EXHIBIT 10.37
NON-EXCLUSIVE DISTRIBUTION AGREEMENT
BETWEEN: Kreative Video Products, Inc.
21638 Lassen Street, Chatsworth, CA 91311
(hereinafter referred to as "Company") of the one part
AND: American Champions Media, Inc.
1694 The Alameda, Suite 100
San Jose, CA 95126
(hereinafter referred to as "Producer/Artist") of the other part
DATED: 8 21, 1998
WHEREAS:
The Producer/Artist is the sole copyright owner for the Licensed
Territory (as hereinafter defined) of the Programs (as hereinafter
defined) and has agreed with the Company who together with its
subsidiaries, affiliates and licensees is a distributor of such
programs in the Licensed Territory to grant non-exclusively to the
Company all of the rights and privileges hereinafter defined.
I. TERM
(a) The term (hereinafter referred to as `term') of this Agreement
shall consist of an initial period of ONE (1) year commencing as of the
date of this Agreement (the first contract period) plus the additional
`contract period', if any, by which the term may be extended by mutual
written agreement of the parties.
(b) Producer/Artist hereby grants to the company, on a non-exclusive
basis, the right to distribute, including but not limited to seeking
purchase orders from buyers, the program on video cassette within the
territory as defined below. Upon receipt of a purchase order, and
subsequent payment of purchase order, from a buyer directed to
Producer/Artist through the Company, Producer/Artist agrees that any
further purchase orders from that particular buyer or the company he or
she works for will be credited to the Company account per the terms of
this Agreement for a period of (12) twelve months from the date of that
particular purchase order.
2. TERRITORY
The expression `Licensed Territory' shall in this Agreement mean North
America which includes the US, Canada, Mexico, and Hawaii.
3. PROGRAMS
The rights granted hereunder by the Producer/Artist are for the
following programs:
Joe Montana. The Strong Mind, Fit Body Workout.
4. PRODUCER/ARTIST WARRANTIES
The Producer/Artist hereby warrants, undertakes and represents that:
(a) The Producer/Artist has full and unencumbered right, power and
authority to enter into and fully perform this Non-Exclusive Agreement
and to grant all rights herein granted to the Company.
(b) The Producer/Artist shall be responsible for duplicating, shipping
and invoicing customers once the distributor has provided purchase
orders.
(c) The Producer/Artist accepts responsibility for any and all third
party payments related to the production of the programs including but
not limited to synchronization rights, musical copyrights, talent fees
and union/guild residuals.
(d) Left out intentionally.
(e) Neither the `Materials' nor any use of the material by the Company
will violate or infringe upon the rights of any person, company or
corporation. `Materials' as used in this sub-paragraph shall mean any
musical, artistic and literary materials, ideas and other intellectual
properties furnished by the Producer/Artist and contained in or used
in connection with any video made or other exploitation thereof.
(f) The Producer/Artist shall not enter any agreement which would
interfere with the full and prompt performance of their obligations
hereunder.
(g) Left out intentionally.
(h) The Producer/Artist will at all times defend, indemnify and hold
harmless the Company and any licensees of the Company from and against
any and all claims, damages, liabilities, costs and expenses, including
but not limited to all legal expenses and counsel fees arising out of
any breach by the Producer/Artist of any warranty, representation or
agreement made by the Producer/Artist hereunder.
(i) The Producer/Artist agrees that in the event illicit, non-
authorized copies of the Programs are discovered in the Licensed
Territory, Producer/Artist shall cooperate with the Company or its
licensees in any action which the Company wishes to institute against
such infringes of the rights granted to the Company hereunder.
Similarly, the Company agrees to cooperate with the Producer/Artist in
the event the Producer/Artist desires to institute proceedings against
such infringes.
5. Commission
The Producer/Artist shall pay to the company $1.00 (one dollar) for
each video cassette bought and paid for. The Producer/Artist is not
responsible for paying commissions until the Producer/Artist has been
paid by the customer. However, Producer/Artist must use it's full
endeavors to be paid promptly.
6. ACCOUNTING
True and correct accounts shall be kept by the Producer/Artist in
respect of all sales and income generated by rights granted hereunder
and a statement of commissions calculated to be due to the Company as
of the 3Oth of the following month.
7. NOTICE
(a) Except as otherwise specifically provided herein, all notices
hereunder shall be in writing and shall be given by registered or
certified mail or telegraph (prepaid) at the respective addresses
hereby set forth or such other addresses as may be designated by either
party. Such notice shall be deemed given when mailed or delivered to a
telegraph's office, except that notice of change of address shall be
effective only from the date of its receipt.
(b) A copy of all notices given by Producer/Artist must be sent to the
office: as above.
(c) A copy of all notices given by Company to Producer/Artist must be
sent to the office of: at the above address.
8. MISCELLANEOUS
(a) This Agreement contains the entire understanding of the parties
hereto relating to the subject matter hereof and cannot be changed or
terminated by the Producer/Artist or the Company except by an
instrument signed by an Officer of the Company and the Producer/Artist.
Any waiver made by either party of any term or condition of this
Agreement in any instance shall not be deemed or construed as a waiver
of such term or condition for the future, or of any subsequent breach
thereof. All remedies, rights, undertaking, obligations and agreements
contained in this Agreement shall be cumulative and none of them shall
be in limitation of any other remedy, right, undertaking,
obligation or agreement of either party.
(b) Nothing in this Agreement is to be construed as establishing a
relationship of employer-employee, joint venture, partnership, or
otherwise, and both parties are considered as independent contractors.
(c) No breach of this Agreement on the part of either party shall be
deemed material unless the non-breaching party shall have given the
breaching party notice of such breach and the breaching party shall
fail to discontinue the practice complained of or otherwise cure such
breach, within thirty (30) days after receipt of such notice, if such
breach is reasonably capable of being cured within the thirty (30) day
period, or otherwise if the party proceeds with reasonable diligence to
complete the curing of such breach.
9. APPLICABLE LAW
(a) This Agreement has been entered into in the State of California and
the validity, interpretation and legal effect of this Agreement shall
be governed by the laws of the State of California applicable to
contracts entered into and performed entirely within the State of
California, with respect to the determination of any claim, dispute or
disagreement which may arise out of the interpretation, performance, or
breach of this Agreement.
(b) If any part of this Agreement shall be determined to be invalid or
unenforceable by a court of competent jurisdiction or by any other
legally constituted body having jurisdiction to make such
determination, the remainder of the Agreement shall remain in full
force and effect.
10. TERMINATION
In the event that the Company files for Bankruptcy protection, this
Agreement becomes null and void and all rights granted to the Company
revert back to the Producer/Artist.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
For and on behalf of For and on behalf of
Kreative Video Products, Inc. American Champion Media, Inc.
/s/ Philip Knowles /s/ Anthony K. Chan
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PHILIP KNOWLES ANTHONY K. CHAN
President, CEO CEO