E-1
Exhibit 4
J-Bird Music Group Ltd.
Form 10-KSB
File No. 0-24449
J-BIRD MUSIC GROUP LTD. DOWNLOAD AGREEMENT
THIS AGREEMENT ("Agreement") is entered into by and
between AT&T Corp. ("AT&T"), 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, and J-Bird Music Group Ltd. ("J-Bird"), 000 Xxxxxxx
Xxxx, Xxxxxx, Xxxxxxxxxxx 00000. The Agreement is made effective
as of the date that the last party to the Agreement signs it
where provided below (the "Effective Date"). In consideration of
the mutual promises contained herein, the parties agree as
follows:
WHEREAS, AT&T has developed a new technology (the
"Technology") for: (i) taking sound recordings (each, a "Track")
and creating encoded versions thereof (each, an "Encoded Track");
(ii) the delivery of Encoded Tracks via the Internet to
interested Internet users (each, a "Consumer"); and (iii) the
storage of Encoded Tracks in the hard drive of a Consumer's
general purpose computer and the playback of such Encoded Tracks
from such Consumer's hard drive (such transmission, reception,
storage and playback being referred to as a "Music Download");
and,
WHEREAS, AT&T and J-Bird wish to enhance awareness of
their respective products and services by making available to
Consumers via co-branded promotional pages (the "Promotional
Pages") created by AT&T and hosted on AT&T a2b musicsm website
(the "AT&T Website") Music Downloads of certain Encoded Tracks as
performed by certain musical performers (each, an "Artist"), for
the purpose of enabling Consumers to effect Music Downloads of
the Encoded Tracks;
NOW, THEREFORE, in consideration of the mutual promises
contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are acknowledged hereby, the
parties agree as follows:
1. License.
(a) J-Bird hereby grants to AT&T during the Term,
as defined in paragraph 3 below, the worldwide right to use: (i)
the Tracks set forth in Schedule A hereto (as such Schedule A may
be amended from time to time by mutual agreement of the parties)
for the purpose of preparing Encoded Tracks; (ii) the Encoded
Tracks for Music Downloads; (iii) the artwork from the albums
from which the applicable Tracks were taken (each, an "Album")
and the underlying musical compositions and lyrics (together, the
"Composition") embodied on the applicable Tracks (the artwork and
Compositions are together referred to herein as the "Album
Materials") in connection with such encoding and Music Downloads;
and, (iv) the name, approved likeness and biography of each
Artist performing one or more Tracks and such Artists' logos (if
any) (together, the "Artist Property"), in connection with such
encoding, Music Downloads and advertising and/or promotion of the
Music Downloads. The schedule of delivery by J-Bird of the
Tracks, Album Materials and Artist Property, and the availability
to Consumers on the Promotional Pages of the corresponding Music
Download, shall be in accordance with Schedule A. Prior to
delivery to AT&T, J-Bird shall obtain all necessary approvals and
clearances respecting any Album Materials and Artist Property
from all interested parties for the purposes contemplated herein.
Album cover art, Artist logos and any other graphical material
shall be delivered to AT&T in JPEG bitmap format or any other
format approved by AT&T. After the Term, AT&T will: (i) have no
rights to the Tracks or Encoded Tracks, Album Materials and
Artist Property; (ii) remove the Encoded Tracks, Album Materials
and Artist Property from the AT&T Website; and (iii) return to J-
Bird or destroy any and all copies of the Tracks and Encoded
Tracks, Album Materials and Artist Property in AT&T's possession,
except that AT&T may retain copies of Encoded Tracks for
demonstration purposes which shall not include any transmission
to the general public and, with J-Bird's approval, retain and use
the Encoded Tracks for promotional purposes.
(b) Music Downloads of Encoded Tracks will only
be permitted from the Promotional Pages and other such websites
which may be mutually agreed to in writing by the parties. AT&T
shall be responsible for the content and operation of the
Promotional Pages. Access to the Promotional Pages shall be
permitted to all Consumers at no charge and without
discrimination or precondition, except that Consumers may be
required to furnish certain information, such as the Consumer's e-
mail address, zip code and other demographic information
("Consumer Data"), and to accept the "Limited Use and Software
License Agreement" for the Consumer's download and use of the
software needed to play the Encoded Track (the "Player
Software"). J-Bird agrees that during the Term any website
operated by J-Bird or under J-Bird's control shall feature
exclusively the AT&T Technology and a2b music method of Music
Download.
(c) J-Bird shall promptly notify AT&T whether any
of the Compositions embodied on any of the Tracks furnished to
AT&T are in the public domain. If a Composition is not in the
public domain, J-Bird agrees that it has obtained, or shall
obtain prior to such delivery to AT&T, all necessary rights
relating to such Composition for the uses contemplated in
subparagraphs (a) and (b) above, and J-Bird shall be responsible
for any consideration due to any third parties (e.g., music
publishers) for use of such Composition in accordance herewith.
(d) AT&T will display a credit for J-Bird on the
Promotional Pages to be mutually agreed by the parties.
2. Warranties and Indemnities.
(a) J-Bird represents and warrants that it is the
owner of, or has obtained such rights necessary for AT&T to
exercise the rights herein granted to, the Tracks, Album
Materials and Artist Property, and that it has the full right and
authority to enter into this Agreement and grant the rights
herein granted, including, but not limited to, all United States
and worldwide Internet online rights (e.g., public performance,
adaptation, reproduction, transmission and distribution rights)
in the Tracks, Album Materials and Artist Property. J-Bird
further represents and warrants that it operates a website,
currently located at URL address xxx.xxxxxxxxxxxx.xxx, and that J-
Bird shall maintain its website in accordance with the terms
hereof for the duration of the Term. J-Bird shall indemnify and
hold harmless AT&T, its parents, its past, present and future
agents, subsidiaries and affiliates, and their respective
employees, officers, agents and directors, against any and all
third party claims, actions and proceedings settled with J-Bird's
consent or reduced to final judgment (including reasonable
attorneys fees and expenses) that the Tracks, Album Materials,
Artist Property and/or Encoded Tracks (but only to those portions
of the Encoded Tracks embodying the sound recording and not the
Technology), and/or the use thereof as contemplated herein,
infringes on any third party copyrights, trademarks or other
intellectual property rights. This obligation shall survive the
termination of this Agreement.
(b) AT&T represents and warrants that it either
is the owner of the Technology or has the rights thereto required
to perform its obligations hereunder, and that it has the full
right and authority to enter into this Agreement, to grant the
rights granted herein and to render the services to be rendered
hereunder. AT&T shall indemnify and hold harmless J-Bird, its
parents, its past, present and future agents, subsidiaries and
affiliates, and their respective employees, officers, agents and
directors, against any and all third party claims, actions and
proceedings settled with ATU's consent or reduced to final
judgment (including reasonable attorneys fees and expenses) that
the Technology and/or those portions of the Encoded Tracks
embodying the Technology (and not the sound recordings) infringe
on any patent, copyright, trademark or other intellectual
property right. This obligation shall survive the termination of
this Agreement.
3. Term. The Term shall commence on the Effective
Date and continue for a period of one year. The Term shall
thereafter be renewable for successive one-year periods upon
mutual agreement of the parties. The foregoing notwithstanding,
AT&T may terminate this Agreement at any time upon written notice
to J-Bird in the event J-Bird has breached any of the terms,
conditions, representations or warranties hereof or if
continuation of the Agreement would expose AT&T to legal
liability.
4. Promotion and Marketing.
(a) If AT&T furnishes J-Bird with the AT&T a2b
music branded banner (the "AT&T Banner"), or if J-Bird furnishes
AT&T with the J-Bird Records branded banner (the "J-Bird
Banner"), then the receiving party shall use the furnished banner
as a linking icon on its website. Any link through the AT&T
Banner on J-Bird's website will permit interested Consumers to be
transferred to the home page of the AT&T Website, and any link
through the J-Bird Banner on the AT&T Website will permit
interested Consumers to be transferred to the home page of J-
Bird's website. J-Bird agrees that the AT&T Banner shall receive
prominent placement on any and all websites operated by J-Bird or
under J-Bird's control for as long as Music Downloads of any of
the Encoded Tracks are made available during the Term hereof.
AT&T shall have approval, not to be unreasonably withheld, over
the appearance of the J-Bird Banner. Both the J-Bird website and
the AT&T Website shall feature a co-branded AT&T a2b musicsm/J-
Bird Records banner which will link Consumers to the Promotional
Pages, and the Promotional Pages will feature both the AT&T
Banner and the J-Bird Banner linking Consumers to the respective
home pages of AT&T and J-Bird.
(b) AT&T agrees to brand with J-Bird's logo (or
other specified J-Birdrelated image) the Player Software
downloaded from the Promotional Pages devoted to the J-Bird
promotion (the "Custom Player Software"), which logo or image
shall be furnished to AT&T in JPEG bitmap format or any other
format approved by AT&T within a reasonable period of time prior
to the scheduled date the Custom Player Software is to be made
available by AT&T for download. AT&T shall have approval, not to
be unreasonably withheld, over the appearance of the J-Bird logo
or image on the graphical display of the Custom Player Software.
The J-Bird logo or image will appear whenever a Consumer opens
the Custom Player Software.
(c) Music Downloads of Encoded Tracks will include
an autoresponder e-mail coupon offering Consumers a discount of
One Dollar ($1.00) off the retail price of the Album from which
the Encoded Track was taken at selected brick-and-mortar retail
outlets to be determined by J-Bird ("Retail Outlets"). J-Bird
shall be responsible for furnishing AT&T with a digital version
of the coupon in JPEG format within a reasonable period of time
prior to the date said coupon will be made available to
Consumers, the form of which coupon shall be subject to AT&T's
approval. J-Bird shall further be responsible for any
arrangements made with Retail Outlets for discounts on Albums
(including, but not limited to, reimbursements of discounted
amounts and promotions), and J-Bird shall indemnify and hold
harmless AT&T, its parents, its past, present and future agents,
subsidiaries and affiliates, and their respective employees,
officers, agents and directors, against any and all third party
claims, actions and proceedings arising from any such
arrangements. This indemnity shall survive the termination of
this Agreement
(d) Except as provided herein, no use may be made
of the trademarks, service marks, logos, trade names and/or other
insignia or symbols of either AT&T or J-Bird without the written
approval of the owner thereof. Each party shall have reasonable
approval over press releases, promotion and advertising of the
other party.
5. Compensation and Fees. Music Downloads from the
Promotional Pages shall be made available to Consumers at a cost
to be determined by J-Bird (but in no event less than $0.99 per
Music Download), payable by credit card. AT&T shall collect all
monies from the sale of Music Downloads and shall retain for
itself the first Two Thousand Dollars ($2,000) thereof, net of
credit card fees, returns and taxes. Thereafter, AT&T and J-Bird
shall share equally in amounts collected from the sale of Music
Downloads, after deducting credit card fees, returns and taxes.
6. Limits of Liability. Notwithstanding anything to
the contrary herein, each party's liability to the other for any
and all claims and damages incurred by such party relating to or
arising out of the subject matter of this Agreement, whether in
contract, tort, implied warranty, strict liability or other form
of action, (except for real or tangible property damage or
personal injury or death and any claims or damages relating to or
arising out of any claim, action or proceeding which is subject
to the above-referenced rights of indemnity); shall be limited to
Fifty Thousand Dollars ($50,000).
7. General.
(a) Paragraph Headings. Paragraph headings
contained in this Agreement are for convenience only and shall
not be considered for any purpose in governing the provisions of
this Agreement and shall not otherwise be given any legal effect.
(b) Assignments. AT&T may assign this Agreement
or any of its rights or delegate any of its duties under this
Agreement without limitation. J-Bird may not make such an
assignment or delegation hereunder to any entity without the
prior written consent of AT&T. Any purported assignment or
delegation of any such rights or duties hereunder without such
required consent shall be null and void.
(c) Waive . No term or provision hereof will be
considered waived by either party, and no breach excused by
either party, unless such waiver or consent is in writing signed
by the party against whom the waiver is asserted. No consent by
either party to, or waiver of, a breach by either party, whether
express or implied, will constitute a consent to, waiver of, or
excuse of any other, different, or subsequent breach by either
party-
(d) Severability. If any part of this Agreement
is found invalid or unenforceable, that part will be amended to
achieve as nearly as possible the same economic effect as the
original provision and the remainder of this Agreement will
remain in full force.
(e) Governing Law. This Agreement shall be
governed by the law of the State of New York, without regard to
conflicts of law principles. If a dispute arises out of, or
relates to, this Agreement, and is not resolved by the parties,
the parties agree to submit such dispute to non-binding mediation
to be held in accordance with the Commercial Mediation Rules of
the American Arbitration Association ("AAA"). The parties agree
that their participation in a mediation and the entire mediation
proceeding, including but not limited to all statements,
discussions, conducts, rulings, findings or determinations in
that mediation proceeding or related to it, will be confidential,
will constitute settlement negotiations under Rule 408 of the
Federal Rules of Evidence and will not be admissible in any
proceeding or any action of any kind, and that neither party will
introduce or attempt to introduce the above in any proceeding or
action. The parties agree to perform whatever steps are necessary
to ensure that each mediation proceeding complies with this
paragraph. If not thus resolved, it shall be referred to a sole
arbitrator selected by the parties within thirty (30) days of
mediation or, in the absence of such selection, to AAA
arbitration which shall be governed by the United States
Arbitration Act. The award shall be made within six (6) months of
selection of the arbitrator and may be entered in any court
having jurisdiction. The mediation and arbitration shall be held
in New York City. The arbitrator shall determine issues of
arbitrability but may not limit, expand or otherwise modify the
terms of the Agreement nor have authority to award punitive or
other damages in excess of compensatory damages and each party
irrevocable waives any claim thereto. Each party shall bear its
own expenses but those related to the compensation of the
mediator and arbitrator shall be borne equally. The parties,
their representatives, other participants and the mediator and
arbitrator shall hold the existence, content and result of
mediation and arbitration in confidence. Issues of intellectual
property shall not be subject to mediation or arbitration.
(f) Entire Agreement. This Agreement (including
any exhibits and schedules which are attached hereto and made a
part hereof by this reference) shall constitute the entire
understanding of the parties with respect to the subject matter,
superseding all prior and contemporaneous promises, agreements
and understandings, whether written or oral, pertaining thereto
and cannot be modified, amended or rescinded, other than as
provided by its terms, except by a writing duly executed by an
authorized representative of the party to be charged.
(g) Survival. The termination or expiration of
this Agreement, howsoever occasioned, shall not affect any of the
provisions of this Agreement which are expressly or by
implication to come into or continue in force after such
termination or expiration, including without limitation all
warranties and indemnities.
(h) Counterparts. This Agreement may be executed
in one or more counterpart copies, each of which shall be
considered an original, and all of which when taken together
shall constitute one and the same agreement. Delivery of an
executed counterpart of a signature page by telecopier shall be
as effective as delivery of an original manually executed
counterpart.
(i) Relationship of the Parties. There is no
relationship of agency, partnership, joint venture, employment or
franchise between the parties, and neither party has the
authority to bind the other or to incur any obligation on its
behalf.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as the Effective Date.
AT&T Corp. J-Bird Music Group Ltd.
By: /s/ By: /s/
Date: 5/14/98 Date: 5/11/98
AT&T
Schedule A
Tracks for AT&T Downloads.
Artist Song Track # Album
1. Xxxxx Xxxxxxx Rainbow Track # 1 Memrobilia
2. The Guess Who ? These Eyes Track # 15 Greatest Hits
3. Sugarpop Heavy Duty Xxxxx Track # 1 Give Up Your Sister
4. Lovechild All your Oceans Track # 1 Lovechild
5. Xxxx St. Xxx Kick Track # 3 Sky Daddy
6. Fraternal Order Greetings From Track # 1 Greetings from
Planet Love Planet Love
7. Xxxx Xxxxxxx Child of the Blues Track # 10 Child of the Blues
8. Dress Code Power Surge Track # 9 About Time
9. Harlem Gospel Choir Xxxxx Is His Name Track # 1 Harlem Gospel Choir
10. Jak Tweed Shining Through & Tracl # 1 Outer Shell
