Strategic Marketing Agreement - Universal Music Group Inc. and ARTISTdirect Inc.
STRATEGIC MARKETING AGREEMENT
THIS STRATEGIC MARKETING AGREEMENT (the "Agreement") is made as of the
first Closing Date under the Stock Purchase Agreement, 1999 by and between
Universal Music Group, Inc., a California corporation ("UMG") and ARTISTdirect,
Inc., a Delaware corporation (the "Company").
Whereas, as of the date hereof, UMG (together with its Affiliates) is a
significant company in the music industry, and
Whereas, there are synergies between UMG's business and that of the
Company, and
Whereas, UMG (or one of its Affiliates) has become a significant equity
owner in the Company, and
Whereas, in connection with the foregoing, UMG and the Company deem it
to be in their respective best interests to set forth certain understandings
between them with respect to strategic marketing and other commitments which
each believes will advantage its business.
NOW, THEREFORE, in consideration of the premises and mutual covenants
and obligations hereinafter set forth, the Company and UMG hereby agree as
follows.
1. DEFINITIONS.
As used in this Agreement, the following terms shall have the
following meanings.
"Affiliate" of an entity shall mean another entity controlled
by, under common control with or controlling such entity.
"Availability Date" shall mean the date on which the UMG
Entity makes the relevant Content available to Company Entities, provided that
the Availability Date for any particular Content shall be no later than the
first date on which such Content is made available on a nonexclusive basis to
third parties. The parties acknowledge and agree that the Availability Date as
to any particular Content shall not occur if such Content is provided (i) only
to then-current Affiliates of UMG (including, without limitation, GetMusic LLC),
and/or (ii) exclusively as to any particular Content only to one or more third
parties prior to being made available generally to third parties (e.g., certain
Content may be provided to a third party providing special support to a
promotion or in connection with a third party specific promotion).
"Commencement Date" shall have the meaning set forth in
Section 2 hereof.
"Company Contact Person" shall have the meaning set forth in
Section 4.E. hereof.
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"Company Entities" shall have the meaning set forth in Section
4.A. hereof.
"Company Term Minimum Commitment" shall have the meaning set
forth in Section 4.D. hereof.
"Company Yearly Minimum Commitment" shall have the meaning set
forth in Section 4.D. hereof.
"Complying Party" shall have the meaning set forth in Section
5.B. hereof.
"Content" shall mean music and music related content (i) made
available on a non-exclusive basis for marketing and promotional purposes by
labels to third parties (e.g., materials related to new artists and new
releases, music videos, music audio samples, cybercasts, photographs, album
covers, concert film clips, biographical information, promotional merchandise
and similar materials), or (ii) designated by a UMG Entity, in its sole
discretion, as Content for the purposes of this Agreement.
"Derived Analyses" shall mean analyses based upon or related
to data generated from web sites, if any, which analyses are created by or for a
UMG Entity or a Company Entity during the Term, (i) in the case of a UMG Entity,
primarily through the analysis of Other Data, and (ii) in the case of a Company
Entity, (A) primarily through the analysis of Other Data, or (B) provided by a
Company Entity to any unaffiliated third party, or (C) related solely to UMG
Data. Derived Analyses shall not include any individual level data (i.e. data
which would permit an entity to identify a single consumer by his or her name or
e-mail address).
"Generally Available Content" shall have the meaning set forth
in Section 3.A.i. hereof.
"Marketing Support" shall mean (i) advertising space, (ii)
marketing services, (iii) promotional products or services, (iv) Other Data or
Derived Analyses, and (v) other marketing or promotional products or services.
"Noncomplying Party" shall have the meaning set forth in
Section 5.B. hereof.
"Other Data" shall mean any and all data owned or controlled
by a Company Entity and made available by a Company Entity to any unaffiliated
third party (other than (i) UMG Data, (ii) data owned by an unaffiliated third
party, and (iii) data as to a particular web site made available solely to the
person or entity controlling the rights to substantially all the content on such
web site (e.g., an artist, such artist's label or a branding entity (e.g., "Dick
Clark Presents"))). Notwithstanding the foregoing, Other Data shall not include
any data which cannot be provided to UMG without such artists' or branding
entity's consent (unless such consent has been obtained) or consumer consent.
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"Set-Off Right" shall have the meaning set forth in Section
5.A. hereof.
"Special Content" shall have the meaning set forth in Section
3.A.ii. hereof.
"Term" shall have the meaning set forth in Section 2 hereof.
"Term Minimum Commitment" shall mean the UMG Term Minimum
Commitment or the Company Term Minimum Commitment, as applicable.
"Term Year" shall have the meaning set forth in Section 3.B.
hereof.
"Third Party Payments" shall mean any payments required by
contract or law to a person or entity other than UMG or one of its Affiliates.
For purposes of clarity, a payment made to UMG or one of its Affiliates in its
capacity as an agent of a third party shall be a Third Party Payment (e.g., a
payment made to a UMG Affiliate which is a music publishing company for the
benefit of an artist shall be a Third Party Payment hereunder).
"True Up Payment" shall have the meaning set forth in Section
5.B. hereof.
"UMG Affiliates" shall mean UMG and its Affiliates including,
without limitation, the UMG Entities.
"UMG Artist Site" shall mean any web site (whether or not
located on the World Wide Web) owned or operated by a Company Entity that (i)
uses the name of, or predominantly features one or more artists under contract
to a UMG Entity, and (ii) Company Entity institutes, operates or continues to
operate during the Term at least in material part as the result of the efforts
of one or more UMG Entities, including through an introduction or recommendation
by a UMG Affiliate to such artist (or such artist's management), or other
arrangement entered into between a UMG Affiliate and such artist. For purposes
of clarity, web sites existing or in development pursuant to an agreement
existing as of the Commencement Date shall not be UMG Artist Sites unless and
until the agreement or other arrangement pursuant to which the relevant Company
Entity acquired the rights to institute or operate such web site would have
expired or terminated but for the material contributing efforts of a UMG
Affiliate in causing the relevant artist to continue such site (whether on the
same or different terms). Notwithstanding the foregoing, any UMG Artist Site
shall cease to be a UMG Artist Site on the expiration or termination of the
applicable artist's agreement with the relevant UMG Entity, subject to clause
(iii) of the definition of UMG Data.
"UMG Contact Person" shall have the meaning set forth in
Section 3.D. hereof.
"UMG Data" shall mean any and all data collected by a Company
Entity (i) with respect to a consumer that registers with a Company Entity
through a UMG Artist Site, (ii) with respect to any transaction by a consumer
related to a UMG Artist Site, and (iii) with respect to any transaction by a
consumer (A) related to a former UMG Artist Site, and (B) a product released by
the artist during the period(s) such artist was subject to an agreement with a
UMG Entity. Notwithstanding the foregoing, UMG Data shall not include any data
which cannot be provided to UMG without artists' consent (unless such consent
has been obtained) or consumer consent.
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"UMG Entities" shall have the meaning set forth in Section
3.A. hereof.
"UMG Term Minimum Commitment" shall have the meaning set forth
in Section 3.B. hereof.
"UMG Yearly Minimum Commitment" shall have the meaning set
forth in Section 3.B. hereof.
"Yearly Compliance Notice" shall have the meaning set forth in
Section 5.B. hereof.
"Yearly Minimum Commitment" shall mean the UMG Yearly Minimum
Commitment or the Company Yearly Minimum Commitment, as applicable.
2. TERM.
The "Term" of this Agreement shall commence on the date first
set forth above (the "Commencement Date") and end on the earlier of: (i) the
third anniversary of the Commencement Date and (ii) the termination of the
Agreement pursuant to Section 6.A. hereof.
3. UMG OBLIGATIONS.
A. Availability of Content. During the Term, UMG shall, and
shall cause those entities over which it exercises actual control regularly to
(UMG and such entities, for the period that such actual control exists,
collectively and individually the "UMG Entities"), make Content available to the
Company at the times and on the terms as set forth herein.
i. Generally Available Content. "Generally Available
Content" is Content which the UMG Entities make available to unaffiliated third
parties for use on web sites. The UMG Entities shall regularly provide to the
Company the right to use Generally Available Content, and may provide additional
Content on a non-exclusive basis, all of which may be used by Company solely on
one or more web sites owned by Company Entities and web sites operated by the
Company as part of a joint venture in which the Company owns fifty percent (50%)
or more of the economic interest, and solely for the promotion and marketing of
UMG Entity artists (it being understood and agreed that the Company Entities
acquire no right, title or interest in such Content other than the same rights
to use such Content generally provided by the relevant UMG Entity to other
unaffiliated web sites) and shall be provided by the relevant UMG Entity on the
Availability Date for such Content. If such Generally Available Content is
provided by the relevant UMG Entity to other unaffiliated third parties on
other terms and conditions ("Standard Terms") (e.g., limitations in use, period
of time for use, financial terms), it shall be provided to the Company Entities
on the same Standard Terms (which shall be no less favorable to the Company as
the terms the relevant UMG Entity offers to unaffiliated third parties) as a
condition of receiving such Generally Available Content.
ii. Special Content. "Special Content" is content
which the UMG Entities make available only to one or more Company Entities, or
only to one or more Company Entities and a limited number of other unaffiliated
third parties. The UMG Entities shall
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regularly provide to the Company Entities the right to license Special Content
(i) for an exclusive period prior to the Availability Date, or (ii) exclusively,
or (iii) on a limited non-exclusive basis (i.e., such Special Content shall be
available for some period of time only to the Company Entities and a limited
number of other third parties). The parties acknowledge and agree that Special
Content may be made available only on the payment by the Company Entities of a
(x) license or similar fee, or (y) in return for the cost of developing and
creating such Special Content, or (z) on payment of the UMG Entities costs for
such Special Content. All financial terms and other terms and conditions
applicable to any particular Special Content shall be negotiated in good faith
by the parties, provided if such Special Content is also to be made available at
the same time to another unaffiliated third party, the financial terms and
conditions shall be the most favorable financial terms offered to any comparable
third party. Examples of Special Content might be instances where a UMG Entity
has the right to license or provide: (A) a cybercast, made available first and
exclusively to the Company for a limited period of time or a limited number of
broadcasts, and for which Company would pay a fee and any required Third Party
Payments; (B) an exclusive chat with a UMG artist on terms which may or may not
include a fee; and (C) prizes or promotional items provided at the UMG Entities'
cost. The UMG Entities, collectively, shall in each Term Year offer sufficient
Special Content to the Company Entities so that the Company Entities could, if
they choose to license such Special Content, meet the Company Yearly Minimum
Commitment and assuming the Agreement is not terminated pursuant to Section
6.A.(ii), the Company Term Minimum Commitment.
iii. For purposes of clarity, the UMG Entities'
obligation hereunder is to make Content available to the Company; subject to
Section 4.D. hereof, the Company shall have no obligation to license, acquire or
use such Content. On each license or purchase by a Company Entity of Content
(i.e., where a Company Entity will be required to pay for such Content), the
parties shall promptly memorialize the financial and all other terms applicable
to such purchase and promptly provide a copy of such memorialization to each of
the Company Contact Person and the UMG Contact Person (it being acknowledged and
agreed that failure so to provide such a copy shall not invalidate or otherwise
affect such license or purchase or the terms applicable thereto).
B. Minimum Purchase Commitment. Subject to the further terms
and provisions of this Agreement, (i) in each twelve month period commencing on
the Commencement Date or the first or second anniversary thereof and ending on
the day immediately preceding the next such anniversary of the Commencement Date
(each such period, a "Term Year"), UMG and its Affiliates shall purchase, in the
aggregate, not less than One Million Dollars ($1,000,000) of Marketing Support
from the Company Entities (the "UMG Yearly Minimum Commitment"), and (ii) during
the Term, the UMG Affiliates shall purchase not less than Four Million Dollars
($4,000,000) of Marketing Support from the Company Entities (the "UMG Term
Minimum Commitment"). If, as a result of a termination of the Agreement by UMG
pursuant to Section 6.A. hereof the Term of this Agreement terminates prior to
the third anniversary of the Commencement Date, the obligations under this
Section 3.B. shall be pro rated to take into account such early termination.
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C. Derived Analyses. Each UMG Entity shall promptly after its
completion make each Derived Analysis available to the Company, at no charge,
provided the Company shall not transfer, assign, sell or disclose such Derived
Analyses to any unaffiliated third party without UMG's consent, provided a
Derived Analysis related to a particular artist or entity controlling the rights
to substantially all the content underlying such Derived Analysis may be made
available (without rights to further assign, sell or disclose) to the applicable
artist or entity. The parties shall hereafter agree on the form and media in
which such Derived Analyses shall be provided to the Company.
D. Contact Person. The UMG Entities, collectively, shall
promptly hereafter appoint (and shall maintain throughout the Term) at least one
person to be the primary contact person (the "UMG Contact Person") who shall
coordinate with the Company Contact Person with respect to all operational and
similar purposes under this Agreement, which person may change from time to time
as designated by UMG in its sole discretion.
4. COMPANY OBLIGATIONS.
A. Availability of Marketing Support. During the Term and
subject to the further provisions of this Section 4, the Company shall, and
shall cause entities over which it exercises actual control to (the Company and
such entities, collectively and individually, the "Company Entities"), make any
Marketing Support the Company Entities make available to third parties available
to the UMG Affiliates, it being understood that all material financial and other
terms shall be the most favorable financial terms then offered by the relevant
Company Entity to any unaffiliated third party for comparable Marketing Support.
For purposes of clarity, the Company Entities' obligation hereunder is to make
Marketing Support available to UMG Affiliates; subject to Section 3.B. hereof,
the UMG Affiliates shall have no obligation to acquire or use any particular
Marketing Support product or service. The parties shall promptly memorialize the
financial and all other terms applicable to the provision of such marketing
support and promptly provide a copy of such memorialization to each of the UMG
Contact Person and the Company Contact Person (it being acknowledged and agreed
that the failure so to provide such a copy shall not invalidate or otherwise
affect such transaction or the terms applicable thereto).
B. Provision of UMG Data. The Company shall, and shall cause
each Company Entity to provide to UMG copies of all UMG Data from time to time
as requested by UMG, but not less frequently than monthly. The parties shall
hereafter agree on the form and media in which such data shall be provided to
UMG, it being understood and agreed that UMG shall be entitled to the UMG Data
in digital format, and that the Company shall reasonably cooperate with UMG in
creating data collection fields for UMG Artist Sites. Notwithstanding the
foregoing, the parties acknowledge and agree that the provision of UMG Data to
UMG may be subject to artist consent.
C. Provision of Other Data, Derived Analyses. During the Term,
the Company shall, and shall cause each Company Entity to, notify UMG promptly
after the date on which such Company Entity makes any Other Data or Derived
Analyses available to any unaffiliated third party, identifying in reasonable
detail: (i) the nature of such Other Data or
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Derived Analyses, and (ii) the financial and other terms applicable to such
Other Data or Derived Analyses provided that the Company Entities shall provide
to UMG the most favorable (a) financial terms and (b) access and use rights to
such Other Data and/or Derived Analyses as in each case are offered to any
unaffiliated third party with respect to such Other Data and/or Derived
Analyses. The Company shall not, and shall not permit any Company Entity to,
create or impose any term which would preclude a UMG Entity from having the same
or more extensive rights to the relevant Other Data or Derived Analyses as does
the third party to which such Other Data or Derived Analyses is initially
disclosed. Notwithstanding anything contained in this Agreement to the
contrary, no Company Entity shall be obligated under this Agreement to provide
any UMG Entity with any data (x) if the artist has the right to approve the
dissemination of such data to a UMG Entity and has not give such approval, (y)
subject to Section 4.F. hereof, the dissemination of such data would violate the
privacy policy of the applicable Company Entity, or (z) the dissemination of
such data would violate any law, statute or regulation then in effect including
if applicable The Children's Online Privacy Protection Act and any regulation
promulgated by the Federal Trade Commission or any other governmental entity
(whether United States or foreign) and, in the case of (y) and (z), such data is
not being provided to other unaffiliated third parties. Without the relevant
Company Entity's prior written consent, or as permitted by the terms applicable
to such Other Data or Derived Analyses consistent with clause (ii)(b) of the
first sentence of this Section 4.C., UMG shall not be entitled to transfer,
assign, sell or disclose such Other Data or Derived Analyses other than to UMG
Entities, and shall (and shall permit the UMG Entities to) use such Other Data
or Derived Analyses solely for internal marketing research and analysis.
Notwithstanding the immediately preceding sentence, Other Data or a Derived
Analysis related to a particular artist may be made available (without rights to
further assign, sell or disclose) to the applicable artist.
D. Minimum Purchase Commitment. Subject to the further terms
and provisions of this Agreement, (i) in each Term Year the Company Entities
shall purchase, in the aggregate, not less than One Million Dollars ($1,000,000)
of Content from the UMG Entities (the "Company Yearly Minimum Commitment"), and
(ii) during the Term, the Company Entities shall purchase not less than Four
Million Dollars ($4,000,000) of Content from the UMG Entities (the "Company Term
Minimum Commitment"). If as a result of a termination of this Agreement by the
Company pursuant to Section 6.A. hereof the Term of this Agreement terminates
prior to the third anniversary of the Commencement Date, the obligations under
this Section 4.D. shall be pro rated to take into account such early
termination.
E. Contact Person. The Company Entities, collectively, shall
promptly hereafter appoint (and shall maintain throughout the Term) at least one
person to be the primary contact person (the "Company Contact Person") to
coordinate with the UMG Contact Person with respect to operational and similar
purposes under this Agreement, which person may change from time to time as
designated by the Company in its sole discretion.
F. Efforts to Obtain Consents; Anti-Discrimination. The
Company Entities shall use their commercially reasonable efforts to seek and
obtain each and every consent, waiver, agreement or other action necessary to
afford UMG the rights to data set forth in this Section 4, including, without
limitation, artists' and consumer consents. The Company and UMG shall consult
with one another as to the actions to be taken to obtain necessary consents, and
the Company shall promptly notify UMG if it has been unable to obtain an artist
consent necessary to afford UMG the rights set forth in this Section 4.
The Company shall not, and shall ensure that the other Company Entities do not
implement or use a consumer privacy policy (including "opt-out" provisions) or
other policies or procedures which would be more restrictive with respect to
disclosure to (or opt-out with respect to) UMG Affiliates than are the
restrictions and opt-out provisions applicable to any entity other than Company
Entities.
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5. SET-OFF AND TERM YEAR PAYMENTS.
A. Set-Off Right. Notwithstanding any other provision of this
Agreement to the contrary, the Company Entities shall be entitled to set-off all
amounts owed by them to any UMG Entity under this Agreement against all amounts
owed to any of them by any UMG Affiliate under this Agreement, and the UMG
Affiliates shall be entitled to set-off all amounts owed by them to any Company
Entity under this Agreement against all amounts owed to any of them by any
Company Entity under this Agreement (the "Set-Off Right"). Not later than 30
days after the end of each Term Year, each of UMG and the Company shall provide
to the other a schedule listing in sufficient detail to identify the
transaction, all purchases made by an entity from the other and for which UMG or
the Company, as the case may be, can and will set-off under this Agreement.
B. True Up Payments. Due to the availability of the Set-Off
Right, the parties acknowledge and agree that no payments shall be due from one
to the other hereunder with respect to any Term Year unless (i) at the end of
such Term Year, only one of UMG or the Company has met its Yearly Minimum
Commitment, and (ii) the entity meeting its Yearly Minimum Commitment (the
"Complying Party") notifies the other, within forty-five days of the end of such
Term Year that the Complying Party has met its Yearly Minimum Commitment, and
that the other party (the "Noncomplying Party") has not, demands that the
Noncomplying Party meet its Yearly Minimum Commitment for such Term Year, and
specifies the amount of the Yearly Minimum Commitment outstanding at the end of
the relevant Term Year (such notice, the "Yearly Compliance Notice"). If the
Noncomplying Party has not, within 60 days of such Yearly Compliance Notice (the
"Extension Period") purchased such amount of Marketing Support or Content, as
applicable, within such Extension Period as would (when aggregated whether with
the purchases made during the applicable Term Year) meet its Yearly Minimum
Commitment, it shall, not later than the 60th day after such Yearly Compliance
Notice pay such amount of the Yearly Minimum Commitment (the "True Up Payment")
which remains unmet as of the end of such 60 day period, in cash, to the
Complying Party. Purchases of Marketing Support or Content, as applicable, made
in the Extension Period after a Yearly Compliance notice and included in
calculating a True Up Payment may not be included for purposes of ascertaining
whether the Noncomplying Party has met its Yearly Minimum Commitment in any
other Term Year but (for purposes of clarity) shall be included in calculating
whether a party has made its Term Minimum Commitment. Notwithstanding the
foregoing, if the UMG Entities have not made Special Content available to the
Company in the first or second Term Year in an amount sufficient for the Company
Entities to actually expend amounts sufficient to meet the Company Yearly
Minimum Commitment during the applicable Term Year (including the Extension
Period), the amount of such shortfall (the "Yearly Shortfall Amount") shall not
be required to be paid in cash by Company at the end of such Term Year, the
Yearly Shortfall Amount shall be deemed paid by the Company for purposes of
calculating whether the Company has met its Term Minimum Commitment, and UMG
shall pay the Company in cash the amount
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by which (A) the lesser of (i) the aggregate amounts spent by the UMG Entities
in the aggregate for Marketing Support in such Term Year and (ii) $1 million,
exceed (B) the aggregate amounts spent by the Company Entities in such Term
Year, for Content. At the end of the Term, the parties' (and their Affiliates')
respective aggregate purchases of Marketing Support and Content, respectively,
during the entire Term shall be calculated. If, as of the end of the Term,
either party has failed to meet its Term Minimum Commitment, and has not, within
60 days of the end of the Term, purchased such amount of Marketing Support or
Content, as applicable, within such 60 day period as would (when aggregated with
all other purchases made during the Term) meet its Term Minimum Commitment, such
non-complying party shall, not later than the 60th day after the end of the Term
pay to the other party the difference between the non-complying party's Term
Minimum Commitment and the amount actually spent by it during the Term and such
60 day post-Term period. Notwithstanding the foregoing, if at the end of the
Term the UMG Entities have not made Special Content available to the Company
during the Term in an amount sufficient for the Company Entities to actually
expend amounts sufficient to meet the Company Term Minimum Commitment, the
amount of such shortfall (the "Term Shortfall Amount") shall not be required to
be paid in cash by Company at the end of the Term, and UMG shall pay the Company
in cash the amount by which (A) the lesser of (i) the aggregate amounts spent by
the UMG Entities in the aggregate for Marketing Support during the Term and (ii)
$4 million, exceed (B) the aggregate amounts spent by the Company Entities
during the Term for Content (taking into account the "deemed paid" amounts set
forth above). Notwithstanding any provision of this Agreement to the contrary,
the remedy provided for in this Section 5.B. shall be the sole and exclusive
remedy for any breach or alleged breach of the parties' respective obligations
under Sections 3.B. and 4.D.
C. Limitations on Set Off. Notwithstanding anything in this
Agreement to the contrary, a party which purchases Content or Marketing Support,
as the case may be, (i) in excess of $1.5 million in any Term Year, or (ii) in
excess of $4 million during the Term shall, for each and every purchase over
either such limit, pay cash for such purchase in accordance with the payment
terms otherwise applicable to such transaction. Unless and until the aggregate
of all cash payments made by a party (and its affiliates) hereunder exceeds
(together with all amounts set-off or eligible for set-off hereunder) $4
million, such cash payments shall be included in any calculation of whether such
party has met its Term Minimum Commitment.
D. Other Purchases. By mutual agreement of the parties, any
purchase made by one party (or its Affiliates) from the other (or its
Affiliates) which does not otherwise fall under the categories described in this
Agreement (e.g., a purchase by the Company of marketing or promotional services
or advertising from a UMG Entity or the provision of music digital downloads by
a UMG Entity to the Company) may be deemed to be "Content" or "Marketing
Support" for the purpose of calculating whether a party has met its Yearly
Minimum Commitment or Term Minimum Commitment hereunder.
6. TERMINATION FOR BREACH.
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A. Early Termination. Either party may terminate this
Agreement (i) on the material breach of the other party, subject to notice and a
reasonable (not to exceed 30 days) period to cure, or on the occurrence of an
insolvency event with respect to the other party, or (ii) if the UMG Entities
fail to make sufficient Special Content available in the first two Term Years so
that the Company Entities fail to meet the Company Yearly Minimum Commitment
hereunder in each of such years.
7. MISCELLANEOUS.
A. Counterparts; Facsimile Signatures. This Agreement may be
signed in multiple counterparts. Each counterpart will be considered an
original, but all of them in the aggregate shall constitute one agreement. This
Agreement and any amendments hereto, to the extent signed and delivered by means
of a facsimile machine, shall be treated in all manner and respects as an
original agreement or instrument and shall be considered to have the same
binding effect as if it were the original signed version thereof delivered in
person.
B. Successors and Assigns. This Agreement may not be assigned,
in whole or in part, whether voluntarily or by operation of law without the
consent of the other party hereto.
C. Entire Agreement. This Agreement is intended by the parties
as a final expression of their agreement and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter hereof. This Agreement supersedes all prior
letters of intent, agreements and understandings between the parties with
respect to the subject matter hereof.
D. Amendments. This Agreement may be amended, modified or
supplemented only in a writing executed by each of the parties hereto.
E. Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, first class
mail or overnight courier, shall be deemed given on the date received, if
delivered by hand or courier, and four days after deposit into the United States
mail, if mailed, and shall be delivered to the addresses for notice indicated on
the signature pages hereof, or at such other addresses as a party may hereafter
designate by notice delivered pursuant to this Section 7.E.
F. Relationship of the Parties. Notwithstanding any other
relationship between the parties hereto, or between or among them and their
respective Affiliates, nothing herein shall be deemed to constitute the parties
a partnership or joint venture.
G. Governing Law. This Agreement and all matters or issues
related thereto or arising hereunder shall be governed by the laws of the State
of California without regard to the application of principles of conflicts of
laws.
H. Headings and Examples. The headings in this Agreement are
for the convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
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Whenever examples are used in this Agreement with the words "including," "for
example," "e.g.," "such as," "etc." or any derivation thereof, such examples are
intended to be illustrative and not in limitation thereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
ARTISTdirect, INC. UNIVERSAL MUSIC GROUP, INC.
By: /s/ KEITH YOKOMOTO By: /s/ MICHAEL OSTROFF
------------------------------- --------------------------------
Keith Yokomoto Senior Vice President
ARTISTdirect, Inc. 70 Universal City Plaza
17835 Ventura Boulevard Universal City, CA 91608
Suite 310 Attn: President, Global E-Commerce
Encino, CA 91316 and Advanced Technology
Attn: Chief Executive Officer AND Attn: Senior Vice President,
Business and Legal Affairs
With a copy to: With a copy to:
Lenard & Gonzalez LLP Munger, Tolles & Olson LLP
25th Floor 35th Floor
1900 Ave. Of the Stars 355 S. Grand Ave.
Los Angeles, CA 90067 Los Angeles, CA 90071-1560
Attn: Allen D. Lenard Attn: Ruth E. Fisher
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