EXHIBIT 10.14.1
Note: Portions of this exhibit indicated by "[*]" are subject to a confidential
treatment request, and have been omitted from this exhibit. Complete, unredacted
copies of this exhibit have been filed with the Securities and Exchange
Commission as part of this company's confidential treatment request.
AMENDED AND RESTATED
SERVICES AGREEMENT
This Amended and Restated Services Agreement (this "Agreement") is
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executed as of the 7th day of April, 2000 by and between Valley Media, Inc., a
Delaware corporation("Valley") and Loudeye Technologies, Inc., a Delaware
corporation, originally Xxxxxxx.xxx, Inc. ("Loudeye") to amend and restate the
Services Agreement between Valley and Loudeye dated as of December 17, 1999 (the
"Effective Date. The original Services Agreement is amended and restated in its
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entirety as set forth herein.
RECITALS
A. Loudeye offers services and applications for Loudeye, optimizing and
delivering audio and video content on the Internet.
B. Valley is a distributor of music and video entertainment products.
C. Valley desires to obtain certain services from Loudeye that will
allow Valley to include a digital music sampling service as part of the consumer
database it offers to its retail customers.
AGREEMENT
In consideration of the foregoing and the mutual promises and covenants
contained herein, and for other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, Valley and Loudeye hereby agree as
follows:
1. Definitions. For purposes of this Agreement, the following definitions will
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apply:
1.1. The term "Confidential Information" means any information that one party
(the "Disclosing Party") furnishes or makes available to the other party
(the "Receiving Party") and all information related to the business of one
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party (the "Disclosing Party") which the other party (the "Receiving
----------------
Party") acquires in the course of performing its obligations under this
Agreement; provided, however, that the term "Confidential Information" does
not include any information that the Receiving Party can prove (a) is
generally available to or known by the public, (b) was available to or
known by the Receiving Party on a non-confidential basis prior to
disclosure by the Disclosing Party, (c) was independently developed for the
Receiving Party by persons who were not given access to the information
disclosed by the Disclosing Party, or (d) becomes generally known to the
public after the Effective Date through no act or omission of the Receiving
Party.
1.2. The term "Major Labels" means, collectively, [*], and (f) any affiliate,
division or subsidiary of any of the entities described in parts (a)
through (e) of this Section 1.2.
2. Inventory Loan. Valley maintains an inventory of compact discs containing
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prerecorded music (each, a "CD" and, collectively, the "CDs"). Valley will
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[*], one copy of each stock-keeping unit maintained by Valley among its
inventory of CDs during the term of this Agreement, including the original
artwork and packaging for each such CD (each, a "Loaned CD" and, collectively,
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the "Loaned CDs"). Valley will deliver the Loaned CDs to Loudeye at [*].
Loudeye will pay Valley a handling charge of [*] per Loaned CD delivered to
Loudeye by Valley.
[*] Confidential Treatment Request
1
3. Product Information File. Valley maintains an electronic data file
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containing [*] for each recording contained in a CD in its inventory (the
"Product Information File"). Valley will deliver to Loudeye, at [*] charge,
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one electronic copy of the Product Information File. In addition, during the
term of this Agreement, Valley will deliver to Loudeye daily updates of the
Product Information File ("PIF Updates") containing artist and UPC information
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for recordings contained in CDs that have been added to Valley's inventory
since the original Product Information File or the last PIF Update was
delivered to Loudeye by Valley, whichever was later. For purposes of this
Agreement, the term "Product Information File" means the Product Information
File as updated and/or amended by Loudeye to incorporate any and all PIF
Updates. Valley will not be required to deliver updates of the Product
Information File to Loudeye following the termination or expiration of this
Agreement unless the parties agree otherwise.
4. Encoding of Loaned CDs.
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4.1. For each recording contained in a Loaned CD (each, a "Recording" and,
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collectively, the "Recordings"), Loudeye will create a storable electronic
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file containing a copy of that Recording in digital form (each, a "Song
----
File" and, collectively, the "Song Files"). Loudeye will create each Song
---- ----------
File in a manner that will allow that Song File to be encoded into each of
the streaming and downloading formats and at each of the data rates
described in Exhibit A hereto, which is incorporated herein by this
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reference. Valley may amend Exhibit A from time to time to include
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additional streaming and/or downloading formats and/or additional data
rates, and Loudeye will create Song Files and Song Clips (as defined below)
for each Recording in such additional formats and/or at such additional
data rates in accordance with a schedule agreed upon by both parties.
Valley will [*] by Loudeye in encoding the Loaned CDs into such additional
formats and/or at such additional data rates pursuant to this Section 4.1.
4.2. From each Song File, Loudeye will create a sound clip (each, a "Song
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Clip" and, collectively, the "Song Clips") of a length, in each of the
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formats and at each of the data rates described in Exhibit B hereto, which
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is incorporated herein by this reference.
4.3.Loudeye will link each Song Clip to that portion of the Product
Information File containing product information for the Recording
underlying the Song Clip, so that users of the Product Information File [*]
for a particular Recording will be able to [*].
4.4 Loudeye will create a storable electronic file containing a copy of the
cover art of each Loaned CD in digital form (each, a "Front Cover Art File"
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and, collectively, the "Front Cover Art Files". Loudeye will also create a
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storable electronic file containing a copy of the art on the back of the CD
jewel case of each Loaned CD in digital form (each, a "Back Cover Art File"
and, collectively, the "Back Cover Art Files"). The combination of "Front
Cover Art Files" and "Back Cover Art Files" will be known collectively as
"Cover Art Files". Loudeye will incorporate the Cover Art Files into the
Product Information File so that a digital image of the cover art for a
Loaned CD can appear on each screen viewed by a user of the Product
Information File that contains information regarding a Recording contained
in that Loaned CD. The Back Cover Art Files will be captured through the
jewel case housing the CD at an additional cost to Valley Media of $0.67
per CD. Loudeye will invoice Valley on a monthly basis for such costs.
4.5. After Loudeye has created Song Files and Song Clips for each Recording
contained in a Loaned CD, and created a Cover Art File for that Loaned CD,
Loudeye will promptly return the Loaned CD to Valley at [*]. Loudeye may
return Loaned CDs without shrink-wrap, and Loudeye will use [*] efforts to
have each returned Loaned CD in a condition that would allow Valley to
return the Loaned CD to the vendor from which it was purchased without any
refurbishment on Valley's part; provided, however, if Loudeye is not able
to return a Loaned CDs in such returnable condition, Loudeye will pay [*]
of Valley's wholesale cost for any such Loaned CD.
4.6. Loudeye will update and/or amend the Product Information File on a daily
basis to incorporate the information contained in any and all PIF Updates.
4.7. If, in carrying out its responsibilities under this Agreement, but
without any separate obligation to do so, Loudeye becomes aware of a
Recording that is contained in a Loaned CD [*].
[*] Confidential Treatment Request
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4.8. Loudeye will attempt to create a customized clip service that will allow
an artist or label to select the portion of a Recording by that artist or
label that is used to create a Song Clip for that Recording. The artist or
label would be required to bear the cost related to the creation of any
such customized Song Clip.
5. Music Sampling Service. Valley and Loudeye will use the Product
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Information File and the Song Clips to create a music sampling service (the
"Sampling Service") that will be sold or licensed to third parties. Loudeye and
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Valley each will have the right to sell or license the Sampling Service to third
parties; provided, however, that neither Loudeye nor Valley may sell, license or
otherwise transfer the Sampling Service or any portion thereof to [*]. Loudeye
and Valley will each be responsible for collecting sales revenue and/or license
fees from their respective customers and/or licensees. During the term of this
Agreement, Loudeye and Valley will each be entitled to [*] of any license or
other fees received by the other party for selling or licensing the Sampling
Service; provided, however, that if [*] the Sampling Service to [*] in
connection with [*] to that party, and [*], as the case may be, [*] for the
Sampling Service beyond the [*] in an amount not greater than [*], then the
parties shall not be required to [*]. The amount of license or other fees
received in connection with selling or licensing the Sampling Service which must
be shared pursuant to this paragraph shall be [*] determined in good faith in
accordance with U.S. GAAP. In the case of [*] shall include only [*] and other
[*] to provide [*]. Loudeye will perform the following services to support the
Sampling Service:
5.1. Loudeye will store the Song Clips on its business systems and use those
systems to stream the Song Clips to consumers using the Sampling Service.
In hosting and streaming the Sampling Service, Loudeye will maintain
interface capabilities that are consistent with industry standards.
Loudeye's right to host and stream the Sampling Service on behalf of Valley
under this Section 5.1. is not exclusive, and Valley may retain other
persons or entities to perform such services in accordance with the
following conditions. Valley will notify Loudeye in writing if it wishes
to have hosting and streaming services for the Sampling Service performed
by a person or entity other than Loudeye (the "Third Party Service
Provider"). For a period of sixty (60) days following Loudeye's receipt of
such notice, Valley and Loudeye will negotiate in good faith regarding
Loudeye's provision of such services instead of the Third Party Service
Provider. If, at the conclusion of such sixty (60) day period, Valley and
Loudeye have not reached an agreement for Loudeye to perform such services
after negotiating in good faith, Valley will be permitted to retain the
Third Party Service Provider to perform such services.
5.2. Loudeye will collect the data described in Exhibit D hereto (the
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"Consumer Data"), which is incorporated herein by this reference, regarding
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the usage and purchasing habits of consumers that use the Sampling Service.
6. Minimum Service Levels. In consideration of the capital expenditures that
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will be incurred by Loudeye in connection with this Agreement, which are
described in Section 7.1. below, Valley [*] that Loudeye will receive
revenues from the Sampling Service of at least [*] during each three month
period (an "Installment Period") during the first twelve (12) months after
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the Sampling Service becomes operational (the "Guaranteed Period") for a
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total guaranteed payment of at least [*]. If Loudeye does not receive
Sampling Service Revenues of at least [*] during each Installment Period
during the Guaranteed Period, Valley will make a payment to Loudeye (each, a
"Guaranteed Payment") within thirty (30) Days of the conclusion of the
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applicable Installment Period equal to the difference between [*] and the
amount of revenues actually received by Loudeye from licensing or sale of the
Sampling Service during the applicable Installment Period together with any
amounts actually received by Loudeye pursuant to Section 7.4 (cumulatively,
the "Sampling Service Revenue"); provided, however, that Loudeye will not be
------------------------
entitled to receive the Guaranteed Payment if Valley delivered the first [*]
in accordance with the [*] set forth on Exhibit G hereto, in each case
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together with [*] which, at the time of delivery of the [*], were correct in
all elements necessary so that at least [*] of such [*] will pass through [*]
without interruption due to [*], and (a) the Sampling Service is not
operational on or before [*] and, or (b) [*], which is incorporated herein by
this reference; provided, further, that Valley shall not be obligated to make
a Guaranteed Payment for a particular Installment Period if Loudeye has
received an average of [*] or more from Guaranteed Payments and Sampling
Service Revenue during each of the preceding Installment Periods and the
Installment Period in question. For purposes of this Section 6, the Sampling
Service will become "operational" when Loudeye has created Song Files and
Song Clips for that number of [*] equal to the [*]. The PIF Accuracy
Percentage shall be the [*], measured on all delivery dates set forth in
Exhibit H on and after March 17, 2000 with respect to the [*] delivered as of
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those delivery dates. For the purposes of this Section 6, all references to
"revenue" shall be revenue calculated in accordance with U.S. GAAP at the
time the Guaranteed Payment would be due.
[*] Confidential Treatment Request
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7. Service Fees.
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7.1. Capital Expenses. Loudeye will pay all the necessary upfront capital
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equipment charges necessary for the creation of the Sampling Service which
are estimated to total [*] and to include:
7.1.1. Facilities
7.1.2. Ripping Stations
7.1.3. Loudeye Stations
7.1.4. Raid Online Storage
7.1.5. Nearline Storage System
7.1.6. Computer servers and Equipment
7.2. Encoding Costs. Valley will pay by [*] of the costs of creating the
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Song Files and Song Clips. This amount is fixed and in the event the
actual costs for this service increase or decrease, Valley will not have to
pay any portion of any overage.
7.3. Costs to Update Sampling Service. Valley will pay Loudeye a fee of [*]
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for each CD added to the Sampling Service in excess of the initial [*]
Loaned CDs delivered by Valley to Loudeye. This fee is fixed through
September 2000. In the event, Loudeye's costs for adding CDs are
determined to increase or decrease by [*] or higher, the parties agree to
renegotiate this clause and its fee schedule in good faith. Loudeye will
invoice Valley on a monthly basis that reflects the actual number of files
added to the Sampling Service inventory. Valley will deliver the
additional CDs described in this section to Loudeye at [*]. Loudeye will
pay Valley a handling charge of [*] per additional CD delivered to Loudeye
by Valley pursuant to this section.
7.4. Streaming Costs. Loudeye will charge Valley [*] for the ongoing
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streaming and hosting costs. [*] is defined as the [*] plus [*] of the [*]
plus [*].
8. Ownership and Rights upon Termination.
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8.1. Loaned CDs.
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8.1.1. The Loaned CDs are, and will at all times remain, Valley's sole and
exclusive property, and Valley will have the right to demand the return
of any or all of the Loaned CDs, with Loudeye to pay [*], including the
original artwork and packaging for each Loaned CD, at any time;
provided, however, that, if at any time any or all of the Loaned CDs
(other than any Loaned CDs purchased by Loudeye pursuant to Section 9.2
of this Agreement) are determined to be Loudeye's property, Loudeye
hereby grants Valley a security interest in such Loaned CDs.
8.1.2. Upon the expiration or termination of this Agreement, Loudeye will
promptly return all of the Loaned CDs, including the original artwork
and packaging for each Loaned CD, at [*], to Valley (other than any
Loaned CDs Loudeye has already returned to, or purchased from, Valley
pursuant to Section 9.2 of this Agreement).
8.2. Files and Clips.
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8.2.1. The Song Clips, the Song Files and the Cover Art Files will be, and
will at all times remain, the sole and exclusive property of Valley;
provided, however, that, if at any time any or all of the Song Files
and/or the Song Clips and/or the Cover Art Files are determined to be
Loudeye's property, Loudeye hereby grants Valley a security interest in
such Song Files and/or Song Clips and/or Cover Art Files.
8.2.2. The Product Information File and any and all PIF Updates will be,
and will at all times remain, the sole and exclusive property of Valley;
provided, however, that, if at any time the Product Information File,
any portion thereof, or any or all of the PIF Updates are determined to
be Loudeye's property, Loudeye hereby grants Valley a security interest
in the Product Information File and/or such PIF Updates.
[*] Confidential Treatment Request
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8.2.3. Valley hereby grants Loudeye a worldwide, perpetual, irrevocable,
nonexclusive license to use, store, modify, copy and distribute the
Product Information File, the PIF Updates, the Song Clips, the Song
Files and the Cover Art Files. This license will survive any
termination or expiration of this Agreement. Loudeye will have the
right to sublicense the Product Information File, the PIF Updates, the
Song Files, the Song Clips and the Cover Art Files to any entity other
than [*].
8.2.4. Upon the expiration or termination of this Agreement, or at any
earlier time, upon demand by Valley, Loudeye will promptly deliver to
Valley, [*], copies of all of the Song Files, Song Clips and Cover Art
Files in the formats maintained hereunder; provided, however, if Valley
terminates this Agreement as a result of a breach of this Agreement by
Loudeye pursuant to Section 18.2, Loudeye shall [*].
8.3. Consumer Data. All of the Consumer Data will be, and will at all times
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remain, the sole and exclusive property of Valley; provided, however, that
Valley will pay Loudeye [*] of all payments received by Valley through the
sale, licensing or other commercial exploitation of all or any portion of
the Consumer Data during the term of this Agreement.
9. Audiofile License and Deleted Product.
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9.1. At the same time the parties enter into this Agreement, they will enter
into an Audiofile License Agreement substantially in the form attached
hereto as Exhibit F (the "Audiofile License"), which is incorporated herein
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by this reference, pursuant to which Valley will license its audiofile
database ("Audiofile") to Loudeye on a royalty free basis during the term
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of this Agreement. If Valley is notified by any of its suppliers that the
supplier is deleting one of the Loaned CDs from its catalog, Valley will
post a deletion notice regarding the Loaned CD on Audiofile, and Loudeye
will return, [*], its copy of the Loaned CD to Valley on or before the Last
Customer Return Date stated in the deletion notice [*].
9.2. If Valley posts a deletion notice regarding a Loaned CD on Audiofile and
Audiofile is fully operational and accessible by Loudeye, and Loudeye fails
to return its copy of the Loaned CD to Valley prior to the Last Customer
Return Date stated in the deletion notice, Loudeye will purchase the Loaned
CD from Valley at Valley's wholesale price for the Loaned CD.
10. Initial Warrant Grant. Loudeye will issue warrants for [*] shares of
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Loudeye common stock with a strike price of [*] per share and an exercise
period of [*] (the "Initial Warrants"). The Initial Warrants will be granted
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upon commencement of this agreement.
11. Rights Acquisition. Loudeye will grant Valley an additional [*] warrants on
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the same terms and conditions as the Initial Warrants in consideration of
Valley's certification attached hereto as Exhibit G (the "Certificate"), which
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is incorporated herein by this reference, regarding Valley's attempts to [*].
The statements contained in the Certificate will constitute representations
and warranties of Valley under this Agreement. If Valley enters into a
definitive written agreement with [*] regarding the matters set forth in the
Certificate, Valley will provide a copy of such agreement to Loudeye.
12. Future Endeavors.
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12.1. Valley and Loudeye may explore the possibility of a variety of new
offerings leveraging either the existing assets such as the Song Files,
Song Clips and/or the Product Information File or offerings leveraging
other assets of Valley and Loudeye. However, neither party is obligated to
engage in any joint business activities beyond those specifically agreed to
in this Agreement unless the parties enter into a separate agreement which
sets forth their respective rights and obligations.
12.2. Right of [*]. Valley agrees that during the term of this Agreement
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Loudeye shall be [*] and, at Loudeye's option, [*] with respect to, any and
all [*] to [*] or any of its [*] for which Valley [*] any or all of such
[*] (individually, an "Opportunity," and collectively, "Opportunities"),
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and Valley agrees to [*] with [*] in good faith for the [*] of such
Opportunities. Prior to [*] an Opportunity to [*], Valley shall [*] such
Opportunity to [*]. Thereafter, Loudeye shall have [*] days (the "[*]
Period") during which it will [*] with respect to such Opportunity. During
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the term of this Agreement, Valley shall not [*] such Opportunity to [*]
until the earliest to occur of (i) Loudeye's notifying Valley in writing
that [*] with respect to such Opportunity or (ii) the expiration of the [*]
Period.
[*] Confidential Treatment Request
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13. Representations and Warranties of Loudeye. To induce Valley to enter into
---------------------------------------------
this Agreement and to perform the transactions contemplated hereunder, Loudeye
represents and warrants as follows:
13.1. Organization. Loudeye is a corporation duly organized, validly
------------------
existing and in good standing under the laws of the state of Delaware.
13.2. Authority; Consents and Approvals; No Violations. Loudeye has the full
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corporate power and authority and legal right to execute and deliver this
Agreement, and otherwise to perform its obligations hereunder. This
Agreement has been validly executed and delivered by Loudeye and will
constitute a valid and binding obligation of Loudeye enforceable in
accordance with its terms, except to the extent such enforceability may be
limited by the effects of bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally, and
by the effect of general principles of equitable law, regardless of whether
such enforceability is considered in a proceeding in equity or at law. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby do not and will not violate any provision
of Loudeye's Certificate of Incorporation or Bylaws, or violate, conflict
with, result in a breach of or constitute (with or without due notice,
lapse of time or both) a default under any agreement, license, contract,
franchise, permit, indenture, lease, or other instrument to which Loudeye
is a party, or by which it or any of its assets are bound.
13.3. Performance Standards. Loudeye will perform the services described in
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Sections 4 and 5 of this Agreement in a professional and workmanlike manner
that is consistent with the highest industry standards.
14. Representations and Warranties of Valley. To induce Loudeye to enter into
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this Agreement and to perform the transactions contemplated hereunder,
Valley represents and warrants as follows:
14.1. Organization. Valley is a corporation duly organized, validly existing
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and in good standing under the laws of the state of Delaware.
14.2. Authority; Consents and Approvals; No Violations. Valley has the full
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corporate power and authority and legal right to execute and deliver this
Agreement, and otherwise to perform its obligations hereunder. This
Agreement has been validly executed and delivered by Valley and will
constitute a valid and binding obligation of Valley enforceable in
accordance with its terms, except to the extent such enforceability may be
limited by the effects of bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally, and
by the effect of general principles of equitable law, regardless of whether
such enforceability is considered in a proceeding in equity or at law. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby do not and will not violate any provision
of Valley's Certificate of Incorporation or Bylaws or violate, conflict
with, result in a breach of or constitute (with or without due notice,
lapse of time or both) a default under any agreement, license, contract,
franchise, permit, indenture, lease, or other instrument to which Valley is
a party, or by which it or any of its assets are bound.
15. Indemnification. Each party will, at all times, indemnify, defend and hold
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the other party harmless from and against 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 the indemnifying party of
any representation, warranty or obligation of such party under this Agreement.
In addition, each party will, at all times, indemnify, defend and hold the
other party harmless from and against 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 the patents, copyrights,
trademarks or other intellectual property rights of any third party that
results from the commercial use of the Sampling Service in a manner other than
that contemplated by this Agreement by the indemnifying party, any of the
indemnifying party's licensees, or any person or entity that has purchased the
Sampling Service, or any portion thereof, from the indemnifying party.
16. Limitation on Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE
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OTHER 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.
17. Confidential Information. Neither Loudeye nor Valley may use any
----------------------------
Confidential Information of the other except as permitted under this
Agreement. In addition, neither Loudeye nor Valley may disclose any
Confidential
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Information of the other unless (a) such disclosure is made to
the Disclosing Party's employees or agents on a "need to know" basis or (b)
such disclosure is required by law or legal process and the party from whom
such disclosure is required has given the other party prior notice of such
requirement and has cooperated with the non-Disclosing Party to oppose
disclosure. For purposes of this Agreement, any unauthorized use or
disclosure of Confidential Information by an employee or agent of either party
will be treated as an unauthorized disclosure by such party.
18. Term and Termination.
------------------------
18.1. This Agreement will terminate on the [*] of the Effective Date (the
"Initial Termination Date"), unless both parties provide a written
-------------------------
amendment at least ninety (90) days prior to the Initial Termination Date,
in which case this Agreement will be extended for an additional [*] years
and will terminate upon the [*] anniversary of the Effective Date.
18.2. Either party may terminate this Agreement if (i) the other party
materially breaches any of its obligations under this Agreement, (ii) the
non-breaching party sends written notice to the breaching party describing
the breach in reasonable detail, and (iii) the breaching party does not
cure the breach within thirty (30) days following its receipt of such
notice.
18.3. Either party may terminate this Agreement if (i) the other party
becomes insolvent, or (ii) a petition is filed by or against the other
party under any bankruptcy or insolvency laws and, in the event of any
involuntary petition, the petition is not dismissed within forty-five (45)
days of the filing date.
18.4. The parties may terminate this Agreement by mutual consent through a
signed writing.
19. Press Release. Upon execution of this Agreement, Loudeye and Valley will
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issue a joint press release (the "Press Release") announcing the execution of
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this Agreement and briefly describing the transactions contemplated hereby.
Neither party will issue the Press Release, nor any other release concerning
this Agreement or the transactions contemplated hereby, without the other
party's prior consent.
20. Miscellaneous
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20.1. Assignment. Neither party may assign any of its rights under this
----------------
Agreement without the other party's prior written consent; provided,
however, that either party may assign its rights under this Agreement to
any affiliate of such party, any entity into which such party is merged or
any entity that purchases substantially all of the assets of such party
20.2. Further Assurances. In addition to the obligations required to be
------------------------
performed by the parties hereto under the other provisions of this
Agreement, the parties agree to perform, without further consideration,
such other acts and to execute, file, acknowledge and deliver such other
instruments and documents, including without limitation UCC-1 financing
statements covering the Loaned CDs, the Song Files, the Song Clips, the
Product Information File and the PIF Updates, as may be reasonably required
to carry out the provisions and purposes of this Agreement and to fully and
properly consummate the transactions contemplated hereby.
20.3. Amendment and Waiver. No amendment or modification of this Agreement
--------------------------
will be effective unless set forth in a writing signed by an authorized
representative of the party against which enforcement of such amendment is
sought. No waiver by a party of the other party's obligation to comply
with any provision of this Agreement will be deemed or will constitute a
waiver of the nonwaiving party's obligation to comply with any other
provision of this Agreement or with the nonwaiving party's obligation to
comply with the waived provision on a subsequent occasion.
20.4. Arbitration. Any dispute or controversy arising between Loudeye and
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Valley regarding this Agreement will be submitted to arbitration in the
state of the defending party in accordance with the rules then in effect of
the American Arbitration Association. Any award made by an arbitrator
pursuant to this Section 20.4 will be binding upon both parties in the
absence of fraud and may be entered in any court of competent jurisdiction.
20.5. Notices. Any notice to a party pursuant to this Agreement shall be
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given by one of the following means: (a) certified or registered United
States mail, postage prepaid, (b) private courier or express service
requesting evidence of receipt as a part of its service, or (c) by
telecopy, with a copy also to be given by first class United
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States mail, postage prepaid, or by any means permitted under parts (a) or
(b) of this Section 20.5. Notices shall be given to the parties at the
following addressees:
If to Valley: Valley Media, Inc.
0000 Xxxxx Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx
Fax Number: (000) 000-0000
If to Loudeye: Loudeye Technologies, Inc.
000 Xxxxx Xxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Fax Number: 000-000-0000
with a mandatory copy to: Venture Law Group
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxx
Fax Number: (000) 000-0000
20.6. Binding Effect. Upon execution of this Agreement by all parties
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hereto, this Agreement shall inure to the benefit of, and be binding on and
enforceable against, the parties and their respective heirs, legal
representatives, successors and permitted assigns.
20.7. Entire Agreement. This Agreement, including the exhibits and schedules
----------------------
hereto, together with the Audiofile License and the Warrant, constitute the
entire agreement and understanding between the parties with respect to the
subject matter hereof, and supersede any prior or contemporaneous
agreements or understandings relating to the subject matter hereof, whether
written or oral.
20.8. Counterparts. This Agreement may be executed in two or more
------------------
counterparts, each of which shall be deemed an original and all of which,
taken together, will constitute one and the same instrument.
20.9. Attorneys' Fees. If any arbitration, legal action or other proceeding
---------------------
is brought for the enforcement of this Agreement, or because of an alleged
dispute, breach, default or misrepresentation in connection with any of the
provisions of this Agreement, the successful or prevailing party will be
entitled to recover reasonable attorneys' fees and other costs incurred in
such action or proceeding, in addition to any other relief to which it may
be entitled.
20.10. Survival. The provisions of Sections 1, 8, 15, 16, 17, and 20 will
---------------
survive any termination or expiration of this Agreement.
20.11. Headings. The headings of the paragraphs and sections of this
---------------
Agreement are included for purposes of convenience only and shall not
affect the construction or interpretation of any provisions hereunder.
20.12. Partial Invalidity. The invalidity of any part or provision of this
-------------------------
Agreement will not affect the enforceability of the remainder of this
Agreement.
20.13. Governing Law. This Agreement will be governed by and construed in
--------------------
accordance with the substantive laws of the State of California applicable
to contracts entered into and performed entirely within that state.
20.14 Audit Right. The parties shall keep at their respective principal
------------------
places of business complete and accurate books of account relating to
revenues received and costs incurred which are relevant to the
determination of payment obligations of the parties under this Agreement.
Each party shall have the right, upon reasonable notice and during the
other party's normal business hours and no more often than once during any
12 month period, to enter the other party's premises for purposes of
auditing all books of account, documents, records and files relating to
calculations which are required under this Agreement.
[*] Confidential Treatment Request
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In witness whereof, the parties have executed this Amended and Restated Services
Agreement as of April 7, 2000.
Valley Media, Inc. Loudeye Technologies, Inc.
/s/ Xxxxxx Xxxxxxx /s/ Xxxxx X. Xxxxxx
------------------------ --------------------------------
By: Xxxxxx Xxxxxxx By: Xxxxx X. Xxxxxx
Its: General Counsel Its: President/Chief Operating Officer
[*] Confidential Treatment Request
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