Microsoft Confidential. Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934. PLEASE COMPLETE THE BELOW INFORMATION, SIGN THE FORM, AND FAX IT TO MICROSOFT AT NOTES:
Microsoft Confidential. Attention: Legal & Corporate Affairs Department Legal Group, E&D (Xbox) Fax: +0 (000) 000-0000 or to such other address as the party to receive the notice or request so designates by written notice to the other.
Microsoft Confidential. Microsoft grants EA a non-exclusive, non-transferable, license to distribute FPUs containing Redistributable and Sample Code (as defined in the XDK License) and Security Technology (as defined in Section 8.7) within the approved Sales Territories in FPU form to third parties for distribution to end users and/or directly to end users. The license to distribute the FPUs is personal to EA and except for transfers of FPUs through normal channels of distribution (e.g. wholesalers, retailers), absent the written approval of Microsoft, EA may not sublicense or assign its rights under this license to other parties. For the avoidance of doubt, without the written approval of Microsoft, EA may not sublicense, transfer or assign its right to distribute Software Titles or FPUs to another entity that will brand, co-brand or otherwise assume control over such products as a “publisher” as that concept is typically understood in the console game industry. EA’s license rights do not include any license, right, power or authority to subject Microsoft’s software or derivative works thereof or intellectual property associated therewith in whole or in part to any of the terms of an Excluded License. “
Microsoft Confidential. Disclosure] Agreement.” In this way, all Confidential Information provided hereunder or by way of the Durango XDK License in whatever form (e.g. information, materials, tools and/or software exchanged by the parties hereunder or under a Durango XDK License), including the terms and conditions hereof and of the Durango XDK License, unless otherwise specifically stated, will be protected from disclosure for as long as it remains Confidential. [***]. EA and Microsoft each acknowledge that any breach of this Section 20.1 will result in irreparable and ongoing harm to the other party.
Microsoft Confidential. 27.4.3 This Agreement will inure to the benefit of and be binding upon the parties, their successors, administrators, heirs, and permitted assigns.
Microsoft Confidential and United States dollars FPUs manufactured for sale in Asian Sales Territories. All payments will be made by wire transfer only, in accordance with the payment instructions set forth in the Durango Publisher Guide. Any payments not paid when due or according to this Section 2 will bear interest. The interest rate will be [***] percent ([***]%) per month, or the highest rate permitted by applicable usury law, whichever is less. The rate will be calculated on a daily basis and compounded on the first day of each calendar month, from the date due until the date received by Microsoft. This Section 2 does not authorize late payments. Interest paid will not be in lieu of or prejudice any other right or remedy that Microsoft may have due to EA’s failure to make any payment according to this Section 2. EA has [***] days after invoice billing date to dispute the information presented in the invoice.
3. Billing Address
4. [***]
5. Digital Content
5.1 EA may, from time to time, submit Digital Content to Microsoft for Microsoft to distribute via Xbox LIVE. EA will set the WSP for the Digital Content, which can be zero. Microsoft may choose to offer such Digital Content to Xbox LIVE End Users for a fee, this Digital Content may be offered for sale in currency or through redemption of [***] currency stored value systems, as determined by Microsoft. [***]. For each Digital Content item, for which Microsoft receives payment [***], Microsoft will pay EA a royalty calculated as follows (the “Royalty Fee”). [***].
5.2 [***]. For Digital Content that is offered by Microsoft to Xbox LIVE End Users for free and for which there is a WSP, the Royalty Fee will equal [***].
Microsoft Confidential. 5.3 For all [***] Digital Content sold via Xbox LIVE Marketplace or any other Microsoft controlled online marketplace or storefront [***], the Royalty Fee will equal [***]. For Digital Content that is offered by Microsoft to Xbox LIVE End Users for free and for which there is a WSP, the Royalty Fee will be [***].
5.4 Within [***] days after the end of each calendar quarter with respect to which Microsoft owes EA any Royalty Fees, Microsoft shall furnish EA with a statement, together with payment for any amount shown thereby to be due to EA. The statement will contain information sufficient to discern how the Royalty Fees were computed for each Digital Content item.
Microsoft Confidential. EXHIBIT 3 AUTHORIZED AFFILIATES
I. Name: Address: Billing Address (if different): Telephone: Fax: II. Name: Address: Billing Address (if different): Telephone: Fax: EA will provide Microsoft at least thirty (30) calendar days prior written notice of the name and address of each additional EA affiliate that EA wishes to add to this Exhibit 3. Any additional EA affiliate may not perform any rights or obligations under the Agreement until it has signed and submitted a EA Affiliate Agreement (attached below) to Microsoft
Microsoft Confidential. EA AFFILIATE AGREEMENT For good and valuable consideration, ______________________, a corporation of ______________________ ("EA Affiliate") hereby covenants and agrees with Microsoft Licensing, GP, a Nevada general partnership that EA Affiliate will comply with all obligations of Electronic Arts Inc., a Delaware corporation ("EA") pursuant to that certain Durango Publisher License Agreement between Microsoft and EA dated ______________, 2012 (the "Agreement") and to be bound by the terms and conditions of this EA Affiliate Agreement. Capitalized terms used herein and not otherwise defined will have the same meaning as in the Agreement. EA Affiliate acknowledges that its agreement herein is a condition for EA Affiliate to exercise the rights and perform the obligations established by the terms of the Agreement. EA Affiliate and EA will be jointly and severally liable to Microsoft for all obligations related to EA Affiliate’s exercise of the rights, performance of obligations, or receipt of Confidential Information under the Agreement, provided, however, that the rights set forth in Sections 10 - 14 of the Agreement shall be personal to EA per the terms of the Agreement and not to EA Affiliate. This EA Affiliate Agreement may be terminated in the manner set forth in the Agreement. Termination of this EA Affiliate Agreement does not terminate the Agreement.
Microsoft Confidential. 4. Xbox LIVE
