Exhibit 10.2
FOIA CONFIDENTIAL TREATMENT REQUESTED
PORTIONS OF THE EXHIBIT HERETO MARKED BY [***] HAVE BEEN
OMITTED AND FILED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT UNDER 17 C.F.R. SS.SS. 200.80(B)(4) AND 240.24B-2
Active Media
12603 Crown Point Circle
Clermont, FL 34711
(866) 9 COMICS
www.ActiveMediaPrinting.com
PRINTING AGREEMENT
THIS AGREEMENT is made and entered into this 13th day of March, 2013, by and
between Active Media Publishing, LLC (hereinafter "PRINTER") a Florida LLC doing
business at 12603 Crown Point Circle, Clermont, FL 34711; and RED GIANT
ENTERTAINMENT, INC., a Nevada Corporation (hereinafter "RED GIANT").
WITNESSETH:
WHEREAS, the PRINTER desires to provide low-cost, high quality printing to
"RED GIANT ENTERTAINMENT, INC." which is in the business of creating and
developing Intellectual Properties for multiple media platforms.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
contained, the Parties agree as follows:
NOW, THEREFORE, the parties agree as follows:
1. WHEREAS CLAUSES. All Whereas Clauses set out hereinabove are incorporated
herein by reference and constitute a part of this AGREEMENT.
2. TERM. The Term of this Agreement shall be for five (5) years, unless
terminated for material breach, as hereinafter provided.
3. DEFINITIONS. The following capitalized terms, when used in this Agreement,
shall have the respective meanings ascribed to them below:
a. "Confidential Information" shall mean all information provided by one
party to the other which is not generally published by the providing
party, including but not limited to, financial information, marketing
plans and manuscripts of the providing party and other information
transmitted or delivered which would be expected under reasonable
circumstances to be held private between the parties and not
disclosed, including the terms of this Agreement.
b. "Proprietary Rights" shall mean all rights held by a party in that
party's products, services and programs and confidential information,
including, without limitation, copyrights, CORPORATION's rights,
trademarks, service marks, patent rights, trade names, know-how and
trade secrets, software source codes and proprietary algorithms
irrespective of whether such rights arise under U.S. intellectual
property, unfair competition or trade secret laws.
c. "Territory" shall include the United States of America and all other
countries of the world.
4. TERMINATION FOR MATERIAL BREECH. This AGREEMENT may be terminated by a
party for cause immediately after giving the other party ninety (90) days
prior written notice if:
a. The activities of the other party or the statements or opinions
expressed on or through the other party's representatives, or through
publication or other public dissemination, are materially likely to
expose that party to administrative, civil or criminal liability .
b. The other party shall be in material breach or default of any material
provision of this AGREEMENT, and
c. Such breach or default has not been cured within the ninety (90) days
since original written notice to the other party.
5. OBLIGATIONS OF PRINTER. During the Term of this Agreement, PRINTER shall:
a. PRINTER shall provide near-cost printing services to RED GIANT for all
book publishing. These prices will be no less than [***]% to no
greater than [***]% margin above costs.
6. CONFIDENTIALITY.
a. Each party agrees to keep confidential and not disclose or use, except
in performance of its obligations under this Agreement, the terms of
this Agreement, confidential or proprietary information related to the
other party's technology or business that the receiving party learns
in connection with this Agreement, and any other information received
from the other, including without limitation, to the extent
previously, currently or subsequently disclosed to the receiving party
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hereunder or otherwise: information relating to products or technology
of the disclosing party or the properties, composition, structure, use
or processing thereof, or systems therefore, or to the disclosing
party's business (including, without limitation, computer programs,
code, algorithms, schematics, data, know-how, processes, ideas,
inventions (whether patentable or not), names and expertise of
employees and consultants, all information relating to customers and
customer transactions and other technical, business, financial,
customer and product development plans, forecasts, strategies and
information), all of the foregoing, ("Confidential Information"). The
disclosing party must designate Confidential Information by marking it
as such in a conspicuous place. Neither party shall disclose the terms
of this Agreement to any third party without the prior written consent
of the other party. Each party shall use reasonable precautions to
protect the other's Confidential Information and employ at least those
precautions that such party employs to protect its own confidential or
Proprietary Information. "Confidential Information" shall not include
information the receiving party can document (a) is in or (through no
improper action or inaction by the receiving party or any affiliate,
agent or employee) enters the public domain (and is readily available
without substantial effort), or (b) was rightfully in its possession
or known by it prior to receipt from the disclosing party, or (c) was
rightfully disclosed to it by another person without restriction, or
(d) was independently developed by it by persons without access to
such information and without use of any Confidential Information of
the disclosing party. Each party, with prior written notice to the
disclosing party, may disclose such Confidential Information to the
minimum extent possible that is required to be disclosed to a
governmental entity or agency in connection with seeking any
governmental or regulatory approval, or pursuant to the lawful
requirement or request of a governmental entity or agency (including a
court order or subpoena), provided that reasonable measures are taken
to guard against further disclosure, including without limitation,
seeking appropriate confidential treatment or a protective order, or
assisting the other party to do so.
b. The receiving party acknowledges and agrees that due to the unique
nature of the disclosing party's Confidential Information, there may
be no adequate remedy at law for any breach of its obligations
hereunder, that any such breach may allow the receiving party or third
parties to unfairly compete with the disclosing party resulting in
irreparable harm to the Disclosing Party, and therefore, that upon any
such breach or any threat thereof, the disclosing party shall be
entitled to appropriate equitable relief in addition to whatever
remedies it might have at law, and to be indemnified by the receiving
party from any loss or harm, including without limitation, lost
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profits and attorney's fees, in connection with any breach or
enforcement of the receiving party's obligations hereunder or the
unauthorized use or release of any such Confidential Information. The
receiving party will notify the disclosing party in writing
immediately upon the occurrence of any such unauthorized release or
other breach. Any breach of this Section will constitute a material
breach of this AGREEMENT and a potential
7. PRINTER'S WARRANTIES. PRINTER represents and warrants that:
a. It has the right and authority to enter into this AGREEMENT.
b. It shall obey all applicable laws, regulations and rules of any
government body or agency or other competent authority.
c. They are waiving their standard fees of up to [***]% margins.
8. RED GIANT'S WARRANTIES. RED GIANT represents and warrants that:
a. It has the right and authority to enter into this Agreement.
b. It shall obey all applicable laws, regulations and rules of any
government body or agency or other competent authority.
c. For the term of the contract shall give Active Media Printing first
right of refusal for all printing work.
9. INDEMNIFICATION. Each party shall indemnify and hold harmless the other
party, from and against any and all damages, costs, liabilities and
reasonable attorney's fees suffered as a result of or in connection with
the indemnifying party's: (a) provision of materials or services under this
Agreement; (b) infringement of any copyright or trademark rights of any
third party or misappropriation of any third party's trade secrets; (c)
having made any libelous, defamatory or disparaging statement concerning
any third party; (d) breach of its obligations, representations and
warranties under this AGREEMENT; (e) materially false statements or those
of its staff, telemarketers or other sales people; or (f) distribution of
promotional or advertising materials without obtaining any required prior
approval of the other party hereunder, provided, however, that the
indemnifying party (i) is promptly notified in writing of such claim, (ii)
shall have the sole control of the defense and/or settlement thereof, (iii)
is furnished all information available for such defense, and (iv) the party
seeking indemnification cooperates in any defense and/or settlement
thereof.
10. LIMITATION OF LIABILITY. EXCEPT AS OTHERWISE PROVIDED HEREIN, AND
NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE TO THE
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CONTRARY, NEITHER PARTY SHALL BE LIABLE OR OBLIGATED UNDER ANY SECTION OF
THIS AGREEMENT OR UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER
LEGAL OR EQUITABLE THEORY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST
PROFITS, LOST DATA, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
THE LIMITATIONS IN THIS SECTION SHALL NOT APPLY TO ANY BREACH OF SECTION 12
OR TO EITHER PARTY'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 16.
11. MISCELLANEOUS.
a. Assignment & Assumption. Neither party may assign this AGREEMENT,
except that either party shall be free to assign or sublet, transfer,
or convey its rights or privileges which are granted under this
Agreement in whole or in part to any subsidiary or affiliate of such
party, provided that no such assignment shall relieve the assignor of
its obligations hereunder.
b. Relationship of the Parties. The parties hereto expressly understand
and agree that their relationship is that of a Independent Contractors
c. Notices. Notices under this Agreement shall be sufficient only if in
writing, personally delivered, delivered by a major commercial rapid
delivery courier service or mailed, postage or charges prepaid, by
certified or registered mail, return receipt requested to a party at
its addresses set forth on the first page above or as amended by
notice pursuant to this Section. If not received sooner, notice by
mail shall be deemed received five (5) days after deposit in the U.S.
mails.
d. Construction. The parties acknowledge and agree that this Agreement
has been drafted and prepared through the efforts of both parties and
the rule of construction that any vague or ambiguous terms are to be
construed against the party drafting such terms shall not be applied
to either party to this Agreement.
e. Governing Law; Dispute Resolution. This Agreement shall be governed by
and construed in accordance with the laws of the State of Florida. In
the event of a dispute regarding this Agreement or the respective
rights of the parties hereunder, with the exception of PRINTER's right
of exclusivity pursuant to paragraph number 15 hereinabove and/or
confidentiality pursuant to paragraph number 12 hereinabove, the
parties agree to submit such dispute to binding arbitration in
Orlando, Florida before a professional arbitrator selected by the
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parties or, if the parties cannot agree on an arbitrator, appointed by
the court. Any such arbitration shall be commenced within fifteen (15)
days and completed within forty-five (45) days of selection of the
arbitrator and the discovery rules contained in the Florida Rules of
Civil Procedure shall apply to all such proceedings. The arbitrator
shall have the right to order all remedies and award attorney's fees
and costs to the prevailing party and any such orders may be entered
in a court of competent jurisdiction. With respect to any dispute
concerning PRINTER's right of confidentiality pursuant to paragraph
number 12 hereinabove, the parties herein waive trial by jury and
agree to submit to the personal jurisdiction and venue of a court of
subject matter jurisdiction located in Orange County, Florida and in
the event litigation results with respect thereto, the parties agree
to reimburse the prevailing party's reasonable attorney's fees, court
costs, and all other expenses, whether or not taxable by the court as
costs, in addition to any other relief to which the prevailing party
may be entitled.
f. Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and
supersedes all prior discussions, documents, agreements and prior
course of dealing, and shall not be effective until signed by both
parties
g. Amendment and Waiver. Except as otherwise expressly provided herein,
any provision of this Agreement may be amended or modified and the
observance of any provision of this Agreement may be waived (either
generally or any particular instance and either retroactively or
prospectively) only with the written consent of the parties. The
failure of either party to enforce its rights under this Agreement at
any time for any period shall not be construed as a waiver of such
rights.
h. Severability. In the event that any of the provisions of this
Agreement shall be held by a court or other tribunal of competent
jurisdiction to be unenforceable, such provisions shall be limited or
eliminated to the minimum extent necessary so that this Agreement
shall otherwise remain in full force and effect and enforceable.
i. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but both of which together shall
constitute one and the same instrument. Transmission by facsimile of
an executed counterpart of this Agreement shall be deemed to
constitute due and sufficient delivery of such counterpart.
j. Headings. Headings and captions are for convenience only and are not
to be used in the interpretation of this Agreement.
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k. Attorneys' Fees. In any action to enforce this Agreement, the
prevailing party shall be entitled to costs and reasonable attorneys'
fees.
l. Both parties will not disparage, defame, or besmirch the reputation,
character, image or services of the other party, its affiliates,
divisions, parent corporations, directors, officers, shareholders,
employees or agents.
12. FURTHER ASSURANCES. Each of the parties hereto agrees to execute and
deliver, or cause to be executed and delivered, all such instruments, and
to take all such action as the other party may reasonably request in order
to effectuate the intent and purposes of, and to carry out the terms of
this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective
Date. All signed copies of this Agreement shall be deemed originals.
PRINTER: RED GIANT ENTERTAINMENT
By: /s/ Benny R. Powell By: /s/ Benny R. Powell
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Benny R. Powell / CEO Benny R. Powell / CEO
Date: March 13, 2013 Date: March 13, 2013
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