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Exhibit 10.13
Sales Data Agreement
This agreement is between SoundScan, Inc. (hereinafter
referred to as the "Company") and N2K, Inc. (hereinafter
referred to as the "Supplier").
W I T N E S S E T H :
WHEREAS, Supplier is an on-line service of home entertainment
related products which sell prerecorded music, and sell and/or rent prerecorded
videos and other home entertainment related products; and
WHEREAS, the Company is in the business of gathering, compiling
and evaluating sales data with respect to prerecorded music, video tapes, blank
tapes and other home entertainment related items sold on on-line services
similar to those owned by Supplier and selling such information as compiled to
record companies, publications, radio stations and other customers; and
WHEREAS, the Company is desirous of obtaining such sales
information from Supplier and Supplier is desirous of furnishing such sales
information to the Company.
NOW, THEREFORE, in consideration of the premises, and the
promises, covenants and agreements herein made, the mutual benefits to be
derived from this Agreement, and other good and valuable consideration including
the mutual covenants and obligations hereinafter set forth, receipt and
sufficiency of which is hereby acknowledged, the Parties agree and understand as
follows:
1. Providing Data. For the Term of this Agreement (as such term
is hereinafter defined), Supplier agrees to provide the Company, on a sole and
exclusive basis, with all sales information regarding the sales of prerecorded
music (including, but nor limited to records, tapes, compact discs and any other
medium), prerecorded video (including but not limited to tapes, laser discs and
any other medium), blank video and audio tapes, posters and all other items
regularly sold by Supplier at its on-line location (the "Data"). (For purposes
of this Agreement, the term "Data" shall also include the Selected Data, as such
term is hereinafter defined.) The term Data shall not include any information
regarding the specific price of which the Supplier sells any product normally
sold by the Supplier. Supplier shall provide the Company with the data on an
individual zip code basis and such
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data shall be compiled by Supplier, provided to the Company on a calendar weekly
basis, such that the Data for the week ending on Sunday is provided to the
Company no rarer than the following Monday.
In addition, an audit file must be transmitted by the Supplier to
the Company when requested by the Company. Incorporated in the audit file should
be the following: full name, address, city, state, phone number, zip code, and
product purchased by UPC Code along with the quantity. If the audit file is not
transmitted to the Company, the Company has the right nor to accept the "Data"
from the Supplier for that particular week.
2. Responsibilities for costs. (a) Supplier shall, at its sole
cost and expense, be responsible for all costs associated with obtaining and
providing the data to the Company.
(b) The Company shall, at its sole cost and expense, (i) be
responsible for all costs normally associated with receiving and interpreting
the Data, (ii) provide the Supplier with a local telephone number to be used by
the supplier solely for the transmission of the Data to the Company.
3. Data transmittal. Either the Supplier or the Company can
initiate the transmitting of the Data between the Supplier and the Company. The
choice as to who initiates the call will be left to the Company.
4. Delay in Data Transmittal. In the event that the Supplier
shall fail to provide the Company with the Data when due, then the Supplier
shall be required to make all reasonable efforts to transmit the Data to the
Company at the earliest time at which such information becomes available.
5. Reports to Data Suppliers. The Company shall provide the
Supplier with summary reports as to the Data as soon as practical after the
information is available, provided that the content of such reports are not
violative of any confidentiality agreement entered into by and between the
Company and any third party
6. Confidentiality of Data. The Company shall treat the Data as
confidential and shall not utilize the Data for any purpose other than as
envisioned by this Agreement. The Company shall instruct ins employees to keep
such Data confidential by using the same care and discretion that the Company
uses with respect to its own confidential information. The Company shall keep
the specific sales information obtained from the Supplier confidential and shall
not disseminate or make available such information to any of its customers, it
being understood that all Data provided hereunder is to be
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combined together with the Data received from other Data Suppliers, as such term
is hereinafter defined, in such a manner as to render the source of the Data
untraceable.
7. Term. (a) The initial term of this Agreement shall commence on
the first day of the calendar month following the date with respect to which the
Supplier begins to regularly provide the Sales Information to SSI, and expire on
the fifth anniversary thereafter ("Initial Term").
(b) This Agreement shall be automatically extended for additional
successive one year terms ("Additional Terms") unless no later than 45 days
prior to the end of the then current term either party notifies the other that
there will be no such extension.
8. Representations and Warranties. The Supplier represents and
warrants that the Data is true, complete and accurate.
9. Notices. Any notices, direction or instrument required or
permitted to be given under the terms and conditions of this Agreement shall be
in writing and shall be sent to the following addresses:
(i) With regard to the Company:
SoundScan, Inc.
000 Xxxxx Xxxxxxx Xxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
(ii) With regard to Supplier:
N2K, Inc.
00 Xxxxx Xxxxxx 00xx Xx.
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxxxxx
The parties may, at any time with prior written notice to the
other parties, designate such other address for purposes of notification. All
notices and other communications given hereunder by any party shall be in
writing and shall be deemed given upon receipt if delivered personally or by
overnight courier service or three (3) days after mailing by registered or
certified mail (return receipt requested) to the other parties hereto at the
addresses set forth above postage prepaid, in properly addressed and stamped
envelopes or packages (or at such other address for either party as shall be
specified by like notice; provided that notices of a change of address shall be
effective only upon receipt thereof).
10. Successors. This Agreement and every term, covenant and
condition herein contained shall inure to the benefit of
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and be binding upon the parties hereto and their respective
successors and assigns.
11. Assignment. This Agreement shall not be assignable by
Supplier without the prior written consent of the Company and the Agreement
shall not be assignable by Company without the prior written consent of the
Supplier.
12. Invalidity. The invalidity in whole or in part of any article
or articles, paragraph or paragraphs, or clause in this Agreement shall not
affect the validity of the remaining portions or such article or articles,
paragraph or paragraphs, or clause or clauses of this Agreement.
13. Interpretation. In this Agreement, unless the context
otherwise requires, words imparting the singular number only shall include the
plural and vice-versa; words imparting the masculine gender shall include the
feminine and neuter gender; and words imparting persons shall include companies,
corporations, partnerships and any number of aggregate or persons.
14. Entire Agreement. This Agreement contains the entire
understanding of the parties with respect to the subject matter hereof,
superseding any and all prior agreements between them, whether written or oral.
It may not be amended or supplemented except by a written instrument executed by
the parties. No waiver of any provision shall be effective unless in writing
signed by the party charged. No waiver of a provision hereof shall constitute a
waiver of any other provision.
15. Governing Law. The terms and conditions of this Agreement
shall be governed by, construed and interpreted according to the laws of the
State of New York.
16. Counterparts. This agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
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