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WHEREBY THE TEXT TO BE KEPT CONFIDENTIAL IS ▇▇▇▇ BY EITHER *** OR ***
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LINKING, CONTENT LICENSING AND ADVERTISING AGREEMENT
THIS LINKING, CONTENT LICENSING AND ADVERTISING AGREEMENT ("Agreement") is made
this 8th day of April, 1998 ("Effective Date"), by and among JAMtv Corporation,
a Delaware corporation with its principal offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Jam"), Straight Arrow Publishers, a New
York partnership with its principal offices at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Straight Arrow"), and CDnow, Inc., a
Pennsylvania corporation, with its principal offices at ▇▇▇▇▇▇▇ Court, Suite
300, ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("CDnow"); each a "party"
and collectively the "parties."
CDnow sells a variety of entertainment products through a retail vending site on
the Internet's World Wide Web at the Universal Resource Locator ("URL") of:
▇▇▇.▇▇▇▇▇.▇▇▇ (the "CDnow Site").
Straight Arrow owns and operates Rolling Stone magazine and owns certain content
related thereto and the name, trademark and brand "Rolling Stone" (hereinafter
collectively known as "RS").
Jam and Straight Arrow have entered into a legally binding agreement to form a
joint venture arrangement for the Rolling Stone Network ("RSN") whereby Jam will
operate RSN-branded Sites ("RSN Sites" is defined in Section 1 below), and
Straight Arrow is providing the Straight Arrow Content to Jam for its exclusive
use with the RSN Sites.
CDnow, Jam and Straight Arrow wish to enter into this Agreement whereby CDnow
will be the exclusive Music Seller with a license to use, copy and display the
Content and advertise and have links on the RSN Sites. Additionally, CDnow will
purchase online advertising on the RSN Sites, radio air time from the radio
airtime available through Jam and advertising space in RS print publications.
NOW THEREFORE, in consideration of the mutual promises contained herein and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, and intending to be legally bound, the parties hereby agree
as follows:
1. DEFINITIONS Capitalized terms not otherwise defined in this Agreement
will have the following meanings:
(a) "Above-the-Fold" means situated within the portion of a page that
is designed to be visible on a standard computer screen with a resolution of 640
pixels by 480 pixels without requiring the user to scroll horizontally or
vertically through the page.
(b) "Agreement" is defined in the first paragraph of the preamble to
this Agreement.
(c) "AOL" and "AOL Agreement" are defined in Section 2(b)(ii)(A) of
this Agreement.
(d) "AOL Content" is defined in Section 2(e) of this Agreement.
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(e) "Carry-Through Bar" means a bar, which, when clicked, links an RSN
user back to the RSN Site from the Co-branded Pages.
(f) "CDnow is defined in the first paragraph of the preamble to this
Agreement.
(g) "CDnow Link" means any form of link that contains a CDnow designed
and/or approved proprietary feature, is located on a page on an RSN Site and
takes an RSN user to a Co-branded Page. CDnow will provide screen shot mockups
of the Co-branded Pages as set forth in Exhibit C to this Agreement.
(h) "CDnow Site" is defined in the second paragraph of the preamble to
this Agreement.
(i) "Co-branded Page" means a page residing on CDnow's servers that a
visitor from RSN's Site will link to, which displays certain proprietary
features of both RSN and CDnow, and where such visitor can purchase CDnow
products. A Co-branded Page can only be viewed by a visitor who links to it
directly from RSN's Site or through a stored URL (e.g. bookmark or similar
technological storage mechanism).
(j) "Competitive Marketing" is any advertising, promotion,
sponsorship, link or displayed message (not provided or sponsored by CDnow)
that (i) promotes a Music Seller (other than CDnow), (ii) promotes the sale
of pre-recorded music by a Music Seller other than CDnow, or (iii) in the
case of a link, transfers to a page on a Site that promotes the sale of
pre-recorded music by a Music Seller other than CDnow or to a Music Seller
(other than CDnow) that sells pre-recorded music or enables a person to
purchase pre-recorded music. With regard to the RSN Sites, Competitive
Marketing does not include label or artist advertising and promotions,
provided such advertising or promotions and any links included with such
advertising and promotions placed on the RSN Sites do not contain Competitive
Marketing.
(k) "Confidential Information" is defined in Section 15(a) of this
Agreement.
(l) "Content" means, collectively, the Straight Arrow Content (as
defined in Section 1(aa) below) and the Jam Content (as defined in Section 1(p)
below).
(m) "Content Indices" is defined in Section 2(c)(i) of this Agreement.
(n) "Effective Date" is defined in the first paragraph of the preamble
to this Agreement.
(o) "Entity" means any natural person, partnership, corporation, or
division, subsidiary or business unit thereof, retail site, Internet site, World
Wide Web site or other form of business organization.
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(p) "Exclusive AOL Content" means, as of the Effective Date, the
following content provided to AOL under the AOL Agreement: (i) "Interactive
Cover Story" consisting of a supplemental story or supplemental content (e.g., a
brief synopsis, additional content or pictures, or sound or video clips related
to the cover story) to RS's current cover story; (ii) certain elements of the
Rolling Stone Photo Gallery;" (iii) certain elements of the "Rewind" section'
and (iv) the "Read Me Now" section, featuring a welcome screen, letters to RS,
sections allowing members to write letters to RS and to participate or vote in
RS polls, contests and online programs, previews of forthcoming features in the
RS area within the AOL proprietary online service and other special features
such as offerings, contests and quizzes.
(q) "Finder's Fee Advance" is defined in Section 6(c)(i) of this
Agreement.
(r) "Jam" is defined in the first paragraph of the preamble to this
Agreement.
(s) "Jam Content" means all existing and future digitized and
non-digitized articles, reviews, digital or transcribed interviews, video and
audio libraries, photographs, books and any other content which Jam has
created, published or produced, or which Jam has access to through a
licensing arrangement with any other Entity, provided Jam has the right to
license or sublicense the foregoing.
(t) "Launch Event" is defined in Article 5 of this Agreement.
(u) "Marks" means a party's names, brand names, logos, trademarks,
tradenames, servicemarks and other proprietary indicia
(v) "Music Seller" means any Entity, which sells pre-recorded music or
enables a person to purchase pre-recorded music online through the Internet, the
World Wide Web or any other open or proprietary online service.
(w) "New Customer" is defined in Section 6(c)(i) of this Agreement.
(x) In this Agreement, "party" and "parties" are defined in the first
paragraph of the preamble.
(y) "RS" is defined in the third paragraph of the preamble to this
Agreement.
(z) "RSN" is defined in the fourth paragraph of the preamble to this
Agreement.
(aa) "RSN Sites" means collectively, all Jam Sites, all RSN Sites and
all Sites operated by Jam for Straight Arrow.
(ab) "Site" means a site on the Internet, the World Wide Web or on any
open or proprietary online service.
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WHEREBY THE TEXT TO BE KEPT CONFIDENTIAL IS ▇▇▇▇ BY EITHER *** OR ***
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(ac) "Straight Arrow" is defined in the first paragraph of the preamble
to this Agreement.
(ad) "Straight Arrow Content" means the content specified in Exhibit B
- "Rolling Stone Content" to this Agreement
(ae) "Straight Arrow/Jam Exclusive License Agreement" is defined in
Section 2(d) of this Agreement.
(af) "Term" is defined in Article 12 of this Agreement.
(ag) "URL" is defined in the second paragraph of the preamble to this
Agreement.
2. CONTENT.
(a) LICENSE.
(i) Subject to the terms of this Agreement, JAM hereby grants
to CDnow during the Term a worldwide license to access, use, copy, modify
and reformat for display purposes and display the Content solely on
CDnow's Site or its servers. By way of example, and not limitation,
permitted uses includes digitizing non-digitized content.
(ii) CDnow will: (A) use no more than 500 words from each
Content article, review or the like without the prior consent of Jam; (B)
provide a textual link-back to the RSN Sites as part of such usage,
except that if 250 or fewer words from such Content article, review or
the like are used CDnow shall not be required to provide such link-back;
and (C) not distribute the Content to any third party, except as
permitted under an agreement mutually acceptable to the parties.
(iii) For Content requested by CDnow where Jam or Straight Arrow
do not have the requisite rights to provide CDnow with such Content for
its use pursuant to this Agreement, Jam and Straight Arrow will use their
respective best efforts to assist CDnow in obtaining such rights,
provided CDnow shall bear all costs or expenses in connection therewith.
(b) EXCLUSIVITY AND LIMITATIONS ON EXCLUSIVITY.
(i) EXCLUSIVITY. During the Term and except as set forth in
Section 2(b)(ii) below, Jam and Straight Arrow represent and warrant that
CDnow will be the exclusive Music Seller anywhere in the world that is
permitted to access, use, copy, modify and reformat for display purposes
and display the Content on any Site.
(ii) LIMITATIONS ON EXCLUSIVITY.
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WHEREBY THE TEXT TO BE KEPT CONFIDENTIAL IS ▇▇▇▇ BY EITHER *** OR ***
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(A) THE AMERICA ONLINE AGREEMENT. Straight Arrow has
entered into an agreement with America Online, Inc. ("AOL"),
dated as of January 1, 1997 (the "AOL Agreement"), whereby AOL
has been granted a license to use certain Straight Arrow
Content. Pursuant to the AOL Agreement and any renewals,
extensions or re-negotiations thereof, AOL may place
Competitive Marketing on the same page as or in conjunction
with the Straight Arrow Content, provided such Competitive
Marketing remains within the AOL proprietary online service.
Straight Arrow reserves the right to enter into a new agreement
with AOL for AOL to place Straight Arrow Content on the AOL
Site (which is accessible by the general public); provided, as
part of such new agreement, neither Jam nor Straight Arrow
shall grant AOL the right to make the Straight Arrow Content
accessible on the same page as or in conjunction with
Competitive Marketing to any user on the Internet, the World
Wide Web or any other online service; provided, however, AOL
may place a button or link that contains a de minimis amount of
Straight Arrow Content on the same page as or in conjunction
with Competitive Marketing and which may point to the Rolling
Stone area on the AOL proprietary online service or to a RSN
Site. Subject to Straight Arrow's compliance with the terms of
this Agreement and provided Straight Arrow's performance under
the AOL Agreement and any renewals, extensions or new
agreements with AOL conform to the statements in this Section
2(b)(ii)(A), Straight Arrow shall not be in breach of this
Agreement.
(B) THE MICROSOFT NETWORK AGREEMENT. Straight Arrow
has entered into an agreement with Microsoft Corporation
("Microsoft"), dated as of May 1997 (the "Microsoft Agreement"),
whereby Microsoft has been granted a license to use certain
Straight Arrow Content in the channels feature of Microsoft
Internet Explorer, version 4.x. The Microsoft Agreement does not
grant Microsoft a right to place Competitive Marketing on the same
page as or in conjunction with the Straight Arrow Content, nor is
Microsoft granted a right to place or allow any third party to
place Competitive Marketing on any RSN Site. Subject to Straight
Arrow's compliance with the terms of this Agreement and provided
Straight Arrow's performance under the Microsoft Agreement
conforms to the statements in this Section 2(b)(ii)(B), Straight
Arrow shall not be in breach of this Agreement.
(C) THE POINTCAST AGREEMENT. Straight Arrow has
entered into an agreement with Pointcast Incorporated
("Pointcast"), dated as of June 1997 (the "Pointcast Agreement"),
whereby Pointcast has been granted a license to use certain
Straight Arrow Content solely for display purposes on certain of
its channels and networks on a periodic basis. The Pointcast
Agreement does not grant Pointcast a right to place Competitive
Marketing on any RSN Site. Subject to Straight Arrow's compliance
with the terms of this Agreement and provided Straight Arrow's
performance under the Pointcast Agreement conforms to the
statements in this Section 2(b)(ii)(C), Straight Arrow shall not
be in breach of this Agreement.
(c) ACCESS TO AND DELIVERY OF CONTENT.
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(i) CONTENT INDICES. Within forty-eight hours of the
Effective Date and continuing throughout the Term, Jam will make
available to CDnow, and upon CDnow's request, reasonably provide access
to CDnow, any and all indices in any form of the Content (the "Content
Indices"). During the Term, as updated new Content Indices become
available, Jam will immediately provide access to such updated or new
Content Indices to CDnow.
(ii) CONTENT DELIVERY. Within three (3) business days of each
receipt of a request from CDnow, Jam will deliver to CDnow the Content
requested. If the Content is available in digitized form, Jam will
deliver it in such form to CDnow in a manner mutually agreeable to the
parties. If the Content is not available in digitized form, then Jam
will deliver it in the best form in which it is available, and, at
CDnow's discretion, (A) promptly (but in no event more than three (3)
business days after receipt of a request) digitize the requested Content,
which digitized Content shall be deemed to also be part of the Content,
in a form mutually agreeable to the parties; or (B) CDnow may have a
third party digitize the Content for CDnow, at no expense to Jam, and
CDnow will provide a copy of all such digitized material to Jam, at no
cost. CDnow and Jam agree to reasonably cooperate in fulfilling CDnow's
requests for Content.
(iii) ACCESS TO THE JAM AND STRAIGHT ARROW LIBRARIES. At
CDnow's request at any time and from time to time, Jam will make
available a librarian knowledgeable in the Content and the structure of
the Jam and Straight Arrow Content libraries in the possession of
Straight Arrow or Jam (as the case may be), and such librarian will
assist CDnow in accessing, digitizing and delivering the Content. CDnow
will pay a reasonable hourly rate for such librarian's time devoted to
assisting CDnow, which rate CDnow and Jam will mutually agree upon based
on good faith and diligent negotiations.
(d) OTHER REPRESENTATIONS AND WARRANTIES OF JAM. Jam represents and
warrants that as of the Effective Date and continuing throughout the Term: (i)
the Content available to CDnow under this Agreement is all of the Content owned
or licensed by Jam from Straight Arrow; (ii) except for the exclusivity
limitations set forth in Section 2(b)(ii) above, Jam has an exclusive, worldwide
license with Straight Arrow for use of all of the Straight Arrow Content in
connection with the RSN Sites, which is stated as such in the exclusive license
agreement entered in by and between Jam and Straight Arrow, dated as of
[___________] (the "Straight Arrow/Jam Exclusive License Agreement"), and
Straight Arrow has expressly consented to Jam sub-licensing the Straight Arrow
Content to CDnow so that Jam can fulfill its obligations under this Agreement,
and CDnow can access and use the Content as set forth in this Agreement; (iii)
the Straight Arrow Content has not been altered, redacted or modified in any
manner from the original substance provided to Jam from Straight Arrow; (iv)
except as set forth in Section 3(a)(ii)(B) below, Jam will not operate any Sites
anywhere in the world (other than the RSN Sites) independently of or in
conjunction with Straight Arrow that contains the Content in whole or in part
and any Competitive Marketing; and (v) Jam shall license and deliver to CDnow
the AOL Content, subject to and consistent with the terms and conditions of this
Agreement.
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(e) OTHER REPRESENTATIONS AND WARRANTIES OF STRAIGHT ARROW. Straight
Arrow represents and warrants that as of the Effective Date and continuing
throughout the Term: (i) the Straight Arrow Content licensed to Jam under the
Straight Arrow/Jam Exclusive License Agreement is all of the Straight Arrow
Content owned or licensed by Straight Arrow; (ii) except for the exclusivity
limitations set forth in Section 2(b)(ii) above, Jam has an exclusive, worldwide
license with Straight Arrow for use of all of the Straight Arrow Content in
connection with the RSN Sites, which is stated as such in the Straight Arrow/Jam
Exclusive License Agreement, and Straight Arrow has expressly consented to Jam
sub-licensing the Straight Arrow Content to CDnow so that Jam can fulfill its
obligations under this Agreement, and CDnow can access and use the Straight
Arrow Content as set forth in this Agreement; (iii) except for the exclusivity
limitations set forth in Section 2(b)(ii) above, Straight Arrow has not licensed
the Straight Arrow Content, in whole or in part, to any third party for use
online or on any Site; (iv) during the Term, Straight Arrow will not operate,
independently of or in conjunction with Jam, any Sites (other than the RSN
Sites) that contain the Content in whole or in part and any Competitive
Marketing; and (v) any and all Content (other than the Exclusive AOL Content)
made available or delivered to AOL or any third party under or pursuant to the
AOL Agreement ("AOL Content"), shall also be licensed and delivered to Jam
pursuant to the Straight Arrow/Jam Exclusive License Agreement, and Jam is
permitted to license and deliver to CDnow the AOL Content subject to and
consistent with the terms of this Agreement.
(f) REPRESENTATIONS AND WARRANTIES OF CDNOW. CDnow acknowledges that
the Straight Arrow Content is the valuable intellectual property of Straight
Arrow and the Jam Content is the valuable intellectual property of Jam, and
CDnow agrees that it shall not use or modify any of the Content, except as
otherwise permitted under this Agreement or as otherwise permitted by Jam or
Straight Arrow in their reasonable business judgment or, if applicable, by
Straight Arrow in its discretion as set forth in Section 8 of Exhibit B to this
Agreement.
3. RSN SITES.
(a) EXCLUSIVITY AND LIMITATIONS ON EXCLUSIVITY.
(i) EXCLUSIVITY. Except as set forth in Section3(a)(ii)
below, during the Term:
(1) Jam represents and warrants that CDnow will be the
exclusive Music Seller throughout the world that can sell recorded
music through, and place advertising, promotions, buttons, banners
or other forms of links for the sale of recorded music on, the RSN
Sites.
(2) Jam will use its best efforts to encourage labels
and artists advertising and promoting on the RSN Sites to include
CDnow Links in any content, advertising or promotions they place
on the RSN Sites or their own Sites.
(3) If Jam, Straight Arrow or a third party wishes to
sell one or more recorded music products on the RSN Sites that are
not offered by CDnow, Jam shall give
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CDnow a right of first refusal to offer such products. If CDnow,
within twenty (20) days of being provided such offer by Jam,
determines not to offer such products, then Jam may permit such
third party to offer such products for sale on the RSN Sites;
provided that if and when CDnow offers such products, Jam shall
terminate such third party's right to offer such products for sale
on the RSN Sites as soon as practicably feasible, and, thereafter,
CDnow shall be the exclusive Music Seller with the right to offer
such products on the RSN Sites.
(ii) LIMITATIONS ON EXCLUSIVITY.
(A) This terms of Section 3(a) shall not apply to: (1)
Jam when it is involved in any manner (including, without
limitation, sponsoring, promoting, broadcasting or producing) in
any activities other than online services, including, without
limitation, television or radio broadcasts, pay per view concerts
or live performances, provided any online sales of recorded music
by Jam or through the RSN Sites associated with such events is
through CDnow, and any advertising or promotion by Jam on the RSN
Sites of the sale of recorded music associated with such events
shall point solely to a Co-branded Page; (2) Straight Arrow when
it is involved in any manner (including, without limitation,
sponsoring, promoting, broadcasting or producing) in any
activities other than online services, including, without
limitation, television or radio broadcasts, pay per view concerts
or live performances, provided any online sales of recorded music
through the RSN Sites associated with such events is through
CDnow, and any advertising or promotion by Straight Arrow or
through the RSN Sites of the sale of recorded music associated
with such events shall point solely to a Co-branded Page; (3) Jam
when it conducts the sale, advertising, promotion or distribution
of its or RSN's connected or enhanced CDs, provided any online
sale of recorded music associated with such connected or enhanced
CDs is solely through CDnow, and any advertising or promotion by
JAM of recorded music associated with such events shall point
solely to a Co-branded Page; or (4) Jam or Straight Arrow when
they (collectively or individually) digitally deliver individual
songs, albums or compilations performed by artists or bands that
are captured or recorded by Jam, Straight Arrow or RSN at or in
connection with its Webcasts, Virtual Venue, or Virtual Tour
activities; provided, when CDnow has the capability to make such
digital delivery, any online sales of the same shall be solely
through CDnow, and any advertising or promotion by Jam or Straight
Arrow of recorded music associated with such events shall point
solely to a Co-branded Page.
(B) CDnow acknowledges that in the event Jam acquires
or merges with another Entity (excluding a natural person) that
has a pre-existing relationship with a Music Seller other than
CDnow, the fulfillment by Jam of any agreement with such other
Music Seller shall not be deemed a breach of this Agreement;
provided, Jam shall not (1) renew or extend the term of such
agreement, without first giving CDnow a bona fide right of first
refusal and first negotiation to become the music store on the
acquired or merged Site; (2) enter into any new agreements with
such Music Sellers other than
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CDnow that allows such Music Sellers access to the Content or to
place Competitive Marketing on the RSN Sites or (3) broaden the
scope of such agreements to contain the Content or Competitive
Marketing.
(b) DELIVERY AND PLACEMENT OF CDNOW LINKS. During the Term, Jam
shall place the CDnow Links on the RSN Sites in accordance with the requirements
set forth in this Section 3(b).
(i) Jam shall place the CDnow Links on the pages on the RSN
Sites, and all existing and future equivalents, extensions or
replacements of such pages on the RSN Sites, in accordance with the
specifications set forth in Exhibit C to this Agreement. Unless
otherwise specified in this Section 3(b), during the Term, the CDnow
Links shall be permanent and non-rotating.
(ii) On Jam's Sites, Jam shall place (A) a graphical CDnow Link
Above-the-Fold in the navigation bar (the navigation bar appears at all
time on all pages on the Jam Sites), (B) a CDnow logo below the left
NAVIGATION BAR in a manner that is at least as good or better than RSN or
any other third party links that are of a similar nature (C) contextually
placed graphical CDnow Links on the Virtual Venue Main Page, Virtual
Venue Event Pages, Featured Artist and Artist Pages, Artist Discography
Pages, Artist Album Pages and any other appropriate areas of the Site (D)
a CDnow branded search box below-the-fold on all Virtual Venue Pages in a
manner that is at least as good or better than Pollstar and Ticketmaster
or any other third party links that are of a similar nature and (E) a
CDnow logo at the bottom of all Featured Artist and Artist Pages in a
manner that is at least as good or better than Pollstar and Ticketmaster
or any other third party links that are of a similar nature. On Jam's
Sites, Jam shall guarantee 5% of monthly inventory and 20% of the unsold
monthly inventory will be dedicated to CDnow banners, which will rotate
throughout the Jam Sites.
(iii) On the RSN Sites, Jam shall place (A) a graphical CDnow
Link Above-the-Fold in the navigation bar (the navigation bar appears at
all time on all pages on the RSN Sites), (B) a CDnow branded promotion
box to rotate a guaranteed 5% of the time on the RSN home page and all
other pages next to the standard large banner, (C) a CDnow branded
promotional box, contextually placed below-the-fold on the Article Pages,
(D) a graphical CDnow Link contextually placed Above-the-Fold on Search
Results pages, Recordings Pages, Album Review Rages (top level, upper
right), Recent Releases Pages, Artist Find Results Pages, On the Road
Pages and any other appropriate pages, and future similar pages (E) a
contextually placed CDnow Branded Link on the side navigation box of the
Album Review Pages, Artist Pages and Artist Discography Pages and future
similar pages and (F) a graphically branded CDnow search box on the
Artist Search Page. On the RSN Sites, Jam shall (1) integrate a CDnow
buy option into the "information bar" on every Live Page and future
similar pages, and (2) guarantee 5% of monthly inventory and 20% of the
unsold monthly inventory will be dedicated to CDnow banners rotating
throughout the RSN Sites.
(iv) Jam agrees that CDnow may vary the elements of the CDnow
Links no less than twice per month, upon five (5) business days notice.
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(v) Prior to implementing any modifications to the CDnow Links
not requested by CDnow, Jam will obtain the written consent of CDnow,
which consent shall not be unreasonably withheld.
(c) MINIMUM CDNOW LINK GUARANTEES. During the Term, Jam and RSN will
deliver to users of the RSN Sites a minimum of 150,000,000 CDnow Links on pages
on the RSN Sites in accordance with the following schedule: (i) the first twelve
months beginning on the date the CDnow Links are fully implemented and
operational on the RSN Sites -- 40,000,000 CDnow Links; (ii) the twelve months
following the first twelve months -- 50,000,000 CDnow Links; and (iii) the
twelve months following the second twelve months -- 60,000,000 CDnow Links.
(d) CONTINUED DEVELOPMENT OF OTHER CDNOW LINK PLACEMENT OPPORTUNITIES.
The parties agree to work together during the Term in good faith to identify and
implement appropriate placement of the CDnow Links throughout the RSN Sites,
including all necessary testing of the performance of such links.
4. BUSINESS DEVELOPMENT OPPORTUNITIES.
(a) Throughout the Term, the parties will mutually work together in
good faith to identify, create, develop and implement marketing and public
relations opportunities for additional sales, advertising and promotion of CDnow
on the RSN Sites and other Jam and Straight Arrow Sites and media properties,
sale of RSN merchandise and co-branding of traffic flows between the Co-branded
Pages, the CDnow Site and the RSN Sites.
(b) Throughout the Term, the parties will mutually work together in
good faith to identify, create, develop and implement opportunities for CDnow to
distribute the Content to CDnow business partners. CDnow will not distribute
the Content except as permitted under agreement mutually acceptable to the
parties.
(c) Throughout the Term, Jam and Straight Arrow will, in good faith
and where feasible, offer CDnow, and CDnow will, in good faith and where
feasible offer Jam and Straight Arrow, the opportunity and right of first
refusal to participate in other business relationships (similar to the business
relationships envisioned under this Agreement) Jam, Straight Arrow or CDnow (as
the case may be) have entered into or are considering entering into, and, upon
receipt of such offer by, and expression of interest from, a party, the parties
agree to negotiate diligently and in good faith to develop a definitive
agreement concerning each such opportunity.
5. LAUNCH EVENT. During the Term, the parties will mutually plan and
conduct a major launch event for the debut of the Rolling Stone Network (the
"Launch Event") for which the parties will mutually agree on cost sharing for
the event. CDnow may, at its option, pay its share of the agreed upon costs of
the Launch Event and other events to be co-sponsored by the parties from the
print advertising commitment (as set forth in Section 6(b)(ii) of this
Agreement).
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WHEREBY THE TEXT TO BE KEPT CONFIDENTIAL IS ▇▇▇▇ BY EITHER *** OR ***
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR THIS INFORMATION***
6. PAYMENTS. During the Term and in consideration of Jam and Straight Arrow
fulfilling their respective obligations under this Agreement, CDnow will make
the payments to Jam and Straight Arrow (as appropriate) as set forth in Sections
6(a) through (c) below:
(a) CONTENT LICENSE FEES. CDnow agrees to pay Jam *** CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED FOR THIS INFORMATION*** Payment will be made in
the following manner: *** CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR THIS
INFORMATION*** and, thereafter, *** CONFIDENTIAL TREATMENT HAS BEEN REQUESTED
FOR THIS INFORMATION*** the CDnow Links are continuously fully implemented
and operational on the RSN Sites.
(b) PRINT, BROADCAST AND WEBSITE ADVERTISING, PROMOTION AND LINKING
FEES. CDnow agrees to purchase a total of $4,250,000 from (A) Jam in RSN Site
advertising, promotions and links, (B) print advertising from Straight Arrow,
(C) broadcast advertising from Jam and (D) promotions in media properties
controlled (currently and in the future) by Straight Arrow and/or Jam or its
radio affiliates, during the Term and as follows:
(i) CDnow will *** CONFIDENTIAL TREATMENT HAS BEEN REQUESTED
FOR THIS INFORMATION***
(ii) CDnow will *** CONFIDENTIAL TREATMENT HAS BEEN REQUESTED
FOR THIS INFORMATION***
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CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN PORTIONS OF THIS EXHIBIT
WHEREBY THE TEXT TO BE KEPT CONFIDENTIAL IS ▇▇▇▇ BY EITHER *** OR ***
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR THIS INFORMATION***
*** CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR THIS INFORMATION***
payment.
(iii) Straight Arrow *** CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED FOR THIS INFORMATION***
(c) NEW CUSTOMER FINDER'S FEE.
(i) CDnow agrees to *** CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED FOR THIS INFORMATION***
(ii) If, upon termination of this Agreement, *** CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED FOR THIS INFORMATION***
(d) PAYMENT SUMMARY. The following summarizes the payments terms set
forth in Sections 6(a) through (c) above:
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CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR THIS INFORMATION***
*** CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR THIS INFORMATION***
Broadcast advertising placement commission: $300,000
7. AUDIT RIGHTS; REPORTING
(a) AUDIT RIGHTS; UNDER/OVER PAYMENTS. Each party shall maintain
complete and accurate records in accordance with U.S. Generally Accepted
Accounting Principles (GAAP) for all transactions which are the subject of this
Agreement for not less than (3) years after the last payment is due under this
Agreement. A "big six" independent accounting firm retained by a party (the
auditing party) shall have access to such records of the other party (the
audited party), upon reasonable notice, for the purposes of audit during normal
business hours, for so long as such records are required to be maintained. If
such accounting firm determines that any additional payment is due the auditing
party by the audited party and such payment is not the subject of a good faith
dispute between the parties, then the audited party shall promptly make payment
of such amount plus interest at a rate of six percent (6%) per annum to the
auditing party. If a party overpays the other party, the party that has made
such overpayment shall be entitled to a credit against the next payment due to
the other party in the amount of the overpayment, unless such overpayment is the
subject of a good faith dispute between the parties or if no further payments
are due under this Agreement, in which case, the party that has received the
overpayment will promptly refund to the other party the amount of the
overpayment.
(b) REPORTING.
(i) Within thirty (30) days after the end of each calendar
month during the Term, CDnow shall provide Jam with a report listing the
number of New Customers and the Finder's Fees due to Jam. Such report is
to be used by Jam solely to track whether CDnow is fulfilling its
obligations under this Agreement.
(ii) On the first business day of each week during the Term,
Jam will provide CDnow with a weekly report of CDnow Links delivered to
users of RSN's Site during the immediately preceding week in a form and
via media mutually agreeable to the parties.
(iii) During the Term, each of Jam and Straight Arrow will
provide CDnow with monthly reports of total print and broadcast
advertising and other promotions delivered by each party in a form and
via a method mutually acceptable to CDnow and Jam or Straight Arrow (as
the case may be). Such reports are to be used by CDnow solely to track
whether Jam and Straight Arrow are fulfilling their obligations under
this Agreement.
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WHEREBY THE TEXT TO BE KEPT CONFIDENTIAL IS ▇▇▇▇ BY EITHER *** OR ***
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR THIS INFORMATION***
8. FRAMING AND RETURN LINKS. During the Term and thereafter, Jam shall
not frame in any manner the CDnow Site or any Co-branded Pages or pages from
the CDnow Site. When an RSN user clicks on a button, banner or any other
form of link to a Co-branded Page, such user shall be transferred directly to
the Co-branded Page without such framing. CDnow shall place a Carry-Through
Bar on the Co-branded Pages that will provide a user that has linked to a
Co-branded Page from a RSN Site with an opportunity to return to the RSN
Site. CDnow and Jam shall mutually agree upon the overall design of the
Carry-Through Bar within the specifications provided by CDnow in the
Carry-Through Bar Specifications, attached hereto as Exhibit A to this
Agreement.
9. FULFILLMENT. During the Term and thereafter, CDnow shall have the sole
right and responsibility for processing all orders through every aspect of a
transaction, including receiving, filling, shipping and handling, collecting
payment, tracking and transaction security. All orders for CDnow's products
shall be placed by customers directly with CDnow and shall be subject to
acceptance by CDnow. All orders accepted shall be subject to the terms and
conditions of CDnow's then current terms and conditions of sale. Such terms
may be changed at any time, without notice to Jam, RSN or its customers.
CDnow shall have no obligation to ship any orders unless payment in full is
received in advance. Prices for the products shall be set solely by CDnow.
CDnow reserves the right to change its prices at any time, without notice to
Jam, RSN or its customers.
10. STAFFING. During the Term, each party agrees to provide staffing
sufficient for such party to meet its obligations under this Agreement in a
timely manner. Further, each party shall appoint a relationship manager who
shall have responsibility for managing the day-to-day activities of the party
under this Agreement.
11. LICENSE; OWNERSHIP.
(a) LICENSE TO THE "ROLLING STONE" BRAND NAME AND STRAIGHT ARROW
MARKS. Straight Arrow hereby grants to CDnow, during the Term, a limited,
worldwide, non-transferable license to use the "Rolling Stone" brand name and
other Straight Arrow Marks (as authorized by Straight Arrow from time to time)
as reasonably necessary for CDnow to exercise its rights, promote and sell its
products and fulfill its obligations under this Agreement. CDnow shall be the
exclusive Music Seller licensed to use the Rolling Stone brand name in
connection with online sales, except for sales by third parties licensed to sell
music compilations under the Rolling Stone brand name and except as otherwise
licensed to AOL under the AOL Agreement. Straight Arrow shall have the right to
approve all initial uses of the "Rolling Stone" brand name, which approval shall
not be unreasonably withheld or delayed.
(b) LICENSE BETWEEN JAM AND CDNOW FOR USE OF MARKS. CDnow hereby
grants to Jam, during the Term, a limited, non-exclusive, non-transferable
license to use CDnow's Marks (as authorized by CDnow from time to time)
solely as reasonably necessary for Jam to perform its obligations under this
Agreement. Jam hereby grants to CDnow, during the Term, a limited,
non-exclusive, non-transferable license to use Jam's Marks (as authorized by
Jam from time to time) solely as reasonably necessary for CDnow to perform
its obligations under this Agreement. Each of CDnow and Jam shall have the
right to
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approve all initial uses of its Marks by the other party, which approval
shall not be unreasonably withheld or delayed.
(c) Each party owns and shall retain all right, title and interest in
its Marks and other intellectual property. No party shall copy, distribute,
reproduce or use the other party's Marks or other intellectual property, except
as expressly permitted under this Agreement.
(d) No party shall at any time contest, impair or disparage in any
manner, or assist another party or any third party in contesting, impairing or
disparaging in any manner, either directly or indirectly, another party's (the
owning party's) Marks or its ownership rights in its Marks. Any and all
goodwill arising from the use by a party of another party's Marks shall inure
solely to the benefit of the owning party, and each party hereby expressly
acknowledges the other party's superior rights therein.
12. TERM AND TERMINATION.
(a) TERM AND RENEWAL.
(i) TERM. The term of this Agreement shall commence upon the
Effective Date and shall continue for three (3) years thereafter (the
"Term") unless previously terminated as set forth below. The Term shall
include any renewal terms (as discussed in Section 12(a)(ii) below).
(ii) RENEWALS; RIGHT-OF-FIRST-NEGOTIATION.
(A) If CDnow desires to renew this Agreement, then
CDnow shall notify Jam and Straight Arrow of its intention to
renew not less than seventy-five (75) days prior to the expiration
of the Term, and, beginning not less than sixty (60) days prior to
the expiration of the Term, Jam and Straight Arrow agree to
diligently and in good faith negotiate with CDnow to determine
reasonable terms and conditions for renewal of this Agreement and
extension of the Term prior to the end of the Term. If the
parties are not able to conclude such negotiations within thirty
(30) days of their start, then Jam or Straight Arrow shall be free
to initiate negotiations with any third party.
(B) Except as set forth in Section 12(a)(ii )(A)
above, Straight Arrow and Jam shall not negotiate with any third
party while the Agreement is in effect and while any such
negotiations are in progress.
(C) If the Straight Arrow/Jam Exclusive License
Agreement is terminated at any time during the Term or while CDnow
is negotiating a renewal of the Term, then CDnow shall have the
right of first negotiation to use the Straight Arrow Content
(similar to the license set forth in Article 2 above) directly
with Straight Arrow, and Straight Arrow will diligently and in
good faith negotiate such license for a reasonable period of time.
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WHEREBY THE TEXT TO BE KEPT CONFIDENTIAL IS ▇▇▇▇ BY EITHER *** OR ***
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR THIS INFORMATION***
(b) TERMINATION FOR CAUSE.
(i) If a party becomes insolvent, files a petition in
bankruptcy, makes an assignment for the benefit of its creditors
or dissolves or ceases to do business, any of the other parties
may terminate the party's rights and obligations under this
Agreement (except for the obligations applicable to the party
specified in Section 12(e) below). The occurrence of a party
becoming insolvent, filing a petition in bankruptcy, making an
assignment for the benefit of creditors or otherwise being no
longer able to fully perform its obligations under this Agreement
and thereby terminating or having terminated its rights and
obligations under this Agreement will not cause this Agreement to
be terminated with respect to the remaining parties.
Notwithstanding the foregoing, such termination shall not relieve
the terminated party from liability for the performance of its
obligations prior to such termination, and termination by a party
shall be in addition to all other rights and remedies the
terminating parties may have available to them under this
Agreement or at law or in equity.
(ii) If a party materially breaches any of the terms of this
Agreement, any other party may terminate the breaching party's
rights and obligations under this Agreement (except for the
obligations applicable to the party specified in Section 12(e)
below) thirty (30) days after written notice to the party of
such party's breach of such terms, which breach is not remedied
within such 30-day period to the reasonable satisfaction of the
non-breaching parties. Notwithstanding the foregoing, such
termination shall not relieve the terminated party in breach
from liability for the performance of its obligations prior to
such termination, and termination by a party shall be in
addition to all other rights and remedies the terminating
parties may have available to them under this Agreement or at
law or in equity.
(c) TERMINATION FOR BREACH OF EXCLUSIVITY. CDnow may terminate this
Agreement immediately upon providing written notice of termination to Jam and
Straight Arrow in the event that Jam or Straight Arrow breaches any of the
exclusivity provisions or their respective representations and warranties set
forth in this Agreement.
(d) TERMINATION AS A RESULT OF TERMINATION OF THE STRAIGHT ARROW/JAM
EXCLUSIVE LICENSE AGREEMENT. If the Straight Arrow/Jam Exclusive License
Agreement is terminated or modified (such that Jam cannot fulfill its
obligations to CDnow under this Agreement) at any time during the Term, then
CDnow shall have the right to immediately terminate this Agreement, receive a
pro rata refund of all outstanding, unearned advance payments made in advance to
Jam, and the provisions of Section 12(a)(ii)(C) shall apply.
(e) EFFECTS OF TERMINATION. Upon the termination or expiration of
this Agreement, each party will immediately cease any and all existing, and not
make any future, use of the other party's name, brand names, Marks and other
proprietary indicia, and CDnow shall cease all use of the Content, and each
party shall certify the same (as applicable) in writing to the other party.
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(f) SURVIVAL. Paragraphs 1, 7(a), 11(c), 11(d), 14 (for any actions
that arose during the term of the Agreement), 15 and 16 shall survive
termination of this Agreement.
13. GENERAL REPRESENTATIONS.
(a) Each party represents and warrants that it has, and will retain
during the Term, all necessary rights, title and authority to enter into and
fulfill its obligations under this Agreement, to grant the other party the
rights and licenses herein granted and to perform all of its obligations under
this Agreement.
(b) Each party represents and warrants that as of the Effective Date
and continuing throughout the Term (i) there are no restrictions, agreements or
understandings whatsoever to which the representing party is a party that would
prevent or make unlawful its execution of this Agreement or its engagement
hereunder; and (ii) that its execution of this Agreement and its engagement
hereunder shall not constitute a breach of any contract, agreement or
understanding, oral or written, to which it is a party or by which it is bound.
(c) CDnow represents and warrants that to the best of its knowledge
any content provided by CDnow and displayed on CDnow's Site during the Term does
not constitute defamation or invasion of the right of privacy or publicity, or
infringement of the copyrights, Marks or other intellectual property rights, of
any third party. This representation and warranty shall specifically not apply
to content provided by visitors to CDnow's Site such as visitors who use chat
rooms, bulletin boards, or other forums, which allow visitors to display
material that is not within the control of CDnow.
(d) Jam represents and warrants that to the best of its knowledge any
Content provided by Jam to CDnow during the Term under this Agreement does not
constitute defamation or invasion of the right of privacy or publicity, or
infringement of the copyrights, Marks or other intellectual property rights, of
any third party.
14. INDEMNIFICATION.
(a) CDNOW INDEMNIFICATION. CDnow shall indemnify, defend and hold
harmless each of Jam and Straight Arrow and their respective affiliates,
directors, officers, employees and agents, against any and all claims, actions,
liabilities, losses, and expenses (including reasonable attorneys' fees) brought
by a third party relating to or arising out of any claim that any content
provided by CDnow and displayed on the Co-branded Pages or the RSN Sites during
the Term constitutes a defamation or invasion of the right of privacy or
publicity, or infringement of the Marks, copyrights, or other intellectual
property rights, of any third party. This indemnity shall specifically not
apply to content provided by visitors to CDnow's Site who use CDnow's chat
rooms, bulletin boards, or other forums which allow visitors to display material
that is not within the control of CDnow.
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CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR THIS INFORMATION***
(b) JAM INDEMNIFICATION. Jam shall indemnify, defend and hold
harmless CDnow and its respective affiliates, directors, officers, employees and
agents, against any and all claims, actions, liabilities, losses, and expenses
(including reasonable attorneys' fees) brought by a third party relating to or
arising out of any claim that any content provided by Jam that is displayed on
the Co-branded Pages, CDnow's Site or the RSN Sites during the Term constitutes
a defamation or invasion of the right of privacy or publicity, or infringement
of the copyrights, Marks or other intellectual property rights, of any third
party.
(c) DUTIES OF THE INDEMNIFYING PARTY. The indemnified party shall
promptly provide the indemnifying party with written notice of any claim, which
the indemnified party believes falls within the scope of this Article 14;
provided, however, that, except to the extent the indemnifying party is actually
prejudiced by the indemnified party's failure to provide such prompt notice,
such failure to provide prompt notice hereunder shall not limit the indemnified
party's rights under this Article 14. The indemnifying party shall have the
right to control the defense and, if applicable settlement of such claim;
provided that in defending or settling such claim the indemnifying party shall
not prejudice the rights of or disclose the Confidential Information of the
indemnified party, without the prior written consent of the indemnified party.
The indemnified party may, at its own expense, assist in the defense of any such
claim if it so chooses, provided that the indemnifying party shall control such
defense and all negotiations relative to the settlement of any such claim.
15. CONFIDENTIALITY; PUBLIC RELATIONS.
(a) PROTECTION OF CONFIDENTIAL INFORMATION. Each party agrees that
the Confidential Information of the other parties will be held in confidence to
the same extent and the same manner as each party protects its own Confidential
Information, but each party agrees that in no event will less than reasonable
care be used. Each party shall, however, be permitted to disclose relevant
aspects of such Confidential Information to its officers, employees and
consultants on a need-to-know basis for the purpose of such party's performance
of its obligations under this Agreement, provided such persons agree to protect
the other parties' Confidential Information to the same extent as required under
this Agreement. Each party agrees to use all reasonable steps to ensure that
the other parties' Confidential Information received under this Agreement is not
disclosed in violation of this Section 15(a). For purposes of this Agreement,
"Confidential Information" means the terms of this Agreement, except as
otherwise specifically provided in this Agreement; each parties' trade secrets,
financial information, processes, formulas, specifications, programs,
instructions, source code, technical know-how, methods and procedures for
operation, benchmark test results, information about employees, customers,
marketing strategies, services, business or technical plans and proposals, in
any form; and any other information relating to either party that is not
generally known to the public at large.
(b) EXCLUSIONS FROM CONFIDENTIAL INFORMATION. Confidential
Information shall not include information that (i) is or becomes generally known
or available to the public at large through no negligent act or omission of
either party; (ii) can be demonstrated to have been available lawfully to either
party prior to the disclosure or had thereafter been furnished to either party
without restrictions to disclosure or use; or (iii) can be demonstrated to be
independently developed by the recipient of Confidential
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Information without use of such Confidential Information and such independent
development is proven on the basis of either party's records related to such
development.
(c) REGULATORY DISCLOSURES. Each party agrees that it shall not be
deemed a breach of this Agreement for any other party to disclose the terms and
conditions of this Agreement in any required regulatory filing with the
Securities & Exchange Commission, a national stock exchange or the NASDAQ, which
the other party, in good faith, determines is required, provided the other party
seeks confidential treatment of the material financial terms and conditions of
this Agreement.
(d) PUBLICITY. No party will make any announcements or statements to
the public or create any written materials concerning the relationship between
them without the prior written consent of the other parties, which consent is
not to be unreasonably withheld or delayed. The parties agree to issue a joint
press release within five (5) business days of the Effective Date in a form and
containing language reasonably acceptable to both parties.
16. MISCELLANEOUS.
(a) INDULGENCES, ETC. Neither the failure nor any delay on the part
of any party to exercise any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other or further
exercise of the same or of any other right, remedy, power or privilege, nor
shall any waiver of any right, remedy, power or privilege with respect to any
occurrence be construed as a waiver of such right, remedy, power or privilege
with respect to any other occurrence or as a waiver of any other right, remedy,
power or privilege.
(b) CONTROLLING LAW. This Agreement and all questions relating to its
validity, interpretation, performance and enforcement, shall be governed by and
construed in accordance with the laws of the Commonwealth of Pennsylvania, other
than conflicting choice-of-law provisions.
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CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR THIS INFORMATION***
(c) NOTICES. All notices, requests, demands, and other communications
required or permitted under this Agreement and the transactions contemplated
herein shall be in writing and shall be deemed to have been duly given, made and
received when delivered against receipt when sent by United States certified
mail, return receipt requested, postage prepaid, or reputable overnight courier,
addressed as set forth below:
(i) If to CDnow:
CDnow, Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
(ii) If to JAMtv: (iii) If to Straight Arrow:
JAMtv Corporation Straight Arrow Publishers
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ 1290 Avenue of the Americas
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 2nd Floor
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
In addition, notice by mail shall be by air mail if posted outside
of the continental United States. Any party may change the address to which
communications or copies are to be sent by giving notice of such change of
address in the manner set forth herein.
(d) PROVISIONS SEPARABLE. The provisions of this Agreement are
independent of and separable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
(e) ENTIRE AGREEMENT The terms and conditions of this Agreement and
any and all Exhibits attached hereto represent the entire understanding between
the parties with respect to the subject matter hereof, and supersede all prior
and contemporaneous agreements and understandings, inducements or conditions,
express or implied, oral or written. The express terms hereof control and
supersede any course of performance and/or usage of trade inconsistent with any
of the terms hereof. This Agreement may not be modified or amended other than
by an agreement in writing signed by both parties.
(f) PARAGRAPH HEADINGS. The paragraph headings in this Agreement are
for convenience only; they form no part of this Agreement and shall not affect
its interpretation.
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(g) TELEFAXES CONSTITUTE VALID DOCUMENTS. This Agreement and
subsequent modifications may be transmitted by telecopy facsimile machine and
such facsimile copy shall be deemed an original if all pages thereof are
initialed and the Agreement or modifications are signed by the duly authorized
representative of the parties. Such facsimiles shall constitute valid, binding
documents and shall be regarded as such upon receipt. The original of the
document sent by telefax shall be promptly sent within seventy-two (72) hours by
overnight courier to the receiving party so that accurate files may be
maintained. Failure to send timely any original document shall not affect the
validity or binding nature of such document.
(h) FORCE MAJEURE. No party shall be held to be in breach of this
Agreement by reason of any failure or delay in its performance hereunder if
such failure is due to causes beyond its reasonable control, including but
not limited to, acts of the other party, acts of God, delays in
transportation, inability beyond its reasonable control to obtain necessary
labor or materials, or events such as fires, floods, earthquakes, storms,
war, act of public enemy, civil commotions and the like or by any law, rule,
regulation, order or other action by any public authority. To the extent
failure to perform is caused by such an event, such party shall be excused
from performance hereunder so long as such event continues to prevent such
performance, and provided the non-performing party takes all reasonable steps
to resume full performance.
(i) INDEPENDENT CONTRACTORS. Each party shall act as an independent
contractor and shall have no authority to obligate or bind the other parties in
any respect. No employee of a party shall represent himself or herself to be an
employee of any other party.
(j) COMPLIANCE WITH LAWS. Each party shall comply with all federal,
state and local laws, licensing regulations and rulings of governmental bodies
having jurisdiction over its business. Nothing in this Agreement shall be
construed to require either party to perform any act in violation of any laws,
regulations or rulings.
(k) DISCLAIMER OF WARRANTY. EXCEPT AS OTHERWISE PROVIDED FOR IN THIS
AGREEMENT, CDNOW'S SITE, THE RSN SITES AND THE CO-BRANDED PAGES ARE PROVIDED ON
AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES
WHICH ARE IMPLIED BY OR INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION
UNDER THE LAWS APPLICABLE TO THIS AGREEMENT.
(l) LIMITATIONS OF LIABILITY.
(i) IN NO EVENT SHALL ANY PARTY HERETO BE LIABLE FOR ANY
INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OF ANY
NATURE UNDER THIS AGREEMENT WHETHER SUCH DAMAGES ARE ALLEGED IN TORT,
CONTRACT OR INDEMNITY, EVEN IF THE PARTY IS INFORMED
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OF THE POSSIBILITY OF SUCH DAMAGES, UNLESS SUCH DAMAGES ARE DUE TO SUCH
PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
(ii) AS BETWEEN CDNOW AND JAM, CDNOW AGREES THAT JAM SHALL NOT
BE LIABLE TO CDNOW FOR CLAIMS ARISING SOLELY AS A RESULT OF A BREACH BY
STRAIGHT ARROW OF ANY OF ITS REPRESENTATIONS, WARRANTIES OR OBLIGATIONS
HEREUNDER. AS BETWEEN CDNOW AND STRAIGHT ARROW, STRAIGHT ARROW SHALL NOT
BE LIABLE TO CDNOW FOR CLAIMS ARISING SOLELY AS A RESULT OF A BREACH BY
JAM OF ANY OF ITS REPRESENTATIONS, WARRANTIES OR OBLIGATIONS HEREUNDER.
(m) BINDING NATURE OF AGREEMENT. This Agreement shall be binding upon
the parties hereto and their respective heirs, executors, successors and
assigns. Neither party may, without the prior written consent of the other
party, assign or transfer this Agreement or any obligation incurred hereunder.
Any attempt to do so in contravention of this Section 16(m) shall be void and of
no force and effect.
(n) TIMELY PERFORMANCE. Each party acknowledges that in the
performance of this Agreement, time shall be considered of the essence.
[SIGNATURES ON NEXT PAGE.]
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WHEREBY THE TEXT TO BE KEPT CONFIDENTIAL IS ▇▇▇▇ BY EITHER *** OR ***
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IN WITNESS WHEREOF, the parties' duly authorized representatives have executed
this Agreement as of the day and year first above written.
CDNOW, INC. STRAIGHT ARROW PUBLISHERS
(A NEW YORK PARTNERSHIP)
By:____________________________ By: _______________________________
Name:__________________________ Name: _____________________________
(print or type) (print or type)
Date:__________________________ Date: _____________________________
JAMTV CORPORATION
By:____________________________
Name:__________________________
(print or type)
Date:___________________________
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WHEREBY THE TEXT TO BE KEPT CONFIDENTIAL IS ▇▇▇▇ BY EITHER *** OR ***
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EXHIBIT A
CARRY-THROUGH BAR SPECIFICATIONS AS OF 4/15/97
SIZE
Total Carry-through Bar Size: 468(w) x 25(h) pixels as of April 1, 1997 all
Carry-through Bar sizes must be 468(w) x 25(h) to comply with the Internet
Advertising Bureau's (IAB) banner standards.
Live area for Partner Logo: 360(w) x 24(h) pixels
COLOR
Bar is black at all times.
Only partner logos/icons can be as many colors as desired with a black
background "Return to..." copy is mandatory and must be set up as white
Helvetica Neue Black 10pt type, centered and 5 pixels in from the left-hand side
of the first black bar
We recommend all copy to be white
To pick up a template go to ▇▇▇▇://▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇_▇▇▇▇▇▇▇▇
FORMAT
Must be saved in a GIF file format
PLACEMENT
Carry-through bar is placed on the top and bottom of each CDnow page. Only those
people who visit CDnow from your site will see the Carry-through bar
URL/ADDRESS
Partners have the option of 1 to 3 links on their Carry-through bar-- The URLs
will be provided by the partner
If more than one link is desired, the bar must consist of multiple gif images
that reference previous Carry-through bar specifications. When using multiple
gif images keep two pixels between each bar. No image maps are permitted. Please
see the following page for more examples of possible banner solutions.
SOURCE CODE
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CDnow will provide the partner with a from equals (from=) tag. This tag allows
us to identify customers coming from the Partners site to CDnow.
TIMING
CDnow requires a minimum of five business days from when we receive the
Carry-through bar to implement it on our site.
CARRY-THROUGH BAR SAMPLES
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WHEREBY THE TEXT TO BE KEPT CONFIDENTIAL IS ▇▇▇▇ BY EITHER *** OR ***
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EXHIBIT B - ROLLING STONE CONTENT
The Rolling Stone Content shall include the following sections, parts,
elements and portions of Rolling Stone magazine, to the extent that Straight
Arrow possesses or acquires the necessary proprietary rights therein sufficient
for use on the RSN Sites. Straight Arrow will use commercially reasonable
efforts to obtain supplemental materials relating to the Rolling Stone Content,
such as outtakes, photos or descriptive materials, provided that Straight Arrow
will bear no additional costs therefor, other than as set forth in the
Agreement.
(1) The contents, including photos, created for and contained in the Random
Notes section of Rolling Stone Online or any successor to such section
containing similar types of content, to the extent that the Random Notes Section
or any such successor continues to appear in ROLLING STONE magazine.
(2) Magazine covers from Rolling Stone magazine.
(3) MusicNet recorded interviews (insofar as such interviews are in ▇▇▇▇▇▇
Media's possession).
(4) Excerpts or selections from the cover stories of Rolling Stone magazine.
(5) Exclusive feature stories prepared on a regular basis solely for the
Rolling Stone Online staff, in conjunction with the magazine staff, including
multimedia components.
(6) Information contained in the Grapevine and The Industry sections of
ROLLING STONE magazine, and any successors to such sections containing similar
types of content, to the extent that such sections or successors continue to
appear therein, along with new materials developed by the parties relating to
gossip columns and similar commentaries.
(7) The contents of and information contained in concert reviews, record
reviews, artists' questions and answers, artists' picks, college reports, and
any charts, polls (such as readers' and critics' polls) or compilations
contained in Rolling Stone Online along with exclusive record reviews and charts
prepared and developed for ROLLING STONE magazine.
(8) Available photography, audio assets, video assets, art, interviews,
reviews, transcripts, digital material, images, illustrations, animations,
books, and any other content (including, without limitation, all historical,
current and future interviews, record reviews, photographs, illustrations,
animations, interview tapes, feature articles, obituaries, sidebars, live
reviews, photo captions and unique editorial content from special or
anniversary issues, charts and lists that were written by Straight Arrow
editorial staff and work-for-hire (freelancers) and/or licensed writers where
Straight Arrow has the rights to such material), which Straight Arrow has
created, published or produced, or which Straight Arrow has access to through
a licensing arrangement with any other Entity , in the possession and control
of Straight Arrow, ▇▇▇▇▇▇ Media and/or ROLLING STONE magazine, which may be
used to create new and/or supplementary or re-purposed audio/visual and
multimedia material for the Rolling Stone Network, all to be provided in
Straight Arrow's discretion.
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EXHIBIT C - MOCKUPS GUIDELINES FOR PLACEMENT OF CDNOW LINKS ON THE RSN SITES
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FIRST AMENDMENT TO THE LINKING, CONTENT LICENSING
AND ADVERTISING AGREEMENT
This Amendment (the "FIRST AMENDMENT") to the Linking, Content Licensing and
Advertising Agreement (the "AGREEMENT") by and among JAMtv Corporation, Straight
Arrow Publishers and CDnow, Inc., dated as of April 8, 1998, is entered into
effective as of June 30, 1999 (the "First Amendment Effective Date") by and
between ▇▇▇▇▇.▇▇▇ Inc., a Delaware corporation (fka JAMtv Corporation)
("TUNES"), Straight Arrow Publishers, a New York partnership ("STRAIGHT ARROW")
and CDnow Online, Inc., a Pennsylvania corporation and the successor-in-interest
to CDnow, Inc. ("CDNOW").
RECITAL
The parties entered into the Agreement and wish to amend the Agreement as set
forth below.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
the parties hereby agree as follows:
1. AMENDMENTS TO DEFINITIONS.
a. Section 1(l) of the Agreement setting forth the definition of
"Content" is hereby deleted in its entirety.
b. Section 1(s) of the Agreement setting forth the definition of "JAM
Content" is hereby deleted in its entirety.
c. Section 1(aa) of the Agreement setting forth the definition of
"RSN Sites" is hereby deleted in its entirety and replaced with the following:
(aa) "RSN" Sites means the ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Site, or any RSN-
branded successor to such Site.
d. The Agreement shall be and hereby is amended so that each
reference to the defined term "Content" shall be deemed a reference to the
defined term "Straight Arrow Content."
e. The Agreement shall be and hereby is amended so that each
reference to the defined term "JAM" shall be deemed a reference to the term
"Tunes" as defined in the preamble to this Amendment.
2. AMENDMENTS TO SECTION 2 OF THE AGREEMENT (CONTENT).
a. Section 2(a)(i) of the Agreement is hereby deleted in its entirety
and replaced with the following:
(i) Subject to the terms of this Agreement, Tunes
hereby grants to CDnow during the Term a NONEXCLUSIVE worldwide
license to access, use, copy, modify and
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reformat for display purposes and display the Straight Arrow
Content solely on CDnow's Site. By way of example, and not
limitation, permitted uses includes digitizing non-digitized
content.
b. Section 2(b) of the Agreement is hereby deleted in its entirety as
of the First Amendment Effective Date.
3. AMENDMENTS TO SECTION 3 (RSN SITES) OF THE AGREEMENT.
a. Section 3(b)(ii) of the Agreement is hereby deleted in its
entirety. To avoid confusion, the parties agree that links generated at the
"JAM Sites" prior to the First Amendment Effective Date shall be counted against
the delivery requirements set forth in Section 3(c).
b. The last sentence of Section 3(b)(iii) is hereby deleted in its
entirety and replaced with the following:
On the RSN Sites, Tunes shall integrate a CDnow buy option into
the "information bar" on every Live Page and future similar pages.
4. AMENDMENTS TO SECTION 6 OF THE AGREEMENT (PAYMENTS).
a. Section 6(a) of the Agreement is hereby deleted in its entirety
and replaced with the following:
(a) CONTENT LICENSE FEES. CDnow agrees to ***
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR THIS INFORMATION***
b. The parties agree that *** CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED FOR THIS INFORMATION*** In addition, Section 6(b) of the
Agreement is hereby deleted in its entirety and
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replaced with the following:
(b) PRINT AND WEB SITE ADVERTISING, PROMOTION AND LINKING
FEES.
(i) Commencing with the First Amendment Effective
Date, CDnow will *** CONFIDENTIAL TREATMENT HAS BEEN REQUESTED
FOR THIS INFORMATION***
(ii) In addition to the fee set forth in Section
6(b)(i) above, *** CONFIDENTIAL TREATMENT HAS BEEN REQUESTED
FOR THIS INFORMATION***
***CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR THIS INFORMATION***
As used herein, ***CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR
THIS INFORMATION***
The payments, if any, to be made under this Section 6(b)(ii) shall
be paid within 30 days following ***CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED FOR THIS INFORMATION***
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WHEREBY THE TEXT TO BE KEPT CONFIDENTIAL IS ▇▇▇▇ BY EITHER *** OR ***
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(iii) During the Term, CDnow agrees ***CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED FOR THIS INFORMATION***
c. The parties agree that ***CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED FOR THIS INFORMATION*** following:
(i) Commencing with the First Amendment Effective
Date, ***CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR
THIS INFORMATION***
d. Section 6(d) of the Agreement is hereby deleted in its entirety.
5. AMENDMENTS TO SECTION 12 OF THE AGREEMENT.
a. Section 12(i) of the Agreement is hereby deleted in its entirety
replaced with the following:
(i) TERM. The term of this Agreement shall commence
upon the Effective Date and shall continue until March 31, 2001
(the "Term") unless previously terminated
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as set forth below. The Term shall include any renewal terms
(as discussed in Section 12(a)(ii) below).
6. NEW SECTION 17. A new Section 17 is hereby added to the Agreement as
follows:
17. ***CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR THIS
INFORMATION***
7. NEW SECTION 18. A new Section 18 is hereby added to the Agreement as
follows:
18. OUTSTANDING INVOICE. There is ***CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED FOR THIS INFORMATION***
8. EFFECT OF AMENDMENT. The terms of the Agreement, as amended hereby,
remain in full force and effect. Subject to the terms and conditions of the
Agreement, this First Amendment shall terminate upon termination of the
Agreement.
9. MISCELLANEOUS. The parties acknowledge and agree that this First
Amendment is an integral part of the Agreement. Notwithstanding any provision
of the Agreement to the contrary, in the even of any conflict between this First
Amendment and the Agreement, the terms and conditions of this First Amendment
shall control. This First Amendment may be executed in counterparts, each of
which shall be deemed an original.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this First Amendment
on the day first written above.
CDNOW ONLINE, INC. ▇▇▇▇▇.▇▇▇ INC.
By:_________________________________ By:________________________________
Name:_______________________________ Name:______________________________
Title:______________________________ Title:_____________________________
Date:_______________________________ Date:______________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Suite 560
▇▇▇-▇▇▇-▇▇▇▇ (voice) ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇ (fax) ▇▇▇-▇▇▇-▇▇▇▇ (voice)
▇▇▇-▇▇▇-▇▇▇▇ (fax)
STRAIGHT ARROW PUBLISHERS
(a New York Partnership)
By:________________________________
Name:______________________________
Title:_____________________________
Date:______________________________
1290 Avenue of the ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
__________________ (voice)
__________________ (fax)
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