FIRST AMENDMENT TO STRATEGIC MARKETING AGREEMENTThis First Amendment to Strategic Marketing Agreement (this Amendment) is entered into as of June 1, 2002, (the Effective Date) by and between Best Buy Co., Inc., Best Buy Stores, L.P. and BestBuy.com LLC (fka BestBuy.com, Inc.) with offices at 7075 Flying Cloud Drive, Eden Prairie, Minnesota 55344, (Best Buy) and Netflix, Inc., a Delaware corporation (successor by name change to NetFlix.com, Inc.), with offices at 970 University Avenue, Los Gatos, California 95032 (Netflix).
A. Best Buy and Netflix entered into that certain Strategic Marketing Agreement entered into as of August 15, 2001 (the Agreement).
B. Best Buy and Netflix desire to amend the Agreement as set forth below
NOW THEREFORE, in consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. The parties acknowledge that Netflix has changed its name from NetFlix.com, Inc. to Netflix, Inc. As such, the defined term Netflix, shall refer to Netflix, Inc.
2. Section 1.12 of the Agreement is hereby deleted in its entirety and replaced with the following:
Expiration Date means the later of (i) twenty four (24) months from the Start Date or the next business day if such date falls on a weekend or holiday; or (ii) if applicable, the expiration of the Renewal Period.
3. Section 1.26 of the Agreement is hereby deleted in its entirety and replaced with the following:
Start Date shall mean August 15, 2001.
4. Section 1.29 of the Agreement is hereby deleted in its entirety and replaced with the following:
Subscriber means a customer, with a mailing address within the United States, its territories, or possessions, (who had not, before the execution of this Agreement, subscribed to Netflixs online DVD rental service) who has agreed to the terms and conditions of the Netflix service, subscribes for DVD rental service and [*]via (a) the Netflix Site through a Promotion Code provided for by this Agreement or (b) the Co-branded Site. As used[*] Confidential Treatment Requested1
in this definition, [*]shall mean that the [*]has not been [*]to or [*]or otherwise[*].
5. Best Buy acknowledges that it has received the Shares issued under Section 3.1 of the Agreement and[*]. Netflix hereby represents to Best Buy that it has not issued any additional shares of stock that would trigger any rights under Section 3.1.1 of the Agreement.6. Section 3.2 of the Agreement is hereby deleted in its entirety and replaced with the following: