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DISTRIBUTION AGREEMENT

RECITALS WHEREAS:
1. Content Owner is an owner and/or controller of all intellectual property rights, including but not limited to literary work, reproduction, adaptation, publishing, copyright and other digital rights in its comedic compositions. In its capacity as a Content Developer and Content manager, owning the rights to all the Content listed in Appendix A, it has rights to all the content and wishes to grant CiDAR Africa license to distribute the Content, in the manner and on the terms and conditions described herein;
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2. CIDAR AFRICA is the distributor and provider of content and applications to mobile Subscribers through Mobile Operators, Distribution Channels and internet in several countries; Content Owner shall supply Content legally owned by Content Owner, or provide rights to CIDAR AFRICA to source such Content in any form from the open market in the formats desired by CIDAR AFRICA, which CIDAR AFRICA will then host at its servers for distribution and sale to the mobile End User through mobile telephony and digital channels, including but not limited to, through the use of the Internet.

Now, therefore, in consideration of the mutual promises set forth herein and for other good and adequate considerations, the receipt of which is hereby acknowledged by each Party, the Parties agree as follows:

1.      DEFINITION
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‍1.1      The following words used in this Agreement will have the meanings as set out next to them:

‍“Affiliate” shall mean, (a) in relation to a company, at any particular time, any other company or business entity which is then directly or indirectly Controlled, or more than 50 per cent, of whose issued equity share capital (or equivalent) is then beneficially owned, by that company and/or one or more of its respective Affiliates; and (b) for an individual, shall mean any person being relative of such individual, and/ or any company or business entity, which Controlled by such individual, singly or together with his relatives. For a company or business entity to be “Controlled” by another means that the other (whether directly or indirectly and whether by the ownership of share capital, the possession of voting power, contract or otherwise) has the power to appoint and/or remove all or the majority of the members of the board of directors or other governing body of that Person or otherwise controls or has a power to control the affairs and policies of that Person;

‍“Individual” shall mean the individual person(s), as specified in Appendix A and who has(ve) created the works forming part of the Content provided by the Content Owner to CIDAR AFRICA.

‍“Browsing” shall mean the service wherein the End-Users listen to the ring tones or images or access Content through IVR, Internet, SMS or such other method as hereinafter devised.

‍“Collection Period” shall mean six (6) months after the expiration of this Agreement in whichCIDAR AFRICA shall still collect Content sales revenue from works it did upload during the term of this Agreement.

‍“Content” shall mean all content, information and services (including without limitation any text, music, sound recordings ( the “Masters”), video recordings, musical and video albums, titles of tracks and musical compositions, including lyrics, embodied on the Masters, photographs, pictures, live feeds, emblems, tattoos, games, video graphics, icon, logos, data or software) that is usable and can be accessed by an End-user on a GSM or any other wireless telecommunication network or the Internet, or the digital channels that has been created, produced, or belonging to the Content Owner , as specified in Appendix A.

‍“Content Sales Revenue” shall mean proceeds collected by CIDAR AFRICA for Dedication and Downloads of the content from Mobile Operators/Distribution Channels or directly from the End-User for the distribution and sale of Content and Services to the End-User.

"Distribution Channels" shall mean retail distribution channels in the Territory, including, without limitation distribution to retailers, Mobile Operators, directly to End-Users, to electronic retailers and through Business to Business opportunities. Content may also be sold or marketed via the Internet and transmitted, distributed or made available to download via the Internet.

‍“Download” shall mean in relation to the transmission and creation of a copy of any audio/data file, the transmission of the Text service, Ring Tone, Ring back Tone, an image, video, or any Content via the Internet, SMS, IVR, WAP or any other channels through a Mobile Operator, via the Service to an End-User’s cellular phone or handheld device or computer subsequent to a request and payment of download charges by an End-User through the Web Site, or the Service. This transmission would involve the delivery of a complete file to the End-User’s cellular phone or handheld device or computer, such that once the End-User has downloaded the file, he or she can play the Ring Tones or view the images and other Content or applications on his/her cellular phone or handheld device or computer.

‍“Dedication” shall mean the creation of a copy of an audio or data file of any Content and its transmission via the Internet, SMS, IVR, or any other channels through a Mobile Operator by using the Service to a third party’s cellular phone or handheld device, subsequent to a request by an End-User through the Internet or the Service. This transmission would involve the streaming of a file to the third party’s cellular phone or handheld device, such that the End-User can only play the file or view the images and other content on his/her cellular phone or handheld device without the file being downloaded to his/her cellular phone or handheld device.

‍“End-User” shall mean an individual person/entity who is a Subscriber of the Mobile Operator or a user of the Internet, and/or who has access to the different Services provided by CIDAR AFRICA as contemplated hereunder, through any medium or Distribution Channels.

‍“IVR” shall mean the Interactive Voice Response system used by a Mobile Operator to the EndUsers. “Media” means any and all digital and telephonic media, now known or hereafter devised.

‍“Media Partner” shall mean any media house or media channels, including but not limited to, television, radio, newspapers, magazines, web sites, or web portals used by CiDAR Africa for promotion of the Content and Services.

‍“Mobile Operator” shall mean a telecommunication or other service provider from which the Service shall be made available and from which End-Users can access the Content.

‍“Non-exclusive” shall mean to the extent where Content owner having the rights to distribute with third parties, but shall not distribute content with any third party provided to CiDAR Africawithin the term of this Agreement.

"Promotional Ads" shall mean any documents and materials in any language for promotional purpose including without limitation advertising, promotional display and/or other such marketing materials of or concerning the distribution of Content.

‍“SMS” shall mean the short messaging service provided by a Mobile Operator

‍“Service” shall mean the value-added services comprising the Content to be provided by CiDAR Africa to the End-User using mobile telephony or Internet, including but not limited to Caller Ring Back Tones, Mobile Radio, IVR subscriptions, WAP push, DSP and SMS-based subscription services.

‍“Subscriber” shall mean an individual who is a registered / general paying customer for the Content.

‍“Term” means the period of time identified in clause 6.1 of this Agreement, during which time CiDAR Africa may exercise the rights granted herein.

“Territory” shall be Worldwide.

‍“Updates” shall mean additions, deletions, or changes in the Service and Content that either Party publishes or makes available to any End-Users.

‍“Upload” shall mean the request for download of a text service, ring tone, Ring back Tone, or an image/ video service.
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1.2      In this Agreement, unless the contrary intention appears.

1.2 .1      Words in the singular number include the plural and vice versa;
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1.2.2      A reference to a person includes bodies’ corporate and unincorporated associations and partnerships; where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;

‍2. GRANT OF LICENSE
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‍2.1 License of Content. Content Owner hereby grants, and CiDAR Africa hereby accepts, an exclusive license & rights to:
(a) Use the Content for demonstration and promotional purposes relating to End-Users.
(b) Distribute and sell the Content for commercial purpose through the Internet, mobile telephony, digital channels, Distribution Channels, any other medium and through any Services including Browsing.
(c) Sub-license the Content to Mobile Operators, web and mobile portals and Distribution Channels and Affiliates of CiDAR Africa, for the purpose as specified in sub-clause (b) above, so as to enable End Users to Download, Upload and execute/use Content on their mobile devices.

‍3.      RESPONSIBILITIES OF THE PARTIES

3.1      Content Owner’s Obligations
‍a) Content Owner will be responsible for providing Content rightfully owned and/or developed by the Content Owner.
b) Content Owner shall further provide all assistance, including but not restricted to, personal presence of the developers of the content listed in Appendix A for further development, deployment, customization, or any sort of amendments of the Content to the End Users;
c) Content Owner shall notify CiDAR Africa at least 90 days prior to any changes in the legal rights of usage in the Content licensed to CiDAR Africa;
d) Content Owner will be responsible for all legal/copyright matters pertaining to the Content that are provided by Content Owner herein.
e) Content Owner shall be obliged to use all services provided by CIDAR AFRICA with regards to the content being distributed under the term as long as this contract remains valid.
f) Content Owner shall submit all new content for release a minimum of four weeks before release date for adequate promotions/marketing pitches.
g) Content Owner shall comply with all marketing strategies developed by the distributor.

‍3.2       CiDAR Africa’s Obligations
‍a) CiDAR Africa reserves the right to engage, at its sole discretion, any desirable Media Partner/s for marketing and promotion of the Content, the expenses and charges on which account are deductible for arriving at the “Net Content Sales Revenue” as defined under the definition section.
b) CiDAR Africa will not disclose confidential information to third parties or any information, which may in any way harm the integrity of the Content Owner, the Content and Services or its general marketability.
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3.3      CiDAR Africa shall use reasonable efforts to market and distribute Content Owner’s Content. This will include, but not limited to CiDAR Africa’s online Web and/or WAP portal CiDAR Africa’s marketing and distributing partners, Mobile Operators, handset vendors, Media Partners, and subsidiary companies among others.

3.4      CiDAR AFRICA shall make necessary payments to the Content Owner as and at when due, in accordance with Clause 4.4.
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3.5      CiDAR Africa shall utilize its best endeavors to ensure that the Mobile Operators and Media Partners use efficient marketing strategies including but not limited to SMS broadcasts, promotion via social media platforms (Twitter, Instagram, Facebook etc.) Radio Promotion, endof-call notifications and other promotional media to create awareness of the Content to end users.
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3.6      CiDAR Africa shall release, advertise, and sell electronic files or equivalent electronic form(s) of the Content and to permit others to do so under the trademark "CiDAR Africa" or under any trademark used by CiDAR Africa.

3.7      Unless otherwise instructed in writing by Content Owner, CiDAR Africa shall have the exclusive right, in its sole discretion and in line with customary practices, to market the Masters and other Content as applicable, for promotional purposes and without compensation to Content Owner.

‍4. REPORTING, AUNCHING REVENUE SHARING AND FEES EAARNED BY CONTENT OWNER
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4.1      Content Sales Revenue Report.
Within thirty (30) days after the end of each month succeeding every quarter, CiDAR Africa shall deliver an electronic report showing the “Content Sales Revenue” generated for such quarterand reasonable supporting information related to calculation of such Content Sales Revenue. CiDAR Africa shall also provide the Content Provider work with the charged daily hits logs provided by the respective Mobile Operators and Distribution Channels. In the event the electronic reports provided by CiDAR Africa are at variance with the statements/charged daily hit logs provided by the Mobile Operators and Distribution Channels, the charged hit logs by the Mobile Operators and Distribution Channels shall prevail.

4.2      In consideration of the license granted by the Content Owner under this Agreement, CiDAR Africa shall pay to the Content Owner, the revenue fees, as set forth in the cover sheet."Revenue" means income actually received by or credited to CiDAR Africa that is derived solely from the exploitation of the Content less mechanical royalties, if any. Income received by CiDAR Africa may be subject to taxes, surcharges or fees imposed by government agencies or CiDAR Africa Partners before payment is sent to CiDAR Africa. CiDAR Africa shall have no obligation to pay Licensor Revenue which CiDAR Africa has not actually received until such time as CiDAR Africa receives such Revenue.

4.3      Notwithstanding the above in Clause 4.1, CiDAR Africa shall not provide accounting statements to Content provider where royalties failed to amount to Two Hundred U.S. Dollars ($200), in the event payment is not made to Content provider for this reason, such amounts below Two Hundred U.S. dollars ($200) as applicable, will accrue to Licensor's account and shall be paid in the first period in which Content provider’s account reflect in a balance greater than Two Hundred U.S. Dollars ($200).

‍4.4      Revenue Share Payment.
‍After the quarterly Content Sales Revenue report referred to in clause 4.1 is sent to Content Owner, the Content Owner shall raise an invoice to CiDAR Africa for the payment of the license fees, being its share of the monthly Net Content Sales Revenue, as set forth in the cover sheet. CIDAR AFRICA shall settle payment with Content Owner within 15 days of the receipt of payments from Mobile Operators/Distribution Channels relating to the Content for the specified period.

‍4.5      Audit.
‍(a) CiDAR Africa shall keep accurate and complete records relating to its distribution of Content Owner’s Content in terms of this Agreement. On no less than 30 days’ notice, CiDAR Africa shall provide copies of such records to Content Owner for audit.
(b) On written notice to the CiDAR Africa of at least 30(Thirty) days, the Content provider may request access to the books and records of CiDAR Africa for review or photocopying regarding any accounting or financial issue relating to this agreement, such books and records will include but are not limited to, detailed listings of expenses and revenues relating to this agreement. CiDAR Africa will maintain such books and records in a readily available form and according to the generally accepted accounting practice.
(c) In the case where the Content provider’s Audit records and underpayment of more than a Fifteen percent (15%) margin, CiDAR Africa shall pay the difference and pay for fifteen percent (15%) of the Content provider’s auditor’s fee.

‍4.6      Participation at Own Risk.
‍CIDAR AFRICA shall enable End-Users to connect, share, exchange and review the Content with one another and with viewers or listeners of media channels. CiDAR Africa has no to control, or monitor any information, comments, reviews or exchanges between and/or among End - Users about Content Owner’s Content.

‍4.7      Taxes.
‍In the event that any sales, use or similar taxes (excluding any taxes on CiDAR Africa’s income) are imposed on CiDAR Africas’s supply of Services under this Agreement, CiDAR Africa may adjust the same from Content Owner’s invoices by deducting such taxes after due consultation and approval given by the Content Owner.

‍5.      EXCLUSIVE RESERVATION OF RIGHTS

‍5.1      Content Owner hereby agrees and warrants that it will provide the Content on an exclusive basis to CIDAR AFRICA for distribution across all territories to subscribers of the Mobile Operator on the following basis:All Content specifically provided and contained in Letters of Authorization in the form contained in Appendix A.

5.2      The ownership of and the intellectual property right to the Content and trademarks of the Content Owner shall remain fully with Content Owner.

5.3      The ownership of and the intellectual property right to CiDAR Africa’s technology, software, know-how, applications, trademarks, copyrights and patents shall at all times remain fully the property of CiDAR Africa.

‍Confidential Information

5.4      ‘’Confidential Information” means any technical, business, client or proprietary information disclosed between the Parties, directly or indirectly, including, but not limited to, information regarding business strategies and practices, methodologies, trade secrets, knowhow, pricing, technology, and software. Further, CiDAR Africa’s proprietary technology and software products, and the pricing and terms of this Agreement are Confidential Information of CiDAR Africa.

5.5      Each party shall:
(a) Treat as confidential all Confidential Information of the other Party and notdisclose such Confidential Information to any third party without the written consent of the other party
(b) Use Confidential Information of the other Party only as expressly set forth herein or otherwise authorized in writing

5.6      Exclusions; Confidential Information shall not include information that:
(a) Is generally available to the public through no improper action or inaction
(b) Was known by or in possession prior to the signing of this agreement;
(c) Is disclosed with the prior written approval of the Disclosing Party;
(d) Becomes known to a Party from another source.The obligations set forth in clause 5 shall not apply to the extent that disclosure of Confidential Information if required by law, regulation, ordinance or judicial process.

6.      TERM AND TERMINATION

‍6.1      Term and Renewal. This Agreement shall commence on the Effective Date and continue for the initial term set forth on the Cover Sheet (“Initial Term”). The term of the Agreement shall be solely exclusive and deemed fulfilled upon the delivery of the number of projects as provided in the cover sheet.

6.2     Either party shall be entitled to terminate this Agreement within the Initial Term, where either party has committed a breach and such breach not remedied within 30 days written notice by the other party.

6.3 All works delivered to the distributor during the term of this Agreement shall be on an exclusive basis and where a third party wishes to license the work, we will continue to earn Twenty (20) percentage on gross revenue to Content Owner from the third party. This will include all payments on masters to Content Owner including flat fees and other ways in which the Masters can be explored.

6.4 Effect of Termination. Upon termination of this Agreement:
(i) CiDAR Africa shall be entitled to a collection period of Two (2) Quarters, in which it shall still collect all Content sales revenue derived from the distribution of all works during the term of this Agreement.
(ii) Each Party shall immediately cease using the other party’s Intellectual Property and delete them from its computer systems upon the expiry of the collection period, and certify in writing to the other party that such return or destruction has occurred;
(iii) Upon the Disclosing Party’s written request, the Receiving Party shall immediately return all Confidential and /or proprietary Information to the Disclosing Party, or dispose them of as the Disclosing Party requires.

6.5 Notwithstanding the expiration and/or earlier termination of this Agreement, the Parties shall continue to comply with their respective obligations under the Agreement for any transaction initiated before the date of termination and for provisions concerning Confidential Information

7.      REPRESENTATIONS AND WARRANTIES
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‍7.1      Each Party hereby represents and warrants that it has the right to enter this Agreement and grant the licenses and rights granted herein, and that the execution and performance of this Agreement shall not breach any law or violate any rights of any third party.

7.2      Content Owner Warranties; Content Owner warrants throughout the Term:
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(i) That it is the owner or has obtained and holds valid and sufficient rights, including rights in third party Intellectual Property Rights and trademarks, to license the rights granted to CiDAR Africa under this Agreement.
(ii) That it has not granted rights to Content to any third party that would prevent Content Owner from entering into the Agreement. Content Owner further warrants throughout the Term that the Content
     (a) that it does not violate any civil or criminal laws;
     (b) that it does not violate the rights of any third parties, including, but not limited to, Intellectual Property             Rights, false advertising or unfair competition,
     (c) that it’s Content does not contain any material that is fraudulent, threatening, abusive, defamatory,              vulgar, profane, racially objectionable, including, without limitation, any material that encourages conduct that would constitute a criminal offense or result in civil liability.
(iii) That it undertakes to indemnify CIDAR AFRICA against any and all such claims, expenses, charges, fee or loss, arising from the breach of the warranties herein

7.3      Both Parties warrant that they shall perform services under this Agreement in a manner in compliance with all applicable local, municipal, state and federal laws.

7.4.      Content Provider further undertakes that CiDAR Africa, Mobile Operator and other entity through which the Content shall be deployed, will in no manner whatsoever be responsible for or against any claims, damages, liabilities, risk, costs, infringement of copyrights or any other intellectual property rights or any other consequences (legal or moral) made by any third party or the End-User, against or attached to such Content licensed by the Content Provider to CiDAR Africa.

8. INDEMNIFICATION

8.1 Content Owner shall indemnify CiDAR Africa, Director(s), officer(s), employee(s), associate(s) both during and after the Initial Term against any advertiser, agency, media buyer, ad network, or any third party associated, from any claims, liabilities, losses, damages, costs and expenses, including reasonable attorney’s fees, arising in connection with a claim or allegation that the Content and Applications, including any content therein:
(a) Infringe any third party’s patent, copyright, trade secret or other intellectual property right; or
(b) Violate any law or regulation;
(c) Violate any right of or cause injury to any third party, including any right of publicity or privacy, or are defamatory or obscene; or
(d) Cause material breach of any Representation and Warranties contained in this Agreement.The obligations set out in the Indemnification clause shall survive the termination or expiry of this Agreement.

9. LIMITATION OF LIABILITY

9.1 Except for violations or infringements of the other party’s intellectual property rights, in no event shall either party be liable to the other for any indirect, incidental, punitive, special or consequential damages, including, but not limited to, any damages for lost profits, interruption of business, loss of technology or lost data, however arising, whether under theories of contract, tort (including negligence), strict liability or otherwise, even if such party has been advised of the possibility of such damages.

10.      GENERAL

10.1      Waiver & Amendment; No waiver or amendment of any provision hereof or of any right or remedy hereunder shall be effective unless made in writing and signed by both parties. No failure by any Party to exercise, and no delay by any Party in exercising, any right, power or remedy with respect to the obligations secured hereby shall operate as a waiver of any such right, power or remedy.

10.2      Assignment; Neither Party shall have the right to assign this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed; provided, however, that CiDAR Africa may freely assign this Agreement to its Affiliates or to successors-in-interest or successors-in-title in the event of a change of control, merger, consolidation or acquisition of all or substantially all of the assets or business of such party.

10.3      Non-Exclusivity; Nothing expressed or implied in this Agreement shall be deemed to restrict, whether during the Term or at any time thereafter,
(i) CiDAR Africa’s right or ability to directly or through any third party to sell, license, use, promote, service, maintain, market, develop, or otherwise deal in any CIDAR AFRICA’s product, software or service; or,
(ii) enter into any business arrangement of whatever nature or description, including without limitation, arrangements similar to those contemplated in this Agreement, with any other third party wherever located.
(iii) Content Provider’s right to distribute other recordings not provided in this term to a third party within the term of the Agreement.

10.4      Force Majeure; Neither Party shall be liable under this Agreement by reason of any failure or delay in the performance of its obligations under this Agreement on account of riots, insurrections, fires, floods, storms, explosions, acts of nature, acts of terrorism, war, governmental action, earthquakes, or any other cause that is beyond the reasonable control of such Party.

10.5      Notices; All notices under this Agreement shall be in writing in English language and shall be deemed given as of the day personally delivered, sent by telecopy or other electronic means, or deposited in the mail, postage pre-paid, certified or registered mail return receipt requested, each such delivery method delivered, sent or addressed to the addresses set forth on the title page of this Agreement, or at such other address or numbers as properly designated in writing from time to time. Either Party may alter its address for Notices by giving notice as aforesaid. Any notice shall be deemed to be duly served:a) If delivered personally, on the date of delivery where receipt of delivery is confirmed,b) If sent by courier, 5 (five) business days following the date of posting;d) If sent by facsimile or email, at the time of transmission, provided receipt is confirmed.

10.6      Entire Agreement; Interpretation. This Agreement and the accompanying exhibits constitute the entire understanding and agreement of the Parties hereto with respect to the subject matter hereof and supersedes all prior agreements or understandings, written or oral, between the Parties hereto with respect to the subject matter hereof.

10.7      Arbitration & Governing Law; This Agreement shall be governed by the Laws of Nigeria.
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The parties shall use their best efforts to negotiate in good faith and settle amicably any question or dispute, including any claim, construction, meaning or effect of this Agreement or concerning the rights and liabilities of the parties thereto or any other matter connected to this Agreement.

If the parties are unable to resolve such question or dispute within 30 days (or such further period as the parties shall agree in writing), the question or dispute shall be settled finally by arbitration in accordance with the Arbitration and Conciliation Act, Chapter A18, Laws of the Federation of Nigeria, 2004 (or any amendment thereto) and the Arbitration Rules connected thereto. The arbitral tribunal shall be constituted by a sole arbitrator to be appointed jointly by the parties in writing; if the parties are unable to agree on the choice of the sole arbitrator within seven days after the service of a notice of arbitration by one party to the other, on the application of either party, the sole arbitrator shall be appointed by the Nigerian Institute of Chartered Arbitrators. The place of the arbitration shall be Lagos, Nigeria; and the laws of the Federal Republic of Nigeria shall govern the arbitration. The language of the arbitration shall be the English Language”.

Subject to the resolution of the dispute by Arbitration in accordance with the manner laid down herein, the Courts/Tribunals at Nigeria shall have the exclusive jurisdiction.

10.8      Relationship; Nothing contained in this Agreement shall constitute or be deemed to constitute a partnership, joint venture, agency or employment between the Parties. Neither Party will be responsible for the acts or omissions of the other Party and neither Party will have, or represent that it has, any power or authority to speak for, represent, bind or assume any obligation on behalf of the other Party in any way without the prior written consent of the other Party. The relationship of parties hereto shall be that of Principal to Principal and each party shall be solely liable to meet all the statutory obligations and liabilities pertaining to their respective employees.

10.9      Amendment; No variation / amendment of this Agreement shall be binding on any Party unless such variation / amendment is in writing and signed by each Party.

10.10      Survival; Any and all obligations under this Agreement which, by their very nature should reasonably survive the termination or expiration of this Agreement, will so survive, including, but not limited to, those arising from the confidentiality and intellectual property provisions of this Agreement.

10.11      Invalidity and severability; If any part of this Agreement is adjudged by a court of law to be invalid or unenforceable or contrary to any applicable law or regulation, the remainder of the Agreement will continue in full force and effect; and the Parties will in good faith attempt to substitute for the invalid or unenforceable provision a valid and legally enforceable provision, which achieves to the greatest extent possible the economic, legal and commercial objectives of the provision, which is invalid or unenforceable.

10.12      Counterparts; This Agreement may be executed in any number of originals or counterparts, each in the like form and all of which when taken together shall constitute one and the same document, and any Party may execute this Agreement by signing any one or more of such originals or counterparts

Terms & Services

Schedules

Schedule A

Schedule B

DISTRIBUTION AGREEMENT