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EXHIBIT 10.34
12.15.99
STRATEGIC MARKETING AGREEMENT
THIS STRATEGIC MARKETING AGREEMENT (this "Agreement"), dated as of
December 20, 1999, is being entered into by and between Maverick Recording
Company, a California joint venture ("Maverick") and ARTISTdirect, Inc., a
Delaware corporation ("Company"), in light of the following:
Whereas, as of the date hereof, Maverick is a significant company in the
music industry;
Whereas, there are synergies between Maverick's business and that of
Company;
Whereas, Maverick has become a significant equity owner in Company, and
Whereas, in connection with the foregoing, Maverick and 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, mutual covenants and
obligations hereinafter set forth, Company and Maverick hereby agree as follows.
1. Certain Definitions. As used in this Agreement, the following terms
shall have the following meanings:
(1) "Affiliate" of an entity shall mean another entity controlled
by, under common control with, or controlling such entity.
(2) "Commencement Date" shall have the meaning set forth in
paragraph 2 below.
(3) "Company Contact Person" shall have the meaning set forth in
paragraph 4(c) below.
(4) "Maverick Artist" is a recording artist who is then subject
to an exclusive recording agreement with Maverick.
(5) "Maverick Contact Person" shall have the meaning set forth in
paragraph 3(b) below.
(6) "Term" shall have the meaning set forth in paragraph 2 below.
2. Term. The term of this Agreement (the "Term") shall commence on the
date
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of this Agreement (the "Commencement Date") and end on the earlier of (i) the
second anniversary of the Commencement Date and (ii) the termination of the
Agreement pursuant to paragraph 6 below.
3. Maverick Obligations.
(1) Search Engine. Commencing with Maverick's new web
architecture, currently expected to be launched in mid-2000, Maverick shall make
the XXX.xxx search engine the preferred non-commerce music search engine on
Maverick's web sites. Such search engine shall be incorporated so as to permit
visitors to such sites to access the XXX.xxx's searchable database of bands,
record labels, concerts, tour information, ticket sales and such other
information as may be part of such database, and the search results shall appear
on the Company's XXX.xxx site as described in paragraph 4(b) below.
(2) Maverick Contact Person. Maverick shall promptly after the
execution hereof appoint (and shall maintain throughout the Term) one person to
be the primary contact person on behalf of Maverick (the "Maverick Contact
Person"), which person may change from time to time as designated by Maverick in
its sole discretion. The Maverick Contact Person shall coordinate with the
Company Contact Person with respect to all operational and similar purposes
under this Agreement.
4. Company Obligations.
(1) Site Links. During the Term, Company agrees that, with
respect to all searches relating to Maverick Artists by means of XXX.xxx's
search engine, Maverick's websites relating to such artists shall be listed
first and shall otherwise be highlighted for maximum impact on the user.
(2) Certain Elements of Search Design. Company agrees that all
searches initiated from any of Maverick's websites shall result in a new window
which shall: (i) contain the search results of XXX.xxx hosted by Company; (ii)
contain a co-branded logo of Maverick and XXX.xxx's logos; (iii) contain ad
banner(s) which shall be solely controlled by Maverick and all income from which
shall belong to Maverick; and (iv) contain an easily identifiable back path to
Maverick's web page from which such search was initiated. Company hereby
warrants and represents that Maverick shall be able to update the specific ads
to be included among the ad banners referred to in the previous sentence no less
frequently than [***]* and that such banners shall be able to "rotate" no less
frequently than [***]*.
(3) Company Contact Person. Company shall promptly after the
execution hereof appoint (and shall maintain throughout the Term) one person to
be the primary contact person on behalf of Company and its Affiliates (the
"Company Contact Person"), which person may change from time to time as
designated by Company in its sole discretion. The Company Contact Person shall
coordinate with the Maverick Contact Person with respect to all operational and
similar purposes under this Agreement.
5. Other Cross-Marketing and Promotion. References are made to the
Internet Video License Agreement, the Webcasting Transmission License Agreement
and the Audio Sample License Agreement, each between Maverick and Company and of
even date herewith. At
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* Confidential treatment has been requested for the bracketed portion. The
confidential redacted portion has been omitted and filed separately with
the Securities and Exchange Commission.
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the request of either party hereto, the parties shall discuss in good faith
entering into further arrangements on a case-by-case basis for the licensing of
other material owned or controlled by Maverick and in connection with the
specific promotions of Maverick Artists conducted by Company or its Affiliates
on the web sites operated by Company or an Affiliate thereof.
6. Termination for Breach. Without waiving any right or remedy otherwise
available to a party hereunder, either party hereto may terminate the Term due
to the material breach of this Agreement by the other party or its Affiliates,
subject to notice and a reasonable period to cure (not to exceed thirty days),
or on the occurrence of an insolvency event with respect to the other party.
7. Miscellaneous.
(1) 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.
(2) Successors and Assigns. This Agreement may be assigned to any
Affiliate of the assigning party or to any person or entity who purchases all of
substantially all of the stock or assets of the assigning party, provided that
the assigning party shall remain primarily liable under this Agreement for its
obligations hereunder. In all other respects, this Agreement shall not be
assigned, in whole or in part, whether voluntarily or by operation of law,
without the consent of the other party hereto, and any such purported assignment
shall be deemed null and void and without force or effect.
(3) 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.
(4) Amendments. This Agreement may be amended, modified or
supplemented only in a writing executed by each of the parties hereto.
(5) 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 paragraph 7(e).
(6) Relationship of the Parties. Notwithstanding any other
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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.
(7) 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.
(8) 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. 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. MAVERICK RECORDING COMPANY
By: /s/ XXXXX XXXXXXXX By: /s/ XXX XXXXXX
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President and Chief Operating Officer Co-Chief Executive Officer
Xxxxx Xxxxxxxx Maverick Recording Company
ARTISTdirect, Inc. 0000 Xxxxx Xxxxxx Xxxxx
00000 Xxxxxxx Xxxxxxxxx Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Xxxxx 000
Xxxxxx, XX 00000
Attn: President and Chief
Operating Officer
With a copy to:
Xxxxxx & Xxxxxxxx LLP
0000 Xxxxxx Xx xxx Xxxxx
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx, Esq.
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