CONTENT
DISTRIBUTION AGREEMENT
This
Content Distribution Agreement (“Agreement”) is made
and entered into this 23 November 2004, (the “Effective
Date”) by and between Karma Media, Inc., a Nevada corporation
with it principal offices at 13101 Washington Boulevard, Los
Angeles, CA 90066 (Supplier") and 9 Squared, Inc. , a
Colorado corporation with its principal offices at 2128 15
th St., 2 nd Floor, Denver, Colorado 80202
("9 Squared").
RECITALS
WHEREAS,
Supplier is in the business of developing and/or licensing content
and/or software applications (the “Products”) for
access and use by end-users (“Customers”) owning
handheld computers and mobile devices.
WHEREAS, 9
Squared is in the business of acquiring, marketing, and
distributing content and software applications for handheld
computers and mobile devices within locations identified by 9
Squared. (each, an “9 Squared Product”).
WHEREAS,
Supplier owns certain proprietary rights or has obtained all
necessary rights to license, sell or otherwise distribute the
Products identified and more particularly described on Exhibit
A (the “Product List”)
WHEREAS,
Supplier desires to grant to 9 Squared, and 9 Squared desires to
obtain rights to (i) to use and/or demonstrate the Products via the
9 Squared Products; and (ii) market, distribute and sell rights to
use and/or access Products to Customers.
NOW,
THEREFORE, in consideration of the mutual covenants hereinafter
set
forth, the
parties agree as follows:
1.
PRODUCT; TERMS;
COMPENSATION .
1.1.
Distributor
Appointment . Supplier hereby appoints 9
Squared, and 9 Squared accepts such appointment, as a
non-exclusive, worldwide distributor of the Products. 9
Squared may sell or otherwise distribute the Products from any 9
Squared Product produced and placed by 9 Squared whether such 9
Squared Product is owned by 9 Squared or some other party.
Supplier understands that 9 Squared may sell, lease or
license some or all of its 9 Squared Products to other persons or
entities and Products may be distributed from 9 Squared Products
not owned or operated by 9 Squared. Notwithstanding the
foregoing, 9 Squared agrees to monitor and calculate the number of
Products sold from all 9 Squared Products placed by or through the
efforts of 9 Squared and to maintain records of sales.
Subject to the terms and conditions set forth herein, and
during the term of this Agreement, Supplier hereby grants to 9
Squared a non-exclusive, royalty free license to display and use
the Products on or in all 9 Squared Products and to advertise and
promote the Products for sale from the 9 Squared
Products.
1.2.
License to Supplier
Marks .
Supplier hereby grants to 9 Squared a nonexclusive, worldwide right
and license to use, and to reproduce for use, Supplier’s
trademarks, trade names, Product names, logos, and marketing
material provided by Supplier hereunder in connection with 9
Squared’s sale of the Products during the term of this
Agreement.
1.3.
Product
Offerings .
From time to time, additional products may be added to the Product
List upon mutual agreement of the parties. Notwithstanding the
inclusion of any product on the Product List, 9 Squared reserves
the right to not offer any product for sale for any or no reason.
Without limiting the foregoing, all Supplier products must be
approved by 9 Squared prior to being included for sale from a 9
Squared Product. In the event that Supplier decides to end of life
any product currently on the Product List, Supplier shall notify 9
Squared as far in advance as possible of such end-of-life, but in
no event less than ninety (90) days.
1.4.
Restrictions on 9
Squared Activities . 9 Squared shall not, and
it shall take reasonable steps to prevent others from
disassembling, decompiling, reverse engineering, or otherwise
attempting to derive source code of, or any other intellectual
property right from, the Products.
1.5.
Delivery of Product
from 9 Squared Products . The Products shall be made
available from the 9 Squared Products for download to and use by
any authorized Customer who has paid for access and use thereof.
Upon completion of each sale and acceptance by any Customer
of the terms and conditions of Supplier’s standard end user
license for use of or access to the Product (each an “End
User License”), Supplier will deliver (or provide the means
for 9 Squared to deliver on Supplier’s behalf), a license key
which will permit access to and use of the Products purchased..
Each such End User License delivered by Supplier (or by 9
Squared on Supplier’s behalf) shall be upon such terms and
conditions as Supplier shall determine in its sole and absolute
discretion. Other than delivery of the End-User License at
the conclusion of each sale of one or more Products, 9 Squared
shall have no liability to Supplier or Customer for any
Customer’s subsequent use of a Product. Supplier shall
provide 9 Squared with its End-User License for each Product being
offered by 9 Squared from an 9 Squared Product and shall provide
updated End-User Licenses to 9 Squared if and when such licenses
change.
1.6.
Patches, Fixes,
Upgrades .
Patches and fixes (defined as modifications to the Products
that do not add or increase functionality and are designated as
patches or fixes and designed to correct errors in the Products)
shall be made available to all Customers in accordance with
Supplier’s standard practices and policies. Supplier
retains the right to upgrade or modify the Products made available
for license from time to time. Upon receipt of an upgrade or
modification, 9 Squared shall cease to market and distribute
earlier versions of the Products. 9 Squared assumes no
responsibility or liability for any Products sold by 9 Squared from
a 9 Squared Product and Supplier shall remain responsible at all
times therefore.
1.7.
Samples;
Collateral . Supplier agrees to provide at no
charge a reasonable number of samples of each Product (i) to 9
Squared for compatibility testing and/or demonstration purposes and
for evaluation and/or support purposes, including display and use
at any or all 9 Squared Products. 9 Squared may use and/or
dispose of all samples in the exercise of its sole discretion and
without any obligation to return same to Supplier or to compensate
Supplier in any way therefore. In addition, Supplier will
provide at no charge to 9 Squared Supplier’s artwork,
promotional copy and product description (“Product
Collateral”) for 9 Squared’s use in preparing material
for display on the 9 Squared Products. Subject to the terms
and conditions set forth herein, and during the term of this
Agreement, Supplier hereby grants to 9 Squared a royalty free,
non-exclusive worldwide license to copy, modify and display the
Product Collateral in connection with the resale of Products from
all 9 Squared Products.
1.8.
Compensation
. 9 Squared shall pay
Suppler the compensation set forth on Exhibit A for the
distribution rights granted herein. The Compensation amount
shall be based upon the suggested wholesale prices for the Products
as set forth on Exhibit A . During the term of this
Agreement, Supplier may change its suggested wholesale prices from
time to time upon at least sixty (60) days prior written notice.
Although Supplier may publish suggested retail prices, the
parties agree that these are suggestions only and 9 Squared is free
to determine the actual prices at which Products will be sold to
Customers; provided however, the compensation owed to Supplier
hereunder shall be based upon the suggested wholesale prices set
forth on Exhibit A as such Exhibit is amended from
time.
1.9.
Most Favored
Pricing .
Supplier represents that the compensation to be paid to Supplier
under this Agreement for the Products distributed by 9 Squared for
similar Product quantities and like terms and conditions shall be
no greater than the compensation paid by any third party involved
in similar distribution arrangements. In the event Supplier offers
a lower level of compensation to any third party (whether based
upon suggested wholesale price or otherwise), the compensation to
be paid by 9 Squared shall immediately be reduced, effective as of
the date of such offer. 9 Squared shall have the right, upon
reasonable notice and during regular business hours at
Supplier’s regular location for maintenance of such records,
to conduct an audit of the relevant portions of Supplier’s
books of account to verify compliance with this section of this
Agreement. Such audit will be at 9 Squared’s expense and will
be conducted by a 9 Squared appointed independent agency. All
information obtained by 9 Squared during any such audit shall be
deemed Confidential Information for purposes hereof.
2.
REPORTS, PAYMENT.
TAXES .
2.1.
Reports;
Payment .
9 Squared shall be responsible for monitoring and tracking
the sale
