EXHIBIT 10.41
Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as [ * ]. A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
[LOGO OF LOUDEYE TECHNOLOGIES, INC.]
VOLUME PURCHASE ORDER
THIS VOLUME PURCHASE ORDER (this "Order") is entered into as of July 19,
2000 (the "Effective Date"), by and between Loudeye Technologies, Inc., a
Delaware corporation ("Loudeye"), and MusicBank, a Delaware corporation
("Customer").
Loudeye and Customer desire to enter into certain terms relating to
Customer's volume purchases of encoding services. The parties agree as follows:
1. Volume Purchase Commitment. Customer agrees to purchase from Loudeye
encoding services in the following amounts during the periods set forth below
(the annual amount for each year being referred to as the "Annual Commitment";
each quarterly amount being referred to as a "Quarterly Commitment"; or each
monthly amount being referred to as a "Monthly Commitment"):
2. Scheduled Arrival Dates. Loudeye agrees to Deliver media content to
Musicbank according to the following Scheduled delivery dates during the periods
set forth below:
Quarterly/Monthly Commitment.
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Qtr # of CD's * $ Per CD Amount Scheduled Delivery Dates
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Q1 01
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Q2 01
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Q3 00 [ * ] [ * ] [ * ] [ * ]
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Q4 00 [ * ] [ * ] [ * ] [ * ]
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Total [ * ] [ * ]
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* One Title can have multiple CD's.
3. Pricing Terms. Based on the Annual Commitment and each Monthly or
Quarterly Commitment, Loudeye agrees to provide the encoding services at the
rates attached hereto as Exhibit A.
Provided, however, at any time during the term of this Agreement, if Customer
fails to deliver the content to be encoded according to the scheduled arrival
date(s), or if Customer fails to meet two consecutive Quarterly Commitments, the
pricing terms set forth above shall not be applicable to the encoding services
and Customer shall pay Loudeye's standard non-discounted rates in effect at such
time for all encoding services already performed or to be performed on
Customer's behalf by Loudeye. Each Quarterly Commitment and Annual Commitment
shall be recalculated based on such standard non-discounted rates.
4. Deposit. Upon execution of this Order, Customer shall pay Loudeye a
non-refundable deposit in the amount of [ * ] on September 1st due under the
Order which will be applied against the [ * ] of the work to be performed by
Loudeye hereunder except as set forth herein. Loudeye will invoice Customer for
the Deposit upon execution of the Order. Payment terms for the Deposit are net
[ * ] from invoice date.
In the event that Customer does not deliver content to be encoded to Loudeye
within [ * ] of the first scheduled arrival date per the Order, Customer
will forfeit the deposit to Loudeye.
5. Billing and Payment. Billing will be on a monthly basis, beginning the
first month, and as content is delivered to Customer. Payment terms are net
[ * ] from invoice date. (Except for Deposit per Section 4.)
6. Terms and Conditions. All encoding services to be performed by Loudeye
on the above volume and pricing terms shall be pursuant to the terms and
conditions attached hereto as Exhibit B, and reference will be
[ * ] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
made to this Volume Purchase Order. Such terms and conditions shall govern
Loudeye's provision of encoding services to Customer and are incorporated
herein.
7. Termination. Either party may terminate this Agreement upon [ * ]
written notice; provided, however,
a) if less than [ * ] of the scheduled content arrives prior to
termination, Customer is subject to forfeiture of the entire deposit,
and Customer will pay Loudeye its standard non-discounted rates for all
work performed and to be performed by Loudeye
b) if Customer terminates this Agreement prior to delivery of any content
to Loudeye, Customer is subject to forfeiture of the entire deposit.
8. Termination of Prior Agreement; Integration. This Order constitutes
the full and complete agreement of Loudeye and Customer with respect to the
subject matter contained in this Order and there are no further or other
agreements or understandings, written or oral, in effect between Loudeye and
Customer relating to such subject matter except as expressly referred to herein,
and in particular that certain Volume Purchase Order dated as of April 15, 2000
between Loudeye and Customer (then known as XxXxxxxXxxxxxx.xxx, Inc.) is hereby
terminated and of no further force and effect.
9. [ * ]. Through the later of (i) [ * ] or (ii) so long as
Customer has [ * ], Loudeye agrees [ * ]. A duly authorized
representative of each of the undersigned parties has signed and delivered this
Agreement as of the date first set forth above.
LOUDEYE Technologies, INC. MusicBank
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxxxxx Xxxx
------------------ -------------------
Its: Chief Financial Officer Its: Senior Project Manager
------------------------- ------------------------
[ * ] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
-2-
Exhibit A - Musicbank Technical Specifications
Formats: [ * ]
[ * ]
Clip Lengths: [ * ]
[ * ]
Data: All associated data and metadata are provided using the
[ * ] database. Data fields supplied are:
[ * ]
Encode Filenaming Convention:
[ * ]
Scans of Front Cover Art:
[ * ]
Scan File Naming Convention:
[ * ]
Delivery: [ * ] delivered on MusicBank's NetApp RAID device. NetApps
will be shipped only when full unless otherwise specified by
MusicBank. Loudeye may invoice based on completed CDs loaded into
the NetApp per the progress against monthly schedule. Loudeye
will notify MusicBank of status of these NetApps one week prior
to specified delivery dates. Musicbank will perform checksum on
the NetApp and return the NetApp to Loudeye within 3 weeks OR
notify Loudeye immediately that the backup can be purged. Failure
to comply with this may result in slippage of the scheduled
delivery dates.
Directory Structure:
[ * ]
CDs: Loudeye and Musicbank will purchase CD's from [ * ] or other
vendor. (balance of [ * ] CD's for delivery in [ * ] and
Musicbank will purchase CD's for Q4 commitment of [ * ] CD's
under the term outlined herein. The CDs will remain the property
of Musicbank and will be shipped to MusicBank when they are no
longer needed by production. Pricing included herein is only
applicable on CDs that are part of the [ * ] dataset. There
can be multiple CD's per Title as in box sets. This document
assumes delivery of CD's not Titles for the amounts given. There
has been a consistent fallout rate of approximately [ * ] out
of [ * ] CD's from the [ * ] catalogue, these CD's are
physically defective and cannot be processed. Loudeye requires
re-order time of these CD's.
Archive and Re-encoding of existing .wav files
Loudeye will archive for [ * ] all .wav files of CDs encoded
for Customer pursuant to the Order at a cost of [ * ] per CD
(the "Archive"). The archiving will be extended for one year at
no additional charge unless either party notifies the other at
least [ * ] before the expiration of the term. Upon
Customer's request, Loudeye shall deliver a copy of the Archive
of Customer's .wav files stored on Customer's behalf to Customer
in a mutually agreeable format such as DAT tapes or on NetApp
RAIDS, at Customer's expense. Under not circumstances will
Loudeye distribute or alter Customer's archive without [ * ]
prior notification.
a) Format. The re-encoded format must be a then-currently supported
commercial format Loudeye's, as determined by Loudeye in its
sole discretion. [ * ].
[ * ] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
-3-
b) Cost. For the first re-encode of [ * ] per CD (e.g one format
two bit rates or two formats one bit rate). For all subsequent re-
encodes, the cost will be [ * ] per C.
c) Additional terms and conditions. The timing and other terms and
conditions applicable to the re-encoding will be set forth in a
separate purchase order.
d) Re-encode. Customer will use Loudeye for all mass re-encoding where
the format to be encoded to is supported by the Loudeye encoding
system at the time of request.
Encoding Pricing.
Total Cost Per CD: [ * ] for delivery by [ * ].
Total Cost Per CD: [ * ] for delivery from [ * ].
Service Level Agreement
Loudeye agrees to deliver the complete encode files, artwork and data according
to the following terms:
1. Shipment of artwork and new data containing the [ * ] for the
[ * ] CD's previously delivered and as outlined in Exhibit A, by
the week of [ * ].
2. Ship [ * ] CD's worth of encoded data and scans on or during
the week of [ * ].
3. The next shipment of [ * ] CD's worth of encode files, artwork
and data by the week of [ * ].
4. [ * ]
5. Should Loudeye fail to deliver the Items 1 and 2 contained herein
Musicbank has the option to upon written notice terminate the
agreement for the balance [ * ] CDs. Written notice of termination
must be provided to Loudeye on or before [ * ].
6. Loudeye agrees to provide dedicated project management support to
Musicbank. Additionally, Loudeye will provide onsite technical support
during mutually agreed upon milestones through August 31, 2000. These
milestones will be defined by Musicbank prior to August 4,2000
Musicbank agrees to the following conditions under the terms of this document:
1. Any changes to specifications contained herein null and void the
delivery dates committed by Loudeye.
2. Musicbank agrees ship balance of [ * ] CDs to Loudeye according to
the following schedule unless otherwise notified by Loudeye.
a. [ * ] CD's by [ * ]
b. [ * ] CD's [ * ]
c. [ * ] CD's [ * ]
3. Loudeye will provide Musicbank with a master list of all available CD
Titles in the Loudeye database to be ordered for processing.
4. Musicbank will provide an electronic packing slip to Loudeye that
contains [ * ] that is a subset of the master list described
above, [ * ] prior to the delivery of the CD's.
LOUDEYE Technologies, INC. MusicBank
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxxxxx Xxxx
------------------ -------------------
Its: Chief Financial Officer Its: Senior Project Manager
------------------------- ------------------------
[ * ] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
-4-
Exhibit B
Terms and Conditions
1. CONTROLLING TERMS. The terms and conditions of sale contained herein shall
apply to all provisions of encoding services and related services by Loudeye
Technologies, Inc. ("Loudeye") and to all purchase orders or other offers
accepted by Loudeye related thereto (collectively, the "Service"). These terms
and conditions may in some instances conflict with or add to some of the terms
and conditions affixed to the purchase order or the procurement document issued
by the Customer. In such case, the terms and conditions contained herein shall
govern exclusively and ACCEPTANCE OF CUSTOMER'S ORDER IS EXPRESSLY CONDITIONED
UPON CUSTOMER'S ACCEPTANCE OF THE TERMS AND CONDITIONS CONTAINED HEREIN
irrespective of whether the Customer accepts these conditions by oral or written
acknowledgment, by implication or by acceptance of or payment for the provision
of the Service ordered hereunder based on the content, materials and/or elements
(collectively, the "Content") provided to Loudeye by Customer.
2. TERMS OF PAYMENT. Payment must be made in US dollars and may be made in
cash, cashier's check, money order, travelers checks, check drawn on local bank
or Visa / MasterCard. All COD orders must be paid for and picked up Monday
through Friday between the hours of 9:00 AM and 5:00 PM. Invoice terms are net
30 days from date of invoice, except for Deposit invoice, which is due in full
within 10 days of invoice date. Interest at the maximum rate allowed by law will
be charged on all accounts not paid by due date unless previous arrangements
have been made with the Loudeye. ANY CLAIMS FOR ADJUSTMENT IN CONNECTION WITH
AN INVOICE MUST BE PRESENTED IN WRITING WITHIN 10 DAYS OF THE DATE OF THE
INVOICE IN QUESTION.
3. PRICES; LIENS. Quantities specified are based on estimates provided by
Customer. Prices for the Service are those shown on the face of this
acknowledgment, provided, however, that if such prices are based on the purchase
of a minimum quantity of Service and Customer fails to purchase such minimum
quantity, Loudeye has the right to collect from Customer the difference between
the price paid by Customer for the Service purchased and Loudeye's standard
price for such Service in quantity actually purchased by Customer. Per minute
charges are billed in minimum one-minute increments, unless specifically stated
otherwise. Loudeye shall have a lien and security interest on tapes, CDs, files
and other property delivered by Customer to Loudeye and/or made by Loudeye
therefrom for the balance of any account due us by the Customer, including
collection and attorney's fees. Customer hereby authorizes Loudeye to execute
and file, on Customer's behalf, a financing or other statement evidencing this
security interest. When necessary, Customer agrees to execute necessary
documentation for perfecting such security interest.
4. SHIPPING. If Loudeye provides shipping and handling services for Customer's
materials, surcharges will apply. Shipping and delivery dates are approximate.
In no event, for any reason whether or not beyond Loudeye's control, shall
Loudeye be liable to Customer or any other party for any losses, damages or
liability for delay in delivery of shipped materials; nor shall any delay in
delivery of shipped materials constitute grounds for cancellation of Customer's
work order.
5. DELIVERY. The delivery dates set forth on this acknowledgment are
approximate only, and Loudeye is not liable for any damages to Customer, nor
shall Loudeye be in breach of its obligations to the Customer, because of any
delivery made within a reasonable time after the stated delivery date. Loudeye
may by written notice to Customer change any delivery date, and such date shall
become the agreed upon delivery date unless Customer objects to such date in
writing delivered to Loudeye within ten (10) days of receipt of Loudeye's
notice. Loudeye shall not be liable for any late delivery caused by the failure
of the Customer to provide in a timely manner any necessary information to
affect such delivery.
6. FORCE MAJEURE. Loudeye is not liable for any failure to deliver, or delay
in the delivery of, any Service due to a cause beyond its control, including but
not limited to acts of God, fires, typhoons, earthquakes, labor disputes,
governmental actions or inability to obtain materials, components, energy,
encoding facilities, or transportation. In the event of any such delay, the
data of delivery or performance hereunder shall be extended by a period equal to
the time lost by reason of such delay. If Loudeye's production is curtailed for
any of the above reasons, Loudeye may allocate its production among its various
customers. Such allocation shall be in a commercially fair and reasonable
manner.
7. STORAGE. It is the Customer's responsibility to arrange for removal of
materials from Loudeye at the completion of each project. At the Customer's
request, Loudeye will store tapes and Content for a maximum of 60 days. Loudeye
reserves the right to ship tapes and/or Content to the Customer, freight
collect, at the conclusion of the 60 day period or to charge a storage fee or to
otherwise dispose of the materials.
8. RIGHT TO REFUSE SERVICE. Loudeye reserves the right to refuse service
and/or process any Content which Loudeye, in its sole discretion, deems
unlawful, pornographic, degrading, likely to incite prejudice or passion or
otherwise inappropriate.
9. CUSTOMER WARRANTIES. Customer represents and warrants that (a) Customer has
sufficient rights in the Content to use it in the manner contemplated by this
acknowledgment, (b) the Content does not infringe upon or violate any patent,
copyright, trade secret, trademark or other intellectual property right of any
third party or any obscenity law or other applicable law, rule or regulation in
any jurisdiction in which the Content may be viewed or retrieved, (c) Loudeye's
provision of the Service and/or hosting of the Content hereunder will not
infringe upon or violate any patent, copyright, trade secret, trademark or other
intellectual property right of any third party, including but not limited to any
and all performance license rights, mechanical license rights, synchronization
license rights and rights under the Digital Performance Right in Sound
Recordings Act of 1995, or any obscenity law or other applicable law, rule or
regulation in any jurisdiction in which the Content can be viewed or retrieved,
and (d) the Content and Loudeye's provision of the Service on behalf of Customer
is not for any illegal, obscene, offensive or immoral purpose.
10. LOUDEYE LIMITED WARRANTY; LIMITED LIABILITY; EXCLUSION OF CONSEQUENTIAL
DAMAGES. It is understood and agreed that the Customer's materials are
transported, received, processed, used and stored at Customer's risk. LOUDEYE
SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR OTHER DAMAGES CAUSED BY THE LOSS,
DAMAGE OR DESTRUCTION OF MATERIALS BELONGING TO THE CUSTOMER OR ANY OTHER PERSON
WHILE IN TRANSIT OR POSSESSION OF LOUDEYE UNLESS CAUSED BY THE NEGLIGENCE OF
LOUDEYE IN WHICH EVENT, THE LIABILITY OF LOUDEYE SHALL BE LIMITED TO THE
REPLACEMENT OF A SIMILAR QUANTITY OF BLANK TAPE OR MAGNETIC OR OPTICAL MEDIA TO
THE MATERIALS WHICH WERE LOST, DAMAGED OR DESTROYED. EXCEPT FOR SUCH
REPLACEMENT, LOUDEYE SHALL HAVE NO FURTHER LIABILITY REGARDING THE LOSS, DAMAGE
OR DESTRUCTION OF SUCH MATERIALS. LOUDEYE SHALL NOT BE LIABLE TO CUSTOMER OR
ANY OTHER PERSON FOR ANY ACT OR OMISSION OF ANY PERSON SELECTED BY LOUDEYE TO
PERFORM SERVICES OR FURNISH MATERIALS TO CUSTOMER. IF MATERIALS FURNISHED BY
LOUDEYE ARE FOUND TO BE DEFECTIVE IN MANUFACTURE, LOUDEYE SHALL REPLACE SUCH
MATERIALS WITH A SIMILAR QUANTITY OF BLANK TAPE, OR MAGNETIC OR OPTICAL MEDIA,
PROVIDED THE CUSTOMER NOTIFIES LOUDEYE IN WRITING WITHIN THIRTY DAYS AFTER
SHIPMENT OF SUCH DEFECT. EXCEPT FOR SUCH REPLACEMENT, LOUDEYE SHALL HAVE NO
FURTHER LIABILITY IN CONNECTION WITH SUCH DEFECTIVE MATERIALS. LOUDEYE MAKES NO
WARRANTY, EXPRESSED OR IMPLIED WITH RESPECT TO THE MATERIALS OR SERVICES
PROVIDED IT ASSUMES NO RESPONSIBILITY FOR THE CHARACTER OR QUALITY OF MATERIALS
OR SERVICES PROVIDED BY IT. LOUDEYE EXPRESSLY DISCLAIMS ALL WARRANTIES
EXPRESSED OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OR
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALL WARRANTIES WITH RESPECT
TO THE SERVICE ARE STRICTLY LIMITED TO THOSE SET FORTH IN THIS ACKNOWLEDGMENT.
IN NO EVENT WILL LOUDEYE BE LIABLE TO THE CUSTOMER FOR ANY CONSEQUENTIAL,
INDIRECT, SPECIAL, OR INCIDENTAL DAMAGES EVEN IF LOUDEYE HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, LOUDEYE MAKES NO
REPRESENTATION OR WARRANTIES OF ANY TYPE WHATSOEVER REGARDING THE HOSTING OF ANY
CONTENT ON ITS NETWORK OR ANY SUBCONTRACTOR'S OR OTHER PARTY'S NETWORK OR THE
PERFORMANCE OR RELIABILITY OF ANY SUCH NETWORK, OR ANY CONNECTION TO,
TRANSMISSION OVER, RESULTS OF OR USE OF ANY NETWORK CONNECTION OR FACILITIES
PROVIDED (OR FAILED TO BE PROVIDED) UNDER THIS ACKNOWLEDGMENT AND LOUDEYE MAKES
NO WARRANTY WHATSOEVER FOR PRODUCTS OR SERVICES NOT ACTUALLY PRODUCED OR
PROVIDED BY LOUDEYE.
11. INDEMNIFICATION BY CUSTOMER. Customer agrees to defend, protect, indemnify
and hold Loudeye harmless from and against all claims of any kind, whether based
in contract, in tort (including negligence or strict liability), or resulting
from (a) services provided by Loudeye on behalf of Customer hereunder, except
for any damages arising exclusively out of any material breach of this
acknowledgment by Loudeye, (b) any use by Loudeye of any data or files provided
by Customer to Loudeye under this acknowledgment, (c) any breach by Customer of
this acknowledgment, including without limitation any failure by Customer to
observe or satisfy any terms or conditions of this acknowledgment, (d) any
violation of any applicable federal, state or local laws with regard to the
transmission and use of information and content, including laws related to
privacy, publicity, the Communications Decency Act of 1996, arising out of the
Customer Content, (e) any infringement of any United States or other patent,
trademark, copyright, trade secret or other intellectual property right,
including but not limited to any and all performance license rights, mechanical
license rights, synchronization license rights and rights under the Digital
Performance Right in Sound Recordings Act of 1995, relating to the Content
supplied by Customer to Loudeye or the Services provided hereunder, or (f)
otherwise for any losses, expenses, damages and liabilities, direct, indirect,
special or consequential which may arise out of Customer's use, distribution or
sale of goods or services covered hereby except those caused solely by the sole
gross negligence of Loudeye. Customer acknowledges having read and agrees to
the terms and conditions regarding Loudeye's branding rights and other
intellectual property rights set forth at xxx.Xxxxxxx.xxx as may be amended
from time to time in Loudeye's sole discretion.
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12. ACKNOWLEDGMENT. Customer acknowledges that Loudeye, in its sole
discretion, may subcontract all or part of the hosting services to be provided
hereunder. CUSTOMER FURTHER ACKNOWLEDGES THAT LOUDEYE WILL HAVE NO LIABILITY
FOR THE FAILURE OF ANY NETWORK OR SERVER IN CONNECTION WITH THE HOSTING OF ANY
CONTENT.
13. ORDER CANCELLATION. If an order for the Service is canceled, Customer must
pay for orders scheduled for delivery or performance within ninety (90) days of
Loudeye's receipt of cancellation notice.
14. MISCELLANEOUS. Any waiver by Loudeye of any default by the Customer
hereunder shall not be deemed to be a continuing waiver of such default or a
waiver of any other default or of any of the terms and conditions of this
acknowledgment. The terms and conditions of this acknowledgment may not be
superseded, modified, or amended except in a writing stating that it is a
modification and signed by an authorized representative of each party hereto,
provided, however, that Loudeye may modify the specifications of the Service
provided hereunder if the modification does not change the form, fit or function
of the Service. This acknowledgment (not including any of the terms and
conditions of the Customer's purchase order or any similar document issued by
Customer), constitutes the entire agreement between the Customer and Loudeye
with regard to the Service listed on the face of this acknowledgment, and
expressly supersedes and replaces any prior or contemporaneous agreements,
written or oral, relating to such goods or services. This acknowledgment is
governed by, construed and enforced in accordance with the laws of the State of
Washington, without regard to conflict of laws provisions. Both parties agree
that any litigation or arbitration between the parties shall take place in King
County, Washington, and both parties waive any objection to personal
jurisdiction or venue in any forum located in that county. In any suit or
action brought to enforce any term, condition or covenant of this acknowledgment
or to recover damages arising from any breach of the acknowledgment, the losing
party shall pay the prevailing party's reasonable attorneys' fees and all other
costs and expenses which may be incurred by the prevailing party in any suit,
action or in any reviews or appeals therefrom.
Customer Signature:_______________________________________Date:________________
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Exhibit C
Software Specification
[ * ]
[ * ] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
-7-
