CONVEYANCING, DRAFTING & DEEDS [PART I
II. Cooperating Groups Agree as Follows:
A. University agrees to:
1. Provide computer equipment, supporting software, and install services to
District Community Extension Service staff and Partner for use at the local
program site to access electronic resources related to the (Program Name)..
2. Provide technical support for the District Community Extension Service
Staff and one person from the Partner?s program who will serve as the site con-
tact and who has participated in University training.
3. Provide training and support materials at the Partner?s site and/or on-cam-
pus in operation of the equipment, electronic communications, and use of the
4. Pay Partner?s electronic connectivity expenses (Internet service provider
fee and telephone line monthly charges and installation fee) up to a maximum
total of[Rs??]for the first twelve months of full connection to the Internet.
5. Develop and provide ?Acceptable Use Guidelines? to District Community
Extension Service Staff and Partner for use by all youth and adults who use the
Internet as part of this program. If the schools have already initiated an Accept-
able Use Policy and obtained the appropriate signatures for the students, these
forms will be acceptable.
6. Assist District Community Extension Service Staff and Partner as needed
with selection of additional computer software to be purchased locally appropri-
ate to the local program?s needs.
7. Provide District Community Extension Service Staff and Partner with
forms to log computer usage.
B. District Community Extension Service Centre agrees to:
1. Advise the Partner on appropriate security measures for the computer equip-
ment and software purchased for the Partner?s sites.
2. Maintain an inventory of all equipment purchased for District Community
Extension Service Centre and Partner with the (Program Name). funds accord-
ing to University inventory procedure.
3. Support District Community Service staff to attend with the Partner on-site
and off-site training opportunities provided by the University and assist the Part-
ner with the public computer instruction.
4. Provide office space and necessary computer connections for use of the
Internet resources at the District Community Service Centre site.
5. Purchase paper, printer cartridges and other supplies as needed to operate
the District Community Service Centre computer equipment.
6. Help collect records of computer usage at Partner?s site and assist in com-
piling data needed for University reporting.
7. Return the equipment to the University at such time as it is no longer usable
for the program as directed by University.PART I] INTERNET AGREEMENTS?FORMS 529
C. Partner agrees to:
1. Take all reasonable steps to secure from vandalism and theft the computer
equipment and software purchased for use at the Partner?s site .
2. Return equipment to the District Community Service Centre at such time
as the equipment is no longer usable or desired at the local site or at such time as
the YAR Program no longer exists.
3. Support staff or volunteers from the Partner?s site to attend on-site and off-
site training opportunities provided by the University, have a fully trained person
at the site during public use of equipment, and assist District Community Ser-
vice Centre with public instruction.
4. Submit original invoices to University for connectivity expenses of the
Partner?s site up to a maximum of [Rs??] Invoices shall be mailed to:
5. Pay electronic connectivity expenses for the Partner?s site the [Rs???]
covered by the University for full connection to the Internet.
6. Purchase paper, printer cartridges and other supplies as needed to operate
the Partner?s computer equipment.
7. Help maintain records of electronic connectivity use and assist in compiling
data needed for University reporting.
8. Maintain records of Internet users? agreements with the ?Acceptable Use
Guidelines? provided by University.
9. Pay for any repairs and transportation costs for repairs which occur after the
expiration of the manufacturer?s warranty and for any repairs and transportation
costs which are a result of neglect or misuse at the local site.
III. Effective Period
The effective period of this Agreement shall begin on (Date), and shall not
extend beyond (Date), unless agreed to in writing by both parties hereto. This
project may be continued for additional years. However, the extension of this Agree-
ment beyond (Date), is subject to continuation by the Prime Award with authoriza-
tion for specific funds for cooperating organizations.
IN WITNESS WHEREOF the parties hereof have executed this MOU on the
day month and the year first above written.
SIGNED SEALED AND DELIVERED BY
THE PARTIES IN PRESENCE OF:
45 45 45 45 45
I. COMMITMENT TO YOUR PRIVACY
This site is owned and operated by Your Company . Your privacy on the
Internet is of the utmost importance to us. At _____, we want to make your expe-
rience online satisfying and safe.
G : CDD (Vol. 4) ? 34530 CONVEYANCING, DRAFTING & DEEDS [PART I
Because we gather certain types of information about our users, we feel you
should fully understand the terms and conditions surrounding the capture and
use of that information. This privacy statement discloses what information we
gather and how we use it.
INFORMATION __________ GATHERS AND TRACKS
________ gathers two types of information about users:
Information that users provide through optional, voluntary submissions. These
are voluntary submissions to receive our electronic newsletters, to participate in
our message boards or forums, to email a friend, and from participation in polls
Information _______ gathers through aggregated tracking information derived
mainly by tallying page views throughout our sites. This information allows us to
better tailor our content to readers? needs and to help our advertisers and spon-
sors better understand the demographics of our audience. Because _____ de-
rives its revenue mainly from sponsorships and advertising, providing such ag-
gregated demographic data is essential to keeping our service free to users. Un-
der no circumstances does ______ divulge any information about an individual
user to a third party.
__________ Gathers User Information In The Following Processes:
Optional Voluntary Information
We offer the following free services, which require some type of voluntary
submission of personal information by users:
1. Electronic newsletters (Dispatches)
We will offer a free electronic newsletter to users. __________ gathers the e-
mail addresses of users who voluntarily subscribe. Users may remove themselves
from this mailing list by following the link provided in every newsletter that points
users to the subscription management page. Users can also subscribe to the
newsletters at the time of registration.
2. Message boards/forums
Users of the site?s Message Boards and Forums must register separately for
these services (both are free of charge) in order to post messages, although they
needn?t register to visit the site. During registration the user is required to supply
a username, password, and e-mail address.
3. ?E-mail this to a friend? Service
Our site users can choose to electronically forward a link, page, or docu-
ments to someone else by clicking ?e-mail this to a friend?. The user must
provide their e-mail address, as well as that of the recipient. This information is
used only in the case of transmission errors and, of course, to let the recipient
know who sent the e-mail. The information is not used for any other purpose.
We may offer interactive polls to users so they can easily share their opinions
with other users and see what our audience thinks about important issues. Opin-
ions or other responses to polls are aggregated and are not identifiable to anyPART I] INTERNET AGREEMENTS?FORMS 531
particular user. _________ may use a system to ?tag? users after they have voted,
so they can vote only once on a particular question. This tag is not correlated with
information about individual users.
_________ may occasionally conduct user surveys to better target our con-
tent to our audience. We sometimes share the aggregated demographic informa-
tion in these surveys with our sponsors, advertisers and partners. We never share
any of this information about specific individuals with any third party.
Consistent with the Federal Children?s Online Privacy Protection Act of 1998
(COPPA), we will never knowingly request personally identifiable information from
anyone under the age of 13 without requesting parental consent.
7. Usage tracking
________ tracks user traffic patterns throughout all of our sites. However, we
do not correlate this information with data about individual users. _______ does
break down overall usage statistics according to a user?s domain name, browser
type, and MIME type by reading this information from the browser string (informa-
tion contained in every user?s browser).
_________ sometimes tracks and catalogs the search terms that users enter
in our Search function, but this tracking is never associated with individual users.
We use tracking information to determine which areas of our sites users like and
don?t like based on traffic to those areas. We do not track what individual users
read, but rather how well each page performs overall. This helps us continue to
build a better service for you.
We may place a text file called a ?cookie? in the browser files of your computer.
The cookie itself does not contain Personal Information although it will enable us
to relate your use of this site to information that you have specifically and know-
ingly provided. But the only personal information a cookie can contain is informa-
tion you supply yourself. A cookie can?t read data off your hard disk or read cookie
(as described above). Our advertising system delivers a one-time cookie to better
track ad impressions and click rates.
browser to warn you before accepting cookies, you will receive the warning mes-
sage with each cookie. You do not need to have cookies turned on to use this site.
However, you do need cookies to participate actively in message boards, forums,
polling and surveys.
II. USE OF INFORMATION
___________ uses any information voluntarily given by our users to enhance
their experience in our network of sites, whether to provide interactive or person-
alized elements on the sites or to better prepare future content based on the
interests of our users.
As stated above, we use information that users voluntarily provide in order to532 CONVEYANCING, DRAFTING & DEEDS [PART I
send out electronic newsletters and to enable users to participate in polls, sur-
veys, message boards, and forums. We send out newsletters to subscribers on a
regular schedule (depending on the newsletter), and occasionally send out spe-
cial editions when we think subscribers might be particularly interested in some-
thing we are doing. _________ never shares newsletter mailing lists with any
third parties, including advertisers, sponsors or partners.
When we use tracking information to determine which areas of our sites users
like and don?t like based on traffic to those areas. We do not track what individual
users read, but rather how well each page performs overall. This helps us con-
tinue to build a better service for you. We track search terms entered in Search
function as one of many measures of what interests our users. But we don?t track
which terms a particular user enters.
___________ creates aggregate reports on user demographics and traffic
patterns for advertisers, sponsors and partners. This allows our advertisers to
advertise more effectively, and allows our users to receive advertisements that
are pertinent to their needs. Because we don?t track the usage patterns of indi-
vidual users, an advertiser or sponsor will never know that a specific user clicked
their ad. We will not disclose any information about any individual user except to
comply with applicable law or valid legal process or to protect the personal safety
of our users or the public.
III. SHARING OF THE INFORMATION
__________ uses the above-described information to tailor our content to suit
your needs and help our advertisers better understand our audience?s demo-
graphics. This is essential to keeping our service free. We will not share informa-
tion about individual users with any third party, except to comply with applicable
law or valid legal process or to protect the personal safety of our users or the
__________ operates secure data networks protected by industry standard
firewall and password protection systems. Our security and privacy policies are
periodically reviewed and enhanced as necessary and only authorized individu-
als have access to the information provided by our customers.
V. OPT-OUT POLICY
We give users options wherever necessary and practical. Such choices in-
Opting not to register to receive our electronic newsletters.
Opting not to participate in certain interactive areas, which completely allevi-
ates the need to gather any personally identifiable information from our users.
VI. YOUR CONSENT
By using this site, you consent to the collection and use of this information by
this page so that you are always aware of what information we collect, how we
use it, and under what circumstances we disclose it.PART I] INTERNET AGREEMENTS?FORMS 533
46 46 46 46 46
I I I I Internet Audio nternet Audio nternet Audio nternet Audio nternet Audio and Video Content Service Agreemen and Video Content Service Agreemen and Video Content Service Agreemen and Video Content Service Agreemen and Video Content Service Agreement t t t t
1. Encoding.com would like to validate our strong desire to have a strategic
and long-term relationship with Emusic.com by delivering what we believe to be a
very compelling proposal. The below proposal is intended to encompass all of E-
music?s encoding for a period of [*] and is designed with a full partnership in mind.
Please note that the pricing you are being offered here is confidential to E-music
and the terms herein should not be disclosed to any third party.
2. The terms of this agreement are good until the last day of [Date].
3. You will notice in the pricing section that we have given you [*] prices for the
encoding of [*] CDs initially and all ongoing volumes for a period of [*].
Also pricing for Windows Media encoding has been added here as well at a
very reasonable rate.
4. Encoding Requirements
Please review this document carefully and let me know if there are sections
that are unclear or if we are missing some pressing details.
The following are your requirements, as we understand them.
[*] Support for the highest quality encoding from [*] format into [*] format
[*] Encoding of [*] CDs into [*] formats,
[*].Possible support for [*]. .
[*] files will be encoded using the [*].
[*] samples will be encoded into [*].
[*] samples will be captured [*] seconds into a song unless otherwise
[*] Scanning of cover art into at least [*] formats. [*] at a frame size to be
[*] Receive media from labels and generate an electronic package slip for E-
music.com for rectification purposes.
[*] Tracking of all media that is shipped to encoding.com without a packing
slip by our internal tracking number, UOC and album title.
[*] Data entry for all [*] CDs to be used for meta data entry, naming, and
cross reference to web site.
[*] Deliveries of media back to E-music.com [*].
[*] Require dedicated capacity in the encoding.com lab in an ongoing capac-
ity for projects that can not yield the normal 2-4 week lead-time.
[*] Confidential Treatment Request
Quotation valid through [Date]
Digitization & Encoding Services; Data Work, and Scanning534 CONVEYANCING, DRAFTING & DEEDS [PART I
Encoding.com is in a phase in our company culture where the partnerships
we make are as important as anything. By this we are prepared to jump into this
partnership with both feet and offer you the same strategic pricing for your initial
encoding project as all ongoing encoding work.
Please find below a brief description of the two opportunities available to you.
Pricing Short: Please also see contingencies below.
Straight customer/client relationship.
Encoding- MP3 and RA Scanning Data
Initial [*]CDs [*] [*] [*]
1-year ongoing [*] [*] [*]
Earn out opportunity: with the below opportunity you can save upwards of [*]
off the initial encoding project for a [*] royalty on all online sales of media we
encoded for a period of [*].
Encoding- MP3 and RA Scanning Data
Initial [*] CDs [*] [*] [*]
1-year ongoing [*] [*] [*]
We are not concerned with which option you choose, but we did want to give
you a way to defer your pricing even more if appropriate.
Initial [*]CDs (material):
The following are conditions of this very strategic pricing for your initial [*] CDs.
Work order is executed and a PO generated for the initial amount by [Date].
Jointly Sponsored press release announcing project and partnership.
Minimum annual commitment of [*] CDs for a period of 1-year. This will be
dedicated capacity that will be priority access for E-Music.
Link exchange where appropriate.
Possible other promotional or marketing events.
[*] downloads for all encoding.com employees for a period of 6-months.
Set-up per CD: [*]
Database integration: [*]
6 months from 1st shipment [*]
Encoding cost per track/song file [*]
Total for [*] Tracks: [*]
*] tracks per CD on average
We will work with you over the next week to put in place a delivery schedule for
this deployment.PART I] INTERNET AGREEMENTS?FORMS 535
*If not executed by [Date] the price of [*] will apply for per track encoding.
[*] Confidential Treatment Request
Quotation valid through [Date].
Encoding.com has put in place a very robust data entry process and manage-
ment software. Over the past year we have created custom databases for a num-
ber of clients with similar needs as your own. The following is our understanding
of your data entry requirements and the pricing that we are able to offer to imple-
ment these. [*] The following are based on our ability to enter data for
[*] CDs per hour per data entry employee.
Please also note that we have looked in the past at the use of the [*] as a tool
for propagating meta fields in our clients databases. [*].
Caveat: When encoding.com is given an electronic packing slip for the CDs
we are receiving the data entry costs associated with those CDs will be [*] per
Fields to be captured:
Format for export: [*]
Cost per CD: [*]
Total Costs for [*] CDs: [*]*
* this number will be less if [*]
Encoding.com has the ability to scan cover art for E-Music.com as part of our
normal fulfillment process. For this project we will capture [*] formats as follows:
Costs per scan: [*]
Costs for [*] scans: [*]
List price is [*] and [*] additional format..
Quotation valid through [Date]
We will deliver the image files to you on CDR or DLT depending on your
requirements. Sometimes we have found that it is easier to manage the audio
files on CDR depending on your usage. We will work with you on this.
Fulfillment and Delivery
Fulfillment and delivery is how we return your media to you or to your hosting
provider. The options here are via DAT, CDR, or FTP . We don?t recommend FTP
because of timeliness for this amount of data.
DLT delivery media for [*] CDs worth of compressed media and cover art.
Approximately [*] of data to be delivered
[*] can fit on an individual DLT536 CONVEYANCING, DRAFTING & DEEDS [PART I
[*] needed; @ [*] per DLT
Delivery Costs: [*]
CDR Delivery: [*]
We will work with your operations teams to put in place a structure for how we
deliver, store and retrieve media to and for E-music.
We are very interested in working with you on this project. We believe that we
are the only choice in the industry that can handle these volumes of audio encod-
ing. Please let me know what other information you need from me and I will work
to provide it. These prices are valid through [ Date].
Initial [*] CD encoding project
Item Count Your Costs Total
Encoding [*] Songs into [*] [*] [*]
[*] Encoding [*] [*]
[*] Data Entry [*] CDs ([*]fields) [*] [*]
[*] Scans [*] [*]
[*] Delivery [*] DLT [*]
CDR ongoing [*]
[*] Total Project Costs
1 year volume commitment: Additional Volume.
Item Count Your Costs Total
[*] Encoding [*] songs into [*] [*]
[*] [*] encoding [*]
[*] Data Entry [*] CDs ([*]fields) [*]
[*] Scans [*] [*]
[*] Delivery [*] DLT [*]
CDR ongoing [*]
[*] Total Project Costs [*]
Quotation valid through [Date]
* Contingent on this work-order being signed by [Date] Otherwise the ongoing
pricing schedules will be applied.
Contingent on the signing of this work agreement we will work with Emusic.com
to put in place a structure and a process for handling all mass ongoing encoding
work for Emusic.com as well as how we will reserve dedicated lab time. In signing
this document Emusic.com asserts its willingness to enter into an agreement of
this nature.PART I] INTERNET AGREEMENTS?FORMS 537
The following is the pricing that we are able to offer Emusic.com for this on-
going work as stated earlier.
Data Encoding- MP3, RA, Scanning
and Windows Media
[*] on-going [*] [*]
[*] per CD
On-going volumes are estimated at [*] tracks [*].
Terms and Conditions
The primary terms of our agreement require that you guarantee to have the
rights to the content and we agree not to use the content for other purposes
without your approval. We require a [*] deposit on all contracted work. The bal-
ance will be invoiced monthly against the past months work.
1. CONTROLLING TERMS. Pricing is valid until June 31st 1999 and are valid
for a period of one year from the execution of this document. The terms and con-
ditions of sale contained herein shall apply to all provisions of encoding services
and related services by encoding.com, Inc. (?encoding.com?) and to all purchase
orders or other offers accepted by encoding.com related thereto (collectively, the
?Service?). These terms and conditions may in some instances conflict with or
add to some of the terms and conditions affixed to the purchase order or the
procurement document issued by the Customer. In such case, the terms and
conditions contained herein shall govern exclusively and ACCEPTANCE OF
CUSTOMER?S ORDER IS EXPRESSLY CONDITIONED UPON CUSTOMER?S AC-
CEPTANCE OF THE TERMS AND CONDITIONS CONTAINED HEREIN irrespective
of whether the Customer accepts these conditions by oral or written acknowledg-
ment, by implication or by acceptance of or payment for the provision of the Ser-
vice ordered hereunder based on the content, materials and/or elements (collec-
tively, the ?Content?) provided to encoding.com by Customer.
2. TERMS OF PAYMENT. Payment must be made in [Currency name] or
equivalent Foreign currency in US dollars and may be made in cash, cashier?s
check, money order, travelers cheques, cheque drawn on local bank or Visa /
MasterCard. All COD orders must be paid for and picked up Monday through
Friday between the hours of 9:00 AM and 5:00 PM. Credit terms are net 15 days.
Interest at the rate [%] will be charged on all accounts not paid within 30 days
unless previous arrangements have been made with the encoding.com. ANY
CLAIMS FOR ADJUSTMENT IN CONNECTION WITH AN INVOICE SHALL BE MADE
WITHIN 15 DAYS FROM THE INVOICE DATE. A Customer must guarantee pur-
chase of a minimum quantity of Service and if a Customer fails to purchase such
minimum quantity, encoding.com has the right to collect from Customer the differ-
ence between the price paid by Customer for the Service purchased and
encoding.com?s standard price for such Service in quantity actually purchased by
Customer. encoding.com shall have a lien and security interest on tapes, CDs,
files and other property delivered by Customer to encoding.com and/or made by
encoding.com therefrom for the balance of any account due us by the Customer,
including collection and attorney?s fees. Customer hereby authorizes encoding.com
to execute and file, on Customer?s behalf, a financing or other statement evidenc-538 CONVEYANCING, DRAFTING & DEEDS [PART I
ing this security interest. When necessary, Customer agrees to execute neces-
sary documentation for perfecting such security interest.
3. SHIPPING. If encoding.com provides shipping and handling services for
Customer?s materials, surcharges will apply. Shipping and delivery dates are
approximate. In no event, for any reason whether or not beyond encoding.com?s
control, shall encoding.com be liable to Customer or any other party for any losses,
damages or liability for delay in delivery of shipped materials; nor shall any delay
in delivery of shipped materials constitute grounds for cancellation of Customer?s
4. DELIVERY. The delivery dates set forth on this acknowledgment are ap-
proximate only, and encoding.com is not liable for any damages to Customer, nor
shall encoding.com be in breach of its obligations to the Customer, because of
any delivery made within a reasonable time after the stated delivery date.
Encoding.com may by written notice to Customer change any delivery date, and
such date shall become the agreed upon delivery date unless Customer objects
to such date in writing delivered to encoding.com within ten (10) days of receipt of
encoding.com?s notice. encoding.com shall not be liable for any late delivery
caused by the failure of the Customer to provide in a timely manner any neces-
sary information to affect such delivery.
5. FORCE MAJEURE. Encoding.com is not liable for any failure to deliver, or
delay in the delivery of, any Service due to a cause beyond its control, including
but not limited to acts of God, fires, typhoons, earthquakes, labor disputes, gov-
ernmental actions or inability to obtain materials, components, energy, encoding
facilities, or transportation. In the event of any such delay, the data of delivery or
performance hereunder shall be extended by a period equal to the time lost by
reason of such delay. If encoding.com?s production is curtailed for any of the
above reasons, encoding.com may allocate its production among its various cus-
tomers. Such allocation shall be in a commercially fair and reasonable manner.
6. STORAGE. It is the Customer?s responsibility to arrange for removal of
materials from encoding.com at the completion of each project. At the Customer?s
request, encoding.com will store tapes and Content for a maximum of 60 days.
Encoding.com reserves the right to ship tapes and/or Content to the Customer,
freight collect, at the conclusion of the 60 day period or to charge a storage fee or
to otherwise dispose of the materials.
7. RIGHT TO REFUSE SERVICE. encoding.com reserves the right to refuse
service and/or process any Content which encoding.com, in its sole discretion,
deems unlawful, pornographic, degrading, likely to incite prejudice or passion or
8. CUSTOMER WARRANTIES. Customer represents and warrants that (a)
Customer has sufficient rights in the Content to use it in the manner contem-
plated by this acknowledgment, (b) the Content does not infringe upon or violate
any patent, copyright, trade secret, trademark or other intellectual property right
of any third party or any obscenity law or other applicable law, rule or regulation in
any jurisdiction in which the Content may be viewed or retrieved, (c) encoding.com?s
provision of the Service and/or hosting of the Content hereunder will not infringe
upon or violate any patent, copyright, trade secret, trademark or other intellectualPART I] INTERNET AGREEMENTS?FORMS 539
property right of any third party, including but not limited to any and all perfor-
mance licence rights, mechanical licence rights, synchronization licence rights
and rights under the Digital Performance Right in Sound Recordings under any
Act, rule or regulation in any jurisdiction in which the Content can be viewed or
retrieved, and (d) the Content and encoding.com?s provision of the Service on
behalf of Customer is not for any illegal, obscene, offensive or immoral purpose.
9. ENCODING.COM LIMITED WARRANTY; LIMITED LIABILITY; EXCLUSION
OF CONSEQUENTIAL DAMAGES. It is understood and agreed that the Customer?s
materials are transported, received, processed, used and stored at Customer?s
risk. ENCODING.COM SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR
OTHER DAMAGES CAUSED BY THE LOSS, DAMAGE OR DESTRUCTION OF
MATERIALS BELONGING TO THE CUSTOMER OR ANY OTHER PERSON
WHILE IN TRANSIT OR POSSESSION OF ENCODING.COM UNLESS CAUSED
BY THE NEGLIGENCE OF ENCODING.COM IN WHICH EVENT, THE LIABILITY
OF ENCODING.COM SHALL BE LIMITED TO THE REPLACEMENT OF A SIMI-
LAR QUANTITY OF BLANK TAPE OR MAGNETIC OR OPTICAL MEDIA TO THE
MATERIALS WHICH WERE LOST, DAMAGED OR DESTROYED. EXCEPT FOR
SUCH REPLACEMENT, ENCODING.COM SHALL HAVE NO FURTHER LIABIL-
ITY REGARDING THE LOSS, DAMAGE OR DESTRUCTION OF SUCH MATE-
RIALS. ENCODING.COM SHALL NOT BE LIABLE TO CUSTOMER OR ANY
OTHER PERSON FOR ANY ACT OR OMISSION OF ANY PERSON SELECTED
BY ENCODING.COM TO PERFORM SERVICES OR FURNISH MATERIALS TO
CUSTOMER. IF MATERIALS FURNISHED BY ENCODING.COM ARE FOUND
TO BE DEFECTIVE IN MANUFACTURE, ENCODING.COM SHALL REPLACE
SUCH MATERIALS WITH A SIMILAR QUANTITY OF BLANK TAPE, OR MAG-
NETIC OR OPTICAL MEDIA, PROVIDED THE CUSTOMER NOTIFIES
ENCODING.COM IN WRITING WITHIN THIRTY DAYS AFTER SHIPMENT OF
SUCH DEFECT. EXCEPT FOR SUCH REPLACEMENT, ENCODING.COM SHALL
HAVE NO FURTHER LIABILITY IN CONNECTION WITH SUCH DEFECTIVE
MATERIALS. ENCODING.COM MAKES NO WARRANTY, EXPRESSED OR IM-
PLIED WITH RESPECT TO THE MATERIALS OR SERVICES PROVIDED IT
ASSUMES NO RESPONSIBILITY FOR THE CHARACTER OR QUALITY OF
MATERIALS OR SERVICES PROVIDED BY IT. ENCODING.COM EXPRESSLY
DISCLAIMS ALL WARRANTIES EXPRESSED OR IMPLIED, STATUTORY OR
OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OR MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE. ALL WARRANTIES WITH RE-
SPECT TO THE SERVICE ARE STRICTLY LIMITED TO THOSE SET FORTH IN
THIS ACKNOWLEDGMENT. IN NO EVENT WILL ENCODING.COM BE LIABLE
TO THE CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, OR
INCIDENTAL DAMAGES EVEN IF ENCODING.COM HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGO-
ING, ENCODING.COM MAKES NO REPRESENTATION OR WARRANTIES OF
ANY TYPE WHATSOEVER REGARDING THE HOSTING OF ANY CONTENT
ON ITS NETWORK OR ANY SUB-CONTRACTOR?S OR OTHER PARTY?S NET-
WORK OR THE PERFORMANCE OR RELIABILITY OF ANY SUCH NETWORK,
OR ANY CONNECTION TO, TRANSMISSION OVER, RESULTS OF OR USE OF
ANY NETWORK CONNECTION OR FACILITIES PROVIDED (OR FAILED TO
BE PROVIDED) UNDER THIS ACKNOWLEDGMENT AND ENCODING.COM540 CONVEYANCING, DRAFTING & DEEDS [PART I
MAKES NO WARRANTY WHATSOEVER FOR PRODUCTS OR SERVICES NOT
ACTUALLY PRODUCED OR PROVIDED BY ENCODING.COM.
10. INDEMNIFICATION BY CUSTOMER. Customer agrees to defend, pro-
tect, indemnify and hold encoding.com harmless from and against all claims of
any kind, whether based in contract, in tort (including negligence or strict liability),
or resulting from (a) services provided by encoding.com on behalf of Customer
hereunder, except for any damages arising exclusively out of any material breach
of this acknowledgment by encoding.com, (b) any use by encoding.com of any
data or files provided by Customer to encoding.com under this acknowledgment,
(c) any breach by Customer of this acknowledgment, including without limitation
any failure by Customer to observe or satisfy any terms or conditions of this ac-
knowledgment, (d) any violation of any applicable Central, state or local laws with
regard to the transmission and use of information and content, including laws
related to privacy, publicity, decency arising out of the Customer Content, (e) any
infringement of any law in India or other patent, trademark, copyright, trade se-
cret or other intellectual property right, including but not limited to any and all
performance licence rights, mechanical licence rights, synchronization licence
rights and rights under the Digital Performance Right in Sound Recordings Act of
1995, relating to the Content supplied by Customer to encoding.com or the Ser-
vices provided hereunder, or (f) otherwise for any losses, expenses, damages
and liabilities, direct, indirect, special or consequential which may arise out of
Customer?s use, distribution or sale of goods or services covered hereby except
those caused solely by the sole gross negligence of encoding.com.
11. ACKNOWLEDGMENT. Customer acknowledges that encoding.com, in its
sole discretion, may sub-contract all or part of the hosting services to be provided
hereunder. CUSTOMER FURTHER ACKNOWLEDGES THAT ENCODING.COM
WILL HAVE NO LIABILITY FOR THE FAILURE OF ANY NETWORK OR SERVER
IN CONNECTION WITH THE HOSTING OF ANY CONTENT.
12. ORDER CANCELLATION. If an order for the Service is canceled, Cus-
tomer must pay for orders scheduled for delivery or performance within ninety
(90) days of encoding.com?s receipt of cancellation notice.
13. MISCELLANEOUS. Any waiver by encoding.com of any default by the
Customer hereunder shall not be deemed to be a continuing waiver of such de-
fault or a waiver of any other default or of any of the terms and conditions of this
acknowledgment. The terms and conditions of this acknowledgment may not be
superseded, modified, or amended except in a writing stating that it is a modifica-
tion and signed by an authorized representative of each party hereto, provided,
however, that encoding.com may modify the specifications of the Service pro-
vided hereunder if the modification does not change the form, fit or function of the
Service. This acknowledgment (not including any of the terms and conditions of
the Customer?s purchase order or any similar document issued by Customer),
constitutes the entire agreement between the Customer and encoding.com with
regard to the Service listed on the face of this acknowledgment, and expressly
supersedes and replaces any prior or contemporaneous agreements, written or
oral, relating to such goods or services. This acknowledgment is governed by,
construed and enforced in accordance with the laws of India. Both parties agreePART I] INTERNET AGREEMENTS?FORMS 541
that any litigation or arbitration between the parties shall take place in [Country
name] and both parties waive any objection to personal jurisdiction or venue in
any forum located in that county.
In any suit or action brought to enforce any term, condition or covenant of this
acknowledgment or to recover damages arising from any breach of the acknowl-
edgment, the losing party shall pay the prevailing party?s reasonable attorneys?
fees and all other costs and expenses which may be incurred by the prevailing
party in any suit, action or in any reviews or appeals therefrom.
ACKNOWLEDGED AND AGREED:
Chief Financial Officer
Confidential Quotation Dated, [Date]
Rider to encoding.com Terms and Conditions
The following changes will be applied to the attached encoding.com Terms
1. Payment terms:
Insert: E-Music agrees to pay encoding.com [*] of the total project costs in
advance as called out by the contract. encoding.com will invoice E-Music for [*] of
the total amount of this project in the amount of [*] immediately net 0 and an
additional [*] on the last billing cycle of September.
During the first [*] of the project, encoding.com will invoice E-Music normally
outside of this [*] down payment. E-Music will pay these invoices per the terms of
the agreement. During the second [*] of the project the down payment that was
made by E-Music will be applied to encoding.com invoices.
2. Data Entry Rider:
The attached form outlines in detail the fields that need to be captured by
encoding.com in the data entry portion of the encoding process. The fields that
are called out are also defined so each item is clear for all data entry people
across all CDs in the project.
Also-The data fields that are called out in the attached sheet are different than
the ones that were called out in the original proposal. Some of these are different
because of differences in how we defined a parameter and others because new
requirements became available. As such the new pricing will be as follows but
WILL NOT affect the total value of the contract;
Old Pricing per CD: [*] per CD for data entry.
New Pricing per CD: [*] per CD for data entry.
Pricing is based on an estimate of a [*] increase in the amount of time needed
to capture the meta information currently requested and a mark up of the old
price of [*].542 CONVEYANCING, DRAFTING & DEEDS [PART I
Encoding.com and E-Music will review these prices and structure every [*] as
appropriate to ensure that significant costs are not being endured in either direc-
Accepted by encoding.com
[Name & Designation]
47 47 47 47 47
Services Agreement for delivering Audio and Video Services Agreement for delivering Audio and Video Services Agreement for delivering Audio and Video Services Agreement for delivering Audio and Video Services Agreement for delivering Audio and Video
Content on Internet Content on Internet Content on Internet Content on Internet Content on Internet
THIS SERVICES AGREEMENT made on this [Date] BETWEEN
encoding.com, Corporation, a Corporation incorporated under the Companies
Act and having its registered office at [Address], hereinafter called ?Encoding?
AND WEB VALLEY MEDIA LIMITED, a Company incorporated under the Com-
panies Act and having its registered office at [Address], hereinafter called (?Val-
A. Encoding offers services and applications for encoding, optimizing and de-
livering 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 Encoding that will allow Valley
to include a digital music sampling service as part of the consumer database it
offers to its retail customers.
IN CONSIDERATION of the foregoing and the mutual promises and cov-
enants contained herein, and for other good and valuable consideration the re-
ceipt and sufficiency of which are hereby acknowledged, Valley and Encoding
hereby agree as follows:
1. Definitions. For purposes of this Agreement, the following definitions will
1.1. The term ?Confidential Information? means any information that one party
(the ?Disclosing Party?) furnishes or makes available to the other party (the ?Re-
ceiving Party?) and all information related to the business of one party (the ?Dis-
closing 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 Receiv-
ing 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 Re-
ceiving 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, divi-PART I] INTERNET AGREEMENTS?FORMS 543
sion or subsidiary of any of the entities described in parts (a) through (e) of this
2. Inventory Loan. Valley maintains an inventory of compact discs containing
prerecorded music (each, a ?CD? and, collectively, the ?CDs?). Valley will [*], 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, the ?Loaned CDs?).
Valley will deliver the Loaned CDs to Encoding. Encoding will [*] in delivering the
Loaned CDs. In addition, Encoding will pay Valley a handling charge of [*] per
Loaned CD delivered to Encoding by Valley.
3. Product Information File. Valley maintains an electronic data file contain-
ing [*] for each recording contained in a CD in its inventory (the ?Product Informa-
tion File?). Valley will deliver to Encoding, at [*] charge, one electronic copy of the
Product Information File. In addition, during the term of this Agreement, Valley will
deliver to Encoding daily updates of the Product Information File (?PIF Updates?)
containing artist and UPC information 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 Encoding by Valley, whichever was later. For
purposes of this Agreement, the term ?Product Information File? means the Prod-
uct Information File as updated and/or amended by Encoding to incorporate any
and all PIF Updates. Valley will not be required to deliver updates of the Product
Information File to Encoding following the termination or expiration of this Agree-
ment unless the parties agree otherwise.
4. Encoding of Loaned CDs.
4.1. For each recording contained in a Loaned CD (each, a ?Recording? and,
collectively, the ?Recordings?), Encoding will create a storable electronic file con-
taining a copy of that Recording in digital form (each, a ?Song File? and, collec-
tively, the ?Song Files?). Encoding 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 reference. Valley may amend Exhibit A from time to
time to include additional streaming and/or downloading formats and/or additional
data rates, and Encoding will create Song Files and Song Clips (as defined be-
low) 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
Encoding 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, Encoding will create a sound clip (each, a ?Song
Clip? and, collectively, the ?Song Clips?) of a length, in each of the formats and at
each of the data rates described in Exhibit B hereto, which is incorporated herein
by this reference.
4.3. Encoding will link each Song Clip to that portion of the Product Informa-
tion 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. Encoding will create a storable electronic file containing a copy of the544 CONVEYANCING, DRAFTING & DEEDS [PART I
cover art of each Loaned CD in digital form (each, a ?Cover Art File? and, collec-
tively, the ?Cover Art Files?. Encoding will incorporate the Cover Art Files into the
Product Information File so that a digital image of the cover art for a Loaned CD
will appear on each screen viewed by a user of the Product Information File that
contains information regarding a Recording contained in that Loaned CD.
4.5. After Encoding has created Song Files and Song Clips for each Record-
ing contained in a Loaned CD, and created a Cover Art File for that Loaned CD,
Encoding will promptly return the Loaned CD to Valley. Valley will [*] in delivering
the returned Loaned CDs. Encoding may return Loaned CDs without shrink-wrap,
and Encoding 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 En-
coding is not able to return a Loaned CDs in such returnable condition, Encoding
will pay [*] of Valley?s wholesale cost for any such Loaned CD.
4.6. Encoding 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, Encoding becomes aware of a Recording that is
contained in a Loaned CD [*].
4.8. Encoding 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 re-
quired to bear the cost related to the creation of any such customized Song Clip.
5. Music Sampling Service. Valley and Encoding will use the Product Infor-
mation File and the Song Clips to create a music sampling service (the ?Sampling
Service?) that will be sold or licensed to third parties. Encoding and Valley each
will have the right to sell or license the Sampling Service to third parties; provided,
however, that neither Encoding nor Valley may sell, license or otherwise transfer
the Sampling Service or any portion thereof to [*]. Encoding and Valley will each
be responsible for collecting sales revenue and/or license fees from their respec-
tive customers and/or licensees. During the term of this Agreement, Encoding
and Valley will each be entitled to [*] of any license fees received by the other
party for selling or licensing the Sampling Service, but only to the extent [*]. En-
coding will perform the following services to support the Sampling Service:
5.1. Encoding 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, Encoding will maintain interface
capabilities that are consistent with industry standards. Encoding?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 Encoding in
writing if it wishes to have hosting and streaming services for the Sampling Ser-
vice performed by a person or entity other than Encoding (the ?Third Party Ser-
vice Provider?). For a period of sixty (60) days following Encoding?s receipt of
such notice, Valley and Encoding will negotiate in good faith regarding Encoding?s
provision of such services instead of the Third Party Service Provider. If, at thePART I] INTERNET AGREEMENTS?FORMS 545
conclusion of such sixty (60) day period, Valley and Encoding have not reached
an agreement for Encoding to perform such services after negotiating in good
faith, Valley will be permitted to retain the Third Party Service Provider to perform
5.2. Encoding will collect the data described in Exhibit D hereto (the ?Con-
sumer Data?), which is incorporated herein by this reference, regarding the usage
and purchasing habits of consumers that use the Sampling Service.
6. Minimum Service Levels. In consideration of the capital expenditures that
will be incurred by Encoding in connection with this Agreement, which are de-
scribed in Section 7.1. below, Valley [*] that Encoding will receive revenues from
the Sampling Service of at least [*] during each three month period (an ?Install-
ment Period?) during the first twelve (12) months after the Sampling Service be-
comes operational (the ?Guaranteed Period?) for a total guaranteed payment of
at least [*]. If Encoding does not receive revenues from the Sampling Service of at
least [*] during each Installment Period during the Guaranteed Period, Valley will
make a payment to Encoding (each, a ?Guaranteed Payment?) within thirty (30)
Days of the conclusion of applicable Installment Period equal to the difference
between [*] and the amount of revenues actually received by Encoding from the
Sampling Service during the applicable Installment Period (the ?Sampling Ser-
vice Revenue?); provided, however, that Encoding will not be entitled to receive
the Guaranteed Payment if (a) the Sampling Service is not operational on or be-
fore [*] if Valley has provided the Priority CDs (as defined below) within 30 days of
the Effective Date,or [*], 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 Encoding has received an average of [*] from
Guaranteed Payments and Sampling Service Revenue and all Guaranteed Pay-
ments for the Installment Period in question and each preceding Installment Pe-
riod. For purposes of this Section 6, the Sampling Service will become ?opera-
tional? when Encoding has created Song Files and Song Clips for the [*] Loaned
CDs designated as ?Priority CDs? within 30 days of the Effective Date.
7. Service Fees.
7.1. Capital Expenses. Encoding will pay all the necessary upfront capital
equipment charges necessary for the creation of the Sampling Service which are
estimated to total [*] and to include:
7.1.2. Ripping Stations
7.1.3. Encoding Stations
7.1.4. Raid Online Storage
7.1.5. Nearline Storage System
7.1.6. Computer servers and Equipment
7.2. Shared Costs. In consideration of the services performed by Encoding
under this Agreement, Encoding and Valley will [*] the costs of creating the Song
Files and Song Clips. The costs will include [*]. Encoding estimates these direct
costs to total [*]. Therefore, Valley will pay Encoding a total of [*] on [*] for the
G : CDD (Vol. 4) ? 35546 CONVEYANCING, DRAFTING & DEEDS [PART I
non-refundable expenses for setting up the Sampling Service. The above esti-
mates are fixed and in the event the actual costs for this service increase or
decrease, Valley will [*].
7.3. Maintenance Costs. For the ongoing maintenance encoding of new in-
ventory for the Sampling Service, Valley and Encoding will [*] the actual direct
ongoing encoding costs estimated at the rate of [*] per CD used in the Sampling
Service. Therefore, Valley would pay Encoding a service fee of [*] per such CD.
These costs are fixed through September 2000. In the event, the costs for mainte-
nance are determined to increase or decrease by [*] or higher, the parties agree
to renegotiate this clause and its fee schedule in good faith. Encoding will invoice
Valley on a monthly basis that reflects the actual number of files added to the
Sampling Service inventory. Valley and Encoding will each pay [*] of all shipping
and handling charges to and from the Valley and Encoding.com facilities.
7.4. Streaming Costs. Encoding will charge Valley [*] for the ongoing stream-
ing and hosting costs. [*] is defined as the [*] plus [*] of the [*] plus [*].
8. Ownership and Rights upon Termination.
8.1. Loaned CDs.
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 Encoding and Valley to each pay [*] of the cost of such
return, 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 Encoding pursuant to Section 9.2 of this
Agreement) are determined to be Encoding?s property, Encoding hereby grants
Valley a security interest in such Loaned CDs.
8.1.2. Upon the expiration or termination of this Agreement, Encoding will
promptly return all of the Loaned CDs, including the original artwork and packag-
ing for each Loaned CD, with Encoding and Valley to each pay [*] of the cost of
such return, to Valley (other than any Loaned CDs Encoding has already returned
to, or purchased from, Valley pursuant to Section 9.2 of this Agreement).
8.2. Files and Clips.
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 Encoding?s property, Encoding hereby grants
Valley a security interest in such Song Files and/or Song Clips and/or Cover Art
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, how-
ever, that, if at any time the Product Information File, any portion thereof, or any or
all of the PIF Updates are determined to be Encoding?s property, Encoding hereby
grants Valley a security interest in the Product Information File and/or such PIF
8.2.3. Valley hereby grants Encoding a worldwide, perpetual, irrevocable, non-
exclusive license to use, store, modify, copy and distribute the Product Informa-PART I] INTERNET AGREEMENTS?FORMS 547
tion 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. Encod-
ing will have the right to sub-license the Product Information File, the PIF Up-
dates, the Song Files, the Song Clips and the Cover Art Files to any entity other
8.2.4. Upon the expiration or termination of this Agreement, or at any earlier
time, upon demand by Valley, Encoding 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 Encoding pursuant to Section 18.2, Encoding shall
8.3. Consumer Data. All of the Consumer Data will be, and will at all times
remain, the sole and exclusive property of Valley; provided, however, that Valley
will pay Encoding [*] all revenues 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.
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 Ex-
hibit F (the ?Audiofile License?), which is incorporated herein by this reference,
pursuant to which Valley will license its audiofile database (?Audiofile?) to Encod-
ing on a royalty free basis during the term 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 Encoding will return its copy of the Loaned CD to Valley on or before the Last
Customer Return Date stated in the deletion notice, with Encoding and Valley to
[*] of the cost of such return.
9.2. If Valley posts a deletion notice regarding a Loaned CD on Audiofile and
Audiofile is fully operational and accessible by Encoding, and Encoding fails to
return its copy of the Loaned CD to Valley prior to the Last Customer Return Date
stated in the deletion notice, Encoding will purchase the Loaned CD from Valley
at Valley?s wholesale price for the Loaned CD.
10. Initial Warrant Grant. Encoding will issue warrants for [*] shares of En-
coding common stock with a strike price of [*] per share and an exercise period of
[*] (the ?Initial Warrants?). The Initial Warrants will be granted upon commence-
ment of this agreement.
11. Rights Acquisition. Encoding will grant Valley an additional [*] on the
same terms and conditions as the Initial Warrants in consideration of Valley?s
certification attached hereto as Exhibit G (the ?Certificate?), which is incorpo-
rated herein by this reference, regarding Valley?s attempts to [*]. The statements
contained in the Certificate will constitute representations and warranties of Val-
ley 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 Encoding.
12. New Ventures:
12.1. Valley and Encoding will explore the possibility of a variety of new offer-548 CONVEYANCING, DRAFTING & DEEDS [PART I
ings leveraging either the existing assets such as the Song Files, Song Clips and/
or the PIF for additional Internet Music services including digital downloading
services for Valley?s customers, Internet radio broadcasts, Internet or digital juke
boxes, ?just-in-time? compact disc manufacturing; or offerings leveraging other
assets of Valley and Encoding.
12.2. Valley and Encoding agree that both parties will mutually agree upon the
appropriate business model for all new jointly created new ventures. In such ven-
tures as may occur, Encoding and Valley will [*] but will attempt to structure the
ventures so [*].
13. Representations and Warranties of Encoding. To induce Valley to enter
into this Agreement and to perform the transactions contemplated hereunder,
Encoding represents and warrants as follows:
13.1. Organization. Encoding is a corporation duly organized, validly existing
and in good standing under the laws of India.
13.2. Authority; Consents and Approvals; No Violations. Encoding has the full
corporate power and authority and legal right to execute and deliver this Agree-
ment, and otherwise to perform its obligations hereunder. This Agreement has
been validly executed and delivered by Encoding and will constitute a valid and
binding obligation of Encoding enforceable in accordance with its terms, except to
the extent such enforceability may be limited by the effects of bankruptcy, insol-
vency, 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 transac-
tions contemplated hereby do not and will not violate any provision of Encoding?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 Encoding is a party, or by which it or any of its assets are
13.3. Performance Standards. Encoding will perform the services described
in 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 Encoding to enter
into 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 and
in good standing under the laws of India.
14.2. Authority; Consents and Approvals; No Violations. Valley has the full cor-
porate 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 gener-
ally, and by the effect of general principles of equitable law, regardless of whetherPART I] INTERNET AGREEMENTS?FORMS 549
such enforceability is considered in a proceeding in equity or at law. The execu-
tion and delivery of this Agreement and the consummation of the transactions
contemplated hereby do not and will not violate any provision of Valley?s Certifi-
cate 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, licence, contract, franchise, permit, indenture, lease, or other instru-
ment 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
the other party harmless from and against any and all third-party claims, dam-
ages, liabilities, costs and expenses (including reasonable attorney?s fees) aris-
ing out of any breach or alleged breach by the indemnifying party of any repre-
sentation, 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 by the indemnifying party, any of the indemnifying party?s lic-
ensees, 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 LI-
ABLE TO THE OTHER FOR INDIRECT OR CONSEQUENTIAL DAMAGES, WHETHER
OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAM-
AGES AND REGARDLESS OF THE FORM OF ACTION.
17. Confidential Information. Neither Encoding nor Valley may use any
Confidential Information of the other except as permitted under this Agreement.
In addition, neither Encoding nor Valley may disclose any Confidential Informa-
tion 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 [*] anniver-
sary of the Effective Date.
18.2. Either party may terminate this Agreement if (i) the other party materi-
ally breaches any of its obligations under this Agreement, (ii) the non-breaching
party sends written notice to the breaching pa
CONVEYANCING, DRAFTING & DEEDS [PART I