Apple tried to silence the owners’ of an exploding iPod after the father and daughter tried to get a refund for the exploding iPod from the company.

The company offered the family a refund only if they were willing to sign a settlement form that stated they would be left open for legal action if they ever disclosed the terms of the settlement.

“Ken Stanborough of Liverpool, England, said he dropped his 11-year-old daughter Ellie’s iPod Touch last month.”

“‘It made a hissing noise,’ he said. ‘I could feel it getting hotter in my hand, and I thought I could see vapor.’ Stanborough said he threw the device out of his back door. ‘Within 30 seconds there was a pop, a big puff of smoke and it went 10 feet in the air,’ he said.”

“Stanborough contacted Apple and Argos, where he had bought the iPod for $273.”

Apple has  tried to silence other consumers in previous instances involving overheated devices.

Stanborough contacted an Apple executive over the phone, and later received a letter denying liability but offering a refund.

“The letter also stated that — in accepting the money — Stanborough must ‘agree that you will keep the terms and existence of this settlement agreement completely confidential.’ Any breach of confidentiality ‘may result in Apple seeking injunctive relief, damages and legal costs against the defaulting persons or parties,’ the letter said.”

“’I thought it was a very disturbing letter,’ said Stanborough, who is self-employed and works in electronic security. He refused to sign it.”

Check out the original article: Apple Tried to Silence Owner of Exploding iPod With Gagging Order

RealDealDocs.com is a division of Practice Technologies, Inc. the creators of SmartRules.com. SmartRules provides step by step guides to local rules and civil procedure for state courts & federal courts throughout the country.

Popularity: 4% [?]

The iPod Manufacturer and all around computer technology giant Apple is suing Atico International USA, accusing them of patent infringement, trademark infringement and unfair competition by selling unauthorized iPod accessories.   According to InformationWeek.com:

“Atico manufactures and distributes various iPod accessories branded under the name ‘Living Solutions,’ which are sold online and nationwide in stores in Delaware and elsewhere, such as Walgreen’s and Happy Harry’s drug stores,” the complaint says. These accessories include an AM/FM portable boom box with iPod dock, an AM/FM alarm clock radio with iPod dock, and portable speakers with an iPod dock. Apple claims that Atico’s iPod products are not licensed or authorized.”

The tech giant offers a program for other companies to manufacture and distribute licensed iPod accessories called “Made for iPod”.  At the iPod’s  inception in 2005, Apple was asking for a royalty of 10% based on the licensed items wholesale price.  Eventually in 2006, Apple shifted to a four dollar per unit flat fee.

 

 

Popularity: 3% [?]

Apple announced back in August of 2007 that it would no longer be providing NBC’s TV shows after NBC demanded they jack up the price. In a sort of response to this, NBC created it’s own direct download service which allows users to grab a limited amount of TV shows which are encoded with an expiration. This service is currently in beta and once it is finished should cost something for the user.

Most people agree, this was a pretty silly move for NBC and Apple. Both were mutually benefiting from their arrangement, and now neither is able to benefit. NBC’s service has been in development for almost 6 months now and still doesn’t seem really useful. The rational behind this from what I can tell was that NBC’s TV shows held a large market share of the TV Shows purchased on iTunes. However, what NBC doesn’t seem to realize is that the reason people use iTunes at all is mainly their native support of their iPod devices and the marketing done by Apple promoting their service as being tied in with all of their other products. NBC’s move will more than likely just move more users towards simply pirating their content, which will damage them far more in the long run.

Some of the documents relating to Apple’s iTunes service are available on http://RealDealDocs.com. An example of this is Apple’s Digital Music Download Agreement. The document filed with the SCC appears to be a sort of template which can be used between Apple and various companies to license their content for use on Apple’s iTunes service.

Popularity: 4% [?]

Exhibit 10.22

DIGITAL MUSIC DOWNLOAD SALES AGREEMENT

This Agreement is by and between APPLE and COMPANY, as identified in the Cover Sheet attached hereto and is entered into as of the date this Agreement is signed by both APPLE and COMPANY (the “Effective Date”).

WHEREAS, APPLE desires to sell permanent downloads of COMPANY’S sound recordings;

WHEREAS, COMPANY is willing to allow the sale of permanent downloads of certain COMPANY sound recordings in exchange for APPLE’S obligations 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, APPLE and COMPANY (”Parties”) hereby agree 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 a single-track sound recording or multi-track album of COMPANY Content, applicable Artwork (if any), parental advisory notices (if any), copyright notices (if any), videos (if any, provided by COMPANY and used by APPLE at COMPANY’S discretion), and associated metadata, e.g., core track data and editorial content data (if any).

(b)

“Content Usage Rules” means the usage rules applicable to sound recordings in the form of eMasters available on the Online Store that specify the terms under which an eMaster may be used, as set forth in Exhibit A attached hereto, and which may be modified by APPLE 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 APPLE proprietary content protection system in effect as of the Effective Date used to protect eMasters sold on the Online Store pursuant to this Agreement, which content protection system shall be no less protective than, and the same as, the protection system used to protect any third party sound recording sold on the Online Store, and which may be modified by APPLE 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 eMasters are being protected less than before.

(d)

“Master” or “Masters” means copies of COMPANY Content in digital form and having the Security Solution, which APPLE may sell on the Online Store pursuant to the terms and conditions of this Agreement.

(e)

“Device” means any digital player device or cellular phone having the Security Solution that can receive music files from another device or network connection, by any means, for playback of such music files.

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(f)

“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.

(g)

“Term” means the period beginning on the Effective Date of this Agreement and ending on the first day of the calendar quarter following the third anniversary of the Effective Date.

(h)

“Territory” means the United States, its territories and possessions, and Canada, its territories and possessions; and any other country or territory where COMPANY authorizes APPLE in writing hereunder, as the case may be.

(i)

“Online Store” means an electronic store and its storefronts branded, and owned and/or controlled by APPLE.

(j)

“COMPANY Content” means sound recordings owned or controlled by COMPANY that are provided by or on behalf of COMPANY, and in which COMPANY has cleared the necessary rights to authorize electronic sales and sound recording performances by APPLE pursuant to the terms of this Agreement, including but not limited to sound recordings in the form of (i) single-track sound recordings, and (ii) multi-track albums. Any sound recordings that are provided by or on behalf of COMPANY to APPLE are owned or controlled by COMPANY and have been cleared by COMPANY as described in the prior sentence.

(k)

“Artwork” means album cover artwork and any other artwork relating to COMPANY Content that COMPANY has cleared for use by APPLE in accordance with Section 2 below. Any artwork that is provided by or on behalf of COMPANY to APPLE will be deemed to have been cleared by COMPANY as described in the prior sentence.

2.

Authorization.

(a)

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

i.

reproduce and convert COMPANY Content delivered by COMPANY or by COMPANY’S representative designated by COMPANY in writing into eMasters;

ii.

perform and make thirty (30) second clips of the COMPANY Content available by streaming (”Clips”) to promote the sale of applicable eMasters on the Online Store, which Clips, if not provided by COMPANY, may be created by APPLE by using the first thirty (30) seconds of the applicable COMPANY Content;

iii.

promote, sell, distribute, and electronically fulfill and deliver eMasters and associated metadata to purchasers via the Online Store;

iv.

display and electronically fulfill and deliver Artwork for personal use solely in conjunction with the applicable purchased eMaster; and

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v.

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

(b)

APPLE shall not be authorized to exploit COMPANY Content or Artwork in any manner or form not expressly authorized herein. Nothing in this Agreement shall be construed to prevent COMPANY from marketing or selling COMPANY Content or Artwork by any means. Nothing herein shall obligate APPLE to actually exercise its rights under this Agreement.

(c)

Except for a special circumstance, such as an exclusive, limited-time, one-off promotion for a particular COMPANY sound recording, or for a reason beyond COMPANY’S control, COMPANY shall otherwise make all eMasters available to APPLE hereunder for sale on the Online Store in both a so-called “single” format and in a multi-track “album” format. APPLE may sell eMasters on the Online Store in the format that APPLE believes most favorably furthers the commercial purpose of this Agreement and otherwise in accordance with APPLE’S then-current Online Store business practices.

(d)

Except as set forth in Section 2(a)(ii) or elsewhere herein, APPLE will not edit, change or alter any of the COMPANY Content or Artwork without COMPANY’S prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), provided that APPLE may modify metadata as reasonably necessary to correct errors or to append sub-genres or like information for artist and track categories.

(e)

APPLE shall not pledge, mortgage or otherwise encumber any part of the COMPANY Content, eMasters, or Artwork.

3.

COMPANY Obligations.

(a)

COMPANY shall use commercially reasonable efforts to promptly obtain clearances in the Territory for all sound recordings under its control, and related artwork, in order to enable sales of eMasters by APPLE hereunder.

(b)

Content Files must be [*].

(c)

COMPANY shall use commercially reasonable efforts to electronically deliver, at COMPANY’S expense, properly encoded Content Files to APPLE using a secure FTP site address provided by APPLE to COMPANY from time to time, or other delivery means as may be reasonably requested by APPLE.

(d)

COMPANY, or a third party designated by COMPANY in writing and approved by APPLE, shall commence delivery of Content Files as soon as reasonably possible after the Effective Date, and for just cleared COMPANY Content or new releases, no later than when COMPANY first makes such COMPANY Content publicly available by any means (e.g., radio play, “street date,” etc).

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*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

4.

Royalties.

COMPANY shall be responsible for and timely pay: (i) all record royalties to artists, producers, and other record royalty participants from sales of eMasters, (ii) all mechanical royalties payable to publishers of copyrighted musical compositions embodied in eMasters from sales of eMasters, (iii) all payments that may be required under collective bargaining agreements applicable to COMPANY or third parties other than APPLE, 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 APPLE’s use thereof hereunder.

5.

Wholesale Price.

APPLE shall pay COMPANY the wholesale price for eMasters sold by APPLE hereunder, as set forth in Exhibit B attached hereto. COMPANY shall not increase the wholesale price of any particular eMaster during the Term. Apple reserves the right to determine the retail price in its discretion.

6.

APPLE Obligations.

(a)

APPLE 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, APPLE shall be responsible for all costs associated with APPLE’s 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 APPLE to use any COMPANY Content or Artwork as provided for herein, or COMPANY reasonably believes that APPLE’s 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 or distributor, then COMPANY shall have the right to withdraw, upon written notice to APPLE’s designated representative, authorization for the sale of such COMPANY Content or Artwork. Following such withdrawal, APPLE shall cease to offer such COMPANY Content or Artwork for sale within three (3) business days after APPLE’S 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 APPLE if and when such COMPANY Content has been cleared and is again authorized for sale by APPLE through the Online Store. COMPANY shall not withdraw COMPANY Content if such COMPANY Content is still being made available by COMPANY to any other provider of digital downloads.

7.

Parental Advisory.

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

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8.

Payment and Reports.

(a)

APPLE 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 APPLE to an end user; (ii) payments shall accrue at the time that such eMaster is sold; and (iii) for each eMaster sold, APPLE shall pay to COMPANY an amount equal to the wholesale price for the applicable eMaster (collectively “Master Proceeds”).

(b)

APPLE will compute eMaster Proceeds payable to COMPANY after the end of [*], and will send COMPANY a [*] eMaster Proceeds statement in accordance with Apple’s standard business practices. The eMaster Proceeds statement shall be accompanied with payment in the amount of eMaster Proceeds due within [*] after the end of each such calendar month. Such payment shall constitute full consideration for all rights granted and obligations undertaken by COMPANY hereunder.

9.

Names and Likenesses; Promotional Use and Opportunities.

(a)

APPLE may use the names and likenesses of, and biographical material concerning, any eMaster artists, bands, producers and/or songwriters, as well as track and/or album name, and Artwork, in any APPLE 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 artist’s name is otherwise used as an endorsement of APPLE, the Online Store, or APPLE’S products.

(b)

APPLE shall have the unrestricted right to market, promote and advertise the Online Store and sound recordings available for purchase on the Online Store as it determines in its discretion. Without limiting the foregoing, APPLE shall have the right to determine which sound recordings, irrespective of any particular record company or label affiliation, would best further the commercial purpose of the Online Store, and to promote such sound recordings 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 APPLE shall include such copyright notice in a manner that can be viewed prior to purchase of such eMaster. APPLE 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 APPLE (whether pre-existing or under this Agreement), shall remain the property of COMPANY, it being understood

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*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

that under no circumstances shall APPLE have any lesser rights than it would have as a member of the public.

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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 APPLE.

12.

Data Protection.

(a)

APPLE shall use the Security Solution, which shall be no less protective of Company Content than any other security solution provided by APPLE for any other sound recordings on the Online Store. If the Security Solution is compromised such that eMasters have been unencrypted and are being widely used without restriction, having an adverse material effect on the commercial intent of this Agreement, [*]. The foregoing shall constitute Apple’s sole obligation and Company’s sole remedy from Apple in the event of such a security breach.

(b)

Despite anything to the contrary, in the event that APPLE 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, [*], which shall be APPLE’s sole obligation and COMPANY’s sole remedy from APPLE in the event of such a security breach.

(c)

COMPANY Content in APPLE’s control or possession shall reside solely on a network server, workstation or equivalent device owned or controlled by APPLE or its contractors, located in the U.S.A. (for that portion of the Territory within the U.S. and Canada), and shall be secured with restricted access.

13.

Record-Keeping and Audit

(a)

APPLE shall maintain and keep complete and accurate books and records concerning the amounts payable to COMPANY arising from transactions relating to APPLE’s sale of [*].

(b)

Upon reasonable advance written notice [*], during the Term and [*] (the “Audit Period”), COMPANY, at COMPANY’s sole expense, may appoint an independent certified public accountant not then engaged in any audit of APPLE or COMPANY to audit applicable books and records of APPLE at APPLE’S principal place of business in the U.S.A. for the sole purpose of verifying the

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*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

amounts due from APPLE 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 APPLE a confidentiality agreement in a form acceptable to APPLE that protects APPLE’S 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 APPLE 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 APPLE in writing during the Audit Period. COMPANY agrees that APPLE’S books and records contain “Confidential Information” (as defined below).

14.

Termination and Effect of Termination.

(a)

Either party shall have the right to terminate this Agreement prior to the expiration of the Term in the event that the other party (i) becomes insolvent, (ii) files a petition in bankruptcy, (iii) makes an assignment for the benefit of creditors, or (iv) breaches any material representation, obligation or covenant contained herein, unless such breach is cured prospectively, no later than thirty (30) days from the date of receipt of notice of such breach, or if not able to be so cured, then resolved to the other party’s satisfaction, not to be unreasonably withheld.

(b)

Sections 1, 4, 6b, 8, 10b, 11, 13, 14, 15, 16, 17, and 18 shall remain in full force and effect following the expiration or earlier termination of this Agreement. The expiration or earlier termination of this Agreement shall not relieve COMPANY or APPLE of its respective obligations to make any payments with respect to the sale of eMasters in the periods prior to such expiration or termination (and the associated accounting) in accordance with this Agreement.

(c)

Upon the expiration or earlier termination of this Agreement, all COMPANY Content, eMasters, Clips, and Artwork in APPLE’S possession or control shall be promptly deleted or destroyed, excluding any archival copies maintained in accordance with APPLE’s standard business practices or required to be maintained by applicable law, rule or regulation.

15.

Indemnification and Limitation of Liability.

(a)

APPLE will indemnify and hold harmless, and upon COMPANY’S request, defend, COMPANY and its affiliates (and their respective directors, officers and employees) from and against any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees and costs) arising out of a claim by a third party by reason of: (i) any use by APPLE of the COMPANY Content or Artwork in breach of this Agreement; (ii) a breach of any warranty, representation, covenant or obligation of APPLE under this Agreement; or (iii) any claim that the technology used by APPLE in the Fulfillment Activities infringes the intellectual property rights of another party. APPLE will reimburse COMPANY and its affiliates on demand for any payments actually made in resolution of any liability or claim that is subject to indemnification under this

7

Section 15, provided that COMPANY obtains APPLE’s written consent prior to making such payments, such consent not to be unreasonably withheld, delayed or conditioned. COMPANY shall promptly notify APPLE of any such claim, and APPLE may assume control of the defense of such claim. COMPANY shall have the right, at its expense, to participate in the defense thereof under APPLE’s direction.

(b)

COMPANY will indemnify and hold harmless, and upon APPLE’S request, defend, APPLE and its affiliates (and their respective directors, officers and employees) from and against any and all losses, liabilities, damages, costs or expenses (including reasonable attorneys’ fees and costs) arising out of a claim by a third party by reason of: (i) a breach of any warranty, representation, covenant or obligation of COMPANY under this Agreement; or (ii) any claim that a sound recording or COMPANY Content, Artwork, metadata or any other materials provided or authorized by or on behalf of COMPANY hereunder or APPLE’s use thereof violates or infringes the rights of another party. COMPANY will reimburse APPLE and its affiliates on demand for any actual payments made in resolution of any liability or claim that is subject to indemnification under this Section 15, provided that APPLE obtains COMPANY’s written consent prior to making such payments, such consent not to be unreasonably withheld, delayed or conditioned. APPLE shall promptly notify COMPANY of any such claim, and COMPANY may assume control of the defense of such claim. APPLE shall have the right, at its expense, to participate in the defense thereof under COMPANY’s direction.

(c)

EXCEPT PURSUANT TO AN EXPRESS INDEMNITY OBLIGATION, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING LOSS OF PROFITS OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THEIR POSSIBILITY.

(d)

NO WARRANTY OR TERM, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AS TO THE CONDITION, QUALITY, DURABILITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE ONLINE STORE, THE SECURITY SOLUTION, OR ANY ELEMENTS OF THE FOREGOING IS GIVEN TO, OR SHOULD BE ASSUMED BY, COMPANY, AND ANY SUCH WARRANTIES AND TERMS ARE HEREBY EXCLUDED.

16.

Confidentiality.

Each party acknowledges that by reason of this Agreement it may have access to certain information and materials concerning the other party’s business plans, customers, technology and products that are confidential and of substantial value to such party, which value would be impaired if such information were disclosed to third parties or used for purposes other than as expressly permitted by this Agreement (referred to in this Agreement as “Confidential Information”). Each party agrees to maintain any and all Confidential Information received from the other, in confidence, and agrees not to disclose or otherwise make available such Confidential Information to any third party without the prior written consent of the disclosing party. Each party agrees that Confidential Information shall be disclosed to its employees and other personnel under its control and supervision for purposes of performing under this Agreement solely on a need-to-know basis in furtherance of this Agreement, and solely to those individuals who are bound by a written non-disclosure agreement

8

having terms no less restrictive than the non-disclosure terms of this Section 16, unless required by law, or court or governmental order. Confidential Information shall be deemed to include (i) information marked confidential, if conveyed in writing, and (ii) information identified orally as confidential, if conveyed orally. Confidential Information shall not be deemed to include any information which (a) is publicly known at the time of the disclosure, (b) becomes publicly known other than by breach of the terms of this Section 16, (c) becomes known to the disclosing party, without restriction, from a source free of any obligation of confidentiality and without breach of this Section 16, or (d) is independently developed by the disclosing party.

17.

Additional Representations and Warranties of the Parties.

(a)

Each party represents and warrants that it has full authority to enter into this Agreement, and to fully perform its obligations hereunder.

(b)

Each party represents and warrants that it owns or controls the necessary rights in order to make the grant of rights, licenses and permissions herein, and that the exercise of such rights, licenses and permissions by the other party hereto shall not violate or infringe the rights of any third party.

(c)

Each party represents and warrants that it shall not act in any manner which conflicts or interferes with any existing commitment or obligation of such party, and that no agreement previously entered into by such party will interfere with such party’s performance of its obligations under this Agreement.

(d)

Each party represents and warrants that it shall perform in compliance with any applicable laws, rules and regulations of any governmental authority.

18.

General Provisions.

(a)

No Agency or Joint Venture. The parties agree and acknowledge that the relationship between the parties is that of independent contractors acting as seller and purchaser. This Agreement shall not be deemed to create a partnership or joint venture, and neither party is the other’s agent, partner, employee, or representative.

(b)

Contractors. APPLE may contract with third parties to provide Fulfillment Activities on behalf of APPLE, provided such third parties are subject to terms no less restrictive than the terms APPLE is subject to under this Agreement. APPLE shall be responsible for the performance of such third parties while under APPLE’S control and supervision.

(c)

Entire Agreement, Modification, Waiver. This Agreement, including any annexes, schedules and exhibits hereto, contains the entire understanding of the parties relating to the subject matter hereof, and supersedes all previous agreements or arrangements between the parties relating to the subject matter hereof. This Agreement cannot be changed or modified except by a writing signed by the parties. A waiver by either party of any term or condition of this Agreement in any instance shall not be deemed or construed as a waiver of such term or condition for the future, or of any subsequent breach thereof. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable, such determination shall not affect any other provision hereof,

9

and the unenforceable provision shall be replaced by an enforceable provision that most closely meets the commercial intent of the parties.

(d)

Binding on Successors. This Agreement shall be binding on the assigns, heirs, executors, personal representatives, administrators, and successors (whether through merger, operation of law, or otherwise) of the parties.

(e)

Notices. Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes: (i) on the delivery date if delivered personally to the party to whom the same is directed or delivered; (ii) upon delivery by confirmed-receipt facsimile to the appropriate number set forth below (and, further, confirmation of receipt is made by telephone); (iii) one (1) business day after deposit with a commercial overnight carrier, with written verification of receipt; or (iv) five (5) business days after the mailing date, whether or not actually received, if sent by certified mail, return receipt requested, postage and charges prepaid, to the address of the party to whom the same is directed as set forth below (or such other address as such other party may supply by written notice duly given).

If to COMPANY:

Digital Musicworks International, Inc.

10519 E. Stockton Blvd.,

Suite 100

Elk Grove, CA 95624

Attn: Peter Koulouris

with a courtesy copy to (which copy shall not constitute notice):

If to APPLE:

APPLE Computer, Inc.

1 Infinite Loop, MS 82-EC

Cupertino, CA 95014

with a courtesy copy (which copy shall not constitute notice), to the following:

Director, ITMS Law

(f)

Governing Law. This Agreement shall be governed and interpreted in accordance with the internal laws of the State of California applicable to agreements entered into and wholly to be performed therein, without regard to principles of conflict of laws. Each party agrees that in the event it brings a proceeding against the other party relating to this Agreement, then such proceeding will take place in the jurisdiction and venue of such other party’s principal place of business, e.g., No. District of California being APPLE’s principal place of business as of the date of this Agreement, and both parties hereby waive any objection to personal jurisdiction or venue in that forum.

(g)

Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same document.

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(h)

Remedies. To the extent permitted by applicable law, the rights and remedies of the parties provided under this Agreement are cumulative and in addition to any other rights and remedies of the parties at law or equity.

(i)

Headings. The titles used in this Agreement are for convenience only and are not to be considered in construing or interpreting the Agreement.

(j)

No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their authorized successors and permitted assigns. Nothing herein, express or implied, is intended to or shall confer upon any person or entity, other than the parties hereto and their authorized successors and permitted assigns, any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

(k)

Force Majeure. For the purposes of this Agreement, “Force Majeure” shall mean any event which a party hereto could not foresee, such as fire, flood, acts of God or public enemy, Internet failures, earthquakes, governmental or court order, national emergency, strikes or labor disputes, the effect of which it could not reasonably prevent or predict and which renders impossible or impractical the performance of contractual obligations either totally or in part. The party invoking a Force Majeure shall notify the other party within three (3) business days of its occurrence by accurately describing all the circumstances of the situation involved and its effect upon the performance of its contractual obligations. The taking place of a Force Majeure shall have the effect of suspending the obligations of the party which has invoked the provisions of this Section to the extent such obligations are affected by the Force Majeure. Contractual dates shall be extended for a period equal to the duration of a Force Majeure. The cessation of a Force Majeure shall be communicated by notice within three (3) business days of its occurrence by the party that invoked it.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective officers thereunto duly authorized.

APPLE COMPUTER, INC.						COMPANY: DIGITAL MUSICWORKS INTERNATIONAL, INC.
By:		/s/ Eddy Cue				By:		/s/ Mitchell Koulouris
Name:		Eddy Cue				Name:		Mitchell Koulouris
Title:		VP, Apps Division				Title:		CEO
Date:		3/30/2004				Date:		3/8/2004

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EXHIBIT A

Content Usage Rules

End users obtaining eMasters from APPLE pursuant to the terms of this Agreement may:

1.	Burn single-track eMasters [*] to a CD as part of a playlist.

2.	Use eMasters in applications using QuickTime.

3.	Store eMasters on up to five (5) computers at the same time.

4.	Subject to Paragraph 3. above, transfer eMasters to, and/or render from, a Device so long as such Device includes the Security Solution.

5.	Use eMasters solely for end user’s personal use.

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*	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

EXHIBIT B

COMPANY Schedule of Wholesale Prices

United States and Canada

Single Tracks

Wholesale Price

US$[*] per eMaster sold by APPLE hereunder

Multi-Track Album

**

[*].

Wholesale Price
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Employee Stock Purchase Plan for Apple Computer Inc. employees. RealDealDocs.com can offer a glimpse into the thousands of sample legal documents offered for their members’ use, editing, printing and downloading.

Exhibit 10.A.6

APPLE COMPUTER, INC.

EMPLOYEE STOCK PURCHASE PLAN

(as amended and restated effective as of April 21, 2005)

The following constitute the provisions of the Employee Stock Purchase Plan (herein called the ‘Plan’) of Apple Computer, Inc. (herein called the “Company”).

1. Purpose. The purpose of the Plan is to provide employees of the Company and its subsidiaries with an opportunity to purchase Common Stock of the Company through payroll deductions. It is the intention of the Company to have the Plan qualify as an “Employee Stock Purchase Plan” under Section 423 of the Internal Revenue Code of 1986. The provisions of the Plan shall, accordingly, be construed so as to extend and limit participation in a manner consistent with the requirements of that section of the Code.

2. Definitions.

(a) “Board” shall mean the Board of Directors of the Company.

(b) “Common Stock” shall mean the Common Stock, no par value, of the Company.

(c) “Company” shall mean Apple Computer, Inc., a California corporation.

(d) “Compensation” shall mean all regular straight time earnings, payments for overtime, shift premium, incentive compensation, incentive payments, bonuses and commissions (except to the extent that the exclusion of any such items is specifically directed by the Board or its committee).

(e) “Designated Subsidiaries” shall mean the Subsidiaries which have been designated by the Board from time to time in its sole discretion as eligible to participate in the Plan.

(f) “Employee” shall mean:

(1) any person, including an officer, who is customarily employed for at least twenty (20) hours per week and more than five (5) months in a calendar year by the Company or one of its Designated Subsidiaries.

(2) Notwithstanding subsection (1), a different rule shall apply to an individual during any period (A) he or she receives compensation which is not initially treated by the Company as “wages” for payroll tax purposes, (i.e. payments to such individual are not initially subjected by the Company to income tax, FICA tax, or other withholdings applicable to wages), if (B) he or she is ultimately determined to have been a common law employee of the Company during the period, although initially reported as an independent contractor or treated as employed by a payroll agency for the period in question. In that case, to the extent Section 423 requires such individual to be treated as retroactively eligible to have participated in the Plan, such individual shall be treated as an “Employee” during an offering period only to the extent that he or she satisfies the criteria set forth in the next sentence as of the start of the offering period. The two criteria are that: (A) the individual must be employed by the Company at least two years and (B) the individual is not a “highly compensated employee” within the meaning of Section 414(q) of the Internal Revenue Code of 1986. For the purpose of computing years of service, all service prior to a break in service shall be ignored to the extent permitted by Section 423. For the purpose of determining an individual’s status as a “highly compensated employee”, the rules in the Company’s Savings and Investment Plan shall apply.

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(g) “Plan” shall mean this Employee Stock Purchase Plan.

(h) “Section 16 Person” shall mean any person participating in the Plan who has been designated by the Board of Directors as having authority to carry out policy-making functions such that the person is subject to the reporting and short-swing profit regulations of Section 16 of the Securities Exchange Act of 1934.

(i) “Subsidiary” shall mean a corporation, domestic or foreign, of which not less than 50% of the voting shares are held by the Company or a Subsidiary, whether or not such corporation now exists or is hereafter organized or acquired by the Company or a Subsidiary.

(j) “1934 Act Section 16″ shall mean Section 16 of the Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder.

3. Eligibility.

(a) Any Employee as defined in Section 2 who shall be employed by the Company or one of its Designated Subsidiaries on the date his or her participation in the Plan is effective shall be eligible to participate in the Plan, subject to the limitations imposed by Section 423(b) of the Internal Revenue Code of 1986, as amended.

(b) Any provisions of the Plan to the contrary notwithstanding, no Employee shall be granted an option under the Plan (i) if, immediately after the grant, such Employee would own shares and/or hold outstanding options to purchase stock possessing five percent (5%) or more of the total combined voting power or value of all classes of shares of the Company or of any Subsidiary of the Company, or (ii) which permits his or her rights to purchase shares under all employee stock purchase plans of the Company and its Subsidiaries to accrue at a rate which exceeds Twenty-Five Thousand Dollars ($25,000) of the fair market value of the shares (determined at the time such option is granted) for each calendar year in which such stock option is outstanding at any time.

4. Offering Dates. The Plan shall be implemented by one offering during each six-month period of the Plan, commencing on or about January 1, 1981 and continuing thereafter until terminated in accordance with Section 19 hereof. The Board of Directors of the Company shall have the power to change the duration of offering periods with respect to future offerings without shareholder approval if such change is announced at least fifteen (15) days prior to the scheduled beginning of the first offering period to be affected.

5. Participation.

(a) An eligible Employee may become a participant in the Plan by completing a subscription agreement authorizing payroll deductions on the form provided by the Company and filing it with the Company’s payroll office prior to the applicable offering date. Once filed, the subscription agreement shall remain effective for all subsequent offering periods until the participant withdraws from the Plan as provided in Section 10 hereof or files another subscription agreement.

(b) Payroll deductions for a participant shall commence on the first payroll following the commencement offering date and shall continue at the same rate until such time as the participant withdraws from the Plan as provided in Section 10 hereof or another subscription agreement is filed which changes the rate of payroll deductions.

6. Payroll Deductions.

(a) At the time a participant files his or her subscription agreement, he or she shall elect to have payroll deductions made on each payday during subsequent offering periods at a rate not exceeding ten percent (10%) of the Compensation which he or she received on such payday, and

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the aggregate of such payroll deductions during any offering period shall not exceed ten percent (10%) of his or her aggregate Compensation during said offering period.

(b) All payroll deductions made by a participant shall be credited to his or her account under the Plan. A participant may not make any additional payments into such account.

(c) A participant may discontinue his or her participation in the Plan as provided in Section 10, or may lower, but not increase, the rate of his or her payroll deductions (within the limitations set forth in subsection (a) above) during an offering period by completing and filing with the Company a new authorization for payroll deductions. The change in rate shall be effective within fifteen (15) days following the Company’s receipt of the new authorization.

(d) A participant may increase his or her rate of payroll deductions (within the limitations set forth in subsection (a) above) to be effective for the next offering period by completing and filing with the Company a new authorization for payroll deductions at least fifteen (15) days before the beginning of said offering period.

7. Grant of Option.

(a) At the beginning of each six-month offering period, each eligible Employee participating in the Plan shall be granted an option to purchase (at the per share option price) up to a number of shares of the Company’s Common Stock determined by dividing the Employee’s accumulated payroll deductions (not to exceed an amount equal to ten percent (10%) of his or her Compensation during the applicable offering period) by the lower of (i) eighty-five percent (85%) of the fair market value of a share of the Company’s Common Stock on the date of the commencement of said offering period, or (ii) eighty-five percent (85%) of the fair market value of a share of the Company’s Common Stock on the date of the expiration of the offering period, subject to the limitations set forth in Sections 3(b) and 12 hereof, and subject to the following limitation: The number of shares of the Company’s Common Stock subject to any option granted to an Employee pursuant to this Plan shall not exceed two hundred percent (200%) of the number of shares of the Company’s Common Stock determined by dividing an amount equal to ten percent (10%) of the Employee’s semi-annual Compensation as of the date of the commencement of the applicable offering period by eighty-five percent (85%) of the fair market value of a share of the Company’s Common Stock on the date of the commencement of said offering period. Fair market value of a share of the Company’s Common Stock shall be determined as provided in Section 7(b) herein.

(b) The option price per share of such shares shall be the lower of: (i) 85% of the fair market value of a share of the Common Stock of the Company at the commencement of the six-month offering period; or (ii) 85% of the fair market value of a share of the Common Stock of the Company at the time the option is exercised at the termination of the six-month offering period. The fair market value of the Company’s Common Stock on a given date shall be the mean of the reported bid and asked prices for that date, or if the Common Stock is listed on an exchange or quoted on the Nasdaq National Market, the closing sale price on such exchange or quotation system for that date.

8. Exercise of Option. Unless a participant withdraws from the Plan as provided in Section 10, his or her option for the purchase of shares will be exercised automatically at the end of the offering period, and the maximum number of full shares subject to option will be purchased for him or her at the applicable option price with the accumulated payroll deductions in his or her account. During his or her lifetime, a participant’s option to purchase shares hereunder is exercisable only by him or her.

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9. Delivery; Roll-Over of Fractional Share Interests.

As promptly as practicable after the termination of each offering, the Company shall arrange for the delivery to each participant, as appropriate, of a certificate representing the number of full shares purchased upon exercise of his or her option. No fractional shares shall be issued. Any cash remaining to the credit of a participant’s account under the Plan after a purchase by him or her of shares at the termination of each offering period which is insufficient to purchase a full share of Common Stock of the Company subject to option shall remain in such participant’s account and shall be applied to the next succeeding offering period unless the participant has withdrawn as to future offering periods, in which case such cash shall be returned to said participant. Any cash attributable to shares in excess of the number of shares subject to option to the participant (as determined in accordance with Section 7(a) hereof) shall be returned to the participant.

10. Withdrawal; Termination of Employment.

(a) A participant may withdraw all but not less than all the payroll deductions credited to his or her account under the Plan at any time prior to the end of the offering period by giving written notice to the Company. All of the participant’s payroll deductions credited to his or her account will be paid to him or her promptly after receipt of his or her notice of withdrawal and his or her option for the current period will be automatically terminated, and no further payroll deductions for the purchase of shares will be made during the offering period.

(b) Upon termination of the participant’s employment prior to the end of the offering period for any reason, including retirement or death, the payroll deductions credited to his or her account will be returned to him or her or, in the case of his or her death, to the person or persons entitled thereto under Section 14, and his or her option will be automatically terminated.

(c) In the event an Employee fails to remain in the continuous employ of the Company or one of its Designated Subsidiaries for at least twenty (20) hours per week during the offering period in which the employee is a participant, he or she will be deemed to have elected to withdraw from the Plan and the payroll deductions credited to his or her account will be returned to him or her and his or her option terminated.

(d) Except as provided in Section 3(a) with respect to Section 16 Persons, a participant’s withdrawal from an offering will not have any effect upon his or her eligibility to participate in a succeeding offering or in any similar plan which may hereafter be adopted by the Company. However, a new subscription agreement will have to be filed in such case.

11. No Interest. No interest shall accrue on the payroll deductions of a participant in the Plan.

12. Stock.

(a) The maximum number of shares of the Company’s Common Stock which shall be made available for sale under the Plan shall be seventy million (70,000,000) shares, subject to adjustment upon changes in capitalization of the Company as provided in Section 18. The shares to be sold to participants under the Plan may, at the election of the Company, be either treasury shares or shares authorized but unissued. The maximum number of shares of the Company’s Common Stock available for sale in any offering period will be established by the committee of the members of the Board administering the Plan from time to time, prior to an offering period for all options to be granted during such offering period, subject to adjustment upon changes in capitalization of the Company as provided in Section 18. If at the termination of any offering period the total number of shares which would otherwise be subject to options granted pursuant to Section 7(a) hereof exceeds the number of shares then available under the Plan (after deduction of all shares for which options have been exercised or are then outstanding), the Company shall promptly notify the participants, and shall, in its sole discretion (i) make a pro rata allocation of the shares remaining

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available for option grant in as uniform a manner as shall be practicable and as it shall determine to be equitable, (ii) terminate the offering period without issuance of any shares or (iii) obtain shareholder approval of an increase in the number of shares authorized under the Plan such that all options could be exercised in full. The Company may delay determining which of (i), (ii) or (iii) above it shall decide to effect, and may accordingly delay issuances of any shares under the Plan, for such time as is necessary to attempt to obtain shareholder approval of any increase in shares authorized under the Plan. The Company shall promptly notify participants of its determination to effect (i), (ii) or (iii) above upon making such decision. A participant may withdraw all but not less than all the payroll deductions credited to his or her account under the Plan at any time prior to such notification from the Company. In the event the Company determines to effect (i) or (ii) above, it shall promptly upon such determination return to each participant all payroll deductions not applied towards the purchase of shares.

(b) The participant will have no interest or voting right in shares covered by his or her option until such option has been exercised.

(c) Shares to be delivered to a participant under the Plan will be registered in the name of the participant or in the name of the participant and the spouse of the participant.

13. Administration. The Plan shall be administered by a committee of members of the Board of Directors, which committee shall be appointed by the Board. The administration, interpretation or application of the Plan by such committee shall be final, conclusive and binding upon all participants. Members of the committee shall not be permitted to participate in the Plan.

14. Designation of Beneficiary.

(a) A participant may indicate in his or her subscription agreement, or may file a written designation of beneficiary with respect to, a person who is to receive any shares and cash, if any, from the participant’s account under the Plan in the event of such participant’s death subsequent to the end of the offering period but prior to delivery to him or her of such shares and cash. In addition, a participant may file a written designation of a beneficiary who is to receive any cash from the participant’s account under the Plan in the event of such participant’s death prior to the end of the offering period.

(b) Such designation of beneficiary may be changed by the participant at any time by written notice. In the event of the death of a participant and in the absence of a beneficiary validly designated under the Plan who is living at the time of such participant’s death, the Company shall deliver such shares and/or cash to the executor or administrator of the estate of the participant, or if no such executor or administrator has been appointed (to the knowledge of the Company), the Company, in its discretion, may deliver such shares and/or cash to the spouse or to any one or more dependents or relatives of the participant, or if no spouse, dependent or relative is known to the Company, then to such other person as the Company may designate.

15. Transferability. Neither payroll deductions credited to a participant’s account nor any rights with regard to the exercise of an option or to receive shares under the Plan may be assigned, transferred, pledged or otherwise disposed of in any way (other than by will, the laws of descent and distribution or as provided in Section 14 hereof) by the participant. Any such attempt at assignment, transfer, pledge or other disposition shall be without effect, except that the Company may treat such act as an election to withdraw funds in accordance with Section 10.

16. Use of Funds. All payroll deductions received or held by the Company under the Plan may be used by the Company for any corporate purpose, and the Company shall not be obligated to segregate such payroll deductions.

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17. Reports. Individual accounts will be maintained for each participant in the Plan. Statements of account will be given to participating Employees semi-annually within a reasonable period of time following the stock purchase date, which statements will set forth the amounts of payroll deductions, the per share purchase price, the number of shares purchased, the amount of cash rolled over into the next offering period and the remaining cash balance, if any.

18. Adjustments Upon Changes in Capitalization. Subject to any required action by the shareholders of the Company, the number of shares of Common Stock covered by each option under the Plan which has not yet been exercised and the number of shares of Common Stock which have been authorized for issuance under the Plan but have not yet been placed under option (collectively, the “Reserves”), as well as the price per share of Common Stock covered by each option under the Plan which has not yet been exercised, shall be proportionately adjusted for any increase or decrease in the number of issued shares of Common Stock resulting from a stock split or the payment of a stock dividend (but only on the Common Stock) or any other increase or decrease in the number of shares of Common Stock effected without receipt of consideration by the Company; provided, however, that conversion of any convertible securities of the Company shall not be deemed to have been “effected without receipt of consideration”. Such adjustment shall be made by the Board, whose determination in that respect shall be final, binding and conclusive. Except as expressly provided herein, no issue by the Company of shares of stock of any class, or securities convertible into or exercisable for shares of stock of any class, shall affect, and no adjustment by reason thereof shall be made with respect to, the number or price of shares of Common Stock subject to an Option.

The Board may, if it so determines in the exercise of its sole discretion, also make provision for adjusting the Reserves, as well as the price per share of Common Stock covered by each outstanding option under the Plan, in the event that the Company effects one or more reorganizations, recapitalizations, rights offerings or other increases or reductions of shares of its outstanding Common Stock, and in the event of the Company being consolidated with or merged into any other corporation.

19. Amendment and Termination of the Plan.

(a) Amendment and Termination. The Board may at any time amend, alter, suspend or discontinue the Plan, but no amendment, alteration, suspension or discontinuation shall be made which would impair the rights of any participant under any option theretofore granted without his or her consent.

(b) Shareholder Approval. The Company shall obtain shareholder approval of any Plan amendment to the extent necessary and desirable to comply with Rule 16b-3 promulgated under the Securities Exchange Act of 1934, as amended, or with Section 423 of the Internal Revenue Code of 1986, as amended (or any successor statute or rule or other applicable law, rule or regulation), such shareholder approval to be obtained in such a manner and to such a degree as is required by the applicable law, rule or regulation.

(c) Effect of Amendment or Termination. Any such amendment or termination of the Plan shall not affect options already granted hereunder and such options shall remain in full force and effect as if this Plan had not been amended or terminated.

20. Notices. All notices or other communications by a participant to the Company under or in connection with the Plan shall be deemed to have been duly given when received in the form specified by the Company at the location, or by the person, designated by the Company for the receipt thereof. All notices or other communications to a participant by the Company shall be deemed to have been duly given when sent by the Company by regular mail to the address of the participant on the human resources records of the Company or when posted on AppleLink or any substitute general electronic messaging and bulletin board system utilized by the Company.

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21. Conditions Upon Issuance of Shares. Shares shall not be issued with respect to an option unless the exercise of such option and the issuance and delivery of such shares pursuant thereto shall comply with all applicable provisions of law, domestic or foreign, including, without limitation, the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, the rules and regulations promulgated thereunder, and the requirements of any stock exchange or automated quotation system upon which the shares may then be listed or quoted, and shall be further subject to the approval of counsel for the Company with respect to such compliance.

As a condition to the exercise of an option, the Company may require the person exercising such option to represent and warrant at the time of any such exercise that the shares are being purchased only for investment and without any present intention to sell or distribute such shares if, in the opinion of counsel for the Company, such a representation is required by any of the aforementioned applicable provisions of Law.

22. Non-U.S. Employees. With respect to the Company or any of its Designated Subsidiaries which employs Participants who reside outside of the United States, and notwithstanding anything herein to the contrary, the Board may in its sole discretion amend or vary the terms of the Plan in order to conform such terms with the requirements of local law to meet the objectives and purpose of the Plan, and the Board may, where appropriate, establish one or more sub-plans to reflect such amended or varied provisions.

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