AMENDMENT #1 TO SERVICES AGREEMENT
WHEREAS, GameZnFlix, Inc. ("GNF") and Circuit City Stores, Inc. ("Circuit
City") have entered into that certain Services Agreement, dated as of October
4, 2005 (the "Agreement");
WHEREAS, GNF and Circuit City desire to enter into this Amendment in
order to modify certain terms of the Agreement (the "Amendment");
WHEREAS, all capitalized, undefined terms in the Amendment shall have the
meaning provided for in the Agreement;
NOW, THEREFORE, IN CONSIDERATION of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties, intending to be legally bound, hereby agree to amend
the Agreement as follows:
1. Recognizing that there was a mis-lettering of the Sections in the
Agreement, the Parties agree that the Sections of the Agreement are re-lettered
so that they run sequentially as common sense would dictate.
2. Original Section A.3 (Term of the Pilot Program) of the Agreement is
deleted in its entirety and is replaced with the following:
3. Term of the Pilot Program. It is the intention of the
Parties that the Pilot Program shall commence on or about
November 1, 2005 and terminate on March 15, 2006.
Thereafter, if the Parties mutually agree that a National
Rollout of the Program is mutually beneficial, the Parties
shall enter into a definitive agreement for such National
Rollout.
2. Original Section C (Audit) of the Agreement is deleted in its entirety and
is replaced with the following:
D. DUE DILIGENCE; AUDIT.
Due Diligence. In order to assist Circuit City in continuing
to fully evaluate all aspects of the Services including the
future prospects as well as compliance with the Xxxxxxxx-
Xxxxx Act of 2002, GNF shall allow Circuit City to review all
mutually agreed upon GNF corporate documents and the parties
agree to work promptly together to reasonably accommodate any
such requests.
2. Audit. During the Term of this Agreement and for a period of
two (2) years following the expiration or termination of this
Agreement, both Parties shall create and maintain sufficient
books, records and accounts related to this Agreement in
accordance with generally accepted accounting practices. Each
Party shall have the right, at its own expense, to inspect or
direct an independent certified public accountant or its own
internal auditors to inspect and audit those books and records
of the other Party that are reasonably relevant to the
determination of compensation payable hereunder, provided,
however, that such audits will be conducted no more than twice
in any calendar year, upon not less than 30 (thirty) days'
notice, during regular business hours, at mutually agreeable
dates and times (not to be unreasonably withheld or delayed),
and provided further that such accountant, if any, executes a
confidentiality agreement reasonably satisfactory to the Party
being audited, to protect the confidentiality of any records so
audited. If the audit discloses a payment discrepancy or error,
the Party responsible for correcting such error shall make any
undisputed payment or remittance within thirty (30) business
days of the generation of the audit report. In the event an
audit discloses a payment discrepancy or error of more than five
(5%) percent, the Party owing such payment or remittance shall
bear the cost of the audit.
3. Original Section F (Term; Termination) of the Agreement is deleted in its
entirety and is replaced with the following:
G. TERM; TERMINATION. Unless earlier terminated as provided herein,
the term of this Agreement shall commence on the Effective Date and
continue through the end of the Pilot Program on March 15, 2006.
Notwithstanding anything to the contrary, Circuit City may terminate this
Agreement upon ten (10) days' written notice to GNF. Either Party may
terminate this Agreement with cause, effective immediately upon providing
ten (10) days notice to the other Party and if the other Party fails to
remedy the breach within five (5) days of such notice, upon any of the
following: (i) if either Party, or its agents or contractors, is in
material breach of this Agreement; or (ii) in the event that (a) either
Party becomes insolvent, enters into receivership, is the subject of a
voluntary or involuntary bankruptcy proceeding, or makes an assignment
for the benefit of creditors; or (b) a substantial part of either Party's
property is or becomes subject to any levy, seizure, assignment or sale
for or by any creditor or governmental agency. Upon termination or
expiration: (i) GNF shall continue to provide Services to Circuit City
Customers who subscribed to the Service(s) prior to termination of this
Agreement; (ii) both Parties shall pay the respective sums due to the
other Party pursuant to this Agreement as part of the final winding up
under the Agreement; and (iii) both Parties shall endeavor to provide
reasonable transition assistance if and when the Agreement is terminated.
4. Original Section J (Limitation Of Liability) of the Agreement is deleted in
its entirety and is replaced with the following:
K. LIMITATION OF LIABILITY.
1. EXCEPT FOR A PARTY'S OBLIGATIONS SET FORTH IN SECTION I
(INDEMNIFICATION) AND SECTION J (CONFIDENTIALITY), NEITHER
PARTY SHALL BE LIABLE TO THE OTHER PARTY, IN WHOLE OR IN
PART, FOR LOSS OF REVENUES, LOSS OF PROFITS, LOSS OF TIME,
INCONVENIENCE, LOSS OF USE, OR ANY OTHER INCIDENTAL, SPECIAL,
INDIRECT, PUNITIVE, OR CONSEQUENTIAL LOSS OR DAMAGE ARISING
OUT OF THIS AGREEMENT, OR THE USE OR PERFORMANCE OF THE
SERVICES, IN WHOLE OR IN PART, EVEN IF ADVISED OF THE
POSSIBILITY THEREOF, OR IF REASONABLY FORESEEABLE, WHETHER IN
AN ACTION FOR OR ARISING OUT OF ALLEGED BREACH OF WARRANTY,
ALLEGED BREACH OF CONTRACT, DELAY, NEGLIGENCE, STRICT TORT
LIABILITY OR OTHERWISE. THE REMEDIES AS SET FORTH IN THIS
AGREEMENT ARE EXCLUSIVE.
2. WITH THE EXCEPTION OF A PARTY'S INDEMNIFICATION OBLIGATIONS
AS SET FORTH IN SECTION I AND CONFIDENTIALITY OBLIGATIONS SET
FORTH IN SECTION J, THE PARTIES HERETO HEREBY AGREE THAT
CIRCUIT CITY'S TOTAL LIABILITY UNDER THIS AGREEMENT FOR ANY
CAUSE SHALL NOT EXCEED $250,000.
5. The following Provision is added to the end of Original Section K.12
(Applicable Law).
12. Any disputes arising out of this Agreement shall be brought in the
federal or state courts located in either the City of Richmond or the
County of Henrico, Virginia. IN ANY SUCH PROCEEDINGS, EACH OF THE PARTIES
HEREBY KNOWINGLY AND WILLINGLY WAIVES AND SURRENDERS SUCH PARTY'S RIGHT TO
TRIAL BY JURY AND AGREES THAT SUCH LITIGATION SHALL BE TRIED TO A JUDGE
SITTING ALONE AS THE TRIER OF BOTH FACT AND LAW, IN A BENCH TRIAL, WITHOUT
A JURY.
6. The following Provision is added as subsection 13 to the Original
Section K (Miscellaneous).
13. Advice of Counsel. Each Party expressly acknowledges that it
has received the advice of counsel in connection with the
review and drafting of this Agreement.
IN WITNESS WHEREOF, the Parties hereto have caused this Amendment to be
duly executed.
CIRCUIT CITY STORES, INC. GAMEZNFLIX, INC.
By: Xxxx Xxxxxx By: Xxxxxx "Chip" Gallent
_________________ ___________________________
Name: Xxxx Xxxxxx Name: Xxxxxx "Chip" Gallent
Title: Senior Vice President Title: President
Date: December 28, 2005 Date: December 22, 2005
