EXHIBIT
10.46




**DIGITAL
DOWNLOAD SALES AGREEMENT**








This
Agreement is made and entered into as of September 17, 2003 (the “Effective
Date”) by and between Apple Computer, Inc. ("Apple"), located at 1 Infinite Loop
Cupertino, CA 95014, and Audible.com ("Audible"), located at 65 Willowbrook
Blvd, Wayne, New Jersey 07470. This Agreement sets forth the terms and
conditions upon which Apple may perform digital music fulfillment
services.





WHEREAS,
Apple desires to sell permanent downloads of Audible’s recordings;





WHEREAS,
Audible is willing to allow the sale of permanent downloads of certain audible
recordings in exchange for Apple’s obligations herein;





NOW,
THEREFORE, Apple and Audible (“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 Audible Content, applicable Cover
      Art (if any), parental advisory notices (if any), copyright notices (if
      any) and associated meta data, e.g., author name, publisher name etc. (if
      any).





b)
    “Content
      Usage Rules” means the usage rules applicable to recordings in the form of
      eContent available on the Online Store that specify the terms under which
      eContent may be used, as set forth in Exhibit A attached hereto, which may
      be modified by Apple from time to time (upon advance notice to Audible in
      the event of a material change to such usage rules). If a modification
      expands the scope of use of eContent, then Audible shall have the right in
      its sole discretion to cause Apple to remove any specific eContent from
      the Online Store and/or terminate this Agreement on written notice to
      Apple without cost or liability.





c)
    “Security
      Solution” means Apple’s proprietary content protection system, as set
      forth in Exhibit B attached hereto, which may be modified by Apple from
      time to time (upon advance notice to Audible in the event of a material
      change to such content protection system). If a modification in Apple’s
      content protection system renders eContent less protected than before such
      modification, Audible shall have the right in its sole discretion to cause
      Apple to remove any specific eContent from the Online Store and/or
      terminate this Agreement on written notice to Apple without cost or
      liability.





d)
    “eContent”
      means Audible 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 Apple digital player device or Apple or third party cellular
      phone having the Security Solution that can receive content files from
      another device or network connection, by any means, for playback of such
      content files.





f)
    “Fulfillment
      Activities” means sales activities relating to the sale and delivery of
      eContent pursuant to the terms and conditions of this
      Agreement.







***Confidential
information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.




1




g)
    “Term”
      means the period beginning on the Effective Date of this Agreement and
      ending four years later.




h)
    “Territory”
      means at a minimum the United States, and on a title-by-title basis may
      mean Worldwide. Audible will advise Apple of the applicable Territory for
      each Content File in the list set forth in Exhibit C as updated during the
      Term.





i)
    “Online
      Store” means the electronic store commercially known as “the iTunes Music
      Store” as of the Effective Date, or such store under any other name, and
      its storefronts owned, operated and controlled by
Apple.





j)
    “Audible
      Content” means recordings owned or controlled by, or licensed to, Audible,
      in all available languages, including but not limited to audio books,
      audio editions of newspapers and magazines, public radio programs,
      speeches and lectures, and Audible originals
***.





k)
    “Cover
      Art” means book cover and any other artwork relating to Audible Content
      and that Audible has rights to authorize Apple to use as authorized under
      Section 2 below.





l)
    “Contract
      Year” means the initial twelve (12) month period following the Effective
      Date and each successive twelve (12) month period following the expiration
      of the prior Contract Year during the Term.








2. Authorization .





a)
    The
      previous Digital Download Sales Agreement between the Parties and having
      an Effective Date of May 14, 2003 is hereby deleted in its entirety and
      replaced with this Agreement. All materials provided to Apple pursuant to
      such previous Agreement, including, without limitation, the Audible
      Content and Cover Art, shall be subject to the terms and conditions of
      this Agreement.





b)
    Subject
      to the terms of this Agreement, Audible hereby appoints Apple as a
      reseller of eContent. Accordingly, Audible hereby grants a limited,
      nontransferable, non-exclusive right to Apple during the Term, for use
      solely in conjunction with the Online Store,
to:





i.
    convert
      Audible Content into eContent,





ii.
    create
      clips of the Audible Content not to exceed five (5) minutes in length
      (“Clips”), and to make such Clips available by streaming or as a digital
      download which is not permanently saved to disk, for the purpose of
      promoting the sale of eContent and the Online
Store,





iii.
    sell,
      and electronically fulfill and deliver eContent and associated meta data
      to purchasers solely via the Online Store in the applicable
      Territory,





iv.
    subject
      to section 11 below, use Cover Art on and in connection with promotional
      materials for applicable eContent and the Online Store,
  and







***Confidential
information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.




2




v.
    electronically
      fulfill and deliver Cover Art for use in conjunction with the applicable
      purchased eContent.





c)
    Apple
      shall not be authorized to exploit Audible Content, eContent, Clips,
      Content Files, or Cover Art in any manner or form not expressly authorized
      herein. Nothing in this Agreement shall be construed to prevent Audible
      from marketing or selling Audible Content, eContent, Clips, Content Files,
      or Cover Art by any means. Audible hereby reserves all rights in and to
      Audible Content, eContent, Clips, Content Files, or Cover Art not
      otherwise expressly granted to Apple pursuant to this Agreement. Apple has
      no rights in the Audible Content, eContent, Clips, Content Files, or Cover
      Art other than as expressly provided for in this
  Agreement.





d)
    Apple
      may edit, change or alter any of the Audible Content or Cover Art, but
      Apple shall not use any such edited, changed or altered Audible Content or
      Cover Art in commerce without Audible’s prior written
    consent.





e)
    Apple
      shall not pledge, mortgage or otherwise encumber the Audible Content ,
      eContent, Clips, Content Files, or Cover
Art.





f)
    Apple
      shall not syndicate the sale of Audible Content, eContent, Clips, Content
      Files, or Cover Art with any third party. The Audible Content, eContent,
      Clips, Content Files, or Cover Art shall not be co-branded with Apple or
      any third party. Apple shall make the Audible Content, eContent, Clips,
      Content Files, or Cover Art available only via the Online
      Store.





g)
    Apple
      and Audible shall each assign senior executives in both content and
      technology that shall serve as each Party’s representative in managing the
      operational aspects of this Agreement.








3. Audible
Obligations .





a)
    ***





b)
    Audible
      will use its commercially reasonable efforts to deliver Content Files to
      Apple via a secure FTP no later than when Audible makes applicable Audible
      Content commercially available, which Content Files shall include at least
      (i) Audible Content encoded in AAC digital format using a high quality
      encoder with a bit rate of 32 kilobits per second (low complexity), such
      as the Dolby Professional AAC Encoder, (ii) Cover Art (if any), and (iii)
      applicable metadata (if any) in either XML or tab delineated format, as
      directed by Apple.





c)
    Upon
      Apple’s request and cost (which shall not be more than Audible’s actual
      costs), and subject to availability by Audible, Audible shall promptly
      deliver Content Files, in a physical form reasonably requested by Apple
      (e.g. a CD), to the address listed below, or other address provided by
      Apple.





Apple
Computer, Inc.


C/o
iTunes Music Store


1
Infinite Loop


Cupertino,
CA 95014







***Confidential
information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.




3




(d)
    Within
      two weeks of the Effective Date, Apple shall electronically distribute a
      dedicated email to Apple customers who purchased the version of Apple’s
      iPod for Windows that shipped prior to April 28, 2003, and who have agreed
      to receive emails from Apple regarding third party products. Such
      dedicated email shall promote the fact that such iPods are now
      AudibleReady® and may offer such customers an AudibleListener® membership.
      Apple shall consult with Audible in the development of such promotional
      piece.








4. Exclusivity .





a)
    Subject
      to the limitations and conditions in Sections 4(a)(i), 4(a)(ii), and
      4(a)(iii) set forth below, Audible shall not authorize or otherwise permit
      any commercially branded internet based digital download/streaming
      distribution service (by way of example, the foregoing shall not be deemed
      to include Sirius or XM satellite radio) primarily dedicated to music to
      integrate Audible Content into such service for commercial sale other than
      Apple.





i.
    ***
 
 ii.
    ***
 
 iii.
    ***


b)
    ***








5. Royalties
and Payments .





Audible
shall be responsible for and timely pay any and all royalties or payments to
authors, publishers and any other participants that may be required from sales
of eContent.








6. Wholesale
Price .





Audible
Content shall be provided to Apple at the Wholesale Price as set forth in
Exhibit C attached hereto. The wholesale price set forth on Exhibit C for any
specific eContent may increase or decrease during the Term ***. Audible will
provide Apple with written notice of any change in any eContent wholesale price,
which changed price shall become effective twenty-four (24) hours after receipt
by Apple of such written notice.








7. Apple
Obligations .





(a) Apple
shall condition sale and delivery of eContent upon an enduser’s acknowledgement
of terms of use for such eContent (“Terms of Use”), which Terms of Use shall be
no less restrictive than the Content Usage Rules.





(b)
Subject to Section 5, Apple shall be responsible for, and pay all costs
associated with, Apple’s Fulfillment Activities.







***Confidential
information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.




4





(c)
***





(d) Apple
shall include the language "Presented by Audible.com" in the Online Store on
so-called "individual book pages" in a manner no less prominent than depicted in
Exhibit D attached hereto.





(e)
Audible may include an Audible.com in-line audio identification in each Content
File***. Apple shall not remove or alter any such audio identification in any
manner. An example of such in-line audio identification is set forth on Exhibit
E, and any audio identification shall follow its format with reasonable
particularity.





(f) Apple
shall include an Audible.com logo designation, supplied by Audible, affixed to
the master server(s), and located on Apple’s facilities, which serve the Audible
Content and Cover Art.





(g)
Subject to the foregoing branding requirements, Apple shall have the full
freedom and flexibility to brand, market, promote and advertise the Online Store
and eContent available for purchase on the Online Store at its
discretion.





(h)
During the Term, the Apple portable digital hardware player device as of the
Effective Date known as the “iPod,” and subsequent versions thereof, whether or
not such device is branded under the iPod name, and the digital jukebox software
application as of the Effective Date known as “iTunes”, and subsequent versions
thereof, whether or not such application is branded under the iTunes name
(together, “Apple Products”), shall stay compatible with the *** Audible Service
*** as of the Effective Date, except as may be mutually agreed to between the
Parties. Other than as specifically set forth herein, nothing herein shall be
construed to modify, limit or restrict the terms in the 2002
Agreement.





(i)
During the Term, Apple Products shall be no less compatible with Audible Content
commercially distributed to consumers from the Online Store than their
compatibility with Audible Content commercially distributed to consumers through
the Online Store as of the Effective Date.








8. Parental
Advisory .





If
Audible provides a parental advisory warning in the Content File, Apple shall
conspicuously display such parental advisory. Audible shall be responsible for
determining parental advisory warning status.








9. Payment
and Reports .





(a) Apple
shall remit payment to Audible for the sale of eContent in accordance with the
following: (i) the “sale” of each eContent shall occur when such eContent is
successfully purchased in the Online Store ***; (ii) payments shall accrue at
the time that such eContent is sold; and (iii) for each eContent unit sold,
Apple shall pay to Audible an amount equal to the Wholesale Price for the
applicable eContent (“eContent Proceeds”).







***Confidential
information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.




5




(b)
***








10. Record
Keeping and Audit .





Apple
agrees to maintain and keep complete and accurate books and records concerning
all transactions relating to Apple’s sale of eContent during the Term and for a
period of two (2) years thereafter. Upon reasonable advance written notice, but
not less than fourteen (14) days, during the Term and for up to eighteen (18)
months thereafter (the “Audit Period”), but no more than once during any
twelve-month period, Apple will permit Audible to appoint an independent
certified public accountant not then engaged in any audit of Apple or Audible to
audit applicable books and records of Apple at its principal place of business,
and at Audible’s sole expense, as necessary for the purpose of verifying the
amounts due from Apple to Audible hereunder, during regular business hours. The
certified public accountant shall not be engaged on a contingency fee basis and
must sign a confidentiality agreement that protects Apple's confidential
information at least to the extent as this Agreement and no less than Audible
protects its own similar information. Audible may audit information contained in
a particular statement only once, and no audit shall be allowed or conducted for
any period lasting less than six (6) months. Audible shall be deemed to have
consented to all accountings rendered by Apple hereunder, and said accountings
shall, absent fraud, be binding upon Audible and shall not be subject to any
objection by Audible for any reason unless specific objections are provided to
Apple in writing within eighteen (18) months after the date rendered. Audible
agrees that Apple’s books and records contain “Confidential Information” (as
defined below).





11. Names
and Likenesses; Promotional Use and Opportunities .





Apple may
use eContent author name, and Cover Art, solely in connection with the promotion
and sale of such applicable eContent, or the Online Store. Notwithstanding the
foregoing, Audible will advise Apple if any eContent author name and/or Cover
Art is subject to specific promotional restrictions, or if any eContent author
or Cover Art rights-holder objects to Apple’s use of such Cover Art in
connection with the Online Store, and in such case, Apple will not use and/or
promptly remove any such eContent author name and/or Cover Art from the Online
Store. In no event shall any part of this Agreement be deemed to grant Apple the
right to use any eContent author’s name, likeness, voice and/or Cover Art in the
manner of a direct or indirect endorsement of Apple, or an Apple product or
service








12. Press
Release .





Neither
party shall make or issue any public statement or press release regarding this
Agreement or its subject matter without the prior written approval of the other
party, however, despite the foregoing, the parties agree to issue a mutually
agreeable joint press release in relation to this Agreement on or around Apple’s
Online Store for Windows launch event.








13. Data
Protection .





(a) Apple
shall use the Security Solution. *** At any time after Audible becomes aware of
a Security Breach, Audible shall have the right to require Apple to immediately
remove any or all eContent from the Online Store. If the Security Breach is not
cured during the Cure Period, then Apple shall suspend selling eContent until
such time as the Security Breach is actually cured; ***. If the Security Breach
is not cured within fifteen (15) days after the Cure Period, Audible may
terminate this Agreement on written notice to Apple at any time until such
Security Breach is Cured.




***Confidential
information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.




6




(b)
Despite anything to the contrary, in the event of a breach of the security to
the servers or network components that store Audible Content or Cover Art such
that unauthorized access to Audible Content or Cover Art becomes available, then
(i) Apple will prevent access to Audible Content via the Online Store and
disable offers for eContent embodying Audible Content and Cover Art within
twentyfour (24) hours of Apple becoming aware of such security breach, and (ii)
the rights granted to Apple relating to the sale of eContent and Cover Art under
this Agreement will be suspended; which shall be Audible’s sole remedy against
Apple, provided Apple complies with Subsections 13(b)(i) and 13(b)(ii). If the
breach of security relating to the servers or network components is not remedied
within fifteen (15) days after such breach, Audible may terminate this Agreement
on written notice to Apple at any time unless such security breach has been
actually cured prior to termination by Audible.





(c)
Audible 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, and shall be secured with restricted access.








14. Copyright
Notices; Ownership .





(a)
Audible may provide a copyright notice (which shall be reasonable in length) for
applicable Audible Content and associated Cover Art in the Content File, in
which case Apple shall include such copyright in a manner that can be readily
viewed by an Online Store customer prior to purchase of such eContent. Apple
shall not, under any circumstances, defeat, impair or alter in any way any
watermark in Audible Content, including any related Cover Art or materials
delivered by Audible hereunder.





(b) As
between the Parties, all right, title and interest in and to the Audible
Content, eContent, Clips, Content Files, or Cover Art, except as to any
pre-existing rights of Apple, if any, shall remain the property of
Audible.








15. Termination
and Effect of Termination .





(a) In
addition to Audible’s rights in sections 1b, 1c, 13a and 13b, 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, or if not able to be cured then resolved to the
other party’s reasonable satisfaction, no later than thirty (30) days from the
date of notice of such breach.





(b) At
any time after the first Contract Year, Apple, at its discretion, may
unilaterally terminate both Parties’ “exclusivity” obligations under Sections
4(a) and 4(b) upon one hundred and twenty (120) days prior written
notice.




***Confidential
information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.




7




(c)
Audible may terminate this Agreement if Apple has not commenced selling Audible
Content on the Online Store by January 1, 2004 upon thirty (30) days prior
written notice; and Audible may terminate its “exclusivity” obligation under
Section 4(a) if Apple has not launched the Online Store for Windows by January
1, 2004 upon thirty (30) days prior written notice.





(d)
Sections 1, 4, 7b, 9, 10, 12, 13, 14, 15, 16, 17, 18 and 19 shall remain in full
force and effect following expiration or earlier termination of this Agreement.
Expiration or earlier termination of this Agreement shall not relieve Audible or
Apple of its respective obligations to make any payments for the periods prior
to such expiration or termination (and the associated accounting) in accordance
with this Agreement.





(e) Apple
reserves the right to continue to provide first-rate customer support to
customers of the Online Store who purchased eContent during the Term, as it
determines in its discretion, after termination or expiration of this Agreement.
Under no circumstances shall Apple intentionally disparage the Audible service,
name or reputation in any manner at any time. For the avoidance of doubt, Apple
shall not engage in the sale, promotion or advertising of Audible Content,
eContent, Clips, Content Files, or Cover Art after the effective date of
expiration or earlier termination of this Agreement under any circumstance
whatsoever.





(f)
Except to the extent reasonably necessary for the purpose under Section 15(e)
above (subject to written approval by Audible, which approval shall not be
unreasonably withheld or delayed), upon the expiration or earlier termination of
this Agreement, all Audible Content, eContent, Clips, Content Files, and Cover
Art shall be promptly deleted or destroyed and all Confidential Information
shall be returned to the disclosing party, or destroyed.





(g) Upon
the expiration or earlier termination of the Term, Apple shall immediately stop
selling eContent.








16. Indemnification
and Limitation of Liability .





(a) Apple
will indemnify, defend and hold harmless Audible 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) arising out of a claim by a third party by reason of: (i) any use by Apple
of the Audible Content, eContent or Cover Art in breach of this Agreement; or
(ii) a breach of any warranty, representation, covenant or obligation of Apple
under this Agreement. Apple will reimburse Audible and its affiliates on demand
for any payments actually made in resolution of any liability or claim that is
subject to indemnification under this Section 16, provided that Audible obtains
Apple’s written consent prior to making such payments, such consent not to be
unreasonably withheld. Audible shall notify Apple of any such claim, and Apple
may assume control of the defense of such claim. Audible shall have the right,
at its expense, to participate in the defense thereof under Apple’s
direction.





(b)
Audible will indemnify, defend and hold harmless 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) arising out of a claim by a third party because of: (i) a breach of any
warranty, representation, covenant or obligation of Audible under this
Agreement; and (ii) any claim that Audible Content, Cover Art or any meta data
authorized by Audible hereunder infringes the intellectual property rights of
another party. Audible 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 16, provided that Apple obtains Audible’s
written consent prior to making such payments, such consent not to be
unreasonably withheld. Apple shall notify Audible of any such claim, and Audible
may assume control of the defense of such claim, and Apple shall have the right,
at its expense, to participate in the defense thereof under Audible’s
direction.




***Confidential
information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.




8




(c)
EXCEPT PURSUANT TO AN EXPRESS INDEMNITY OBLIGATION, IN NO EVENT SHALL EITHER
PARTY BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, EVEN
IF ADVISED OF THEIR POSSIBILITY.








17. 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 Section 17 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 having terms no less restrictive than the non-disclosure terms of this
Section 17, unless required by law or governmental order. Confidential
Information shall be deemed to include (i) information marked confidential, if
conveyed in writing, (ii) information identified orally as confidential, if
conveyed orally, and (iii) information that a reasonable person under similar
circumstances would know or ought to suspect was confidential. Confidential
Information shall not be deemed to include any information which (i) is publicly
known at the time of the disclosure, (ii) becomes publicly known other than by
breach of the terms of this Section 17, (iii) becomes known to the disclosing
party, without restriction, from a source free of any obligation of
confidentiality and without breach of this Section 17, or (iv) is independently
developed by the disclosing party.








18. 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 shall not infringe or cause to 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, and that no
agreement previously entered into by such party will interfere with such party’s
performance of its obligations under this Agreement.




***Confidential
information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.




9




(d) Each
party represents and warrants that it shall perform in compliance with any
applicable laws, rules and regulations.








19. 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) *Subcontractors* . 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, and who are able to perform
on behalf of Apple in a professional and workmanlike manner.





(c) *Entire
Agreement, Modification, Waiver* . This
Agreement, including any annexes, schedules and exhibits hereto, contains the
entire understanding of the parties and relating to the subject matter hereof,
and supersedes all previous agreements or arrangements between the parties and
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. Should any provision of this Agreement be determined
by a court of competent jurisdiction as unenforceable, such decision shall not
affect any other provision hereof, and the enforceable provision shall be
replaced by an enforceable provision that most closely meets the commercial
intent of the parties.





(d) *Assignment* . Audible
shall have the right to assign its rights and obligations under this Agreement
to any entity owning or acquiring all or substantially all of its stock or
assets unless such assignment would materially diminish or otherwise materially
adversely affect Apple’s rights under the Agreement.





(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 by
confirmed-receipt facsimile to the appropriate number set forth below; (ii) upon
confirmed email or fax receipt (and telephone confirmation); (iii) one business
day after deposit with a commercial overnight carrier, with written verification
of receipt; or (iv) five 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).




***Confidential
information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.




10




If to
Audible:





Audible
Inc.


65
Willowbrook Blvd.


Wayne, NJ
07470


Attn.:
Brian Fielding, EVP


Phone:
973 837-2725





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





To: Andy
Kaplan, CFO


973
837-2734








If to
Apple:





Apple
Computer, Inc.


1
Infinite Loop


Cupertino,
CA 95014


Attn:
Eddy Cue, VP


Fax:
(408) 974-2140





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





To: Apple
Legal, Director/KS Fax: (408) 253-0186





(f) *Governing
Law* . This
Agreement shall be governed and interpreted in accordance with the laws of the
State of California 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 New Jersey being Audible’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 those forums, respectively.





(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.





(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.









***Confidential
information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.




11


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




APPLE
      COMPUTER, INC.
    
    AUDIBLE,
      INC.By:/s/
      Eddy Cue
    
    By:/s/ Donald KatzName:
      Eddy Cue
    
    Name:
      Donald KatzTitle:
      VP Applications/Internet Services
    
    Title:
      CEODate:
      9/17/03
    
    Date:
      September 17, 2003
  ***Confidential
information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.


12




EXHIBIT
A





Content
Usage Rules





Endusers
obtaining eContent from Apple pursuant to the terms of this
Agreement


may:





1.
***





2. Use
eContent in applications using QuickTime.





3. Store
and use eContent on up to *** at any time, which computers may


run
Apple’s Mac OS or Microsoft’s Windows OS (and subsequent versions).


4.
Transfer any eContent to, and render from, any Device so long as such
Device


includes
the Security Solution.





5. Use of
eContent is solely for enduser’s personal non-commercial use.





***Confidential
information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment
request.


13





EXHIBIT
B





***










***Confidential
information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment
request.


14





EXHIBIT
C





***











***Confidential
information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment
request.


15


EXHIBIT
D





Audible.com
promotion at Apple Online store - Example





*The **bold** type
aspect of ”Presented by Audible.com” in this example shall be considered a part
of this Agreement.













***Confidential
information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment
request.


16





EXHIBIT
E





Example
of Audible.com in-line audio identification





“This
audio program is presented by Audible.com. Audible.com: Audio that speaks to you
wherever you are.”









***Confidential
information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.
 
 17