Exhibit 10.8
Order Fulfillment Agreement with Valley Media, Inc. dated May 4, 1999
Cool Entertainment / i.FILL
Order Fulfillment Agreement CONFIDENTIAL
ORDER FULFILLMENT AGREEMENT
This Order Fulfillment Agreement ("Agreement") is entered into effective as
of the 4 day of MAY 1999, by and between COOL ENTERTAINMENT, INC.
("Retailer") and I.FILL, a division of Valley Media, Inc. ("Valley").
BACKGROUND
A. Valley has created databases known as "audioFILE" and "audioTRAX" which
contain information regarding pre-recorded music and music related products
("Audio Product"), theatrical video and video related products ("Video
Product"), theatrical DVD and DVD related products ("DVD Product") and
video game and video game related products ("Game Product"). Audio, Video,
DVD and Game Product may be collectively referred to herein as "Product".
B. i.FILL provides to various retailers "direct-to-consumer" order fulfillment
services, pursuant to which i.FILL picks, packs and ships Product 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 i.FILL agree to develop a computer and
customer service interface for the purposes of conducting small order
Product transactions via an on-line 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 i.FILL via EDI. i.FILL will be
responsible for picking, packing and shipping the orders directly to
Retailer's customers.
2. EXCLUSIVITY. i.FILL will be the exclusive supplier of Product and related
order fulfillment services for Retailer's customers within the United
States, provided, however, that Retailer may utilize third parties as
sources for Product not available through audioFILE or otherwise through
Valley if Retailer has given i.FILL thirty (30) calendar days notice of its
intention to do so and i.FILL fails to make the specified Product available
by the end of such period.
3. TECHNICAL ASSISTANCE. i.FILL shall provide technical assistance to
Retailer for the testing of their EDI transmission of orders to Valley's
Bulletin Board System or FTP server.
1
Cool Entertainment / i.FILL
Order Fulfillment Agreement CONFIDENTIAL
4. AUDIOFILE DATABASE. i.FILL will license the audioFILE database for an
annual licensing fee of $10,000. The fee for the first year of the initial
term of this Agreement is due and payable upon execution of this Agreement.
The fee for the second year of the initial term of this Agreement is due
and payable upon the first anniversary of the date of this Agreement.
5. AUDIO PRODUCT PRICING. i.FILL agrees to sell and Retailer agrees to
purchase Audio Product at four percent (4%) below Valley's wholesale prices
as set forth on the Audio Price Schedule, attached hereto as EXHIBIT A.
Wholesale prices may be revised by Valley from time to time, effective upon
written notice to Retailer of such changes.
6. VIDEO PRODUCT PRICING. i.FILL agrees to sell and Retailer agrees to
purchase Video Product at thirty-eight percent (38%) below suggested retail
price.
7. DVD PRODUCT PRICING. i.FILL agrees to sell and Retailer agrees to purchase
DVD Product at the studio-specific prices as set forth on the DVD Price
Schedule, attached hereto as EXHIBIT B. Studio-specific prices may be
revised by Valley from time to time, effective upon written notice to
Retailer of such changes.
8. GAME PRODUCT PRICING. i.FILL agrees to sell and Retailer agrees to
purchase Game Product at Valley's wholesale prices as set forth in the
audioFILE database. Valley's Game Product wholesale prices may be revised
from time to time, effective upon audioFILE database revisions of same.
9. VOLUME REBATES. For purposes of this Agreement, "Net Product Purchases"
means Retailer's gross purchases of Product from Valley, not including
fulfillment and shipping charges, and less returns. In the event that
Retailer's Net Product Purchases exceed $3,500,000 per year within one year
of the date of this Agreement or the subsequent one year period during the
term of this Agreement, Retailer shall receive rebates based on the
incremental Annual Net Product Purchases as follows:
ANNUAL NET PRODUCT PURCHASES REBATE
---------------------------- ------
$ 3,500,001 - $ 5,000,000 1% of the portion of Annual Net
Product Purchases of
$3,500,001 - $5,000,000
$ 5,000,001 - $ 7,500,000 2% of the portion of Annual Net
Product Purchases of
$5,000,001 - $7,500,000
$ 7,500,001 - $10,000,000 3% of the portion of Annual Net
Product Purchases of
$7,500,001 - $10,000,000
$10,000,001 + 4% of the portion of Annual Net
Product Purchases of
$10,000,001 +
2
Cool Entertainment / i.FILL
Order Fulfillment Agreement CONFIDENTIAL
9.1. REBATE DISCOUNTS. Although purchases of DVD and Game Product shall
accrue toward the annual sales volume needed to receive Rebates.
Rebate discounts will be applied to Audio and Video Product
purchases only. Rebate discounts will not apply to DVD and Game
Product purchases. Rebates are calculated on a yearly basis
beginning on January 1, 1999. At year-end the Rebate will be
calculated on Net Product Purchases for the calendar year (on a pro
rata basis) and shall appear as a credit on Retailer's next invoice.
10. CUSTOM INVOICE. i.FILL will create a custom invoice with Retailer's logo,
product return and customer service information printed on same. i.FILL
will waive the usual $500 fee for this service. Subsequent changes to the
invoice will be made for a fee to be negotiated by the parties.
11. ORDER PLACEMENT. Retailer will collect all orders and send such orders to
i.FILL via EDI.
11.1. AUDIO PRE-ORDERS. Orders for new release Product that are placed
with i.FILL prior to the date that that new release title is first
to be made available to consumers (the "Street Date") are defined as
Pre-Orders. Retailer shall collect Audio Product pre-orders until
four days prior to the Street Date, at which point such Pre-Orders
will be forwarded in a separate batch to i.FILL on the date and time
of day required by i.FILL. i.FILL shall ship all Pre-Orders no
later than Street Date minus one day, provided i.FILL 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.
11.2. VIDEO, DVD AND GAME PRE-ORDERS. Retailer shall forward to i.FILL
all Video, DVD and Game Pre-Orders as it receives them (in batches
separate from regular orders) up to one day prior to pre-book date.
Retailer shall xxxx each Pre-Order "ship comlete" by typing a "Y" in
the "ship complete" field of the EDI inbound specifications. i.FILL
shall ship all Pre-Orders no later than Street Date minus one day,
provided i.FILL 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.
11.3. BACK-ORDERS. i.FILL shall ship the in-stock items of an order as
set forth in this Agreement and, except as set forth in this
section, will cancel the out of stock items. Retailer may elect to
have i.FILL 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 will
inform i.FILL the number of days, up to a maximum of 25 days (the
"Hold Period"), that i.FILL is to hold the "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
3
Cool Entertainment / i.FILL
Order Fulfillment Agreement CONFIDENTIAL
of stock, i.FILL will hold the order for the Hold Period before
canceling the order (subject to prior cancellation of such order by
Retailer).
12. ORDER FULFILLMENT. The following sets forth i.FILL's fulfillment
practices:
12.1. PRIORITY. Priority orders are defined as orders shipped
domestically for overnight or second-day air freight delivery.
Priority orders received by i.FILL on any business day by 10:00 a.m.
Pacific Time ("PT") will be shipped on the same day. Orders
received after 10:00 a.m. PT will be shipped the following business
day provided that the Product ordered is in stock at that time.
12.2. STANDARD. Standard orders are defined as all orders shipped
domestically or internationally for other than overnight or
second-day air freight delivery. On any business day that i.FILL
receives Standard orders by 1:00 p.m. PT, it will ship the orders
the following business day. Standard orders received after
1:00 p.m. PT will be deemed received the next business day and
i.FILL will ship these orders the business day after the day they
are deemed to be received provided that the Product ordered is in
stock at that time.
12.3. 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. i.FILL 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.
13. FULFILLMENT FEES. Unless otherwise provided in this Agreement, Retailer
agrees to pay i.FILL the following fees for each order fulfilled by i.FILL.
13.1. PACKING AND HANDLING FEES. For purposes of this Agreement, "Unit"
means a single piece of Product or any multiple Product set that is
shrink-wrapped together as one. i.FILL will pick, pack and prepare
Product for shipment to Retailer's customers according to the
following schedule:
ANNUAL NET PRODUCT PURCHASES 1ST UNIT ADD'L UNITS
---------------------------- -------- -----------
$ 0 - $ 5,000,000 $1.20 $0.50 each
$ 5,000,001 - $ 7,500,000 $1.15 $0.50 each
$ 7,500,001 - $10,000,000 $1.10 $0.50 each
$10,000,001 + $1.05 $0.50 each
13.1.1. Contemporaneously upon meeting each of the above Annual Net
Product Purchases thresholds, the corresponding Packing and
Handling Fees will become effective and will appear on
Retailer's invoice. For example, the order that raises
Retailer's Annual Net Product Purchases over $5,000,000,
will incur Packing and Handling Fees of $1.15 for the first
unit and $0.50 for each additional unit in that order and
those fees will
4
Cool Entertainment / i.FILL
Order Fulfillment Agreement CONFIDENTIAL
appear on the same invoice that bills Retailer for the Product
contained in that order.
13.2. SURCHARGES. Retailer agrees to pay to i.FILL the following
surcharges as applicable:
13.2.1. INTERNATIONAL SHIPMENT SURCHARGE. Surcharge of $0.50 per
order shipped internationally via integrated carrier.
13.2.2. USPS PRIORITY MAIL INSURED SURCHARGE. Surcharge of $0.50
per order shipped USPS Priorioty Mail Insured.
13.2.3. MANUAL PROCESSING SURCHARGE. In the event i.FILL receives
an order by any other means than EDI transmission (i.e., by
mail, facsimile, etc.) a surcharge of $1.50 per order shall
be assessed.
14. SHIPPING.
14.1. 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 i.FILL or Valley under this
Agreement shall pass to Retailer or it's 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, i.FILL will assist in
filing a claim on behalf of Retailer and will credit Retailer any
amounts received or credits to i.FILL in connection with each claim.
14.2. CHOICE OF CARRIER. i.FILL will ship the order with the carrier
requested by Retailer or its customer. i.FILL will cancel any order
for which the delivery address is not serviced by the indicated
carrier, and will promptly notify Retailer of the same. Retailer
shall have the option to retransmit the order or be shipped via an
alternate i.FILL supported carrier.
14.3. SHIPPING COSTS. i.FILL will invoice Retailer's customers at such
rates as are requested by Retailer. Retailer will pay i.FILL
shipping costs per the shipping tables attached hereto as EXHIBIT C
(as amended from time to time by i.FILL). i.FILL will provide
Retailer written notice of shipping rate changes and the effective
date of such changes. i.FILL represents that the shipping costs
charged to Retailer are its actual shipping costs (not considering
rebates.)
15. PRODUCT RETURNS.
15.1. DEFINITIONS. For purposes of this Agreement, the terms set forth
below shall be defined as follows.
15.1.1. "Eligible Return Product" means any Product other than
ineligible Return Product.
5
Cool Entertainment / i.FILL
Order Fulfillment Agreement CONFIDENTIAL
15.1.2. "Defective Product" means any Eligible Return Product
returned to i.FILL or Valley that is identified as defective
when returned and which is actually defective.
15.1.3. "Ineligible Return Product" means any of the following: (a)
Opended CDs from any of the following companies: (i)
Intersound, (ii) RYKO, (iii) Sony Music Entertainment, (iv)
Universal Music and Video Distributors ("UMVD"), (v) Warner,
(vi) Elektra or (vii) Atlantic; (b) Opened audio cassettes
from UMVD; (c) Opened Video Product; (d) Opened DVD Product;
(e) Opened Game Product; (f) accessories; (g) blank tape;
(h) counterfeit Product; (i) imports; (j) promos; (k)
limited editions; (l) Product identified in audioFILE as
non-returnable; (m) Product sold by a record/video club; (n)
Product sold on a one-way basis; (o) Product with a last
customer return date (as defined in the audioFILE License)
prior to the date the returned Product is received by i.FILL
or Valley; (p) Product without the original artwork or liner
notes; (q) Schwann Guides; (r) defaced Product; (s) Product
with damaged artwork or a foreign substance on the media;
and (t) vinyl Product (including, without limitation, LPs
and 12" singles).
15.1.4. "Opened" means, with respect to any Product, that the top
spine label or original manufacturer's shrink wrap or "dog
bone" holographic sticker has been removed or cut in any
way.
15.2. STANDARD RETURN POLICY. Retailer will receive a return credit for
Eligible Return Product returned to i.FILL or Valley but will NOT
receive a return credit for Ineligible Return Product.
15.3. RETURN FEES.
15.3.1. PROCESSING FEES. Any Ineligible Return Product returned to
i.FILL or Valley will be forwarded to Retailer at Retailer's
expense, and Retailer will be charged a $1.00 processing fee
for each such unit of Ineligible Return Product; provided,
however, that Retailer may elect to have i.FILL keep such
Ineligible Return Product and avoid the processing fee.
15.3.2. RESTOCKING FEES. Retailer will be charged a fifteen percent
(15%) restocking fee for processing all Eligible Return
Product returned to i.FILL or Valley; provided, however,
that no such fee will be charged for (a) Defective Product
or (b) Product that was shipped to one of Retailer's
customers but (i) was not listed on the customer's invoice
or (ii) was incorrectly listed on the invoice.
15.3.3. REBURBISHING FEES. Retailer will be charged a $0.35 per
unit refurbishing fee on all Eligible Product returned to
i.FILL or Valley that has been Opened; provided, however,
that no such fee shall be charged for Defective Product.
6
Cool Entertainment / i.FILL
Order Fulfillment Agreement CONFIDENTIAL
15.3.4. RESHIPPING FEES. i.FILL will ship or reship to Retailer's
customers at no additional charge (a) replacement Product
for any Defective Product and (b) any Product reported as
missing by one of Retailer's customers that was listed as
fulfilled on the Customer's invoice.
15.4. RETURN PROCESSING INFORMATION. Return processing information will
be posted weekly to i.FILL's Bulletin Board System.
15.5. MODIFICATIONS. i.FILL 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. Any change in
return policies must be directly related to a change in the return
policies of i.FILL's suppliers.
16. OPTIONAL SERVICES.
16.1. PAPER INSERTS. Retailer will pay a fee of $0.10 per Paper Insert
packed by i.FILL at the request of Retailer in product shipped under
this Agreement. Retailer shall supply the Paper Inserts at no cost
to i.FILL. For purposes of this paragraph, Paper Inserts are
defined as lightweight, paper-based, promotional items the same size
or smaller than a standard single CD, or pre-folded to such size.
16.2. MERCHANDISE INSERTS. At Retailer's request, i.FILL will pack
Merchandise Inserts (promotional merchandise sold through Retailer,
other than the Paper Inserts described above in section 16.1) into
Retailer's orders at a charge to be negotiated by the parties after
a sample has been received and reviewed for packing and shipping
requirements. Retailer shall supply Merchandise Inserts at no cost
to i.FILL.
16.3. MERCHANDISE MANAGEMENT FEE. Upon request by Retailer, i.FILL will
receive and warehouse Merchandise Inserts (described above in
section 16.2) for a Merchandise Management Fee to be negotiated by
the parties after a sample has been received and reviewed for
warehousing requirements. For merchandise that is "standard
product" (defined as a single CD, cassette, VHS, or DVD) a
Merchandise Management Fee of $0.50 per unit will be charged to
Retailer.
16.4. 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, i.FILL will create
and apply a bar-code for a fee of $0.30 per applied bar-code.
16.5. CUSTOM BOX STICKERS. At Retailer's request, i.FILL will apply
custom box stickers for of fee of $0.30 per applied sticker.
7
Cool Entertainment / i.FILL
Order Fulfillment Agreement CONFIDENTIAL
16.6. AUDIOTRAX. Upon Retailer's request, i.FILL will license the
audioTRAX database for 6an annual licensing fee of $3,000.
16.7. CALL CENTER SERVICES. If Retailer requests Call Center Services,
i.FILL would maintain Call Center hours of 6:00 a.m. PT to 6:00 p.m.
PT, daily, excluding Holidays. Incoming calls after hours would be
received via voice mail and would be returned the following day for
order placement. Retailer would be charged a one-time fee of
$500.00 for a unique "toll-free" number. In addition, there would
be Call Center charges of $1.50 per call and $0.15 per minute.
Staffed 24-hour Call Center Services are available upon request for
a fee to be negotiated by the parties.
16.8. CONSUMER CREDIT PROCESSING. In the event Retailer requests that
i.FILL, on behalf of Retailer, provide consumer credit processing
services, i.FILL agrees to provide those services to Retailer's
customers under the following terms:
16.8.1. FEES. Retailer agrees to pay i.FILL 3% of the total
consumer transactions processed by credit card as an expense
item.
16.8.2. TOTAL CONSUMER TRANSACTION. Includes Product price,
shipping and handling, and applicable sales tax.
16.8.3. ADDITIONAL FEES. Retailer shall be responsible for paying
any additional fees assessed by the credit card processor
including, but not limited to, charges related to fraud and
other chargebacks.
16.8.4. ACCEPTED CARDS. Visa, MasterCard, American Express and
Discover cards.
16.8.5. SERVICES PROVIDED.
(a) Obtain credit card processor authorization;
(b) Cancel order due to credit card decline/invalid;
(c) Report to Retailer all Address Verification Service
("AVS") non-matching orders; and
(d) Research chargebacks.
16.8.6. ADDRESS VERIFICATION SERVICE. i.FILL will notify Retailer
of all AVS problem orders on a daily basis (Monday through
Friday, excluding holidays.) The order will be cancelled if
Retailer has not provided i.FILL with a corrected address
within four calendar days of said notification. i.FILL will
ship to a new address within two days of verification of the
new information by the credit card processor.
16.8.7. SALES TAX. i.FILL will collect sales tax from Retailer's
customers as instructed by Retailer. Retailer shall provide
i.FILL a current list of tax
8
Cool Entertainment / i.FILL
Order Fulfillment Agreement CONFIDENTIAL
rates to be charged for all applicable states. i.FILL shall
remit collected tax funds to Retailer for payment to the
appropriate taxing authorities.
17. BILLING AND PAYMENT. Pending i.FILL's review and approval of Retailer's
credit application, i.FILL will extend credit to Retailer under the
following terms and conditions:
17.1. INVOICES AND ACCOUNT RECONCILIATION. i.FILL will provide Retailer
with an account reconciliation on a monthly basis. Invoices are due
and payable thirty (30) days after the invoice date.
17.2 PAST DUE AMOUNTS. i.FILL includes an embedded two percent (2%)
discount for timely payment on all Product. This discount shall be
revoked in the event of a late payment by Retailer and a two percent
(2%) revoked discount fee will be charged 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 one and one-half
percent (1.5%) or the maximum interest rate allowable by law,
beginning on the due date. i.FILL, in its sole discretion, may
refer collection of any past due amount to any agency or attorney,
and Retailer will be liable for the payment of all costs and
expenses, including reasonable attorneys' fees, associated
therewith.
18. PROPRIETARY RIGHTS.
18.1. 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 fulfill its obligations under the Agreement;
(ii) if the Confidential Information disclosed is already publicly
known through no fault of the disclosing party; and (iii) if the
Confidential 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. Under no circumstances may i.FILL (including its
principles or affiliates) use Retailer's customers' data for any
commercial or improper purposes.
18.2. 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.
18.3. AUDIOFILE DATABASE. The rights to intellectual property related to
the audioFILE database are governed by the audioFILE License
(EXHIBIT D). Any termination of
9
Cool Entertainment / i.FILL
Order Fulfillment Agreement CONFIDENTIAL
this Agreement will automatically terminate the audioFILE License,
and any termination of the audioFILE License will automatically
terminate this Agreement.
18.4. AUDIOTRAX DATABASE. The rights to intellectual property related to
the audioTRAX database are governed by the audioTRAX License
(EXHIBIT E). Any termination of this Agreement will automatically
terminate the audioTRAX License.
18.5. 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 i.FILL or Retailer, as applicable.
19. TERM.
19.1. INITIAL TERM. The initial term of this Agreement will take effect
on the date first written above, and shall continue in effect until
the second anniversary thereof unless terminated earlier or extended
as set forth herein.
19.2. EARLY TERMINATION. This Agreement shall terminate at any time upon
the mutual consent of the parties. This Agreement shall also
terminate according to its terms upon thirty (30) days' prior
written notice by either party under the following conditions:
19.2.1. Either party may terminate this Agreement, absent a material
breach, if i.FILL discontinues fulfillment services to
on-line customers or Retailer discontinues the on-line sale
of Product.
19.2.2. i.FILL or Retailer delivers to the other party a 30-day
written notice of termination for a material breach of this
Agreement, and the other party fails to cure such breach
within thirty (30) days.
20. LIMITATION OF REMEDIES AND EXCLUSION OF WARRANTIES. IN NO EVENT SHALL
i.FILL 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 i.FILL 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.
10
Cool Entertainment / i.FILL
Order Fulfillment Agreement CONFIDENTIAL
21. REPRESENTATIONS AND WARRANTIES.
21.1. I.FILL'S REPRESENTATIONS AND WARRANTIES.
21.1.1. i.FILL has the right and authority to enter into this
Agreement.
21.1.2. i.FILL 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.
21.2. RETAILER'S REPRESENTATIONS AND WARRANTIES.
21.2.1. Retailer has the right and authority to enter into this
Agreement.
21.2.2. 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.
21.2.3. Retailer will provide adequate customer service and abide by
its terms of service and privacy policies.
22. 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 breach or alleged breach by such party of any warranty
or representation made by such party in this Agreement. Retailer will
further indemnify and hold i.FILL and Valley harmless for any and all
third-party claims, damages, liabilities, costs and expenses (including
reasonable attorney's fees) arising out of any infringement or alleged
infringement of intellectual property belonging to a third-party or out of
any error, omission, misconduct or negligence on the part of Retailer in
the performance of its obligations under this Agreement.
23. 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 party so affected shall use commercially reasonable
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 without liability or any liquidated or other damages upon written
notice to the other party.
11
Cool Entertainment / i.FILL
Order Fulfillment Agreement CONFIDENTIAL
24. GENERAL.
24.1. OPERATIONS REVIEW. No more often than every ninety (90) days, and
upon twenty-one (21) days' advance written notice, Retailer may
request a conference with i.FILL to discuss operations.
24.2. 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.
24.3. 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.
24.4. ASSIGNMENT. This Agreement may not be assigned by either party
without first obtaining the other party's written consent, except
that either party may, without the other party's prior written
consent, assign this Agreement to a purchaser of all or
substantially all of its assets or a majority or controlling
interest in its voting stock, or to a subsidiary or affiliate of
such party, provided that such purchaser's net worth at the time of
purchase is equal to or greater than that of the assigning party's
net worth. This Agreement will be binding upon and inure to the
benefit of successors and permitted assigns of the parties hereto.
24.5. 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.
24.6. 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.
12
Cool Entertainment / i.FILL
Order Fulfillment Agreement CONFIDENTIAL
24.7. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which will be considered one and the same
agreement, and will become a binding agreement when one or more
counterparts have been signed by each party and delivered to the
other party. Facsimile signatures shall be considered original in
all respects.
In witness whereof, the parties hereto have executed this Agreement effective as
of the date first above written.
i.FILL, a division of COOL ENTERTAINMENT, INC.
Valley Media, Inc.
By: /s/Xxxx Xxxxx Xxxxxxx By: /s/Xxxxxxx Xxx
------------------------------ ------------------------------
Its: Director New Media Its: President
------------------------------ ----------------------------
Address: Address:
0000 Xxxxx Xxxxx Xx. #000 - 10900 0xx Xxxxxx
---------------------------------- ----------------------------------
Xxxxxxxx, XX 00000 Xxxxxxx, XX 00000
---------------------------------- ----------------------------------
Telephone: 000-000-0000 Telephone: 000-000-0000
----------------------- ----------------------
Facsimile: 530-661-7878 Facsimile: 425-454-4383
----------------------- ----------------------
13
