<![CDATA[Item 601of Regulation S-B.
SIGNATURE
Pursuant to the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the Company has duly caused this
report to be signed on its behalf by the undersigned, thereunto duly
authorized.
GameZnFlix, Inc.
Dated: March 24, 2006 By: /s/ John Fleming
John Fleming, CEO
EXHIBIT INDEX
Number Description
3 Certificate of Amendment to Articles of Incorporation,
dated March 21, 2006 (filed herewith).
10 Co-Marketing Agreement between the Company and Circuit City
Stores, Inc., dated March 22, 2006 (including Exhibit B:
Rollout Schedule) (excluding Exhibit A: Description of
Services and Fee Schedule; Exhibit C: GNF Licensed Marks;
and Exhibit D: Circuit City Licensed Marks) (filed herewith).
99 Press Release issued by the Company, dated March 24, 2006
(filed herewith).
EX-3
CERTIFICATE OF AMENDMENT TO ARTICLES OF INCORPORATION
Certificate of Amendment to
Articles of Incorporation
For Nevada Profit Corporation
(Pursuant to NRS 78.385 and 78.390 - After Issuance of Stock)
1. Name of corporation: GameZnFlix, Inc.
2. The articles have been amended as follows (provide article
numbers, if available):
Article 3 is amended to read as follows:
Number of shares of common stock with par value: 25,000,000,000.
3. The vote by which the stockholders holding shares in the
corporation entitling them to exercise at least a majority of the
voting power, or such greater proportion of the voting power as may
be required in the case of a vote by classes or series, or as may be
required by the provisions of the articles of incorporation have
voted in favor of the amendment is: Consent not required under
Article 5.*
4. Effective date of filing (optional):
_______________________________________________
(must not be later than 90 days after the
certificate is filed)
5. Officer Signature (required): /s/ John Fleming
John Fleming, Chief Executive Officer
*If any proposed amendment would alter or change any preference or
any relative or other right given to any class or series of
outstanding shares, then the amendment must be approved by the vote,
in addition to the affirmative vote otherwise required, of the
holders of shares representing a majority of the voting power of each
class or series affected by the amendment regardless of limitations
or restrictions on the voting power thereof.
IMPORTANT: Failure to include any of the above information and submit
the proper fees may cause this filing to be rejected.
EX-10
CO-MARKETING AGREEMENT
CO-MARKETING AGREEMENT
THIS AGREEMENT is made this 22nd day of March, 2006 (the "Effective
Date") by and between Circuit City Stores, Inc. ("Circuit City"), a
Virginia corporation with a principal place of business at 9950
Mayland Drive, Richmond, Virginia 23233, and GameznFlix, Inc.
("GNF"), a Nevada corporation with a principal place of business at
130 W. Kentucky St. Franklin, Kentucky 42134. GNF and Circuit City
are hereinafter referred to as "Party" or "Parties" as the context
may require.
RECITALS
WHEREAS, GNF operating primarily through its website,
www.gameznflix.com (the "GNF Website") rents DVD movies and games to
subscribers;
WHEREAS, Circuit City, either directly or through its Affiliates,
operates approximately 600 Retail Stores and the Circuit City Website
which offer, among other things, computer, electronics, communication
and data products and services to the general public; and
WHEREAS, the Parties have been operating under a pilot program
agreement and have successfully offered the Services (as defined
below) in approximately seventeen (17) Retail Stores; and
WHEREAS, Circuit City and GNF desire for Circuit City to market,
promote, sell and solicit orders for the Services through the Circuit
City Website and its Retail Stores, subject to the terms and
conditions of this Agreement;
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth below, the receipt and sufficiency of which is hereby
acknowledged, the Parties hereto agree as follows:
1. DEFINITIONS.
1.1 "Affiliate(s)" means an entity that is directly or
indirectly owned or controlled, is under the common
ownership or control with, or is owned or controlled by the
entity with which it is affiliated.
1.2 "Agreement" means this Agreement, and its Attachments and
Exhibits, which are attached hereto and incorporated fully
herein.
1.3 "Circuit City Website" means www.circuitcity.com.
1.4 "Co-Branded Landing Page" means the web page at
www.gameznflix.com that is created and hosted by GNF and is
co-branded with the Circuit City Licensed Marks and related
materials.
1.5 "GNF Jewel Case" means an Amaray case that that consumers
can purchase in the Retail Stores that will contain a
unique live download code good for the first month's rental
fees for the Services.
1.6 "Intellectual Property" means all intellectual property
rights world wide, including copyrights, patents,
trademarks, service marks, trade names, and trade secrets,
and rights of personality and likeness, and all similar
rights whether arising by operation of law, contract,
license or otherwise.
1.7 "Marks" means all domain names, trademarks, trade names,
service marks, logos and slogans associated with a Party's
or that Party's third party licensors' products or services
set forth in Exhibit C for GNF and Exhibit D for Circuit City.
1.8 "Promotional Materials" means advertising and other
promotional communications, in any media, directed at
potential GNF Subscribers, which describes the Services.
1.9 "Residual Payment" has the meaning set forth in Section 7.3
and Exhibit A.
1.10 "Retail Stores" means the Superstores that Circuit City
selects, in its sole discretion, to promote and sell the
Services.
1.11 "Revenue Share" has the meaning set forth in Section 7.1
and Exhibit A.
1.12 "Services" means the GNF subscription services that enable
Subscribers to rent DVD movies and games as set forth on
Exhibit A. The Services shall also include any other GNF
subscription services that the parties subsequently agree
to provide under the terms of this Agreement.
1.13 "Subscriber" means an individual or entity that orders or
signs up for any offered Service through a Retail Store or
through the Co-Branded Landing Page, or any other method
later agreed to by the Parties and made a part of this
Agreement, for which Circuit City is entitled to receive
compensation hereunder.
1.14 "Subscriber Information" means personally identifying
information about Subscribers or potential Subscribers,
such as the names, addresses, usernames, passwords, e-mail
addresses of and financial information related to any
Subscribers.
1.15 "Territory" means the United States and as mutually agreed,
in writing, by the Parties to this Agreement, other
geographic areas.
2. GENERAL OBLIGATIONS OF THE PARTIES.
2.1 The obligations and duties of GNF and Circuit City with
respect to the establishment and administration of the
Joint Marketing Program are stated in this Agreement and
the Exhibits hereto.
2.2 Each Party shall assign an account manager to coordinate
the promotional programs with the other Party. If a Party
changes the person assigned as the account manager, such
Party shall notify the other Party in writing of the name
and contact information of such new account manager.
2.3 Subject to the terms and restrictions set forth in this
Agreement, GNF hereby grants Circuit City limited rights to
market and promote the Services described in Exhibit A in
the manner set forth herein. Circuit City hereby accepts
the foregoing and agrees to market and promote the Services
described in Exhibit A in the manner set forth herein.
2.4 GNF shall provide, at no cost to Circuit City, GNF Jewel
Cases in sufficient quantities to keep the Retail Stores
fully stocked, as reasonably determined by Circuit City.
2.5 GNF shall be solely responsible for providing Circuit City
with information relating to the Services and any
promotional offers, including the content of Promotional
Materials. Circuit City agrees to use such information
solely in connection with its obligations under this Agreement.
3. CUSTOMER SERVICE.
3.1 Circuit City will have no obligation to accept returned GNF
Jewel Cases and will not provide refunds to consumers. GNF
will be solely responsible for handling all customer
return/refund issues. Each GNF Jewel Case will contain a
conspicuous disclaimer stating that the product is either
(i) non-refundable or (ii) can only be returned/refunded
through GNF along with relevant information, including GNF
Customer Service contact information.
3.2 GNF shall at all times be solely responsible for providing
and maintaining the Services including, but not limited to,
billing and customer service. GNF and each GNF Subscriber
shall have the right, at any time, to terminate the
Services provided to a GNF Subscriber in accordance with
the terms and conditions of the then current end user
license agreement accompanying the applicable Services.
3.3 GNF shall be solely responsible for all customer service
issues pertaining to the Services, the GNF Jewel Cases and
the Co-Branded Landing Page. In the event that Circuit
City becomes aware of customer issues pertaining to the
Services, the GNF Jewel Cases or the Co-Branded Landing
Page (i.e. substantial number of Circuit City users contact
Circuit City directly to complain about an aspect of the
Services, etc.), Circuit City shall direct consumers to
GNF's customer service contacts and promptly notify GNF.
4. TERM AND TERMINATION.
4.1 Term. The term of this Agreement shall run from the
Effective Date for a period of one (1) year (the "Initial
Term"), unless otherwise terminated in accordance with
Section 3.2 (Termination) below. After the Initial Term,
this Agreement will automatically renew for additional one
(1) year terms (each a "Renewal Term") unless otherwise
terminated in accordance with Section 3.2 (Termination).
The Initial Term and any Renewal Term(s) are collectively
referred to herein as the "Term."
4.2 Termination.
4.2.1 During the Term, either Party may terminate this
Agreement (a) immediately upon written notice to the
other Party if the other Party files a petition for
bankruptcy or insolvency or has such a petition filed
against it that is not dismissed within thirty (30)
days, makes a general assignment for the benefit of
creditors, becomes generally unable to pay its debts
as they become due, suffers or permits the appointment
of a receiver, trustee, or custodian for its business
or any substantial part of its assets, or becomes
subject to any proceeding under any statute of any
governing authority relating to insolvency or the
protection of rights of creditors, and is thereby
rendered substantially unable to perform its material
obligations hereunder; or (b) in the event the other
Party is in material breach, or otherwise is
materially in default of any other term, condition or
provision of this Agreement, and such breach or
default continues for fifteen (15) days after the non-
breaching Party gives notice to the breaching Party
thereof, then, in addition to all other rights and
remedies provided hereunder or at law or equity, the
non-breaching party shall have the right to terminate
this Agreement in whole or in part without any
liability to the breaching Party whatsoever, other
than monies not otherwise in dispute and owed to the
breaching Party for services rendered during and under
the Term of this Agreement.
4.2.2 Either party may terminate this Agreement with or
without cause without liability or obligation upon not
less than sixty (60) days notice to the other party.
4.2.3 Upon the expiration or termination of this
Agreement for any reason (a) all licenses granted
under this Agreement shall immediately terminate; (b)
Circuit City shall cease marketing the Services; (c)
the Parties shall promptly cease all use of each
other's Marks that were licensed by this Agreement (as
opposed to Marks that were licensed pursuant to
another agreement); (d) all payments that have accrued
prior to the termination or expiration shall be
payable in full on the later of (i) ninety (90) days
following the termination or expiration, or (ii) the
date on which the payment would be otherwise due; and
(e) all rights herein granted shall revert to the
granting Party. Except for materials kept for
mutually approved archival purposes, each Party shall
promptly return to the other Party any and all
documents or other media embodying any use of the
other Party's Intellectual Property; provided, that if
this Agreement is terminated because of an event set
forth in 3.2.1 above, the Party responsible for the
event (e.g., the breaching Party) shall bear all costs
associated with the return of the Parties' respective
Intellectual Property. Materials retained for archival
purposes may not be used for any commercial purpose or
distributed and shall be treated as Confidential
Information.
4.2.4 All obligations of the Parties under this Agreement
which, by their nature, would continue beyond
termination, cancellation or expiration of this
Agreement, including by way of illustration and not
limitation those clauses relating to the obligations of
Parties under Sections 1, 3, 4, 8, 10, 11, 13, 19, and
20 through 26 shall survive such termination,
cancellation or expiration. Upon termination or
expiration: (i) GNF shall continue to provide Services
to Subscribers who subscribed to the Services prior to
termination of this Agreement; (ii) both Parties shall
pay the respective sums due to the other Party pursuant
to this Agreement as part of the final winding up under
the Agreement; and (iii) both Parties shall provide
reasonable transition if and when the Agreement is
terminated.
5. INTELLECTUAL PROPERTY RIGHTS.
5.1 Each Party acknowledges that the other Party owns and
retains all rights to Intellectual Property associated with
such other Party's products and services ("Intellectual
Property Rights") and agrees that it will not at any time
during or after the Term of this Agreement assert or claim
any interest in or do anything that may adversely affect
the validity of any Intellectual Property Rights of the
other Party (including without limitation any act or
assistance to any act which may infringe or lead to the
infringement of any Intellectual Property Rights of the
other Party). Each Party agrees (i) not to remove or
destroy any proprietary markings of the other Party
contained in product, service, marketing or sales materials
produced pursuant to this Agreement and (ii) to include
such proprietary markings where appropriate when referring
to the other Party's products or services in product,
service, marketing or sales materials produced pursuant to
this Agreement.
5.2 GNF Licensed Marks.
5.2.1 Subject to the terms and conditions specified in
this Agreement, GNF hereby grants to Circuit City (and
Circuit City's Affiliates), for the term of this
Agreement, a non-exclusive, non-transferable license
to use the GNF licensed marks set forth in Exhibit C
("the GNF Licensed Marks") exactly as depicted in the
graphic configuration or as subsequently modified by
GNF. GNF may, in its sole discretion, at any time add
to or delete from the GNF Licensed Marks and change
the graphic configuration of the GNF Licensed Marks,
provided, however that GNF provides Circuit City at
least ninety (90) days prior written notice of any
such addition, deletion or change to allow Circuit
City sufficient time to modify Promotional Materials,
as necessary.
5.2.2 Circuit City agrees that the style of use of the
GNF Licensed Marks shall be in the form and style
conforming to the trademark usage guidelines provided
by GNF. Circuit City shall not use any of the GNF
Licensed Marks as part of its corporate name, trade
name, business name or Internet domain name.
5.2.3 Circuit City shall submit to GNF for review and
approval, at least ten (10) business days prior to
proposed use, any web pages or other Internet
locations, and all marketing, advertising, press
releases or other Promotional Materials in which the
GNF Licensed Marks are used. GNF shall approve or
disapprove such materials at least five (5) business
days after its receipt of such materials; GNF will not
unreasonably withhold or delay the granting of its
approval thereof. Circuit City shall not publish,
distribute or use any such web pages or other Internet
locations, or any such marketing, advertising, press
releases or other Promotional Materials in which the
GNF Licensed Marks are used, without the prior written
approval of GNF.
5.2.4 Notwithstanding the foregoing, Circuit City may
designate at the time of submission that the requested
approval is for multiple/repetitive, identical uses on
the same medium. Circuit City may request approval
for such multiple/repetitive, identical use through
the end of the Initial Term or any Renewal Term of
this Agreement, or six (6) months, whichever is less.
Such multiple/repetitive, identical use shall be in
accordance with this Agreement and shall be subject to
revocation by GNF upon written notice to Circuit City.
5.2.5 Circuit City further acknowledges and agrees that
all use of the GNF Licensed Marks by Circuit City and
all goodwill developed therefrom shall inure to the
benefit of and be on behalf of GNF.
5.2.6 Circuit City agrees that nothing in this
Agreement shall give Circuit City any right, title or
interest in or to the GNF Licensed Marks other than
the right to use the GNF Licensed Marks in the manner
contemplated by this Agreement, and only for so long
as this Agreement is in force or as otherwise
permitted under this Agreement (unless such GNF
Licensed Marks are licensed pursuant to a separate
agreement).
5.2.7 Circuit City agrees that it will not utilize the
GNF Licensed Marks or any confusingly similar
trademarks, service marks, trade names or domain
names, except in connection with the activities
undertaken in conformance with the Agreement and then
only during the term of this Agreement.
5.2.8 Circuit City agrees that it will not hereafter
seek registration of the GNF Licensed Marks or any
similar trademarks, service marks, trade names or
domain names in its own name or in the name of its
Affiliates.
5.2.9 Infringement.
5.2.9.1 Circuit City agrees to use commercially
reasonable efforts to notify GNF promptly of
any unauthorized use of the GNF Licensed Marks
by others, to the extent Circuit City has
actual notice of such use. GNF and its parent
and affiliated companies shall have the sole
right to engage in infringement or unfair
competition proceedings involving the GNF
Licensed Marks.
5.2.9.2 GNF shall have the right, but not the
obligation, to challenge and attempt to
eliminate each unauthorized use. Circuit City,
at GNF' expense, shall reasonably cooperate
with GNF in investigating, prosecuting and
settling any infringement action instituted by
GNF against any person or entity engaging in an
unauthorized use. Circuit City, at its own
expense, shall have the right to participate
with counsel of its own choice in the
investigation, prosecution and/or settlement of
any such infringement action instituted by GNF.
5.2.9.3 Any recovery obtained in connection with or as
a result of any infringement action
contemplated under this section, whether by
settlement or otherwise, shall be retained by GNF.
5.3 Circuit City Licensed Marks.
5.3.1 Subject to the terms and conditions specified in
this Agreement, Circuit City hereby grants to GNF (and
GNF's Affiliates), for the term of this Agreement, a
non-exclusive, non-transferable license to use the
Circuit City licensed marks set forth in Exhibit D
("the Circuit City Licensed Marks") exactly as
depicted in the graphic configuration or as
subsequently modified by Circuit City. Circuit City
may in its sole discretion at any time add to or
delete from the Circuit City Licensed Marks and change
the graphic configuration of the Circuit City Licensed Marks.
5.3.2 GNF agrees that the style of use of the Circuit
City Licensed Marks shall be in the form and style
conforming to the trademark usage guidelines and brand
identity standards, as provided to GNF in writing.
GNF shall not use any of the Circuit City Licensed
Marks as part of its corporate name, trade name,
business name or Internet domain name.
5.3.3 GNF shall submit to Circuit City for review and
approval, at least ten (10) business days prior to
proposed use, any web pages or other Internet
locations, and all marketing, advertising, press
releases or other Promotional Materials in which the
Circuit City Licensed Marks are used. Circuit City
shall approve or disapprove such materials at least
five (5) business days after its receipt of such
materials; Circuit City will not unreasonably withhold
or delay the granting of its approval thereof. GNF
shall not publish, distribute or use any such web
pages or other Internet locations, or any such
marketing, advertising, press releases or other
Promotional Materials in which the Circuit City
Licensed Marks are used, without the prior written
approval of Circuit City.
5.3.4 Notwithstanding the foregoing, GNF may designate
at the time of submission that the requested approval
is for multiple/repetitive, identical uses on the same
medium. GNF may request approval for such
multiple/repetitive, identical use through the end of
the Initial Term or any Renewal Term of this
Agreement, or six (6) months, whichever is less. Such
multiple/repetitive, identical use shall be in
accordance with this Agreement and shall be subject to
revocation by Circuit City upon written notice to GNF.
5.3.5 GNF acknowledges that Circuit City's affiliate,
Circuit City Stores West Coast, Inc. ("CC West
Coast"), is the sole and exclusive owner of rights in
the Circuit City Licensed Marks, undertakes not to
challenge the validity of the Circuit City Licensed
Marks or CC West Coast's registration and ownership of
the Circuit City Licensed Marks, and agrees that it
will do nothing inconsistent with such ownership.
5.3.6 GNF further acknowledges and agrees that all use
of the Circuit City Licensed Marks by GNF and all
goodwill developed therefrom shall inure to the
benefit of and be on behalf of CC West Coast.
5.3.7 GNF agrees that nothing in this Agreement shall
give GNF any right, title or interest in or to the
Circuit City Licensed Marks other than the right to
use the Circuit City Licensed Marks in the manner
contemplated by this Agreement, and only for so long
as this Agreement is in force or as otherwise
permitted under this Agreement (unless such Circuit
City Licensed Marks are licensed pursuant to a
separate agreement).
5.3.8 GNF agrees that it will not utilize the Circuit
City Licensed Marks or any confusingly similar
trademarks, service marks, trade names or domain
names, except in connection with the activities
undertaken in conformance with the Agreement and then
only during the term of this Agreement.
5.3.9 GNF agrees that it will not hereafter seek
registration of the Circuit City Licensed Marks or any
similar trademarks, service marks, trade names or
domain names in its own name or in the name of its
Affiliates.
5.3.10 Infringement.
5.3.10.1 GNF agrees to use commercially reasonable
efforts to notify Circuit City promptly of any
unauthorized use of the Circuit City Licensed
Marks by others, to the extent GNF has actual
notice of such use. Circuit City and its
parent and affiliated companies shall have the
sole right to engage in infringement or unfair
competition proceedings involving the Circuit
City Licensed Marks.
5.3.10.2 Circuit City shall have the right, but not
the obligation, to challenge and attempt to
eliminate each unauthorized use. GNF, at
Circuit City's expense, shall reasonably
cooperate with Circuit City in investigating,
prosecuting and settling any infringement
action instituted by Circuit City against any
person or entity engaging in an unauthorized
use. GNF, at its own expense, shall have the
right to participate with counsel of its own
choice in the investigation, prosecution and/or
settlement of any such infringement action
instituted by Circuit City.
5.3.10.3 Any recovery obtained in connection with or
as a result of any infringement action
contemplated under this section, whether by
settlement or otherwise, shall be retained by
Circuit City.
6. NATIONAL ROLLOUT. The Parties agree to expand the Services to
the additional Retail Stores on the schedule set forth on
Exhibit B. While the Parties will diligently and in good faith
attempt to keep with the schedule set forth on Exhibit B,
Circuit City shall ultimately have the right to alter, delay or
suspend the rollout if Circuit City deems any such change
necessary, in Circuit City's reasonable judgment.
7. COMPENSATION; REPORTS.
7.1 For every GNF Jewel Case sold in the Retail Stores, Circuit
City shall be entitled to the Revenue Share amount set forth
on Exhibit A (the "Revenue Share"). Circuit City shall
retain the Revenue Share amount and shall remit the
remainder to GNF within thirty (30) days of the end of the
month in which such revenue was generated.
7.2 For every individual that becomes a Subscriber through the
Co-Branded Landing Page, Circuit City shall be entitled to
the Revenue Share amount set forth on Exhibit A. All
Revenue Share amounts generated through the Co-Branded
Landing Page shall be paid to Circuit City within thirty
(30) days of the end of the month in which such amount was earned.
7.3 For every individual that becomes a Subscriber through the
Co-Branded Landing Page by purchasing a GNF Jewel Case from
a Retail Store, Circuit City shall be entitled to a residual
payment equal to a percentage of the monthly subscription
fee paid by each Subscriber, as more fully set forth on
Exhibit A (the "Residual Payment"). The actual dollar
amount of the Residual Payment due to Circuit City will vary
with the Service plan chosen by the Subscriber. All
Residual Payments shall be paid to Circuit City within
thirty (30) days of the end of the month in which such
revenue was generated.
7.4 In conjunction with each payment made under this Agreement,
the payor shall provide the payee with a report that
contains sufficient information to permit the payee to
verify payments hereunder. The Parties may mutually agree
as to the format of all such reports.
7.5 Notwithstanding anything contained in Section 3 above, if at
any time and for any reason Circuit City elects to accept a
customer return, Circuit City will inform GNF of the
returned code(s) contained on the returned GNF Jewel
Case(s), and GNF will determine whether the code(s) was
used. If the returned code(s) was not used, GNF will refund
to Circuit City GNF's portion of the Revenue Share set forth
in Section 7.1 above. All GNF Jewel Cases returned to
Circuit City will be transferred to a Circuit City
distribution center and destroyed. At the close of each
Circuit City fiscal quarter, Circuit City will generate a
report indicating all returns accepted, returned codes,
destroyed codes, and amounts owed to Circuit City. GNF will
pay all validated returns to Circuit City within thirty (30)
days of the end of Circuit City's fiscal the quarter.
8. PUBLICITY. Other than as required by law, neither Party shall
issue a press release or similar public announcement of any kind
regarding the Parties' relationship established hereunder
without the prior written approval of the other Party. If any
such disclosures are required by law, they will first be shared
with the non-disclosing Party for comment. The disclosing Party
will make reasonable efforts to accommodate the requests of the
non-disclosing Party with regard to such public disclosures.
9. REPRESENTATIONS AND WARRANTIES.
9.1 Circuit City represents and warrants that (a) it has the
right, power and authority to enter into this Agreement and
fully perform its obligations hereunder; (b) this Agreement
does not and will not conflict with any agreement between
it and any other party; (c) it has all necessary federal,
state and local authorizations to operate and otherwise
perform its obligations under this Agreement and will be in
compliance with all applicable laws and regulations
governing such performance; and (d) Circuit City has the
full and exclusive right to grant or otherwise permit GNF
to use the Circuit City Marks in accordance with the terms
of this Agreement.
9.2 GNF represents and warrants that (a) it has the right,
power and authority to enter into this Agreement and fully
perform its obligations hereunder; (b) this Agreement does
not and will not conflict with any agreement between it and
any other party; (c) it has all necessary federal, state
and local authorizations to operate and otherwise perform
its obligations under this Agreement and will be in
compliance with all applicable laws and regulations
governing such performance; (d) GNF has the full and
exclusive right to grant or otherwise permit Circuit City
to use the GNF Marks in accordance with the terms of this
Agreement; (e) it has all licenses and other rights
necessary to rent the movies and games offered on its
website; and (f) the Services do not and will not infringe,
misappropriate or otherwise violate any patent, trademark,
trade name, trade secret, copyright or other proprietary
right of any third party.
10. LIMITATION ON LIABILITY.
10.1 EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, NEITHER
PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS,
ANY REPRESENTATIONS OR WARRANTIES INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF
DEALING OR COURSE OF PERFORMANCE.
10.2 EXCEPT FOR A PARTY'S INDEMNIFICATION OBLIGATIONS SET FORTH
IN SECTION 11 AND CONFIDENTIALITY OBLIGATIONS SET FORTH IN
SECTION 13 BELOW, NEITHER PARTY SHALL BE LIABLE TO THE
OTHER PARTY, IN WHOLE OR IN PART, FOR LOSS OF REVENUES,
LOSS OF PROFITS, LOSS OF TIME, INCONVENIENCE, LOSS OF USE,
OR ANY OTHER INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE, OR
CONSEQUENTIAL LOSS OR DAMAGE ARISING OUT OF THIS AGREEMENT,
OR THE USE OR PERFORMANCE OF THE SERVICES, IN WHOLE OR IN
PART, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, OR IF
REASONABLY FORESEEABLE, WHETHER IN AN ACTION FOR OR ARISING
OUT OF ALLEGED BREACH OF WARRANTY, ALLEGED BREACH OF
CONTRACT, DELAY, NEGLIGENCE, STRICT TORT LIABILITY OR
OTHERWISE. THIS CLAUSE SHALL SURVIVE FAILURE OF AN
EXCLUSIVE REMEDY. THE LIMITATIONS SET FORTH IN THIS
SECTION 10 SHALL NOT AFFECT EITHER PARTY'S RIGHT TO SEEK
INJUNCTIVE RELIEF.
10.3 WITH THE EXCEPTION OF CIRCUIT CITY'S INDEMNIFICATION
OBLIGATIONS AS SET FORTH IN SECTION 11 (INDEMNIFICATION)
AND CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 13
(CONFIDENTIAL INFORMATION), CIRCUIT CITY'S TOTAL LIABILITY
UNDER THIS AGREEMENT FOR ANY CAUSE SHALL NOT EXCEED $250,000.
11. INDEMNIFICATION.
11.1 In connection with GNF' performance under this Agreement,
GNF agrees to indemnify, defend and hold harmless Circuit
City, its Affiliates, and their respective representatives,
employees, directors, officers, and assigns against any
losses, liabilities, lawsuits, penalties, claims or demands
(including all costs, expenses, and attorneys' fees on
account thereof) arising out of or in connection with (a)
breach of any representation, warranty or covenant herein,
(b) any third party claims for actual or alleged
infringement of a third party's intellectual property
rights, (c) any third party claim arising out of the sale,
resale, use or failure of the Services, including, but not
limited to claims for injuries (including death) to persons
or damage to real or tangible property that results from
GNF' negligent or willful acts or omissions or those of
persons furnished by GNF, (d) GNF' actual or alleged breach
of any applicable law, statute, order, decree or regulation
in performance of its obligations, and (e) any third party
claim based upon any marketing material provided by Circuit
City which GNF materially alters and uses without Circuit
City's prior consent in accordance with Section 5.3.3
above. Circuit City agrees to promptly notify GNF of
written claims or demands made against Circuit City, which
Circuit City has received written notice of, for which GNF
is responsible hereunder. Circuit City further agrees to
assist GNF in its defense of such claim, at GNF's expense.
GNF shall bear full responsibility for the defense
(including any settlements) of any such claim; provided
however, that (i) GNF shall keep Circuit City informed of,
and consult with Circuit City in connection with the
progress of such litigation or settlement; and (ii) GNF
shall not have any right, without Circuit City's written
consent, to settle any such claim if such settlement arises
from or is part of any criminal action, suit or proceeding
or contains a stipulation to or admission or acknowledgment
of, any liability or wrongdoing (whether in contract, tort
or otherwise) on the part of Circuit City or any Circuit
City Affiliate, or provides for less than a full release of
Circuit City. Circuit City shall be entitled to
participate in the action with counsel of its choice at its
own expense.
11.2 In connection with Circuit City's performance under this
Agreement, Circuit City agrees to indemnify, defend and
hold harmless GNF, its Affiliates, and their respective
representatives, employees, directors, officers, and
assigns against any losses, liabilities, lawsuits,
penalties, claims or demands (including all costs,
expenses, and attorneys' fees on account thereof) arising
out of or in connection with (a) breach of any
representation, warranty or covenant herein, (b) Circuit
City's actual or alleged breach of any applicable law,
statute, order, decree or regulation in performance of its
obligations, and (c) any third party claim based upon any
marketing material provided by GNF which Circuit City
materially alters and uses without GNF's prior consent in
accordance with Section 5.2.3 above. GNF agrees to
promptly notify Circuit City of written claims or demands
made against GNF, which GNF has received written notice of,
for which Circuit City is responsible hereunder. GNF
further agrees to assist Circuit City in its defense of
such claim, at Circuit City's expense. Circuit City shall
bear full responsibility for the defense (including any
settlements) of any such claim; provided however, that (i)
Circuit City shall keep GNF informed of, and consult with
GNF in connection with the progress of such litigation or
settlement; and (ii) Circuit City shall not have any right,
without GNF' written consent, to settle any such claim if
such settlement arises from or is part of any criminal
action, suit or proceeding or contains a stipulation to or
admission or acknowledgment of, any liability or wrongdoing
(whether in contract, tort or otherwise) on the part of GNF
or any GNF Affiliate, or provides for less than a full
release of GNF. GNF shall be entitled to participate in
the action with counsel of its choice at its own expense.
12. INSURANCE. GNF shall maintain the following insurance with an
insurance carrier authorized to do business in the United States
and having a rating of "A-" or better by A.M. Best Company and a
Financial Size Category of at least Class VIII: (a) a policy of
commercial general liability insurance, covering liability
arising from premises, operations, independent contractors,
products-completed operations, personal injury, advertising
injury and liability assumed under an insured contract, with
limits of not less than $2,000,000 each occurrence; (b)
commercial auto liability insurance to include all owned, non-
owned and hired vehicles, with limits of liability not less than
$2,000,000 each accident; and (c) workers compensation insurance
to the extent required by law and employer's liability
insurance, with limits of at least $1,000,000 each
accident/disease; and (d) Property insurance including Property
of Others with limits of not less than $2,000,000 each
occurrence. All policies except for (c) above shall name
Circuit City Stores, Inc. as an additional insured. All
certificates will provide for at least thirty (30) days written
notice prior to cancellation of any insurance referred to under
this Agreement. A certificate of insurance meeting the above
requirements will be delivered to Circuit City upon renewal of
the insurance policy and annually thereafter.
13. CONFIDENTIAL INFORMATION
13.1 "Confidential Information" means any and all business,
technical, customer or third party information (including
but not limited to, trade secrets, marketing plans,
financial data, specifications, drawings, sketches, models,
samples, computer programs and documentation) provided,
disclosed or made accessible by one Party (the "Disclosing
Party") to the other (the "Receiving Party") under this
Agreement, that is either identified as or would be
reasonably understood to be confidential and/or
proprietary. Confidential Information also includes (a)
any Information that a Party receives, collects, learns of,
or develops in the course of performing its obligations
under this Agreement, including but not limited to
prospective and actual customer's names, addresses,
telephone numbers, email addresses, financial data,
including credit card or banking information, and other
customer information; and (b) the terms and conditions of
this Agreement. Confidential Information does not include
information that the Receiving Party can clearly establish
by written evidence: (a) is or becomes known to the
Receiving Party from a third party without an obligation to
maintain its confidentiality; (b) is or becomes generally
known to the public through no act or omission of the
Receiving Party; or (c) is independently developed by the
Receiving Party without the use of Confidential Information
of the Disclosing Party.
13.2 Confidential Information will be deemed the exclusive
property of the Disclosing Party. The Receiving Party will
not: (a) use Confidential Information of the Disclosing
Party for any purpose other than the fulfillment of its
obligations under this Agreement; (b) disclose Confidential
Information of the Disclosing Party to any third party,
without the prior written consent of the Disclosing Party;
(c) make any copies or modifications of Confidential
Information of the Disclosing Party without the Disclosing
Party's prior written consent, and provided that any
authorized copies or modifications will contain the same
confidential or proprietary notices or legends, if any,
which appear on the original; and (d) reveal, divulge, make
known, sell, exchange, lease or in any other way transfer
any Confidential Information to any third party.
13.3 The Receiving Party will: (a) protect and treat all
Confidential Information of the Disclosing Party with the
same degree of care as it uses to protect its own
Confidential Information of like importance, but in no
event with less than reasonable care; and (b) only disclose
Confidential Information of the Disclosing Party to its
employees and/or agents who have a "need to know" for
purposes of this Agreement, provided that the Receiving
Party will notify and inform such employees and/or agents
of the Receiving Party's obligations under this Agreement,
and the Receiving Party will be responsible for any breach
of this Agreement by its employees and/or agents.
13.4 In the event that the Receiving Party is required to
disclose Confidential Information of the Disclosing Party
pursuant to law, the Receiving Party will notify the
Disclosing Party of the required disclosure with sufficient
time for the Disclosing Party to seek relief, will
cooperate with the Disclosing Party in taking appropriate
protective measures, and will make such disclosure in a
fashion that maximizes protection of the Confidential
Information from further disclosure.
13.5 Upon expiration or termination of this Agreement, the
Receiving Party will promptly turn over to the Disclosing
Party or, at the Disclosing Party's direction, destroy all
Confidential Information of the Disclosing Party, in whole
or in part, in whatever format, including any copies.
13.6 Each Party agrees that monetary damages for breach of
its obligations under this Section may not be adequate and
that the non-breaching Party will be entitled to injunctive
relief with respect thereto.
14. SUBSCRIBER INFORMATION. GNF shall include on the Co-Branded
Landing Page a pre-selected "opt-in" box whereby Subscribers may
elect to have GNF share Subscriber Information with Circuit
City and a statement that such Subscriber Information, if the
Subscriber so elects to share it, will be treated by Circuit
City in accordance with Circuit City's privacy policy. GNF will
provide a convenient link to Circuit City's privacy policy on
the Co-Branded Landing Page. Upon Circuit City's request, GNF
will provide the Subscriber Information of Subscribers who have
agreed to the sharing thereof with Circuit City to Circuit City
no more often than four (4) times a calendar year and in a form
reasonably acceptable to Circuit City. The Subscriber
Information shall be jointly owned by both Parties and shall be
deemed "Confidential Information" of both Parties for purposes
of Section 13 herein.
15. ASSIGNMENT. Neither party may assign or otherwise transfer any
of its rights or obligations hereunder without the prior written
consent of the other, which shall not be unreasonably withheld;
provided, however, that nothing herein shall prevent either
party from assigning its rights and obligations under this
Agreement to an Affiliate, or to an entity that acquires all or
substantially all of the assets of such party through a merger,
consolidation, or sale, provided further that the assigning
party provides notice of such permitted assignment as soon as
commercially reasonable.
16. RELATIONSHIP BETWEEN THE PARTIES. The Parties to this Agreement
are independent Parties and nothing herein shall be construed as
creating an employment relationship between the Parties.
Neither Party is an agent, representative, joint venturer nor
partner of the other Party and neither Party shall have any
right, power or authority to enter into any agreement for or on
behalf of, or incur any obligation or liability, or to otherwise
bind, the other Party. The Agreement shall not be interpreted
or construed to create an association, agency, joint venture or
partnership between the Parties or to impose any liability
attributable to such a relationship upon either Party.
17. FORCE MAJEURE. Neither Party shall be in default or otherwise
liable for any delay in or failure of its performance under this
Agreement if such delay or failure arises by any reason beyond
its reasonable control, including any act of God, any acts of
the common enemy, the elements, earthquakes, floods, fires,
epidemics, riots, failures or delay in transportation,
electricity or communications, or any act or failure to act by
the other Party or such other Party's employees, agents or
contractors; provided, however, that lack of funds shall not be
deemed to be a reason beyond a Party's reasonable control. The
Parties will promptly inform and consult with each other as to
any of the above causes which in their judgment may or could be
the cause of a delay in the performance of this Agreement.
18. THIRD PARTY BENEFICIARIES. The provisions of this Agreement are
for the sole benefit of the parties hereto and this Agreement
confers no rights, benefits or claims upon any person or entity
not a party hereto. Third party beneficiaries do not include
GNF Affiliates or Circuit City Affiliates.
19. CHOICE OF LAW. The Parties agree that the substantive laws of
the Commonwealth of Virginia, without reference to its
principles of conflicts of laws, will be applied to govern,
construe and enforce all of the rights and duties of the Parties
arising from or relating in any way to the subject matter of
this Agreement. THE PARTIES KNOWINGLY AND VOLUNTARILY WAIVE ANY
RIGHT TO TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY
MATTER ARISING OUT OF, OR RELATED TO, THIS AGREEMENT.
20. AUDIT RIGHTS. Both Parties shall create and maintain sufficient
books, records and accounts related to this Agreement according
to generally accepted accounting practices. No more than once
per year during the Term and one (1) year thereafter, each Party
shall have the right at any time, upon no less than thirty (30)
days advanced written notice to the other Party, at its own
expense, at a mutually agreeable time and date, to examine and
audit the other Party's books and records relating to the
Parties' obligations hereunder. As a condition of such audit,
all persons participating in such audit must agree to the other
Party's then-standard confidentiality agreement. In the event
that any such examination or audit reveals an underpayment of
amounts due to one Party, the other Party shall promptly pay any
amounts owed, and in the event such underpayment exceeds fifteen
percent (5%) of the amounts due, such Party shall reimburse the
other Party for the reasonable and documented actual costs of
such audit.
21. NOTICES. All notices, authorizations, and requests required or
desired to be given or made in connection with this Agreement
will be in writing, given by certified or registered mail
(return receipt requested), or by nationally recognized
overnight courier (charges prepaid), and addressed as follows
(or to such other address as the Party to receive the notice or
request so designates by notice to the other):
To GNF:
GameznFlix, Inc.
130 W. Kentucky Street
Franklin, Kentucky 42134
Attn: Donald "Chip" Gallent
Phone: 270-598-0385
Facsimile: 270-778-0025
To Circuit City:
Circuit City Stores, Inc.
Attn: Director of Online Content
9950 Mayland Drive
Richmond, Virginia 23233
with a copy to:
Circuit City Stores, Inc.
Attn: Legal Department
9950 Mayland Drive
Richmond, Virginia 23233
Phone: 804-527-4000
Facsimile: 804-418-8248
Notice shall be deemed effective upon actual delivery.
22. SEVERABILITY. In the event that one or more of the provisions
contained herein shall, for any reason, be held unenforceable in
any respect, such unenforceability shall not affect any other
provision of this Agreement, and this Agreement shall then be
construed as if such unenforceable provision(s) did not exist.
23. WAIVER. Failure by either Party to enforce any provision of
this Agreement shall not be deemed a waiver of future
enforcement of that or any other provision. The waiver by a
Party of any default hereunder shall not be deemed to be a
waiver of subsequent defaults of the same or different kind.
24. INTERPRETATION. This Agreement shall be fairly interpreted in
accordance with its terms and without any construction in favor
of or against either Party. The headings and captions are
included for reference purposes only and do not affect the
interpretation of the provisions hereof. The captions in this
Agreement are for convenience of reference only and shall not
limit or otherwise affect any of the terms or provisions hereof.
Use of the words "herein", "hereof", "hereto" and the like in
this Agreement refer to this Agreement as a whole and not to any
particular Article, Section or provision of this Agreement,
unless otherwise noted. When the context requires, the number
of all words includes the singular and plural.
25. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original and which together
shall constitute one instrument. This Agreement may be executed
by facsimile, and each facsimile signature shall be deemed to
constitute a valid and binding signature of the executing party.
26. ENTIRE AGREEMENT. This Agreement and its Attachments and
Exhibits shall constitute the entire agreement between the
Parties hereto with respect to the subject matter hereof and all
previous agreements relating thereto shall be null and void
unless specifically incorporated herein. This Agreement may not
be amended, modified or rescinded except by a writing executed
by both Parties hereto.
IN WITNESS WHEREOF, the Parties have executed this Agreement, by
their authorized representatives, as of the date written above.
CIRCUIT CITY STORES, INC. GAMEZNFLIX, INC.
By: /s/ Doulgas T. Moore By: /s/ Donald "Chip" Gallent
Name: Doulgas T. Moore Name: Donald "Chip" Gallent
Title: Executive Vice President Title: President and Director
EXHIBIT B
ROLLOUT SCHEDULE
MONTH STATES STORE COUNT
May ME , MA, RI, NH, VT, CA 103
June WV, NC, TN, KY, MS, OH, WY, ID, UT, AZ, NM 98
July CO, GA, FL, AL, SC 105
August MO, KS, NE, LA, AR, OK, TX, 88
September CT, NY, NJ, PA, DE, 89
October VA, MD, IN, MI, OR, WA, HI 97
November WI, MN, IL 47
TOTAL: 627
EX-99
PRESS RELEASE
GameZnFlix Movie and Game Rental Service to be Rolled Out Nationwide
in Circuit City Stores
Franklin, Ky., March 24, 2006 --GameZnFlix, Inc., an online provider
of DVD movies and video games for rent or purchase, today announced a
definitive co-marketing agreement with Circuit City Stores, Inc.
In the fourth calendar quarter of 2005, the two companies tested
offering the GameZnFlix services at a limited number of Circuit City
Superstores and online at circuitcity.com. After concluding the
tests, the services will now be expanded to include Circuit City
Superstores across the United States and will continue to be
available nationwide on Circuit City's website.
"We want to offer a variety of products and services to our customers
and the GameZnFlix's program allows our customers to experience the
convenience of renting both movies and games through the mail," said
Bill Cimino, director of corporate communications for Circuit City.
The agreement calls for a rollout of GameZnFlix's service by offering
prepaid service cards at each of Circuit City's Superstores. The
agreement calls for adding between 45 and 110 locations each month
until full deployment is reached prior to the 2006 holiday season.
Financial terms of the agreement are not being disclosed.
"This relationship is a win-win for both companies," said John
Fleming, chairman and chief executive officer of GameZnFlix, Inc.
"Circuit City continues to prove to be one of the top destinations
for movie-lovers and video gamers alike and by co-marketing with
GameZnFlix, Circuit City can continue to fulfill its customers' needs
by adding our rental services to its product line."
About Circuit City Stores, Inc.
Circuit City Stores, Inc. is a leading specialty retailer of consumer
electronics. At February 28, 2006 the domestic segment operated 626
Superstores and five other locations in 157 U.S. media markets. At
February 28, 2006 the international segment operated through 954 retail
stores and dealer outlets in Canada. Circuit City also operates Web
sites at www.circuitcity.com and at www.thesourcecc.ca.
About GameZnFlix, Inc.
GameZnFlix is a company that offers video games/DVDs for rental or
purchase on the Internet with access to over 40,000 titles. With four
different membership levels beginning at $8.99 a month to annual
membership with an average price of $20.75 per month, subscribers can
rent a combination of both video games and/or DVD movies with no late
fees or due dates or members can purchase video games and/or DVD
movie titles at a membership discount.
Certain statements in this news release may contain forward-looking
information within the meaning of Rule 175 under the Securities Act
of 1933 and Rule 3b-6 under the Securities Exchange Act of 1934, and
are subject to the safe harbor created by those rules. All
statements, other than statements of fact included in this release,
including, without limitation, statements regarding potential future
plans and objectives of the company, are forward-looking statements
that involve risks and uncertainties. There can be no assurance that
such statements will prove to be accurate and actual results and
future events could differ materially from those anticipated in such
statements. Technical complications that may arise could prevent the
prompt implementation of any strategically significant plan(s)
outlined above. The company cautions that these forward looking
statements are further qualified by other factors including, but not
limited to those set forth in the company's Form 10-KSB filing and
other filings with the United States Securities and Exchange
Commission (available at http://www.sec.gov/). The company undertakes
no obligation to publicly update or revise any statements in this
release, whether as a result of new information, future events or otherwise.
Contacts:
Investor Relations
GameZnFlix, Inc.
270-598-0385
invrel@gameznflix.com]]>
