Agreement in the Territory you indicate when prompted on the
Program Site.
C. The Company has agreed to appoint Distributor for an initial term as
its Non-exclusive distributor of Movies for certain applications in the
Territory and the Distributor has agreed to accept such appointment
subject to the terms and conditions of this agreement.
D. The Distributor also distributes various Films but these do not compete
with the Company’s products and, prior to the discussions with the
Company leading to this Agreement, had neither the capacity nor the
intention to distribute any products competing with the Company’s
products.
IT IS AGREED as follows:
1. Interpretation
1.1 In this Agreement, unless the context otherwise requires the following
expressions shall have the following meanings:
Business Day means a day on which banks are open in Territory you indicate
when prompted on the Program Site for the transaction of business (excluding
Saturday);
Business Plan means the current annual plan agreed by the parties for the
conduct of Distributor’s business activities under this agreement, consisting of:
(a) a business plan specifying the proposed marketing plan, finance
arrangements, capital expenditures and other activities in the exercise of the
Distribution Rights;
(b) a budget specifying an estimate of the income to be received and the
expenses to be incurred in carrying out that business plan; and
(c) Minimum Purchase and Minimum Sales figures as specified in Schedule 4
for particular periods;
Distribution Rights means the right to Distribute the Products;
Intellectual Property means statutory and other proprietary rights in respect of
copyright and neighboring rights; all rights in relation to inventions, patents,
plant varieties, registered and unregistered trademarks, registered and
unregistered designs, circuit layouts and confidential information; and all other
rights with respect to Intellectual Property as defined in Article 2 of the July
1967 Convention Establishing the World Intellectual Property Organization as
may be applicable to the Products and to any advertising and promotional
material and any technical materials associated with the supply of the Products;
Materials means hard copy or electronic documentation created by or for the
Company comprising designs, specifications, forms, instructions, manuals,
marketing and advertising copy and artwork, and certificates of analysis, testing
and compliance, relating to the Products.
Products means the products/Films/Movies listed in Schedule 1 as from time to
time packaged, altered, added to or withdrawn by the Company;
Service means one or more digital video services branded with a brand or
trademark of CynemaTV or its Affiliates through which authorized users may
access Titles. For the avoidance of doubt, the terms of this Agreement apply
solely with respect to the Distribution Mode you have enabled for each such
Title
Territory means the geographical area set out in Schedule 2 and the territory,
with respect to any Title, shall be each territory you indicate when prompted on
the Program Site (the “Territory”)
Trademarks means the trademarks and trade names set out in Schedule 3;
Force Majeure means in relation to either party, any circumstances beyond the
reasonable control of that party (including, without limitation, any strike, lockout
or other form of industrial action).
1.2 Any reference in this Agreement to ‘writing’ or cognate expressions
includes a reference to e-mail, facsimile transmission or comparable
means of communication.
1.3 Any reference in this Agreement to an enactment shall be construed as a
reference to that enactment as amended, reenacted or extended at the
relevant time.
1.4 The headings in this Agreement are for convenience only and shall not
affect its interpretation.
2. Appointment and Term
2.1 The Company appoints the Distributor from the date of this Agreement
as its Non-exclusive distributor for the purpose of reselling, the Products
under the Trademarks within the Territory.
2.2 The Company may distribute, sell the Products in the Territory.
2.3 The Company may enter into a worldwide distribution agreement with a
multinational distributor relating to Products (“worldwide agreement"). If it
does so, it may grant non-exclusive rights to that distributor to distribute
Products in the Territory notwithstanding this agreement. The Distribution
Rights will, for as long as the worldwide agreement remains in force, not
be conditional on Distributor purchasing the Minimum Purchases in
respect of the Products the subject of the worldwide agreement.
2.4 This Agreement shall remain in force for an initial term of 2 years and
shall continue in full force and effect (unless terminated in accordance
with clause 10) until terminated by either party giving to the other not less
than 3 months written notice expiring on or after the expiry of such initial
term.
3. Sale of the products
3.1 The Distributor shall:
a. sell the Products on its own behalf and not on behalf of, or in the
name of, the Company;
b. use its best efforts to publicise and promote the use of the Products
throughout the Territory and work diligently to obtain orders for them;
c. not advertise for, canvass or otherwise seek orders for Products from
customers outside the Territory;
d. not establish any branch, subsidiary or depot for the supply of
Products outside the Territory;
e. not be involved directly or indirectly in the production or supply within
the Territory of any products which in the Company’s reasonable
opinion compete with or perform substantially similar functions to the
Products;
f. allow the Company or its representative to enter any of its premises
to inspect any of the Products in the Distributor’s possession.
3.2 Selling prices for the sale of the Products in the Territory by the
Distributor shall be established and revised from time to time by the
Distributor.
3.3 The terms on which the Distributor sells Products to its customers shall
provide that such customers shall have no claim in law, contract or
otherwise against the Company based on the use, possession or resale
of the Products provided that the Distributor may give its customer any
express warranty that is incorporated into the contract of sale between
the Company and the Distributor in relation to the Products sold to it
pursuant to such contract. Any other warranty or representation given by
the Distributor shall be its exclusive responsibility.
3.4 Payment by the Distributor will be made in full within 14 days of the
invoice date, in Nigeria Naira.
4. Distributor’s general duties
4.1 The Distributor shall:
a. vigorously promote the Films in the Territory, such promotion to
include demonstration and advertising of the Films at Distributor’s
own expense;
b. act diligently and use its best endeavours to maximise sales of the
Products/films;
c. provide a prompt and efficient after sales service for customers to
whom it has sold Products in the Territory at its own cost;
d. comply with the Company’s reasonable instructions and act
beneficially and loyally to the Company and shall not do anything to
prejudice the sale of Products in the Territory;
e. conduct its business in a responsible and ethical manner and in
accordance with all laws applicable to the Territory and at its own
expense obtain all necessary permits, consents and licences to enter
this Agreement and perform its duties within the Territory;
f. maintain an adequate number of qualified staff to enable it promptly
and efficiently to perform its obligations;
g. submit such business plans, marketing information and sales
forecasts, reports and other such information as the Company shall
from time to time require;
h. participate as requested in the Company’s promotional and training
activities;
i. keep the Company informed of any complaint or dispute concerning
Products supplied by the Distributor;
5. Rights Granted:
Each audio-visual program or Linear Feed (as defined below) editable in
your Account that you authorize and make available for distribution on
the Service is a “Title.” You hereby grant Amazon a non-exclusive
license in the Territory to use, reproduce, reformat for online delivery,
encode, encrypt, market, promote, test and evaluate, transmit, distribute
and display on the Service any (i) Titles, (ii) Promotional Materials and
(iii) trademark, service mark, URL, domain name, trade name, other
proprietary logo or insignia, or other source or business identifier, that is
embedded or incorporated into any Titles or Promotional Materials
(clauses (i)-(iii) collectively, “Licensed Content”) pursuant to each
Distribution Mode that you indicate on the Program Site.
6. Company’s general rights and duties
6.1 The Company may remove from the Territory any geographical area
or category of customers with immediate effect by giving the Distributor
written notice if it considers that the Distributor is failing to perform its
obligations under this Agreement in respect of such geographical area or
category of customers.
6.2 The Company shall:
a. provide the Distributor with such Technical assistance as it may from
time to time reasonably request (including site visits);
b. train a reasonable number of the Distributor’s staff in knowledge in
respect of the Products and their servicing;
c. provide the Distributor, upon request, with such manuals, marketing
aids and publicity material as the Company may from time to time
make available; and
d. advertise the Products in the Territory in such manner and to such
extent as it considers fit.
6.3 The Company will provide Distributor or its employees with such training
in the marketing and installation of the Products and the use of the
Materials, as considers reasonably necessary in its sole discretion to
enable Distributor to distribute the Products and promote the use of the
Products and Materials pursuant to this agreement.
7. Confidentiality
7.1 The Distributor shall treat as confidential all information which the
Company may make available to it pursuant to this Agreement or the
negotiations in respect thereof ("the Confidential Information") and shall
not without the prior written consent of the Company:
a. exploit any part of the Confidential Information save as is reasonably
necessary to enable it to sell the Products; or
b. disclose any part of the Confidential Information other than to its
employees or customers (or potential customers) who need to know
the Confidential Information for the purpose of this Agreement
provided that:
i. such person is made aware prior to disclosure of the
proprietary and confidential nature of the Confidential
Information; and
ii. such person owes an express duty of confidence to the
Distributor, which the Distributor shall enforce.
7.2 The Distributor may disclose, in general terms, relevant parts of the
Confidential Information to customers and potential customers but only
so far as is necessary in good faith to promote the sale of the Products.
7.3 The Rights, the Confidential Information and all proprietary and
intellectual property rights in the Products shall belong to the Company.
7.4 The Distributor shall promptly notify the Company of any infringement of
the Rights or Confidential Information in the Territory, and of any claim
that the import or sale of Products into the Territory infringes any
person’s rights, of which it may become aware and shall at the request
and expense of the Company take such action in respect of the
infringement, or claim, as the Company may request.
7.5 The provisions of this clause 6 shall remain in force after the termination
of this Agreement for any reason.
8. Intellectual Property
8.1 The Distributor may use the Intellectual Property rights as the Company
may from time to time authorise in writing exclusively in performing its
duties in this Agreement, solely in connection with the Distribution of the
Products in the Territory pursuant to this agreement. The Company does
not warrant that any Intellectual Property rights relating to the Products
are or will be valid, or that the Distribution of the Products does not or will
not infringe the rights of third parties.
8.2 The Distributor agrees to:
a. use the Intellectual Property only in accordance with the conditions
which are set down by or by any third party owner of the Intellectual
Property;
b. notify promptly of any actual or suspected infringement of the
Intellectual Property and ail relevant information known to Distributor
concerning such an infringement;
c. take reasonable action as may be specified by at the expense of the
Distributor concerning the infringement;
d. procure from any of its employees or sub-distributors or agents
instruments binding them to the same duties as are set out in this
clause if requests this.
8.3 The Distributor shall not take any action which may adversely affect the
Intellectual Property rights or the Company’s title to them and shall not
gain any title to the Intellectual Property rights.
8.4 The Distributor shall not copy, make, imitate or modify a Product or assist
any third party to do so.
8.5 The Distributor must permit any officer or agent of who is authorised in
writing for that purpose, to enter upon the premises of Distributor to
inspect the circumstances of the provision or supply of goods and
services under, and the use or application of, the Trade Marks. The
officer or agent is entitled to take specimens of all uses or applications of
the Trade Marks for the purpose of examination and testing for
compliance with the terms of this agreement.
8.6 The Company is entitled to control the manner in which Distributor uses
the Trade Marks. If the Company objects to the manner in which the
Distributor is using or allowing the Trade Marks to be used, whether on
Products or in advertising and promotional materials or otherwise,
Distributor agrees promptly to remedy the situation to satisfaction.
8.7 The Distributor must not:
a. use any mark or logo embodying any portion of the Trade Marks or
any adaptation thereof which is similar to or substantially similar to or
so nearly resembles any of the Trade Marks as to be likely to cause
deception and confusion among the public;
b. use the Trade Marks accompanied by words describing the Products
or any of them unless the Trade Marks are distinguished from the
descriptive surrounding and adjacent text;
c. use the Trade Marks either by themselves or as part of any other
identification or name in relation to any products, goods or services
not manufactured, produced, provided or supplied by or in conformity
with standards, samples or directions; or
d. publish any advertising, promotional and other related materials
displaying the Trade Marks that does not conform to the approved
standards communicated from time to time by the Company.
8.8 The Distributor must use its best endeavours to preserve the value and
validity of the Trade Marks and in particular must use each of the Trade
Marks only in the manner appearing in Schedule 3.
8.9 The Distributor shall be granted a nonexclusive licence to use the
Company’s software accompanying the Products in accordance with the
Company’s standard software licensing terms and conditions.
9. Liability
9.1 The Distributor acknowledges that it has examined and tested to its
satisfaction samples of each of the Products current at the date of this
Agreement.
9.2 Unless stated in this Agreement or expressly agreed in writing and
signed by an authorised signatory of the Company, no term, condition or
warranty (whether express or implied) as to the nature, quality or fitness
of the Products for any purpose or their conformity with any sample shall
be part of any contract between the Company and the Distributor. The
Distributor acknowledges that the Company has not given any warranty
that the Products are fit for a particular purpose or will achieve any
particular performance criteria.
9.3 In no event shall the Company be liable for any indirect, special,
incidental or consequential damages (including loss of profits) resulting
from the Company’s performance or nonperformance of its obligations
under this Agreement or the Distributor’s or any third party’s purchase,
use, possession or disposal of the Products provided under this
Agreement.
9.4 The Distributor must take and out maintain during the Term, to the extent
available on reasonable commercial terms:
a. a comprehensive public and products liability policy to cover all sums
which it may become legally liable to pay as compensation
consequent upon:
i. death of, or bodily injury (including disease or illness) to, any
person; and
ii. loss of, or damage to, property, happening anywhere in the
Territory arising out of or in connection with the activities to be
carried out under this Agreement. The limit of liability provided
by this policy for each and every event must be not less than
US$10 million, and such policy must include a cross liability
clause. This cross-liability clause must provide that each
insured is insured in its own right, and provide a waiver of
subrogation by the insurer of any rights of subrogation it might
have against other insureds;
b. insurance in respect of all claims and liabilities arising, whether at
common law or under statute relating to workers compensation or
employer’s liability, from any accident or injury to any person
employed by Distributor in connection with the exercise of the
Distribution Rights and Distributor must ensure that all subcontractors
are similarly insured in respect of their employees. This insurance
must be in compliance with the laws of the relevant jurisdiction in
which the Distribution of Products occurs;
9.5 The Distributor must ensure that all policies of insurance required to be
taken out by it under this agreement include as a named co-insured.
9.6 The Distributor must notify immediately of any cancellation of the policy
and of any change to a relevant insurance policy which affects interests.
9.7 If any event occurs which may give rise to a claim involving under any
policy of insurance to be taken out by the Distributor under this clause
then the Distributor must:
a. notify within 14 days of that event; and
b. ensure that is kept fully informed of any subsequent actions and
developments concerning the relevant claim.
9.8 At request, the Distributor must produce evidence that the Distributor is
maintaining the insurances required by this clause.
9.9 The Distributor’s obligations to insure under this clause are material
obligations of this agreement. Without limiting rights at law in equity or
otherwise under this agreement, any failure by Distributor to comply with
a provision of this clause entitles to terminate this agreement and to set
off against any sum payable to Distributor all costs and expenses incurs
in taking out and maintaining a policy of insurance, which Distributor has
failed to take out as required.
10. Termination of this agreement
10.1 Either party shall have the right at any time by giving notice in
writing to the other to terminate this Agreement forthwith if the other party
commits a breach of any of the terms and conditions of this Agreement
and fails to remedy such breach within 30 days from receipt of notice in
writing from the first party specifying such default.
10.2 The Company shall have the right to terminate this Agreement
forthwith by written notice to the Distributor without affecting its accrued
rights and without entitling the Distributor to receive any compensation:
a. if the Distributor fails to achieve any of the Targets;
b. if the Distributor engages in conduct which the Company considers
prejudicial to its interests;
c. if any material alteration is made to the ownership, management or
control of the Distributor without the Company’s prior written consent;
or
d. if the Company believes that the Distributor is unable to pay its debts
as they fall due or will cease to carry on business as a going concern
or will cease to be in a position to fulfil this Agreement for any reason
of bankruptcy, insolvency or otherwise.
11. Force majeure
11.1 If either party is affected by Force Majeure it shall promptly notify
the other party of the nature and extent of the circumstances in
question.
11.2 Notwithstanding any other provisions of this Agreement neither
party shall be deemed to be in breach of this Agreement, or otherwise
be liable to the other, for any delay in performance or other non-
performance of any of its obligations under this Agreement to the
extent that the delay or non-performance is due to Force Majeure of
which it has notified the other party and the time for performance of
that obligation shall be extended accordingly.
12. General
12.1 The rights and obligations of Distributor under this agreement are
personal. The Distributor shall not mortgage, charge or assign any rights
or transfer, delegate or subcontract the performance of any obligation
under this Agreement without the Company’s prior written consent.
12.2 The Distributor and the Company are independent contractors and
the Distributor is not, and shall not represent itself to be, a partner, joint
venturer, agent, employee or representative of the Company.
12.3 All notices which are required to be given hereunder shall be in
writing and shall be sent to the address of the recipient set out in this
Agreement. Each party shall promptly notify any change of address to
the others in writing. Any notice posted shall be deemed to have been
received 3 days after posting, and any notice given in any other manner
shall be deemed to have been received at the time when in the ordinary
course it would have been received.
12.4 No waiver of any rights arising under this Agreement shall be
effective unless in writing and signed by a duly authorised signatory of
the party against whom the waiver is to be enforced. No failure or delay
by either party in exercising any right, power or remedy under this
Agreement (except as expressly provided herein) shall operate as a
waiver of any such right, power or remedy.
12.5 If any provision of this Agreement should become illegal or void for
any reason, the validity of the remaining provisions shall not be affected
and the parties shall enter into negotiations in good faith to find a
replacement for the provision which is of similar economic effect.
12.6 No addition to or modification of any provision of this Agreement
shall be binding upon the parties unless made by a written instrument
signed by a duly authorised signatory of each of the parties.
12.7 This Agreement sets out the entire agreement and understanding
between the parties with respect to the subject matter hereof. This
Agreement supersedes all previous agreements, arrangements and
understandings between the parties with respect to the subject of this
Agreement, which shall cease to have any further force or effect. It is
agreed that:
a) neither party has entered into this Agreement in reliance upon any
representation, warranty or undertaking of the other party which is
not expressly set out or referred to in this Agreement, and all
conditions, warranties or other terms implied by statute or
common law are hereby excluded to the fullest extent permitted by
law;
b) a party may claim in contract for breach of Warranty under this
Agreement but shall have no claim or remedy under this
Agreement in respect of misrepresentation (whether negligent or
otherwise, and whether made prior to, and/or in, this Agreement)
or untrue statement made by the other party;
c) this clause shall not exclude any liability for fraudulent
misrepresentation.
13. No Rights under Contracts for Third Parties
13.1 A person who is not a party to this Agreement shall have no right
under any law to enforce any of its terms.
14. Arbitration and Proper law
This document is governed by and are to be construed in accordance
with the laws of South Carolina applicable therein.
AS WITNESS this Agreement has been signed by the duly authorised
representatives of the parties the day and year above written.
SIGNED by )
for and on behalf of CynemaTV [insert name of )
your company]
__________________
SIGNED by )
for and on behalf of Peekflick Film Distribution
Company )
__________________
Schedule 1
Products
Movies
Schedule 2
Territory
Territory you indicate when prompted on the Program Site
Schedule 3
Trademarks
Schedule 4
Stock Requirements
Schedule 5
Purchase Targets
MINIMUM
Appendix A
Company’s Terms of Sale
1. Payment
1.1 The prices contained in the Company’s price lists do not include any
applicable sales duties or other taxes which may be chargeable in connection
with the supply of the Products to the Distributor which the Distributor shall pay
in addition to the price. These prices are (unless otherwise specified) exclusive
of any packing, insurance, delivery or transportation charges.
1.3 If full payment is not made on the due date then interest shall
thereafter be payable on the outstanding balance at the rate of 10 per cent.
above the minimum lending rate of Katsina’s Bank from time to time in force per
month compounded monthly until payment.
1.4 The Company shall have the right to invoice the Distributor in respect
of a partial delivery of the Products.
1.6 The Company shall have the right to suspend delivery if it reasonably
believes that the Distributor will not make payment in accordance with these
terms.
2. Delivery
2.1 The Company shall procure the delivery of the Products to the
Distributor by any means or route which it selects and (unless otherwise agreed
in writing) the Company may deliver the Products in such batches or
instalments as it considers expedient.
2.2 Dates and times given for the delivery of Products are given as
estimates only and shall not constitute a term or condition of any contract
between the Company and the Distributor, and any delay in completion shall not
constitute a breach of such contract and time shall not be of the essence. While
the Company will endeavour to meet any time estimate, it reserves the right to
amend any estimate without notification and the Company shall not be liable to
the Distributor for loss or damage resulting from delay in delivery or failure to
deliver from any cause including negligence.
2.3 If a contract is for the delivery of Products by instalments then failure
by the Company to deliver one or more instalment(s) shall not entitle the
Distributor to claim compensation or to terminate or suspend such contract
and/or reject those or subsequent deliveries.
2.4 If the Distributor does not accept delivery of the Products in
accordance with this paragraph 2, the Company may arrange for the storage of
the products on the Distributor’s behalf but without the liability for any loss or
damage occurring after the agreed delivery date. The Distributor shall, in
addition to the price, pay on demand all reasonable charges for storage,
insurance and transport occasioned by its failure to take delivery.
2.5 The Company shall not be liable for any shortage on receipt by the
Distributor unless notified in writing within 30 days. The Company shall not be
liable in any event for any loss or damage to Products in transit. If, however,
the Company is notified of a claim relating to loss of or damage to Products in
transit within such time limit as the carrier may impose, it will endeavour to pass
on to the Distributor the benefit of any claim the Company may have against the
carrier.
3. Warranty
The Company undertakes to replace any Products proved to its reasonable
satisfaction to be defective provided that:
(a) the Distributor promptly informs the Company on discovery of the
alleged defect and returns the Products, carriage paid, with a full written report
on the defect to the Company as soon as possible and no later than 4 weeks
after delivery; and
(b) the Products have been stored with all proper care and in accordance
with the Company’s recommendations; and
(c) the defect derives solely from the Company’s materials and not for
any reason referred to in paragraph 2.5 above; and
(d) the Distributor has paid for the Products in full.
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