accesskey_ex1012.htm


    EXHIBIT
10.12

     

    DISTRIBUTION AGREEMENT

     

    Distribution
Agreement dated [    March 12, 2008    ],
between

     

    JACK OF
ALL GAMES (Canada) Inc. (herein after referred to as the “Distributor”)

     

    a
division of Take-Two Interactive Software Canada Inc.

    1025
Tristar Drive

    Mississauga,
Ontario, Canada L5T 1W5

    Tel:
905-795-3181 Fax: 905-795-3237

    email:

     

    - and
-

    
    

     

    
      	TeknoCreations
    Inc	
              (herein
      after referred

              
                to
      as the

                “Manufacturer”)

              

            


    

     

    
      	
              Address:

            	8100
      M4 Wyoming NE #240
	 
      	Albuqurque
      NM 87113
	
              Phone:

            	505-404-1776
	
              Fax:

            	603-218-7387
	
              Email:

            	mkasok@teknocreations.com
	
              Contact:

            	Mark
      Kasok
	
              Credit
      Limit:

            	 


    

    


    The
'Addendum to JACK OF ALL GAMES (Canada) Inc., Vendor Program'  (the
“VENDOR PROGRAM”) forms part of this agreement and to the extent that the terms
or conditions in the Addendum are in conflict with the terms or conditions in
this Agreement, the terms and conditions in the Addendum will
govern.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    RECITALS:

     

    
      	
              (a)

            	
              Manufacturer
      produces a range of products including those known and marketed under the
      brand name [Teknovault
      and InCharge], as well as others
      known and marketed under various names, including any and all affiliate
      labels and companies (collectively, the “Products”);
      and

            


    

     

    
      	
              (b)

            	
              Manufacturer
      has agreed to retain Distributor as the non-exclusive distributor of
      Manufacturer in Canada and Distributor has agreed to act in such capacity
      for Manufacturer in such territory on and subject to the terms and
      conditions set forth in this
Agreement.

            


    

     

    In
consideration of the foregoing and the mutual agreements contained herein (the
receipt and adequacy of which are acknowledged), the parties agree as
follows:

     

    Section 1  Appointment.

     

    Subject
to the terms and conditions of this Agreement, Manufacturer appoints Distributor
as the non-exclusive distributor of Manufacturer in Canada and Distributor
accepts such appointment, for the purpose of distributing, marketing and selling
the Products in Canada.

     

    Section 2  Sale
of Products by Manufacturer.

     

    Distributor
shall not describe or hold itself out as an agent of Manufacturer, nor describe
itself other than as a distributor of Manufacturer.

     

    Section 3  Supply
of Products by Manufacturer.

     

    
      	
              (1)

            	
              During
      the term of this Agreement, Manufacturer shall use its reasonable efforts
      to supply Distributor with its Product requirements, and to communicate
      any out of stocks or unusual delays in supply to Jack of All Games Canada
      immediately.  Manufacturer shall supply, at no charge, samples
      as needed of each Product to Distributor for use by Distributor’s sales
      force.

            


    

     

    
      	
              (2)

            	
              Manufacturer
      represents and warrants that all Products delivered to Distributor (i)
      will be subject to Manufacturer’s standard warranty terms as such are
      communicated in writing to Distributor from time to time and (ii) will be
      in compliance with all applicable laws, including intellectual property
      infringements, and regulatory requirements, including without limitation,
      health and safety requirements, packaging and labelling requirements,
      French language requirements, and country of origin
      requirements.  In the event that any Product does not comply
      with such requirements, such Product shall be returned to Manufacturer for
      a full credit at Manufacturer’s expense and Manufacturer shall indemnify
      Distributor for any loss, liability, claim, fines, penalties, charges,
      damage (including incidental and consequential damage) or expense (whether
      or not involving third-party claim) including legal expenses (collectively
      “Damages”)
      suffered by Distributor arising out of such failure to
    comply.

            


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      	
              (3)

            	
              Manufacturer
      will use best efforts to inform Distributor in writing of the planned
      discontinuation of any product at least 30 days in advance. Once a product
      has been designated as discontinued Distributor will be entitled to either
      price protection to allow for the quick sell through of existing products
      at retail or to return goods at the last purchased price for up to six
      months after the notice of
discontinuation.

            


    

     

    Section 4  Return of Products (see Vendor
Program addendum to JACK OF ALL GAMES, Inc., Vendor Program).

     

    Section 5  Payment
and Setting of Prices.

     

    
      	
              (1)

            	
              Manufacturer
      shall provide Distributor with an invoice in respect of each order made by
      Distributor.  Payment terms are 2% 10, Net 45 days ROG,
      Mississauga.  Distributor
      reserves the right to withhold accounts payable equal to the combined
      value of the inventory from Manufacturer to Distributor in both the
      Distributor and Retailer’s possession to offset inventory
      risk.  Such payments not to be unreasonably
      withheld.

            


    

     

    
      	
              (2)

            	
              Manufacturer
      shall have complete discretion to set all prices to be paid by Distributor
      for the Products and reserves the right to change the prices of the
      Products at any time or from time to time on 30 days prior written notice
      to Distributor.  Price increases may result in retailers
      discontinuing a SKU(s).  Manufacturer accepts that a retailer(s)
      may return all products from Vendor if retail price(s) are increased, and
      Distributor has undisputed right to return this product to the
      Manufacturer.

            


    

     

    
      	
              (3)

            	
              Manufacturer
      agrees to Price Protect Distributor’s on hand inventory, as well as all
      unsold inventory in Distributor’s Customers inventory, as well as any
      inventory in transit in the event of a price drop by the
      Manufacturer.

            


    

     

    Section 6  Credit.

     

    
      	
              (1)

            	
              In
      the event that a net credit balance exists, Manufacturer will pay such
      amount to Distributor within 60 business days of a request by
      Distributor.

            


    

     

    Section 7  Orders
and Shipping.

     

    
      	
              (1)

            	
              All
      orders by Distributor for Products shall be sent by facsimile, or EDI to
      Manufacturer at its offices specified above.   All orders
      shall be verified by Manufacturer by return facsimile or email within 72
      hours of receipt.  Verification shall specify the expected
      shipping date as well as any back ordered
      Products.  Manufacturer will ship available Products within 72
      hours of receipt of a purchase
order.

            


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      	
              (2)

            	
              Manufacturer
      will pay all costs related to the transportation of the Products and any
      related materials to Distributor’s warehouse in Mississauga, Ontario,
      including without limitation, costs of transportation, terminal fees,
      duties and tariffs.  Distributor shall pay all similar costs
      related to Product returns by
Distributor.

            


    

     

    
      	
              (3)

            	
              Title
      and risk of loss with respect to a shipment of Products shall pass to
      Distributor once such shipment of Products is unloaded, and verified as
      correct, at Distributor’s warehouse in Mississauga,
    Ontario.

            


    

     

    Section 8  Trademarks.

     

    Manufacturer
grants to Distributor the right to use the names and/or trademarks [Teknovault and InCharge], “THE MARKS” in connection with the
distribution, promotion and sale of the Products in
Canada.  Distributor agrees to comply with all instructions of
Manufacturer relating to the form and manner in which such names and trademarks
shall be used and refrain from contesting the title of Manufacturer to such
names and/or trademarks.  Distributor acknowledges that Manufacturer
is the owner of such names and/or trademarks and that nothing in this Agreement
shall give Distributor any ownership or other interest in such names and/or
trademarks or the goodwill associated therewith.

     

    Section 9  Term
of Agreement and Termination.

     

    The term
of this Agreement shall commence on mutual signature.  This Agreement shall
renew at the end of the initial term and each renewal term for an additional 12
month period unless notice is provided by either party to the other at least
sixty (60) days prior to the end of the applicable term. This agreement may be
modified through an addendum, upon mutual agreement, to reflect changes, cost
realities, or opportunities in the marketplace. This Agreement may be terminated
with or without cause at any time by either party by giving sixty (60) days
written notice to the other party.  Upon the termination or expiration of
this Agreement, Distributor shall have the right to return to Manufacturer all
or any portion of the Product for a full refund.

     

    Section 10  Force
Majeure.

     

    Manufacturer
shall not be responsible for delays or failures of deliveries or for losses or
damages resulting from force majeure, including without limitation, industrial
disputes, riots, mobs, fires, floods, wars, embargo, shortages of labour, power,
fuel, means of transportation or general lack of necessities (whether relating
to Manufacturer or its suppliers or subcontractors) or resulting from
regulations or order of any government or governmental agency or any other
circumstance beyond the control of Manufacturer.  Should deliveries be
delayed more than 90 days due to force majeure, Distributor may cancel any of
Manufacturer’s orders for deliveries so delayed without incurring any liability
towards Manufacturer or any other person.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    Section 11  Notices.

     

    Any
notice, direction or other communication permitted to be given under this
Agreement shall be in writing and given by delivering it or sending it by
facsimile to the address on the first page of this Agreement.  Any
such communication shall be deemed to have been validly and effectively given
(i) if personally delivered, on the date of such delivery if such date is a
business day and such delivery was made prior to 4:00 p.m. (Eastern Standard
Time) and otherwise on the next business day, or (ii) if transmitted by
facsimile or similar means of recorded communication on the business day
following the date of transmission.  Any party may change its address
for service from time to time by notice given in accordance with the foregoing
and any subsequent notice shall be sent to such party at its changed
address.

     

    Section 12  No
Joint Venture.

     

    Nothing
in this Agreement shall be construed to constitute either party as the partner,
joint venturer, agent, employee or affiliate of the other, it being intended
that the parties shall remain independent contractors and neither party shall be
liable for the obligations, liabilities or representations of the
other.

     

    Section 13  Disputes.

     

    In the
event any dispute, claim, question or difference arises with respect to this
Agreement or its performance, enforcement, breach, termination or validity, the
Parties shall use their best efforts to settle the dispute.  To this
end, they shall consult and negotiate with each other, in good faith and
understanding of their mutual interests, to reach a just and equitable solution
satisfactory to both Parties.  Any controversy, claim or dispute
arising from or in connection with or referring to this Agreement or the breach,
invalidity or termination thereof which cannot be resolved by the parties within
30 days of such dispute arising shall be settled by one arbitrator appointed
pursuant to the agreement of the parties.  The arbitration shall take
place in New York, NY.  For greater certainty, the parties expressly
state that the arbitrator shall have the power to determine all questions of
law, facts, facts and law and procedure and shall make all original
determinations as to his own jurisdiction.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    Section 14  Gender
and Number.

     

    Any
reference in this Agreement to gender includes all genders and words importing
the singular number only shall include the plural and vice versa.

     

    Section 15  Headings
etc.

     

    The
division of this Agreement into Sections and the insertion of headings are for
the convenient reference only and are not to affect its
interpretation.

     

    Section 16  Currency.

     

    All
references in this Agreement to dollars, unless otherwise specifically
indicated, are expressed in USD currency.

     

    Section 17  Amendments.

     

    This
Agreement may only be amended or otherwise modified by written agreement
executed by Manufacturer and Distributor.

     

    Section 18  Waiver.

     

    No waiver
of any of the provisions of this Agreement shall be deemed to constitute a
waiver of any other provision (whether or not similar); nor shall such waiver be
binding unless executed in writing by the party to be bound by the
waiver.  No failure on the part of Manufacturer or Distributor to
exercise, and no delay in exercising any right under this Agreement shall
operate as a waiver of such right; nor shall any single or partial exercise of
any such right preclude any other or further exercise of such right or the
exercise of any other right.

     

    Section 19  Entire
Agreement.

     

    This
Agreement constitutes the entire agreement between the parties and supersedes
all prior agreements, understandings, negotiations and discussions, whether oral
or written, of the parties.  There are no representations, warranties,
conditions or other agreements, express or implied, statutory or otherwise,
between the parties in connection with the subject matter of this Agreement,
except as specifically set forth herein and Manufacturer and Distributor have
not relied and are not relying on any other information, discussion or
understanding in entering into and completing the transactions contemplated by
this Agreement.   The 'Addendum to JACK OF ALL GAMES (Canada)
Inc., Vendor Program'  (the “VENDOR PROGRAM”) forms part of this
agreement and to the extent that the terms or conditions in the Addendum are in
conflict with the terms or conditions in this Agreement, the terms and
conditions in the Addendum will govern.

     

    (a)
Assignment.

     

    This
Agreement shall be binding upon and enure to the benefit of Manufacturer and
Distributor and their respective successors, heirs, personal representatives and
permitted assigns.  Distributor may not assign its right or
obligations under this Agreement without the prior written consent of
Manufacturer, which consent may be not be unreasonably or arbitrarily
withheld.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    Section 20  Severability.

     

    If any
provision of this Agreement shall be deemed by an arbitrator or any court of
competent jurisdiction to be invalid or void, the remaining provisions shall
remain in full force and effect.

     

    Section 21  Authorized
Representatives.

     

    The
parties executing this Agreement warrant that they have the requisite authority
to do so.

     

    Section 22  Governing
Law.

     

    This
Agreement shall be governed by and interpreted and enforced in accordance with
the laws of the Province of Ontario and the federal laws of Canada applicable
therein.

     

    Section 23  Counterparts.

     

    This
Agreement may be executed in any number of counterparts and all such
counterparts taken together shall be deemed to constitute one and the same
instrument.

     

    IN WITNESS WHEREOF the parties
have executed this Agreement.

     

     

    
      
        	 	JACK OF ALL GAMES (Canada)
      Inc.	 
	 	 	 
	 	
                a
      division of Take-Two Interactive Software Canada Inc.

              	 
	 	 	 	 
	
                
                  By:
      /s/ Mark
      Kasok                                      

                

              	
                By:
      

              	/s/ Jim
      McKinnon                                 	 
	Authorized Signing
      Officer	 	Authorized
      Signing Officer	 
	Print Name: Mark
      Kasok	 	 	 
	 	 	 	 
	 	 	
                Jim
      McKinnon, Vice President of Operations.

              	 
	
                Title:
      VP Sales & Marketing