EX-10.12: AMENDED DIGITAL DOWNLOAD SALES AGREEMENT

EXHIBIT 10.12

AMENDED & RESTATED DIGITAL MUSIC DOWNLOAD SALES AGREEMENT

This Agreement is by and between “ITUNES” and “COMPANY”, as each is identified on the attached Cover Sheet, and is entered into as of the Effective Date (as defined herein).

          WHEREAS, ITUNES and COMPANY are parties to one or more Current Agreement(s) (as defined herein);

          WHEREAS, ITUNES desires and, in exchange for ITUNES’ obligations herein, COMPANY is willing to allow ITUNES to sell COMPANY’s content in digital form on modified terms as provided herein;

          NOW, THEREFORE, in consideration of the mutual promises and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, ITUNES and COMPANY (each a “Party” and collectively, “Parties”) hereby amend and restate the Current Agreement(s), effective as of the Effective Date (as defined herein), in this single Agreement as follows:

     1.  Definitions .

The following terms shall have the following meanings for purposes of this Agreement:

	(a)		“ Content File ” means each digital file containing COMPANY Content, applicable Artwork (if any), parental advisory notices (if any), copyright notices (if any), and associated metadata (e.g., artist name, track or video title, track or video title version (if applicable), territories cleared for sale, copyright notice, ISRC, UPC and corresponding album title (if applicable) and editorial content data (if any)).
	(b)		“ Content Usage Rules ” means the usage rules applicable to COMPANY Content in the form of Regular eMasters and Plus eMasters available on the Online Store that specify the terms under which a Regular eMaster and Plus eMaster, respectively, may be used, as set forth in Exhibit A attached hereto, and which may be modified by ITUNES from time to time, subject to prior written approval by COMPANY (such approval or disapproval not to be unreasonably delayed) in the event of a material change to such usage rules.
	(c)		“ Security Solution ” means the proprietary Apple content protection system marketed as Fairplay, in effect as of the Effective Date used to protect Regular eMasters (but, for avoidance of doubt, not Plus eMasters) sold on the Online Store pursuant to this Agreement, which content protection system shall be no less protective than the protection system used to protect similar third party content sold on the Online Store, and which may be modified by ITUNES from time to time, subject to prior written approval by COMPANY (such approval not to be unreasonably withheld, delayed or conditioned) in the event of a material change to such content protection system such that Regular eMasters are being protected less than before.

	(d)		“ eMaster” or “eMasters ” means copies of COMPANY Content in digital form suitable for exploitation on the Online Store, in the Format and (i) having the Security Solution (“Regular eMasters”) or (ii) having no Security Solution (“Plus eMasters”), which ITUNES may sell on the Online Store pursuant to the terms and conditions of this Agreement.
	(e)		“ Format” or “Formatting ” means the digital format for content set forth in Exhibit C-1 attached hereto or the process of converting content into eMasters.
	(f)		“ Non-Transfer Device ” means a device, such as an iPod or a cell phone, having the Security Solution, which can receive eMasters by any means for their storage and/or playback via proprietary Apple software, but which cannot transfer eMasters with their content rights keys to any other device.
	(g)		“ Transfer Device ” means a device, such as a computer, having the Security Solution, which can receive eMasters by any means for their storage and/or playback via proprietary Apple software, transfer eMasters with their content rights keys to any Non-Transfer Device or Transfer Device and/or burn audio-only eMasters as an audio CD.
	(h)		“ Fulfillment Activities ” means sales activities relating to the sale and delivery of eMasters, provided by COMPANY, pursuant to the terms and conditions of this Agreement.
	(i)		“ Current Agreement ” means any DIGITAL MUSIC DOWNLOAD SALES AGREEMENT or DIGITAL VIDEO DOWNLOAD SALES AGREEMENT by and between COMPANY and ITUNES that is in effect as of the date this Agreement is signed by both Parties and the territory of which includes any part of the Territory (as defined herein). The Current Agreement with the earliest effective date is referred to as the “Earliest Current Agreement.”
	(j)		“ Effective Date ” means the Signature Date.
	(k)		“ Term ” means the period beginning on the Effective Date, and ending on the date the Earliest Current Agreement is set to expire (“Current Expiration Date”), except (i) if the Current Expiration Date is less than one year from the Signature Date, then the Term shall end two years after the Current Expiration Date, or (ii) if the Current Expiration Date is less than two years, but not less than one year, from the Signature Date, then the Term shall end one year after the Current Expiration Date.  The Term shall automatically renew for additional, successive three-year periods unless either Party provides written notice to the other Party of its intent to terminate this Agreement at least ninety (90) days prior to the expiration of the then-effective Term.
	(l)		“ Territory ” means the United States, its territories and possessions (collectively, “United States”), and Canada, its territories, and provinces, including Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Northwest Territories, Nova Scotia, Nunavut, Ontario,

			Prince Edward Island, Quebec, Saskatchewan and Yukon (collectively, “Canada”).
	(m)		“ Online Store ” means an electronic store and its storefronts branded, and owned and/or controlled by ITUNES or an affiliate of ITUNES.
	(n)		“ Regular COMPANY Content ” means sound recordings owned or controlled by COMPANY and in which COMPANY has cleared (as provided in Section 4 below) the necessary rights to authorize electronic sales and sound recording performances in Regular eMaster format by ITUNES pursuant to the terms of this Agreement.
	(o)		“ Plus COMPANY Content ” means sound recordings owned or controlled by COMPANY and in which COMPANY has cleared (as provided in Section 4 below) the necessary rights to authorize electronic sales and sound recording performances in Plus eMaster format by ITUNES pursuant to the terms of this Agreement.
	(p)		“ COMPANY Content ” means Regular COMPANY Content and Plus COMPANY Content. All sound recordings that are provided by or on behalf of COMPANY to ITUNES are deemed owned or controlled by COMPANY and cleared by COMPANY as provided in Section 4 below.
	(q)		“ Artwork ” means album cover artwork, screen shots and/or any other artwork relating to COMPANY Content that COMPANY has cleared for use by ITUNES in accordance with Section 2 below. All artwork that is provided by or on behalf of COMPANY to ITUNES is deemed cleared by COMPANY.

     2.  Authorization .

(a)

Subject to the terms of this Agreement, COMPANY hereby appoints ITUNES as a reseller of eMasters in the Territory. Accordingly, COMPANY hereby grants a non-exclusive right to ITUNES, during the Term, to:

	i.		reproduce and Format COMPANY Content delivered by COMPANY or by COMPANY’S representative designated by COMPANY in writing into eMasters;
	ii.		perform, exhibit and make available by streaming clips of the COMPANY Content (“Clips”) to promote the sale of applicable eMasters on the Online Store in accordance with Exhibit C-1;
	iii.		promote, market, sell, distribute, perform and electronically fulfill and deliver eMasters and associated metadata to purchasers via the Online Store;
	iv.		reproduce, display, distribute and electronically fulfill and deliver Artwork for personal use solely in conjunction with the applicable purchased eMaster; and

v.

use COMPANY Content, Artwork and metadata as may be reasonably necessary or desirable for ITUNES to exercise ITUNES’ rights under the terms of this Agreement.

	(b)		ITUNES shall not be authorized to use COMPANY Content or Artwork in any manner or form not expressly authorized herein, provided that ITUNES may modify metadata as reasonably necessary to correct errors or to append sub-genres or like information for artist and content categories. Nothing in this Agreement shall be construed to prevent COMPANY from marketing or selling COMPANY Content or Artwork by any means.
	(c)		ITUNES shall not pledge, mortgage or otherwise encumber any part of the COMPANY Content, eMasters, or Artwork.

     3.  COMPANY Obligations .

	(a)		Except for a special circumstance, such as an exclusive, limited-time, one-off promotion for particular COMPANY Content, or for a reason beyond COMPANY’s control (e.g., a third party contractual restriction), or as otherwise agreed by the Parties, COMPANY (or a third party designated by COMPANY in writing and approved by ITUNES) shall commence delivery of all existing COMPANY Content as soon as reasonably possible following the Effective Date, and prospectively during the Term, for just cleared COMPANY Content and new releases, at least in time for ITUNES to begin selling eMasters the earlier of a general release date, provided by COMPANY, or when any other distributor is permitted to begin selling, or making commercially available, COMPANY Content in any format. COMPANY may provide written notice to ITUNES, at the time that COMPANY delivers particular COMPANY Content to ITUNES (and, for any already-delivered COMPANY Content, no later than the Effective Date), that such COMPANY Content is not authorized hereunder to be sold as Plus eMasters (“Plus Excluded Content”); provided, however, that (i) COMPANY may not provide such notice for any COMPANY Content that COMPANY permits any other distributor to sell, or otherwise make commercially available, DRM-free in the Territory and (ii) if COMPANY subsequently permits any other distributor to begin selling, or otherwise making commercially available, any Plus Excluded Content DRM-free in the Territory, then COMPANY shall withdraw such notice at least in time for ITUNES to begin selling the applicable Plus Excluded Content as Plus eMasters at the same time as any such other distributor.
	(b)		Except as otherwise agreed by the Parties, COMPANY shall make all COMPANY Content that COMPANY authorizes herein for sale on the Online Store available in both a so-called “single” format and in a multi-track “album” format. ITUNES may sell eMasters on the Online Store in the format that ITUNES believes most favorably furthers the commercial purpose of this Agreement and otherwise in accordance with ITUNES’ then-current Online Store business practices.

(c)

COMPANY shall deliver Content Files to ITUNES, at COMPANY’S expense, in the Delivery Format and via the Delivery Method set forth in Exhibit C-1 attached hereto.

     4.  Royalties .

	(a)		United States : For uses of COMPANY Content authorized hereunder with respect to sales in the United States, COMPANY shall be responsible for and timely pay: (i) all record royalties to artists, producers, performers, musicians and other record royalty participants for the manufacture, storage, distribution and sale of eMasters, (ii) all reproduction and distribution (i.e., mechanical) royalties payable to composers, lyricists, authors and publishers of compositions embodied in eMasters for the manufacture, storage, distribution and sale of eMasters, (iii) all payments that may be required under collective bargaining agreements applicable to COMPANY or third parties other than ITUNES, and (iv) any other royalties, fees and/or sums payable with respect to the sound recordings, Artwork, metadata and other materials provided by COMPANY and/or ITUNES’ authorized use thereof hereunder.
	(b)		Canada : For uses of COMPANY Content authorized hereunder with respect to sales in Canada:

	i.		COMPANY shall be responsible for and timely pay: (A) all record royalties to artists, producers, performers, musicians and other record royalty participants for the manufacture, storage, distribution and sale of eMasters, (B) all payments that may be required under collective bargaining agreements applicable to COMPANY or third parties other than ITUNES, and (C) any other royalties, fees and/or sums payable with respect to the sound recordings, Artwork, metadata and other materials provided by COMPANY and/or ITUNES’ authorized use thereof hereunder.
	ii.		ITUNES shall be responsible for obtaining reproduction and distribution (i.e., mechanical) rights, and song performance (i.e., communication to the public) rights, from, and for making and making arrangements for payments, royalties or sums payable to, composers, lyricists, authors and music publishers as may be reasonably necessary for the commercial exploitation hereunder of the compositions embodied in eMasters (“Author’s Rights”); provided, however, that (notwithstanding any other provision in this Agreement) ITUNES’ responsibilities under this paragraph 4(b)(ii) apply only to COMPANY Content for which reproduction rights in Canada may be cleared and paid through CMRRA-SODRAC, Inc. (hereafter, “CSI Content”) and that ITUNES shall make payments related to reproduction rights in any COMPANY Content only to CMRRA-SODRAC, Inc. and to no other party. COMPANY understands and acknowledges that ITUNES shall have no obligations whatsoever under this paragraph 4(b)(ii) for any COMPANY Content that is not CSI Content (“non-CSI Content”), and that all responsibility for rights clearances and payments related to Authors’ Rights for any non-CSI Content which COMPANY authorizes ITUNES to exploit in Canada

hereunder shall rest with COMPANY. To the extent that COMPANY owns or controls any part of the Authors’ Rights in any COMPANY Content, COMPANY shall not withhold such rights in any way that could frustrate the purpose of this Agreement. The Parties acknowledge that the wholesale prices set forth in Exhibit B-1 reflect a deduction for Author’s Rights at the prevailing industry-wide royalty rates (currently estimated at eight percent (8%) of retail price) and that, in the event that higher or lower prevailing industry-wide royalty rates are established (whether by a court or tribunal within the Territory or through negotiations), then the wholesale prices set forth in Exhibit B-1 shall be prospectively reduced or increased (as the case may be) using such established industry-wide royalty rates.

     5.  Wholesale Price .

ITUNES shall pay COMPANY for eMasters sold by ITUNES hereunder the applicable wholesale prices set forth in Exhibit B-1, which wholesale prices shall remain in effect throughout the Term (subject to Section 4(b)(ii), if applicable). ITUNES shall provide notice (which may be by email) at least five (5) days prior to an increase in the retail price of an eMaster in any format (e.g., single-track, multi-track), and shall consider COMPANY’s views in relation to such increase in price. For avoidance of doubt, ITUNES reserves the right to determine the retail price in its sole discretion.

     6.  ITUNES Obligations .

	(a)		ITUNES shall condition sale and delivery of eMasters upon an end user’s acknowledgement of terms of use for such eMasters (“Terms of Use”), which Terms of Use shall be no less restrictive than the Content Usage Rules, and shall state that the sale of eMasters does not transfer to purchaser any commercial or promotional use rights in the eMasters.
	(b)		Subject to Section 4, ITUNES shall be responsible for all costs associated with ITUNES’ Fulfillment Activities.
	(c)		If there is a change of circumstance during the Term as a result of which COMPANY reasonably believes that it does not have, or no longer has, the rights necessary to authorize ITUNES to use any COMPANY Content or Artwork as provided for herein, or COMPANY reasonably believes that ITUNES’ continued sale of any COMPANY Content or Artwork will substantially harm COMPANY’s relations, or violates the terms of any of COMPANY’S agreements, with any applicable copyright owner, artist, producer, director (in the case of audio-visual content) or distributor (each a “Clearance Issue”), then COMPANY shall have the right to withdraw, upon written notice to ITUNES’ designated representative, authorization for the sale of such COMPANY Content or Artwork to the extent of such Clearance Issue. Following ITUNES’ receipt of such written notice by COMPANY, ITUNES shall cease to offer such COMPANY Content or Artwork for sale as specified in the notice within three (3) business days after ITUNES’ receipt of such notice of withdrawal, and COMPANY shall use commercially reasonable efforts to clear such withdrawn COMPANY Content or Artwork and shall promptly notify ITUNES if and when such

			COMPANY Content or Artwork has been cleared and is again authorized for sale by ITUNES as provided herein. COMPANY shall not withdraw any authorization with respect to COMPANY Content or Artwork if COMPANY continues to provide such authorization to any other on-line digital distributor of COMPANY Content. ITUNES’ current designated representative for such notices is itunesproducer@apple.com. ITUNES may, from time to time, change the designated representative and means for giving written notice by posting a notice on its Label Connect site.
	(d)		ITUNES reserves the right to pull-down, or not offer for sale, any COMPANY Content or Artwork in the event a third party claims that ITUNES is not authorized to sell or otherwise use such COMPANY Content or Artwork on the Online Store, in which case COMPANY shall cooperate with ITUNES’ reasonable requests towards handling such third party claim.

     7.  Parental Advisory .

If COMPANY provides an appropriate parental advisory warning about a particular eMaster in the Content File, ITUNES shall conspicuously display such parental advisory when other information about such eMaster is displayed. COMPANY shall be responsible for determining parental advisory warning status.

     8.  Payment and Reports .

	(a)		ITUNES shall remit payment to COMPANY for the sale of eMasters in accordance with the following: (i) the “sale” of each eMaster shall occur when such eMaster is successfully delivered by ITUNES to an end user; (ii) payments shall accrue at the time that such eMaster is sold; and (iii) for each eMaster sold, ITUNES shall pay to COMPANY an amount equal to the wholesale price for the applicable eMaster (collectively “eMaster Proceeds”).
	(b)		ITUNES shall pay eMaster Proceeds to COMPANY in the amount set forth in a xxxxxx sales report reflecting all sales of eMasters and corresponding eMaster Proceeds for the particular xxxxxx period (“Sales Report”) and in accordance with ITUNES standard business practices after the end of each xxxxxx period during the Term. ITUNES will make each Sales Report available to COMPANY via the proprietary LabelConnect site (free access to which is provided by ITUNES to COMPANY during the Term pursuant to applicable terms and conditions) and will notify COMPANY via email when each Sales Report is available. ITUNES may modify the foregoing process in its reasonable discretion upon xxxxxx written notice. For avoidance of doubt, eMaster Proceeds shall constitute COMPANY’s full consideration hereunder.

	(c)		ITUNES may withhold any taxes, duties, charges or levies on payments by ITUNES to COMPANY pursuant to this Agreement as may be required by applicable law, rule or regulation. ITUNES shall remit any such withheld taxes, duties, charges or levies to the appropriate tax authority. Despite the foregoing, provided COMPANY has fully satisfied all requirements to document its eligibility for a lower or zero rate of withholding tax, including, without limitation, providing ITUNES with a valid Certificate of Residency, ITUNES shall withhold based on the lower withholding tax rate, or, if applicable, shall not withhold.
	(d)		Payments made by ITUNES to COMPANY hereunder shall be by electronic funds transfer (“EFT”), and COMPANY shall be responsible for any of COMPANY’S bank transaction costs or fees arising from such payment. COMPANY shall provide ITUNES with COMPANY’S banking information reasonably necessary to effect payment (on a form to be provided to COMPANY by ITUNES), including but not limited to:

i. Bank Name

ii. Account Name

iii. Account Number

iv. Routing Number

v. Royalty Accounting Contact: (Name, Address, Email, Fax, Tel.)

     9.  Names and Likenesses; Promotional Use and Opportunities .

	(a)		ITUNES may use the names and authorized likenesses of, and biographical material concerning, any eMaster artists, bands, producers, directors (in the case of audio-visual content) and/or songwriters (each, a “Talent”), as well as track title and/or album name, and Artwork, in any ITUNES marketing materials for the sale, promotion and advertising of the applicable eMaster which is offered for sale on the Online Store under the terms of this Agreement (e.g., an artist or band name and likeness may be used in an informational fashion, such as textual displays or other informational passages, to identify and represent authorship, production credits, and performances of the applicable artist or band in connection with the authorized exploitation of applicable eMasters). Further written approval of COMPANY shall be required if any Talent’s name or likeness is otherwise used as an endorsement of ITUNES, the Online Store, or other products.
	(b)		ITUNES shall have the unrestricted right to market, promote and advertise the Online Store and content available for purchase on the Online Store as it determines in its discretion. Without limiting the foregoing, ITUNES shall have the right to determine which content, irrespective of any particular record company, label or other content provider affiliation, would best further the commercial purpose of the Online Store, and to promote such content more than others.

     10.  Copyright Notices; Ownership .

	(a)		COMPANY may provide a copyright notice (which shall be not more than 21 characters in length) for applicable COMPANY Content and associated Artwork in the Content File, in which case ITUNES shall include such copyright notice in a manner that can be viewed prior to purchase of such eMaster. ITUNES shall not knowingly defeat, impair or alter any watermark in COMPANY Content, including any related Artwork or materials delivered by COMPANY hereunder.
	(b)		As between the Parties, all right, title and interest in and to (i) the COMPANY Content, (ii) the eMasters, excluding the Security Solution, (iii) the Clips, (iv) all copyrights and equivalent rights embodied therein, and (v) all materials furnished by COMPANY, except as to any rights of ITUNES (whether pre-existing or under this Agreement), shall remain the property of COMPANY, it being understood that under no circumstances shall ITUNES have any lesser rights than it would have as a member of the public.

     11.  Press Release .

Without limiting the provisions of Section 16, COMPANY shall not make or issue any public statement or press release regarding this Agreement or its subject matter without prior written approval from ITUNES.

     12.  Data Protection .

	(a)		ITUNES shall use the Security Solution for Regular eMasters, which shall be no less protective of COMPANY Content than any other security solution provided by ITUNES for any other sound recordings on the Online Store. If the Security Solution is compromised such that Regular eMasters have been unencrypted and are being widely used without restriction, having an adverse material effect on the commercial intent of this Agreement xxxxxx. The foregoing shall constitute ITUNES’ sole obligation and COMPANY’s sole remedy from ITUNES in the event of such a security breach. For avoidance of doubt, this Section 12(a) shall not apply to Plus eMasters.
	(b)		Despite anything to the contrary, in the event that ITUNES receives notice of a security breach of the servers or network components that store COMPANY Content or Artwork on the Online Store such that unauthorized access to COMPANY Content or Artwork becomes available via the Online Store xxxxxx which shall be ITUNES’ sole obligation and COMPANY’s sole remedy from ITUNES in the event of such a security breach.
	(c)		COMPANY Content in ITUNES’ control or possession shall reside on one or more network servers, workstations or equivalent devices owned or controlled by ITUNES or its contractors, each of which shall be secured with restricted access.

     13.  Record-Keeping and Audit

	(a)		ITUNES shall maintain and keep complete and accurate books and records concerning the amounts payable to COMPANY arising from transactions relating to ITUNES’ sale of xxxxxx.
	(b)		Upon reasonable advance written notice xxxxxx during the Term and for xxxxxx thereafter (the “Audit Period”), COMPANY, at COMPANY’s sole expense, may appoint an independent certified public accountant not then engaged in any audit of ITUNES or COMPANY to audit applicable books and records of ITUNES at ITUNES’ principal place of business in the Territory for the sole purpose of verifying the amounts due from ITUNES to COMPANY hereunder. Such audit shall take place during regular business hours, and shall not occur more than once during any twelve (12) month period. The certified public accountant shall not be engaged on a contingency-fee basis and must sign and deliver to ITUNES a confidentiality agreement in a form acceptable to ITUNES that protects ITUNES’ confidential information no less than the terms of this Agreement and no less than COMPANY protects its own similar information. COMPANY may audit information contained in a particular statement only once, and no audit shall be allowed or conducted for a period spanning less than six (6) months.
	(c)		COMPANY shall be deemed to have consented to all accountings rendered by ITUNES hereunder, and said accountings shall be binding upon COMPANY and shall not be subject to any objection by COMPANY for any reason unless specific objections are provided to ITUNES in writing during the Audit Period. COMPANY agrees that ITUNES’ books and records contain “Confidential Information” (as defined below).

     14.  Termination and Effect of Terminati