EXHIBIT 10.17
EXHIBIT 10.17 - CONFIDENTIAL TREATMENT REQUESTED
Certain information has been omitted from this exhibit
and filed separately with the SEC pursuant to a request
for confidential treatment under Rule 406
NetRadio Corporation
Order Fulfillment Agreement
ORDER FULFILLMENT AGREEMENT
This Order Fulfillment Agreement ("Agreement") is entered into effective as of
the 2nd day of March, 1999, by and between NetRadio Corporation ("Retailer") and
Valley Media, Inc. ("Valley"). The terms of this Agreement supercede all prior
agreements between the parties, either oral or written, specifically including
but not limited to the Order Fulfillment Agreement dated as of January 1, 1998.
BACKGROUND
A. Valley has created a database known as "audiofile" which contains
information regarding pre-recorded music and music related products
("Audio Product"), theatrical video and video related products ("Video
Product"), and theatrical DVD and DVD related products ("DVD Product").
Audio, Video, and DVD may be collectively referred to herein as
"Product."
B. Valley provides to various retailers direct-to-customers order
fulfillment services, pursuant to which Valley provides, packs and
ships such products to the retailer's customers.
C. Retailer intends to operate on the World Wide Web an "on-line retail
store" (the "Site") through which it intends to sell Product.
AGREEMENT
Subject to the terms and conditions set forth below, the parties agree as
follows:
1. BASIC AGREEMENT. Retailer and Valley agree to develop a computer and
customer service interface for the purposes of conducting small order
Product transactions via an on-line
NetRadio
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Valley
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EXHIBIT 10.17 - CONFIDENTIAL TREATMENT REQUESTED
Certain information has been omitted from this exhibit
and filed separately with the SEC pursuant to a request
for confidential treatment under Rule 406
NetRadio Corporation
Order Fulfillment Agreement
music/video store and other direct response marketing efforts. Retailer
will build and maintain a web site. Retailer will also conduct all
marketing and merchandising efforts, collect all orders and send such
orders to Valley via EDI. Valley will be responsible for picking,
packing and shipping the orders directly to Retailer's customers.
2. SET UP. Valley will provide audiofile and technical assistance to
Retailer for the testing of Retailer's EDI transmission of orders to
Valley's Bulletin Board System.
3. NON-EXCLUSIVITY. Valley acknowledges that Navarre, Inc. will be
Retailer's "First-Choice Supplier" under the terms and conditions of a
Fulfillment Agreement between Retailer and Navarre dated December 1,
1998. Valley will be considered the secondary supplier of Product for
Retailer. Retailer will utilize Valley for Order Fulfillment Services
if Navarre does not have inventory immediately available for shipment,
or in the case of a multiple unit order, if Navarre is unable to
fulfill all items at the lowest cost per item to avoid a duplication of
shipping costs to Retailer provided, however, that Retailer may utilize
other parties as sources for Product not available through Navarre,
Inc. or Valley (either through audiofile or otherwise) if Retailer
provides Valley fourteen (14) days notice of its intention to do so and
Valley fails to make specified Product available by the end of such
period.
4. PRODUCT PRICING.
4.1. AUDIO PRODUCT. Valley agrees to sell and Retailer agrees to
purchase Audio Product at [Confidential Treatment Requested]
percent (Confidential Treatment Requested)%)] off the
wholesale prices set forth in Exhibit A attached hereto (the
"Base Prices"). Base Prices may be revised by Valley from time
to time, effective upon written notice to Retailer of such
changes.
4.2. VIDEO PRODUCT. Retailer agrees to buy and Valley agrees to
sell Video Product at [Confidential Treatment Requested]
percent ([Confidential Treatment Requested]%) off suggested
retail price.
NetRadio
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Valley
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EXHIBIT 10.17 - CONFIDENTIAL TREATMENT REQUESTED
Certain information has been omitted from this exhibit
and filed separately with the SEC pursuant to a request
for confidential treatment under Rule 406
NetRadio Corporation
Order Fulfillment Agreement
4.3. DVD PRODUCT. Retailer agrees to buy and Valley agrees to sell
DVD Product at [Confidential Treatment Requested] percent
q([Confidential Treatment Requested] %) off suggested retail
price.
5. ORDER PLACEMENT AND FULFILLMENT.
5.1. FULFILLMENT. The following sets forth Valley's fulfillment
practices:
5.1.1. PRIORITY. Priority orders are defined as orders
shipped domestically via overnight or second-day air
delivery. Priority orders received on any business
day by 10:00 a.m. Pacific Standard Time ("PST") will
be shipped on the same day. Orders received after
10:00 a.m. PST will be shipped the following business
day.
5.1.2. STANDARD. Standard orders are defined as orders other
than Priority orders. On any business day that Valley
receives Standard orders by 1:00 p.m. PST, it will
ship the orders the following business day. Standard
orders received after 1:00 p.m. PST will be deemed
received the next business day and Valley will ship
these orders the business day after the day they are
deemed to be received.
5.1.3. PEAK PERIODS. The first day of a business week and
any day on which order volume is greater than 20%
above average (calculated on a floating 30-day basis)
is defined as a Peak Period. Valley shall use best
efforts to adhere to the fulfillment policies set
forth above during Peak Periods, but its failure to
so adhere during Peak Periods shall not be considered
a default under this Agreement.
NetRadio
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Valley
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EXHIBIT 10.17 - CONFIDENTIAL TREATMENT REQUESTED
Certain information has been omitted from this exhibit
and filed separately with the SEC pursuant to a request
for confidential treatment under Rule 406
NetRadio Corporation
Order Fulfillment Agreement
5.2 PRE-ORDERS.
5.2.1. AUDIO PRODUCT. Retailer shall collect pre-orders
until four days prior to the date that a new release
title is first to be made available to consumers (the
"street date"), at which point such pre-orders will
be forwarded in a separate batch to Valley on the
date and time of day required by Valley. Valley shall
ship all pre-orders no later than street date minus
one day, provided Valley has received the new release
title(s) from the label/distributor of such new
release(s) in time for processing. If a street date
is delayed, Retailer will be responsible for holding
the pre-orders until four (4) days before the new
street date.
5.2.2. VIDEO AND DVD PRE-ORDERS. Retailer shall forward to
Valley all Video and DVD pre-orders as it receives
them (in batches separate from regular orders) up to
one day prior to pre-book date. Retailer shall ▇▇▇▇
each pre- order "ship complete" by typing a "Y" in
the "ship complete" field of the EDI inbound
specifications. Valley shall ship all pre-orders no
later than street date minus one day, provided Valley
has received the new release title(s) from the
studio/distributor of such new release(s) in time for
processing. If a street date is delayed, Retailer
will be responsible for holding the pre-orders until
four (4) days before the new street date.
5.3. BACK-ORDERS. Valley shall ship the in-stock items of an order
as set forth in this Agreement and, except as set forth in
this Section 5.3, will cancel the out of stock items. Retailer
may elect to have Valley hold an order that has one or more
items out of stock until it is completely fulfilled by typing
a "Y" in the "ship complete" field of the EDI inbound
specifications. Retailer may inform Valley from time to time
of the number of days, up to a maximum of 25 days (the "Hold
Period"), that Valley is to hold such "ship complete" orders
before shipping the available products and canceling the out
of stock products. In the event that all products included in
an order are out of stock, Valley will hold the order for the
Hold
NetRadio
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Valley
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EXHIBIT 10.17 - CONFIDENTIAL TREATMENT REQUESTED
Certain information has been omitted from this exhibit
and filed separately with the SEC pursuant to a request
for confidential treatment under Rule 406
NetRadio Corporation
Order Fulfillment Agreement
Period before canceling the order (subject to prior
cancellation of such order by Retailer).
6. SHIPPING.
6.1. RISK OF LOSS. All shipments under this Agreement shall be
F.O.B. Valley's shipping facility. Title and risk of loss with
respect to all orders and products shipped by Valley or Valley
under this Agreement shall pass to Retailer or its customers
upon delivery of the products to the carrier at the point of
shipment. In the event of shipping damage or orders lost in
shipment, Valley will assist in filing a claim on behalf of
Retailer and will credit Retailer any amounts received or
credits to Valley in connection with each claim.
6.2. CHOICE OF CARRIER. Valley will ship the order with the carrier
requested by Retailer or its customer. Valley will cancel any
order for which the delivery address is not serviced by the
indicated carrier, and Retailer shall have the option to
retransmit the order to be shipped via an alternate carrier.
6.3 SHIPPING COSTS. Valley will invoice Retailer's customers at
such rates as are requested by Retailer. Retailer will pay
Valley shipping costs per the shipping tables attached hereto
as Exhibit B (as amended from time to time by Valley). Valley
will provide Retailer written notice of shipping rate changes
and the effective date of such changes. Valley represents that
the shipping costs charged to Retailer are its actual shipping
costs (not considering rebates).
7. FULFILLMENT FEES.
7.1. PACKING AND HANDLING FEES. Unless otherwise provided in this
Agreement, and in full consideration of all order fulfillment
services performed by Valley, Retailer will pay Valley the
following fees for each order fulfilled:
NetRadio
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Valley
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EXHIBIT 10.17 - CONFIDENTIAL TREATMENT REQUESTED
Certain information has been omitted from this exhibit
and filed separately with the SEC pursuant to a request
for confidential treatment under Rule 406
NetRadio Corporation
Order Fulfillment Agreement
7.1.1. All Products: $[Confidential Treatment Requested]
for the first unit, plus
$[Confidential Treatment Requested]
per unit after the first unit.
7.1.2. USPS Priority Mail Insured/International Surcharge:
$[Confidential Treatment Requested]
per unit shipped USPS Priority Mail
Insured or Internationally.
7.2. PAPER INSERTS. Retailer will pay a fee of $[Confidential
Treatment Requested] per paper insert packed by Valley at the
request of Retailer in product shipped under this Agreement.
Retailer shall supply the required paper inserts at no cost to
Valley. For purposes of this paragraph, paper inserts must be
lightweight, paper-based, promotional items the same size or
smaller than a standard single CD, or pre-folded to such size.
7.3. MERCHANDISE INSERTS. At Retailer's request, Valley will insert
promotional inserts (other than the paper inserts described in
paragraph 7.2) ("Merchandise Inserts") in its orders at a cost
to be negotiated by the parties. Retailer shall supply those
inserts at no cost to Valley.
7.4. INSERT BAR CODES. A unique UPC bar-code is required for each
Paper or Merchandise insert. Retailer should purchase and
apply a proprietary bar-code on all inserts. At Retailer's
request or if the bar-code does not meet Valley's standards,
Valley will create and apply a bar-code for a fee of
$[Confidential Treatment Requested] per applied bar-code.
7.5. EXCLUSIVE MERCHANDISE. Valley will receive, warehouse and ship
Exclusive Merchandise sold through Retailer for a fee to be
negotiated after a sample has
NetRadio
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Valley
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EXHIBIT 10.17 - CONFIDENTIAL TREATMENT REQUESTED
Certain information has been omitted from this exhibit
and filed separately with the SEC pursuant to a request
for confidential treatment under Rule 406
NetRadio Corporation
Order Fulfillment Agreement
been received and reviewed for packing and shipping
requirements. For merchandise that is standard product (single
CDs or cassettes and single VHS) a management fee of
$[Confidential Treatment Requested] per unit will be applied.
8. RETURNS.
8.1. DEFINITIONS.
8.1.1. REJECTED RETURNS. Any of the following: accessories;
blank tape; counterfeit Product; Imports; promos; limited
editions; Product identified in audiofile as non-returnable;
Product sold by a record or video club; Product sold on a
one-way basis; Product with a last customer return date (as
defined in the audiofile license agreement) prior to the date
the returned product is received by Valley; Product without
the original artwork or liner notes: Schwann Guides; shopworn
Product (items that have damage to the artwork, have foreign
substance on the media or have been defaced); and all vinyl
Product.
8.1.2. BREACHED PRODUCT. Any Opened CDs from the following
companies: Intersound; Polygram Distribution ("PGD"); RYKO;
Sony Music Entertainment ("Sony"); Universal ("UNI"); and
Warner, Elektra and Atlantic ("WEA"); and all Opened PGD
cassettes. In addition, Opened Video and DVD Product are
considered Breached Product.
8.1.3. OPENED PRODUCT. Any Product with the top spine label or
original manufacturer's shrink wrap or "dog bone" holographic
sticker removed or cut in any way.
8.1.4. DEFECTIVE PRODUCT. Any Opened Product that is
identified as defective when returned and which is actually
defective.
NetRadio
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Valley
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EXHIBIT 10.17 - CONFIDENTIAL TREATMENT REQUESTED
Certain information has been omitted from this exhibit
and filed separately with the SEC pursuant to a request
for confidential treatment under Rule 406
NetRadio Corporation
Order Fulfillment Agreement
8.1.5. ACCEPTED RETURNS. Any Product which is neither Rejected
Return nor Breached Product.
8.2. RETURN POLICY. Accepted Returns are returnable and eligible
for return credit to Retailer. Rejected Returns and Breached
Product are non-returnable and not eligible for return credit
to Retailer.
8.3. RETURN FEES. In the event Valley receives Rejected Returns or
Breached Product from Retailer, such Product will be returned
to Retailer at Retailer's expense and a $[Confidential
Treatment Requested] per unit processing charge will be
imposed. Retailer may elect to have Valley keep the Product to
avoid the $[Confidential Treatment Requested] per unit
processing charge.
8.4. REFURBISHING FEES. Retailer will pay a $[Confidential
Treatment Requested] per unit refurbishing fee on all Accepted
Opened Product except for Defective Product.
8.5. RESTOCKING FEES. Retailer will pay a [Confidential Treatment
Requested] percent ([Confidential Treatment Requested]%)
restocking fee for processing all Accepted Returns except for
Defective Product and unopened Product returned as incorrect
items.
8.6. MODIFICATIONS. Valley reserves the right to modify its return
policies from time to time. Such modifications shall be
effective upon Receipt by Retailer of written notice thereof.
9. BILLING AND PAYMENT.
9.1. INVOICES AND ACCOUNT RECONCILIATION. Valley will provide
Retailer with an invoice and account reconciliation on a
monthly basis. Invoices are due and payable thirty (30) days
after the invoice date.
NetRadio
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Valley
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EXHIBIT 10.17 - CONFIDENTIAL TREATMENT REQUESTED
Certain information has been omitted from this exhibit
and filed separately with the SEC pursuant to a request
for confidential treatment under Rule 406
NetRadio Corporation
Order Fulfillment Agreement
9.2. PAST-DUE AMOUNTS. Retailer shall be charged a [Confidential
Treatment Requested] percent ([Confidential Treatment
Requested] %) late fee on any amounts not paid within thirty
(30) days after the invoice date. Furthermore, all overdue
balances not paid within thirty (30) days after the invoice
date, will be assessed interest at the lesser of [Confidential
Treatment Requested] percent ([Confidential Treatment
Requested] %) or the maximum interest rate allowable by law,
beginning on the due date. Valley, in its sole discretion, may
refer collection of any past due amount to an agency or
attorney, and Retailer will be liable for the payment of all
costs and expenses, including reasonable attorneys' fees,
associated therewith.
10. PROPRIETARY RIGHTS.
10.1. CONFIDENTIAL INFORMATION. The term "Confidential Information"
refers to this Agreement and the subject matter of this
Agreement and to all information which one party furnishes or
makes available to the other party and all information related
to one party's business which the other party acquires in the
course of performing its obligations under this Agreement.
Disclosure of Confidential Information by a party is forbidden
except in the following circumstances: (i) to employees and
outside parties, but only to the extent necessary to fulfil
its obligations under the Agreement; (ii) if the information
disclosed is already publicly known through no fault of the
disclosing party; and (iii) if the Information is required to
be disclosed by law or legal process, provided that the party,
from whom disclosure is promptly required, gives the other
party notice and agrees to cooperate with the non-disclosing
party as that party may reasonably request to oppose
disclosure.
10.2. TRANSACTION INFORMATION. Both parties shall use best efforts
to ensure maximum security of transaction information
maintained on each party's computer system including, but not
limited to, the names, addresses and products ordered by
Retailer's customers.
NetRadio
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Valley
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EXHIBIT 10.17 - CONFIDENTIAL TREATMENT REQUESTED
Certain information has been omitted from this exhibit
and filed separately with the SEC pursuant to a request
for confidential treatment under Rule 406
NetRadio Corporation
Order Fulfillment Agreement
10.3. AUDIOFILE DATABASE. The rights to intellectual property
related to the audiofile database are governed by the
audiofile License (Exhibit C). Any termination of this
Agreement will automatically terminate the audiofile License,
and any termination of the audiofile License will
automatically terminate this Agreement.
10.4. NO RIGHTS TO MARKS. Each party is hereby granted no rights in
or to the other party's Marks. "Marks" means the trademarks,
service marks, trade names or other marks, registered or
otherwise, used by either Valley or Retailer, as applicable.
11. TERMINATION.
11.1. TERM. The term of this Agreement begins on the date this
Agreement is executed by both parties and expires one (1) year
thereafter.
11.2. EARLY TERMINATION. Either party may terminate this Agreement
upon thirty (30) days' written notice under the following
conditions:
11.2.1. Valley discontinues fulfillment services to on-line
customers or Retailer discontinues the on-line sale
of pre-recorded music; or
11.2.2. Valley or Retailer delivers to the other party a
30-day written notice of termination for a material
breach of this Agreement, provided such breach was
previously identified in a written notice and the
other party failed to cure such breach within thirty
(30) days.
12. LIMITATION OF REMEDIES AND EXCLUSION OF WARRANTIES. IN NO EVENT SHALL
EITHER PARTY BE LIABLE TO RETAILER FOR INDIRECT OR CONSEQUENTIAL
DAMAGES, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES AND REGARDLESS OF THE FORM OF ACTION. ALL PRODUCT SOLD
HEREUNDER IS SOLD "AS-IS," AND VALLEY
NetRadio
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Valley
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EXHIBIT 10.17 - CONFIDENTIAL TREATMENT REQUESTED
Certain information has been omitted from this exhibit
and filed separately with the SEC pursuant to a request
for confidential treatment under Rule 406
NetRadio Corporation
Order Fulfillment Agreement
EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO
PRODUCT SOLD UNDER THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY AND FITNESS FOR PURPOSE.
13. REPRESENTATIONS AND WARRANTIES.
13.1. VALLEY'S REPRESENTATIONS AND WARRANTIES
13.1.1. Valley has the right and authority to enter into this
Agreement.
13.1.2. Valley will use best efforts to deliver Product to
Retailer's customers in substantially the same
condition as it was in when it was received by Valley
in Valley's distribution facility.
13.2. RETAILER'S REPRESENTATIONS AND WARRANTIES.
13.2.1. Retailer has the right and authority to enter into
this Agreement.
13.2.2. Retailer will not include any content on its website
that infringes on the intellectual property rights,
including copyright and trademark rights, of any
third party, and will abide by all applicable rules
and regulations.
13.2.3. Retailer will provide adequate customer service and
abide by its terms of service and privacy policies.
14. INDEMNIFICATION. Both parties will, at all times, indemnify and hold
the other party harmless from any and all third-party claims, damages,
liabilities, costs and expenses (including reasonable attorney's fees)
arising out of any error, omission, misconduct or negligence on the
part of the indemnifying party or any breach or alleged breach by such
party of any warranty or representation made by such party in this
Agreement.
NetRadio
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Valley
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EXHIBIT 10.17 - CONFIDENTIAL TREATMENT REQUESTED
Certain information has been omitted from this exhibit
and filed separately with the SEC pursuant to a request
for confidential treatment under Rule 406
NetRadio Corporation
Order Fulfillment Agreement
15. FORCE MAJEURE. Neither party will be liable for failure to perform, or
the delay in ------------- performance of, any of its obligations under
this Agreement if, and to the extent that such failure or delay is
caused by events substantially beyond its control, including, but not
limited to, acts of God, acts of the public enemy or governmental body
in its sovereign or contractual capacity, war, fire, floods, strikes,
epidemics, quarantine restrictions, civil unrest or riots, freight
embargoes and/or unusually severe weather. Lack of funds by either
party shall not excuse timely performance. The parties affected shall
use best efforts to avoid or remove such causes of non-performance or
delay, and shall continue performance hereunder with reasonable
dispatch whenever such causes are removed. If any such non-performance
or delay continues for more than sixty (60) days, the unaffected party
may elect to terminate this Agreement upon written notice to the other
party.
16. GENERAL.
16.1. NOTICE. All notices, including those related to product,
pricing, ordering and fulfillment policies that will have a
material impact on the other party's business, shall be in
writing and delivered by certified mail, postage prepaid and
return receipt requested, or transmitted either by facsimile
or electronic mail if confirmed contemporaneously by such
mailing, to the addresses provided in writing, from time to
time, by the parties.
16.2. ENTIRE AGREEMENT; AMENDMENTS. This Agreement constitutes the
entire agreement of the parties concerning the subject matter
hereof, superseding all prior proposals, negotiations and
agreements concerning the subject matter of this Agreement. No
representation or promise relating to and no amendment of this
Agreement will be binding unless it is in writing and signed
by authorized representatives of both parties.
16.3. ASSIGNMENT. This Agreement may not be assigned or otherwise
transferred by either party to a third party without the prior
written consent of the other party.
NetRadio
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Valley
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EXHIBIT 10.17 - CONFIDENTIAL TREATMENT REQUESTED
Certain information has been omitted from this exhibit
and filed separately with the SEC pursuant to a request
for confidential treatment under Rule 406
NetRadio Corporation
Order Fulfillment Agreement
Subject to the foregoing, this Agreement will bind and inure
to the benefit of the successors and permitted assigns of
Valley and Retailer.
16.4. CAPTIONS:WAIVER SEVERABILITY. The captions appearing in this
Agreement are inserted only as a matter of convenience and in
no way define, limit, construe or describe the scope or
interpretation of this Agreement. No waiver by a party of any
breach of any provision of this Agreement will constitute a
waiver of any other provision of this Agreement. If any
provision of this Agreement shall be held invalid, void or
unenforceable, the remaining provisions hereof shall in no way
be affected or impaired, and such remaining provisions shall
remain in full force and effect.
16.5. GOVERNING LAW AND ARBITRATION. This Agreement shall be
construed and enforced pursuant to the laws of the State of
California. If the parties are unable to settle any
disagreements regarding this Agreement or the project
contemplated by this Agreement, such disagreements shall be
submitted to binding arbitration within the State of
California under the rules of the American Arbitration
Association as then in effect.
16.6. FACSIMILE SIGNATURES; COUNTERPARTS. Facsimile signatures will
be accepted as original signatures for all purposes. This
Agreement may be executed in counterparts.
In witness whereof, the parties hereto have executed this Agreement as of the
date first above written.
VALLEY MEDIA, INC. NETRADIO CORPORATION
By: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------- ------------------
Its: Director New Media Its: President & CEO
Telephone: ▇▇▇ ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: 530 661-7878 Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
EXHIBIT 10.17
EXHIBIT 10.17 - CONFIDENTIAL TREATMENT REQUESTED
Certain information has been omitted from this exhibit
and filed separately with the SEC pursuant to a request
for confidential treatment under Rule 406
Exhibit A
VALLEY MEDIA INC.
PRICE SCHEDULE FOR ALL LABELS
[CONFIDENTIAL TREATMENT REQUESTED]
% DISCOUNT SCHEDULE
COMPACT DISCS Suggested Retail Price Invoice Cost
------------- ---------------------- ------------
---------------------- ------------
---------------------- ------------
---------------------- ------------
ALL LABELS ---------------------- ------------
---------------------- ------------
---------------------- ------------
--------------------------------------------------------------------------------
CASSETTES
--------------------------------------------------------------------------------
---------------------- ------------
---------------------- ------------
---------------------- ------------
ALL LABELS ---------------------- ------------
---------------------- ------------
---------------------- ------------
--------------------------------------------------------------------------------
SINGLES
--------------------------------------------------------------------------------
---------------------- ------------
---------------------- ------------
---------------------- ------------
ALL LABELS ---------------------- ------------
---------------------- ------------
---------------------- ------------
--------------------------------------------------------------------------------
EXCEPTIONS (a)
--------------------------------------------------------------------------------
Compact Discs Only (b)
---------------------- ------------
PRICES SUBJECT TO CHANGE
VALLEY MEDIA, INC.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇/▇.▇. ▇▇▇ ▇▇▇▇/▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
PHONE: ▇▇▇.▇▇▇.▇▇▇▇/FAX: ▇▇▇.▇▇▇.▇▇▇▇ O
UTSIDE THE U.S. PHONE: ▇▇▇.▇▇▇.▇▇▇▇/FAX: ▇▇▇.▇▇▇.▇▇▇▇
EXHIBIT 10.17
EXHIBIT 10.17 - CONFIDENTIAL TREATMENT REQUESTED
Certain information has been omitted from this exhibit
and filed separately with the SEC pursuant to a request
for confidential treatment under Rule 406
NetRadio Corporation
Order Fulfillment Agreement
Exhibit B
[Confidential Treatment Requested]
EXHIBIT 10.17
EXHIBIT 10.17 - CONFIDENTIAL TREATMENT REQUESTED
Certain information has been omitted from this exhibit
and filed separately with the SEC pursuant to a request
for confidential treatment under Rule 406
NetRadio Corporation
Order Fulfillment Agreement
AUDIOFILE LICENSE AGREEMENT
This agreement ("Agreement"( is entered into by and between Valley Media, Inc.
(the "Licensor"); and the party identified in Exhibit A as the "Licensee" (not
including any subsidiaries, affiliates, or franchisees). This Agreement is the
complete and exclusive statement of the agreement between the parties with
respect to the subject matter hereof (superseding all proposals, communications
or prior agreements, oral or written with respect to such subject matter); and
may be amended only in a writing signed by both parties. As used herein,
"Database" means the proprietary database described in the Audiofile
Specifications attached as Exhibit B to this Agreement created and developed by
Licensor, and includes "Database Updates," daily updates of information
contained in the Database.
1. LICENSE GRANT
(a) Licensor hereby grants to Licensee during the term of this Agreement, a
non-exclusive, non-transferable, non-sublicenseable license to:
(i) Load, transmit, execute, store or display the Database on the
Licensee's servers at the location(s) specified in Exhibit A
attached hereto for use by Licensee and Licensee's retail
customers;
(ii) Modify the Database for use by Licensee and Licensee's retail
customers; or
(iii) Incorporate the Database or portions thereof into its own
database for use by Licensee and Licensee's retail customers,
provided, however, that the Database portion of the resulting
conjoined work may be used only in accordance with the license
granted in Section 1(a) above.
(b) Licensee may not, without prior written consent from Licensor,
sublicense, sell, lend, rent the Database or any portion thereof, or
assign this license or any of its rights or obligations under this
Agreement to any party; provided, however, that Licensee may make
copies of the Database sufficient for back-up, development and
production purposes.
EXHIBIT 10.17
EXHIBIT 10.17 - CONFIDENTIAL TREATMENT REQUESTED
Certain information has been omitted from this exhibit
and filed separately with the SEC pursuant to a request
for confidential treatment under Rule 406
NetRadio Corporation
Order Fulfillment Agreement
2. FEES
(a) As consideration for the License granted herein, upon execution of this
Agreement, Licensee shall pay to Licensor the TOTAL FEES DUE set forth
on Fees-Line 4 of Exhibit A, which includes:
(i) The LICENSE FEE (Fees-Line 1 of Exhibit A) to operate the
Database at the location(s) listed in Exhibit A; and
(ii) The PRO-RATED UPDATE FEE (Fees-Line 2 of Exhibit A) for the
Database Updates for the specified period; and
(b) Licensee shall also pay the UPDATE FEE (Fees-Line 5 of Exhibit A) to
Licensor as consideration for Licensor providing the Database Updates.
The subscription is to be paid quarterly in advance on the first day of
each calendar quarter (January 1, April 1, July 1 and October 1). The
UPDATE FEE entitles the Licensee to receive Database updates for the
succeeding three (3) month period.
(c) Licensor shall provide Licensee with reasonable telephone support for
the Database and Database Update at no additional charge.
3. RIGHTS IN TANGIBLE AND INTELLECTUAL PROPERTY
Licensor shall be the sole owner of the Database, Database Updates and
all supporting materials as between Licensor and Licensee, including
any and all copies thereof, and including all patent, trademark,
copyright, trade secret and other intellectual property rights
associated therewith. Licensee agrees to treat the Database, Database
Updates and supporting materials as confidential trade secrets of the
Licensor.
EXHIBIT 10.17
EXHIBIT 10.17 - CONFIDENTIAL TREATMENT REQUESTED
Certain information has been omitted from this exhibit
and filed separately with the SEC pursuant to a request
for confidential treatment under Rule 406
NetRadio Corporation
Order Fulfillment Agreement
4. TERM: TERMINATION
The term of the Agreement and the licenses granted hereunder shall
commence on the Agreement Date specified in Exhibit A and continue
until terminated as set forth herein:
Either party may terminate the term of this Agreement on thirty (30)
days' notice for a material breach of this Agreement, provided such
breach was previously identified in a written notice and the other
party did not cure that breach within thirty (30) days. If Licensee
terminates this Agreement or the Order Fulfillment Agreement between
the parties, then Licensor will refund a pro-rata portion of all fees
paid by Licensee under this Agreement. The term of this Agreement may
also be terminated with the mutual consent of the parties.
5. WARRANTY
(a) Licensor warrants that the media on which or transmission by which the
Database or Database Update are delivered will be free from defects.
Licensor's sole obligations under the foregoing warranty are limited to
(i) replacement of any defective media, (ii) re-transmission of the
Database or Database Update, or (iii) termination of this Agreement and
refunding a pro rata portion of any FEES paid in advance by Licensee.
(b) EXCEPT AS SET FORTH IN SECTION 5(a) ABOVE:
(i) THE DATABASE AND DATABASE UPDATES ARE PROVIDED "AS IS" AND
LICENSOR MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT
TO THE CONTENT, SUFFICIENCY, ACCURACY, COMPLETENESS OR
CURRENTNESS THEREOF.
(ii) LICENSOR EXPRESSLY DISCLAIMS ANY EXPRESS, IMPLIED OR STATUTORY
WARRANTY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSES.
EXHIBIT 10.17
EXHIBIT 10.17 - CONFIDENTIAL TREATMENT REQUESTED
Certain information has been omitted from this exhibit
and filed separately with the SEC pursuant to a request
for confidential treatment under Rule 406
NetRadio Corporation
Order Fulfillment Agreement
6. LIMITATIONS OF LIABILITIES
(a) IN NO EVENT WILL LICENSOR BE LIABLE TO LICENSEE FOR THE
RESULTS OF LICENSEE'S USE OF THE DATABASE, FOR ANY
IMPAIRMENT OF LICENSEE'S ABILITY TO CONDUCT ITS
BUSINESS AS A RESULT OF ITS USE OR INABILITY TO USE THE
DATABASE. NEITHER PARTY SHALL BE LIABLE FOR ANY
LOSSES OR DAMAGES, WHETHER DIRECT OR INDIRECT,
INCIDENTAL, SPECIAL OR CONSEQUENTIAL, ARISING FROM
THIS AGREEMENT; THE DESIGN, CONTENT, OPERATION OR USE
OF THE DATABASE; OR FOR ANY ERRORS OR OMISSIONS
CONTAINED THEREIN, REGARDLESS OF THE CAUSE, THE
CIRCUMSTANCES, OR THE FORM OF THE ACTION.
(b) IN NO EVENT WILL LICENSOR'S LIABILITY TO LICENSEE FOR ANY CLAIMS,
LOSSES OR DAMAGES ARISING UNDER THIS AGREEMENT, WHETHER IN CONTRACT,
TORT OR OTHER FORM OF ACTION, EXCEED THE LICENSE FEE SPECIFIED IN
FEES-LINE 2 OF EXHIBIT A.
7. INDEMNIFICATION
Licensee will at all times indemnify and hold harmless Licensor from
any and all claims, damages, liabilities, costs and expenses, including
reasonable legal expenses and attorneys fees, arising out of any claims
arising out of Licensee's use of the Database.
8. ASSIGNMENT
This Agreement may not be assigned by either party without the express
written consent of the other party; provided, however, that without
Licensee's consent, Licensor may assign its right to receive funds
hereunder and may assign this Agreement to an affiliate or subsidiary
of Licensor.
EXHIBIT 10.17
EXHIBIT 10.17 - CONFIDENTIAL TREATMENT REQUESTED
Certain information has been omitted from this exhibit
and filed separately with the SEC pursuant to a request
for confidential treatment under Rule 406
NetRadio Corporation
Order Fulfillment Agreement
9. SURVIVAL
Paragraphs 6, 7 and 8 of this Agreement will survive the expiration or
termination of the term of this Agreement.
10. TAX PAYER IDENTIFICATION NUMBER
Licensor's Tax Payer Identification Number is ▇▇▇▇▇▇▇▇▇.
LICENSOR: LICENSEE:
Valley Media, Inc. /s/ ▇.▇. ▇▇▇▇▇▇▇▇
1280 Santa ▇▇▇▇▇ Court -----------------
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇
-----------------
C.C.O.
-----------------
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By (Database):
----------------------- -------------------
Its: Director New Media By (Database Updates):
------------
Its:
-----------------------------
EXHIBIT 10.17
EXHIBIT 10.17 - CONFIDENTIAL TREATMENT REQUESTED
Certain information has been omitted from this exhibit
and filed separately with the SEC pursuant to a request
for confidential treatment under Rule 406
AUDIOFILE LICENSE AGREEMENT
EXHIBIT A
LICENSEE INFORMATION: AGREEMENT DATE: 4/1/98
NETRADIO, A DIVISION OF NAVARRE, INC.
--------------------------------------------------------------------------------
(Legal Name of Business)
NETRADIO
--------------------------------------------------------------------------------
(Store Name)
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇.▇.
--------------------------------------------------------------------------------
(Billing Address)
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
--------------------------------------------------------------------------------
(City, Sate, ZIP Code)
(▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
(Phone Number) (Fax Number)
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------------------------------------------------
(Owner) (Technical Contact)
LOCATION(S) USING DATABASE: *PLEASE ATTACH ADDITIONAL SHEETS IF NECESSARY*
1) STORE NAME: ABOVE
----------------------------------------------------------
PHYSICAL ADDRESS:
-----------------------------------------------------
PHONE & CONTACT:
------------------------------------------------------
2) STORE NAME:
----------------------------------------------------------
PHYSICAL ADDRESS:
-----------------------------------------------------
PHONE & CONTACT:
------------------------------------------------------
3) STORE NAME;
----------------------------------------------------------
PHYSICAL ADDRESS:
-----------------------------------------------------
PHONE & CONTACT:
------------------------------------------------------
MEDIUM FOR DELIVERY OF DATABASE: o Database Date:
----------
o 3 1/2" High Density Diskette
o Included with POS software o Current through:
---------
o Other:
----------------------------
o Update Disk Type:
--------
MEDIUM FOR DELIVERY OF UPDATES:
o 3 1/2" High Density Diskette o Update Frequency:
--------
o BBS Retrieval
o Other: o Software System: NT/ SITE
SERVER
-------------------------
OPERATING SYSTEM ON EQUIPMENT USING THE o Modem Speed: MULTIPLE
T3'S (OC3)
-------------------------
DATABASE/UPDATES:
o MS-DOS or PC-DOS
o Macintosh
o SCO Xenix
o Unix
o Other:
--------------------------
FEES:
Line 1, LICENSEE FEE: $[CONFIDENTIAL TREATMENT REQUESTED] PER YEAR
Line 2, PRO-RATED UPDATE FEE: $__________ for the period from ____________ to ____________
Line 3, MISCELLANEOUS FEES: $__________
Line 4, TOTAL FEES DUE: $__________ upon receipt, to initiate your subscription.
Line 5, UPDATE FEE: $__________ per o Calendar Quarter (audiofile Rep Initials: __________)
(for periodic updates) $__________ per o Year
By initialing here, I agree that all information listed above is true and
correct, and that I have disclosed all locations using the Database and Database
Updates. D.W. (Please Initial)
-------
(Licensee)