Exhibit 4(2)
ALL SECTIONS MARKED WITH ASTERISKS REFLECT PORTIONS WHICH HAVE BEEN REDACTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION BY EIDOS PLC AS PART OF A REQUEST FOR CONFIDENTIAL TREATMENT.
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PLAYSTATION 2® LICENSED PUBLISHER
AGREEMENT |
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| THIS AGREEMENT RELATES TO THE PUBLISHING OF APPLICATION
SOFTWARE FOR THE PLAYSTATION®2 COMPUTER ENTERTAINMENT SYSTEM.
ALL TERMS USED HEREIN ARE SPECIFIC TO THE PLAYSTATION®2 SYSTEM
AND NOT TO SONY'S PREDECESSOR "PLAYSTATION" VIDEO ENTERTAINMENT
SYSTEM. PUBLISHING RIGHTS FOR SUCH PREDECESSOR SYSTEM ARE SUBJECT TO SEPARATE
AGREEMENTS WITH SCEE, AND ANY LICENCE OF RIGHTS TO PUBLISHER UNDER SUCH SEPARATE
AGREEMENTS SHALL NOT CONFER ON PUBLISHER ANY RIGHTS IN RELATION TO THE PLAYSTATION®2
SYSTEM, OR VICE VERSA. |
| This Agreement is entered into the
22nd day of NOVEMBER 2000 by and between |
SONY COMPUTER ENTERTAINMENT EUROPE LIMITED
of 00 Xxxxxx Xxxxxx, Xxxxxx X0X 0XX
(hereinafter referred to as "SCEE")
EIDOS INTERACTIVE LIMITED
of Wimbledon Xxxxxx Xxxxx, 0 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxx XX00 0XX
(hereinafter referred to as "Publisher")
PUBLISHER AUTHORISATION #: 97
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| (A) |
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SCEE, its parent company Sony Computer
Entertainment Inc., and/or certain of their affiliates and companies within
the group of companies of which any of them form part (hereinafter jointly
and severally referred to as "Sony") have developed, and are licensing
core components of, a computer entertainment system known and hereinafter
referred to as "PlayStation 2", and are the owners of, or have
the right to grant licences of, certain proprietary information and intellectual
property rights pertaining to PlayStation 2. |
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| (B) |
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Publisher desires to be granted
a non-exclusive licence to market, distribute and sell Licensed Products
(as defined below), and for such Licensed Products and associated materials
to be manufactured by an authorised manufacturing facility licensed by SCEE,
on the terms and subject to the conditions set forth in this Agreement. |
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| (C) |
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SCEE is willing, on the terms and
subject to the conditions of this Agreement, to grant Publisher the desired
non-exclusive licence. |
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| Now therefore, in consideration of the undertakings, representations and warranties given herein, and of other good and valuable consideration the receipt and sufficiency of which is acknowledged, Publisher and SCEE hereby agree as follows: |
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| 1.1 |
"Licensed Products" means PlayStation 2 format Software product(s) in uniquely marked or coloured CD-ROM or DVD-ROM format software discs (hereinafter referred to as "PlayStation 2 Discs"). |
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| 1.2 |
"Licensed Territory" means the countries specified in Schedule 1. |
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Sony Computer Entertainment Europe
PlayStation 2 Licensed Publisher |
C O N F I D E N T I A L |
Page 1 |
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| 1.3 |
"Sony Intellectual Property Rights" means all current and future patents worldwide, pending patent applications and other patent rights (under licence or otherwise), copyrights, trademarks, service marks, trade names, semi-conductor topography rights, trade secret rights, technical information and know-how (and the equivalents of each of the foregoing under the laws of any jurisdiction) of Sony pertaining to Sony Materials and/or PlayStation 2, and all other proprietary or intellectual property rights worldwide (including, without limitation, all applications and registrations with respect thereto) of Sony pertaining to Sony Materials and/or PIayStation 2, and all renewals and extensions thereof. |
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| 1.4 |
"PlayStation 2 format Software" means
Publisher's object code software, which includes Licensed Developer Software
and any software (whether in object code or source code form) which is provided
by SCEE and intended to be combined with Licensed Developer Software for
execution on PlayStation 2 and has the ability to communicate with the software
resident in PlayStation 2. |
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| 1.5 |
"Term" means the period from the date hereof until 31 March 2003 and continuing thereafter unless and until terminated by not less than 1 (one) month's notice on either side given to expire on such date or any subsequent 31 March. |
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| 1.6 |
"Affiliate of SCEE" means, as applicable, either Sony Computer Entertainment Inc in Japan, Sony Computer Entertainment America Inc in the USA or such other Sony Computer Entertainment entity as may be established by Sony from time to time. |
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| 1.7 |
"LDA 2" means the PlayStation 2 Licensed Developer Agreement between Licensed Developer of the applicable PlayStation 2 format Software and SCEE (or an equivalent such agreement between Licensed Developer and an Affiliate of SCEE). |
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| 1.8 |
"Licensed Trademarks" means the "PS" family logo and PlayStation 2 logotype and such other trademarks, service marks, trade dress, logos and other icons or indicia as shall be specified in the Specifications or otherwise designated by SCEE from time to time. SCEE may amend such Licensed Trademarks upon reasonable notice to Publisher. |
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Publisher is not authorised to use the PlayStation, PSone or XxxxXxxxxxx.xxx logos and/or logotypes, or the "PS2" or PlayStation Shapes devices, other than as expressly permitted by separate agreement. Nothing contained in this Agreement shall in any way grant Publisher the right to use the trademark "Sony" in any manner as (or as part of) a trademark, trade name, service xxxx or logo or otherwise howsoever. |
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| 1.9 |
"Licensed Developer" means Publisher or such other third party as shall have developed Licensed Developer Software and PlayStation 2 format Software pursuant to a then current LDA 2. |
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| 1.10 |
"Sony Materials" means
any hardware, data, object code, source code, documentation (or any part(s)
of any of the foregoing) and related peripheral items provided to the Licensed
Developer of any PlayStation 2 format Software pursuant to the LDA 2 applicable
for such PlayStation 2 format Software. |
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| 1.11 |
"Licensed Developer Software" means Licensed Developer's application source code and data (including audio and visual material) developed by Licensed Developer in accordance with its LDA 2 which, when integrated with any software (whether in object code or source code form) provided by SCEE, creates PlayStation 2 format Software. |
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| 1.12 |
"Printed Materials" means all artwork and mechanicals to be set forth on the Licensed Product itself, and on the PlayStation 2 box (or other container) and, if applicable, the box (or other) packaging for the Licensed Product and all instruction manuals, inlays, inserts, stickers and other user information and/or materials to be inserted in or affixed to such PlayStation2 box and/or packaging. |
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| 1.13 |
"Advertising Materials" means all advertising, merchandising, promotional and display materials of or concerning the Licensed Products. |
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Sony Computer Entertainment Europe
PlayStation 2 Licensed Publisher |
C O N F I D E N T I A L |
Page 2 |
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| 1.14 |
"Manufactured Materials" means all units of the Licensed Products, of the Printed Materials to be set forth on the Licensed Products themselves and of the PlayStation 2 boxes for such Licensed Products (which expression shall include any alternative form of container for Licensed Products subsequently introduced by SCEE). |
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| 1.15 |
"Specifications" means such specifications relating to the content and/or manufacture of Licensed Products, Printed Materials, Advertising Materials and/or related matters or materials as may be issued by Sony, which specifications (and/or procedures relating to the testing or verification of all such materials for conformity to the Specifications and/or relating to the ordering and manufacture of Licensed Products and associated materials) may be amended from time to time upon reasonable notice to Publisher. |
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| 1.16 |
"CNDA" means the Confidentiality & Non-Disclosure (or similar) Agreement between Publisher and SCEE or an Affiliate of SCEE relating to PlayStation 2 and to Confidential Information of Sony and/or of Publisher thereunder. |
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| 1.17 |
"Confidential Information of
Sony" means the content of this Agreement (including the Schedules hereto
and the Specifications) and all confidential and/or proprietary information,
documents and related materials of whatever nature (including, without limitation
all processes, hardware, software, inventions, trade secrets, ideas, designs,
research, know-how, business methods, production plans and marketing plans)
concerning PlayStation 2 developed or owned by, licensed to or under the
control of Sony and, without limitation, information otherwise related to
Sony's technology, know-how, products, potential products, research projects,
promotional advertising and marketing plans, schedules and budgets, licensing
terms and pricing, customer lists and details, commercial relationships or
negotiations, services, financial models and other business information,
whether relating to PlayStation 2 or otherwise including, unless covered
by a separate Non-Disclosure Agreement between Publisher and SCEE, relating
to Sony's "PlayStation" predecessor video entertainment system
disclosed by whatever means, whether directly or indirectly, by or on behalf
of Sony to Publisher at any time, whether disclosed orally, in writing or
in machine-readable or other form, or otherwise discovered by Publisher as
a result of any information or materials provided (whether directly or indirectly)
by or on behalf of Sony to Publisher. |
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| 1.18 |
"Confidential Information of Publisher" means any and all confidential and/or proprietary information, documents and related materials of whatever nature (including, without limitation all processes, hardware, software, inventions, trade secrets, ideas, designs, research, know-how, business methods, production plans and marketing plans) concerning PlayStation 2 format Software developed or owned by, licensed to or under the control of Publisher and, without limitation, information otherwise related to Publisher's technology, know-how, products, potential products, research projects, promotional advertising and marketing plans, schedules and budgets, licensing terms and pricing, customer lists and details, commercial relationships
or negotiations, services, financial models and other business information, whether relating to PlayStation 2 or otherwise disclosed by whatever means, whether directly or indirectly, by or on behalf of Publisher to SCEE at any time, whether disclosed orally, in writing or in machine-readable or other form, or otherwise discovered by SCEE as a result of any information or materials provided (whether directly or indirectly) by or on behalf of Publisher to SCEE, which information is designated by Publisher as, or becomes known to SCEE under circumstances indicating that such information is, confidential or proprietary. |
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| 1.19 |
"Third Party Intellectual Property Rights" means all current and future patents worldwide, pending patent applications and other patent rights (under licence or otherwise), copyrights, trademarks, service marks, trade names, semi-conductor topography rights, trade secret rights, technical information and know-how (and the equivalents of each of the foregoing under the laws of any jurisdiction) of any third party other than Publisher or Sony and all other proprietary or intellectual property rights worldwide (including, without limitation, all applications and registrations with respect thereto), and all renewals and extensions thereof. |
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Sony Computer Entertainment Europe
PlayStation 2 Licensed Publisher |
C O N F I D E N T I A L |
Page 3 |
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| 1.20 |
"Article 6" means Article
6 of Council Directive 91/250/EEC of 14 May 1991 on the legal protection
of computer programmes. |
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| 2. |
Grant of Licence |
SCEE hereby grants to Publisher, and Publisher hereby accepts, within the Licensed Territory only and under the Sony Intellectual Property Rights, a non-exclusive non-transferable licence, without the right to sub-license (except as specifically provided herein), to publish PlayStation 2 format Software in such genres or categories as SCEE shall from time to time designate in the Specifications, and the right and obligation to use the Licensed Trademarks, in the form and manner prescribed in the Specifications, strictly, only and directly in connection with such publication. For these purposes, to "publish" shall mean any or all of the following: (i) produce Advertising Materials and Printed Materials; (ii) to issue to SCEE purchase
orders for Manufactured Materials as prescribed in Clause 6; (iii) to market, distribute and sell Licensed Products (and to authorise others so to do); and (iv) to sub-license to end users the right to use Licensed Products for non-commercial purposes only and not for public performance.
| 3. |
Limitations |
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| 3.1 |
Subject always to Article 6, Publisher
shall publish PlayStation 2 format Software only if developed by a Licensed
Developer strictly in accordance with all the terms and conditions of such
Licensed Developer's LDA 2 and shall not publish or attempt to publish any
other software whatsoever intended for or capable of execution on PlayStation
2 . The onus of evidencing that PlayStation 2 format Software satisfies the
foregoing criteria shall rest on Publisher and SCEE reserves the right to
require Publisher to furnish evidence satisfactory to SCEE that the foregoing
criteria are satisfied. |
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| 3.2 |
Publisher shall not publish outside
the Licensed Territory PlayStation 2 format Software unless and until Publisher
shall be authorised and licensed so to do pursuant to a current licence agreement
with the applicable Affiliate of SCEE. Further, Publisher shall not sub: publish such PlayStation 2 format Software through a third party either within or outside the Licensed Territory unless and until such sub-publisher shall be authorised and licensed so to do either pursuant to a current PlayStation 2 Licensed Publisher Agreement with SCEE or a current PlayStation 2 licence agreement with the applicable Affiliate of SCEE. |
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| 3.3 |
The licence granted in this Agreement
extends only to the publication, marketing, distribution and sale of Licensed
Products in such formats as may be designated by SCEE. Without limiting the
generality of the foregoing and except as otherwise provided herein, Publisher
and, if applicable, its sub-publishers shall at all times and in all territories
be strictly prohibited from undertaking or authorising the distribution or
transmission of PlayStation 2 format Software or Licensed Products through
electronic means or any other means now known or hereafter devised, including
without limitation, via wireless, cable, fiber optic means, telephone lines,
microwave and/or radio waves, or over a network of interconnected computers
or other devices. Notwithstanding this limitation, Publisher may electronically
transmit PlayStation 2 format Software from site to site, or from machine
to machine over a computer network, for the sole purpose of facilitating
development; provided that no right of retransmission shall attach to any
such transmission, and provided further that Publisher shall use reasonable
security measures customary within the high technology industry to reduce
the risk of unauthorised interception or retransmission of such transmissions. |
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For the avoidance of doubt, the foregoing shall apply only to PlayStation 2 format Software and to Licensed Products and shall not apply to Licensed Developer Software which does not utilise Sony Materials and/or Sony Intellectual Property Rights and/or, subject to Council Directive 91/250/EEC, Confidential Information of Sony. |
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| 3.4 |
Subject only to Article 6, Publisher
and, if applicable, its sub-publishers shall at all times be strictly prohibited
from disassembling or decompiling software, peeling semiconductor components
or otherwise reverse engineering or attempting to reverse engineer or derive
source code or create derivative works from PlayStation 2 format Software,
from permitting or encouraging any third |
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Sony Computer Entertainment Europe
PlayStation 2 Licensed Publisher |
C O N F I D E N T I A L |
Page 4 |
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party so to do, and from acquiring or using any materials from any third party who does so. Publisher shall in all cases be primarily liable for the payment of Platform Charge to SCEE in accordance with Clause 7 hereof in respect of any product published by Publisher, or, if applicable, any of its sub-publishers, which utilises Sony Materials and/or Sony Intellectual Property Rights and/or, subject to Council Directive 91/250/EEC, Confidential Information of Sony. The onus of evidencing that any such product is not so published shall rest on Publisher and SCEE reserves the right to require Publisher to furnish evidence satisfactory to SCEE that the applicable of the foregoing criteria are satisfied. |
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| 3.5 |
Publisher shall inform all such
sub-publishers of the obligations imposed by this Agreement and shall obtain
their commitment to abide by the same. |
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| 3.6 |
Any breach of the provisions of
this Clause 3 shall be a material breach of this Agreement not capable of
remedy. |
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| 4. |
Reservations |
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| 4.1 |
This Agreement does not grant any
right or licence, under any Sony Intellectual Property Rights or otherwise,
except as expressly provided herein, and no other right or licence is to
be implied by or inferred from any provision of this Agreement or the conduct
of the parties hereunder. Subject only to the rights of Publisher under this
Agreement, all right, title and interest in and to the Sony Materials and
the Sony Intellectual Property Rights are and shall be the exclusive property
of Sony, and Publisher shall not make use of, or do or cause to be done any
act or thing contesting or in any way impairing or tending to impair any
of Sony's right, title or interest in or to, any of the Sony Materials, Sony
Intellectual Property Rights,
PlayStation 2 and/or Sony's "PlayStation" predecessor video entertainment
system except as authorised by and in compliance with the provisions of this
Agreement or as may otherwise expressly be authorised in writing by Sony; provided
however that the foregoing shall not be taken to preclude Publisher from challenging
the validity of any Sony Intellectual Property Rights. No right, licence or privilege
has been granted to Publisher hereunder concerning the development of any collateral
product or other use or purpose of any kind whatsoever which displays or depicts
any of the Licensed Trademarks. No promotional or novelty items or premium products
(including, by way of illustration but without limitation, T-shirts, posters,
stickers, etc) displaying or depicting any of the Licensed Trademarks shall be
developed, manufactured, marketed, sold and/or distributed by, with the authority
of or on behalf of, Publisher without the prior written consent and authorisation
of SCEE in each case. |
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| 4.2 |
The Licensed Trademarks and the
goodwill associated therewith are and shall be the exclusive property of
Sony. Nothing herein shall give Publisher any right, title or interest in
or to any of the Licensed Trademarks, other than the non-exclusive licence
and privilege to display and use the Licensed Trademarks solely in accordance
with the provisions of this Agreement. Publisher shall not do or cause to
be done any act or thing contesting or in any way impairing or tending to
impair any of Sony's right, title or interest in or to any of the Licensed
Trademarks, nor shall Publisher register or apply to register any trademark
in its own name or in the name of any other person or entity, or obtain or
seek to obtain rights to employ Internet domain name(s) or address(es), which
is or are similar to or is or are likely to be confused with any of the Licensed
Trademarks; provided however that the foregoing shall not be taken to preclude
Publisher from challenging the validity of any Licensed Trademarks. |
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| 4.3 |
Publisher or Licensed Developer
(as applicable) retains all right, title and interest in and to Licensed
Developer Software, including Licensed Developer's intellectual property
rights therein and any names or other designations used as titles therefor,
and nothing in this Agreement shall be construed to restrict the right of
Licensed Developer to develop and/or the right of Publisher to publish products
incorporating Licensed Developer Software (separate and apart from Sony Materials),
and/or under such names or other designations, for any hardware platform
or service other than PlayStation 2. |
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Sony Computer Entertainment Europe
PlayStation 2 Licensed Publisher |
C O N F I D E N T I A L |
Page 5 |
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| 4.4 |
Subject to the proviso to Clauses
4.1 and 4.2 above, Publisher shall, at the expense of SCEE, take all such
steps as SCEE may reasonably require, including the execution of licences
and registrations, to assist SCEE in maintaining the validity and enforceability
of Sony Intellectual Property Rights. |
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| 4.5 |
Without prejudice to Clause 11,
Publisher or SCEE (as applicable) shall promptly and fully notify the other
in writing in the event that it discovers or otherwise becomes aware of any
actual, threatened or suspected infringement of any of the intellectual property
or trademark rights of the other embodied in any of the Licensed Products,
and of any claim of infringement or alleged infringement by the other of
any Third Party Intellectual Property Rights, and shall at the request and
expense of the other do all such things as may reasonably be required to
assist the other in taking or resisting any proceedings in relation to any
such infringement or claim. |
| 5. |
Quality Standards |
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| 5.1 |
Publisher shall provide SCEE with
a Product Planning Notification for each Licensed Product in accordance with
the Specifications. |
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Each Licensed Product, including without limitation the title and content thereof, and/or Publisher's use of any of the Licensed Trademarks, shall be required to conform to the Specifications and shall not, except as specifically authorised in writing by SCEE in each case, incorporate (in whole or in part) more than 1 (one) game product. |
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TESTING OR VERIFICATION FOR CONFORMITY TO THE SPECIFICATIONS SHALL BE CONDUCTED BY SCEE OR, AT PUBLISHER'S ELECTION, BY AN INDEPENDENT EXTERNAL TESTING SERVICE (IF AND WHEN SUCH SERVICE BECOMES AVAILABLE). |
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| 5.2 |
Publisher shall submit for testing
for conformity to the Specifications such information and materials relating
to the PlayStation 2 format Software for each Licensed Product as shall be
specified in the Specifications. Such Specifications shall be comparable
with the specifications applied by Sony with respect to its own PlayStation
2 format Software products. SCEE acknowledges and agrees that such Specifications
shall be of prospective application only and shall not be applied to any
inventory units of the Licensed Products manufactured prior to, or in the
active process of manufacture at the date of, the promulgation thereof by
SCEE. |
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| 5.3 |
For each Licensed Product, Publisher
shall be responsible, at Publisher's expense, for the origination of all
Printed Materials, and for the manufacture and delivery to the manufacturer
of such Licensed Product of all Printed Materials other than those to be
set forth on the Licensed Product itself, all of which Printed Materials
shall: (i) conform in all material respects to the Specifications; and (ii)
include such other materials (including by way of illustration but not limitation,
consumer health warnings in relation to epilepsy) and such consumer advisory
rating code (s) as may from time to time be required by any governmental
entity or in compliance with any voluntary code of practice operated by members
of the interactive software development and publishing community. The Specifications
referred to in (i) above shall be comparable with the specifications applied
by Sony with respect to its own PlayStation 2 format Software products. SCEE
acknowledges and agrees that such Specifications shall be of prospective
application only and shall not be applied to any inventory units of the Licensed
Products manufactured prior to, or in the active process of manufacture at
the date of, the promulgation thereof. All materials to be submitted pursuant
to this Clause 5.3 shall be delivered by such means and in such form as shall
be prescribed in the Specifications and at Publisher's sole risk and expense.
Publisher undertakes that the quality of such Printed Materials shall be
of the same quality as that associated with high
quality consumer products. |
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| 5.4 |
Where applicable, SCEE (or, where
applicable, an independent external testing service as aforesaid) will test
or verify for conformity to the Specifications (as the case may be) all materials
submitted by Publisher pursuant to Clause 5.2 and Clause 5.3. Where such
testing or verification is conducted by SCEE, SCEE shall advise Publisher
of the results of such testing or verification |
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Sony Computer Entertainment Europe
PlayStation 2 Licensed Publisher |
C O N F I D E N T I A L |
Page 6 |
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within the applicable of the timeframes
specified in the Specifications. Where such testing or verification is conducted
by such independent external testing service, such service shall advise Publisher
of the results of such testing or verification within timeframes agreed between
such service and Publisher (and SCEE shall have no responsibility or liability
whatsoever arising from a failure by such service to meet such timeframes).
If any of such materials (or any element(s) thereof) fail to conform to the
Specifications, SCEE (or, where applicable, such independent external testing
service) shall specify the reasons for such failure and state what revisions
are required. After making the required revisions, Publisher may resubmit
such materials in such revised form for re-testing or re-verification by
SCEE (or, where applicable, such independent external testing service). The
procedures described in this Clause 5.4 shall if necessary be repeated until
all such materials for each Licensed Product shall expressly have been certified
as conforming to the Specifications, such certification to be validly given
only if in writing and signed by the duly authorised representative(s) of
SCEE as specified in the Specifications (or, where applicable, by the duly
authorised; representative(s) of such independent external testing service).
SCEE shall have no liability to Publisher for the accuracy or content (including
translations and localisations) of Printed Materials (except only items required
to be
included in accordance with the Specifications) or in respect of costs incurred
or irrevocably committed by Publisher as a result of any failure to conform
to Specifications (even where certified for conformity) or in relation to,
or to the use of, Printed Materials which shall not have been given a certificate
of conformity by SCEE (or, where applicable, by such independent external
testing service). No production units of any, Licensed Product shall be manufactured,
marketed, distributed or sold by, with the authority of or on behalf of,
Publisher unless and until such a certificate of conformity of such Licensed
Product shall first have been given by SCEE (or, where applicable, by such
independent external testing service). No certificate of conformity from
SCEE (or, where applicable, from such independent external testing service)
of any element of the materials so submitted or resubmitted shall be deemed
a certificate of conformity of any other element of such materials, nor shall
any such certificate of conformity be deemed to constitute a waiver of any
of SCEE's rights under this Agreement. |
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The generality of the foregoing notwithstanding, in the event that Publisher wishes to contest a finding by SCEE of non-conformity to the Specifications, and as an alternate to making required revisions and resubmissions as above, Publisher may have recourse to the appeals process specified in the Specifications. |
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| 5.5 |
Publisher shall not change in any
material respect any of the materials for which a certificate of conformity
shall have been given by SCEE (or, where applicable, by an independent external
testing service) pursuant to Clause 5.4 (or, if applicable, pursuant to Clause
5.6) (or, alternately, which shall have been held to conform to the Specifications
following recourse by Publisher to the appeals process specified in the Specifications).
If any of the Licensed Products and/or related materials published by, with
the authority of or on behalf of, Publisher fail to conform to the Specifications
and the materials for which SCEE (or, where applicable, such independent
external testing service) shall from time to time have given a certificate
of
conformity, then the provisions of Clause 13.2 shall apply. |
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| 5.6 |
SCEE reserves the right to require
that pre-production samples of all Advertising Materials shall be submitted
by Publisher to SCEE or, at Publisher's election, to an independent external
testing service (if and when such service becomes available), free of charge
and in accordance with the procedure specified in the Specifications, for
verification for conformity to the Specifications (including specifically,
but without limitation, in relation to the usage of any of the Licensed Trademarks),
prior to any actual production, use or distribution of any such items by,
with the authority or on behalf of, Publisher. No such proposed Advertising
Materials shall be produced, used or distributed directly or indirectly by
Publisher without first obtaining a certificate of conformity to the Specifications.
Where such verification is conducted by SCEE, SCEE shall advise Publisher
of the results of such verification within the applicable of the timeframes
specified in the Specifications. Where such verification is conducted by
such independent external testing service, such service shall advise Publisher
of the results of such verification within timeframes |
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Sony Computer Entertainment Europe
PlayStation 2 Licensed Publisher |
C O N F I D E N T I A L |
Page 7 |
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agreed between such service and Publisher (and SCEE shall have no responsibility or liability whatsoever arising from a failure by such service to meet such timeframes). If any such Advertising Materials (or any element(s) thereof) fail to conform to the Specifications, SCEE (or, where applicable, such independent external testing service) shall specify the reasons for such failure and state what revisions are required. After making the required revisions, Publisher may resubmit such materials in such revised form for re-verification by SCEE (or, where applicable, by such independent external testing service). The procedures described in this Clause 5.6 shall if necessary be repeated until all such Advertising Materials for each Licensed Product
shall expressly have been certified as conforming to the Specifications, such certification to be validly given only if in writing and signed by the duly authorised representative(s) of SCEE as specified in the Specifications (or, where applicable, by the duly authorised representative(s) of such independent external testing service). SCEE shall have no liability to Publisher in respect of costs incurred or irrevocably committed by Publisher in relation to, or to the use of, Advertising Materials which shall not have been given a certificate of conformity by SCEE (or, where applicable, by such independent external testing service). No certificate of conformity from SCEE (or, where applicable, from such independent external testing service) of any element of Advertising Materials so
submitted or resubmitted shall be deemed a certificate of conformity of any other element of such Advertising Materials, nor shall any such certificate of conformity be deemed to constitute a waiver of any of SCEE's rights under this Agreement. |
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The generality of the foregoing notwithstanding, in the event that Publisher wishes to contest a finding of non-conformity to the Specifications by SCEE, and as an alternate to making required revisions and resubmissions as above, Publisher may have recourse to the appeals process specified in the Specifications. |
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Subject in each instance to the
prior written consent of SCEE, Publisher may use such textual and/or pictorial
advertising matter (if any) as may be created by, with the authority or on
behalf of, Sony pertaining to the Sony Materials and/or to the Licensed Trademarks
on such Advertising Materials as may, in Publisher's judgment, promote the
sale of Licensed Products within the Licensed Territory. Sony shall have
the right to use Licensed Products and/or other materials relating to Publisher's
PlayStation 2 format Software titles in any advertising or promotion for
PlayStation 2 at Sony's expense, subject to giving Publisher reasonable prior
notice of such advertisement or promotion. Sony shall confer with Publisher
regarding the text of any such advertisement. If required by Sony and/or
any governmental entity or in compliance with any voluntary code of practice
operated by members of the interactive software development and publishing
community, Publisher shall, at Publisher's cost and expense, also include
consumer advisory rating code(s) and, if required, other materials (including
by way of illustration but not limitation, consumer health warnings in relation
to epilepsy) on any and all Advertising Materials used in connection with
Licensed Products. Such consumer advisory rating code(s) shall be procured
in accordance with the provisions of Clause 5.7. |
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| 5.7 |
Publisher agrees that, if required
by SCEE or any governmental entity, it shall submit each Licensed Product
to a consumer advisory ratings system designated by SCEE and/or such governmental
entity for the purpose of obtaining rating code(s) for, each Licensed Product.
Any and all costs and expenses incurred in connection with obtaining such
rating code(s) shall be borne solely by Publisher. Any required consumer
advisory rating code(s) thereby procured shall be displayed on Licensed
Products and associated Printed Materials in accordance with the Specifications,
at Publisher's cost and expense. |
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| 5.8 |
In the event Publisher fails to
comply with its obligations in relation thereto as specified in Clause 5.7,
SCEE reserves the right in its sole discretion, at Publisher's sole cost
and expense: (i) to display, or to require the display, on Licensed Products
and/or associated Printed Materials and/or associated Advertising Materials
(as may be required) materials (including by way of illustration but not
limitation, consumer health warnings in relation to epilepsy) and/or to procure
and to display, or to require the display of, consumer advisory rating code(s);
or (ii) to require |
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non-complying Licensed Products
and/or associated Printed Materials and/or associated Advertising Materials
forthwith to be withdrawn from the market. |
| 6. |
Manufacture of Licensed
Products & Associated Materials |
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| 6.1 |
Subject only to Article 6, Publisher
acknowledges and agrees that it shall purchase Manufactured Materials only
from an authorised manufacturing facility licensed by SCEE. SCEE shall have
the right, but no obligation, to subcontract the whole or any part or phase
of the production of any or all of the Manufactured Materials or any part(s)
thereof. |
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| 6.2 |
Subject always to Article 6, promptly
following the giving by SCEE (or, where applicable, by an independent external
testing service as aforesaid) of a certificate of conformity to the Specifications
(or, alternately, a holding of conformity to the Specifications following
recourse by Publisher to the appeals process specified in the Specifications)
for each Licensed Product pursuant to Clause 5.2, SCEE shall create (from
one of the CD copies of the finally approved version of the PlayStation 2
format Software as submitted by Publisher pursuant to Clause 5.2) the original
master PlayStation 2 Disc ("Master PlayStation 2 Disc") from which
all other copies of the Licensed Product are to be replicated in compliance
with the Specifications effective at the time of replication. Where such
certificate of conformity shall have been given by such an independent external
testing service, then the CD copy of the finally approved version of the
PlayStation 2 format Software as submitted by Publisher pursuant to Clause
5.2 from which the Master PlayStation 2 Disc is to be created shall be furnished
SCEE by such service. Publisher shall be responsible for the costs, as set
forth in Schedule 2, of creating such Master PlayStation 2 Disc. Publisher
will retain duplicates of all such PlayStation 2 format Software. SCEE shall
not be liable for loss of or damage to any copies of the PlayStation 2 format
Software furnished SCEE hereunder. There will be no technology exchange between
Sony and Publisher under this Agreement.
The mastering process being of a proprietary and commercially confidential nature,
neither SCEE nor any manufacturing subcontractor of SCEE will under any circumstances
release any Master PlayStation 2 Discs or other in-process materials to Publisher.
All such physical materials shall be and remain the sole property of Sony. |
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| 6.3 |
Subject always to Article 6, Publisher
shall be solely responsible for the delivery, direct to an authorised manufacturing
facility licensed by SCEE and in accordance with Clause 6.4, [ * ] of the
number of sets of the Printed Materials (other than those set forth on the
applicable
Licensed Product itself) required to fulfill Publisher's purchase order for
Manufactured Materials of each PlayStation 2 format Software title, which
Printed Materials shall be in strict compliance with the Specifications.
SCEE shall, at Publisher's request, give Publisher all reasonable assistance
in arranging the manufacture of Printed Materials to be used in conjunction
with Licensed Products not manufactured in reliance on Article 6 through
SCEE's authorised manufacturing facility (if a Sony company), but SCEE shall
have no responsibility with respect to pricing, delivery or any other related
matter whatsoever in connection with such manufacture. |
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| 6.4 |
Subject to the giving by SCEE of
a certificate of conformity to the Specifications (or, alternately, a holding
of conformity following recourse by Publisher to the appeals process specified
in the Specifications) for the applicable PlayStation 2 format Software and
Printed Materials pursuant to Clause 5, and to the delivery to an authorised
manufacturing facility licensed by SCEE of the materials to be delivered
under Clause 6.3, SCEE will, at Publisher's expense and as applicable, manufacture,
assemble, package and deliver the Manufactured Materials and the Printed
Materials in accordance with the terms and conditions set forth in this Clause
6. The delivery of the materials specified in Clause 6.3 shall be made in
accordance with the
timetable for such delivery specified in the Specifications. |
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| 6.5 |
Subject always to Article 6, Publisher
shall issue to SCEE purchase order(s) via SCEE's Electronic Order System
(or otherwise as specified by SCEE from time to time) in accordance with,
and in compliance with the timetable specified in, the Specifications. No
such order shall be issued unless and until all necessary certificates of
conformity shall have been given (or, alternately, there shall |
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have been a holding of conformity
following recourse by Publisher to the appeals process specified in the Specifications)
pursuant to Clause 5. Each such order shall reference Publisher authorisation
number and purchase order reference number, specify quantities of PlayStation
2 format Software by title by pack sku (in multiples of the minimum box shipment
detailed in the Specifications), state requested ex-factory delivery date
and all packaging information together with such other information as SCEE
shall reasonably require and shall be for not less than the applicable minimum
order quantity as specified in Schedule 2 hereto. All such purchase orders
shall be subject to acceptance by SCEE, which acceptance will be advised
to Publisher not more than [ * ] working days following delivery in accordance
with Clause 6.4 of the materials required to be delivered under Clauses 6.2
and 6.3. SCEE shall use all reasonable endeavours, subject to available manufacturing
capacity, to fulfil Publisher's purchase orders by Publisher's requested
ex-factory delivery date but does not in any event guarantee so to do. Publisher
shall have no right to cancel or reschedule any purchase order or reorder
(or any portion thereof) for any Licensed Product unless the parties shall
first have reached mutual agreement as to Publisher's financial liability
with respect to any desired cancellation or rescheduling of any such purchase
order or reorder (or any portion thereof). |
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| 6.6 |
Subject only to the provisions
of Clause 6.5 in relation to Printed Materials, neither SCEE nor any manufacturing
subcontractor of SCEE shall be under any obligation to store finished units
of Manufactured Materials or of associated Printed Materials beyond the actual
ex-factory delivery date thereof. Delivery of Manufactured Materials shall
be made ex-factory the applicable authorised manufacturing facility licensed
by SCEE in the Licensed Territory. All risk of loss or damage in transit
to any and all Manufactured Materials manufactured by SCEE pursuant to Publisher's
orders shall pass to Publisher forthwith upon first handling by Publisher's
carrier. |
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| 6.7 |
Publisher may inspect and test
any units of Manufactured Materials not manufactured in reliance on Article
6 at Publisher's receiving destination. Any finished units of such Manufactured
Materials which fail to conform to the Specifications and/or any description(s)
contained in this Agreement may be rejected by Publisher by providing written
notice of rejection to SCEE within [ * ] days of receipt of such units
of such Manufactured Materials at Publisher's receiving destination. In such
event, the provisions of Clause 10.2 shall apply with respect to any such
rejected units of Manufactured Materials. Notwithstanding the provisions
of Clause 10.2, if Publisher fails to reject any units of such Manufactured
Materials in the manner and within the [ * ] day period prescribed
above, such units of Manufactured Materials shall irrevocably be deemed accepted
by Publisher and shall not subsequently be rejected. |
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| 6.8 |
In no circumstances shall SCEE
or its authorised manufacturing facility treat any of Publisher's Licensed
Products in any way more or less favourably, in terms of production turnaround
times or otherwise, than the Licensed Products of any other Licensed Publisher
of SCEE or than PlayStation 2 format Software products published by SCEE
itself. |
| 7. |
Platform Charge |
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| 7.1 |
The all-in Platform Charge for
finished units of Manufactured Materials in respect of which SCEE accepts
Publisher's purchase order in accordance with Clause 6.5 shall be as specified
in Schedule 2 (but subject to adjustment as therein provided). Such Platform
Charge shall be subject to change by SCEE at any time upon reasonable notice
to Publisher; provided, however, that such Platform Charge shall not be changed
with respect to any units of Manufactured Materials which are the subject
of an effective purchase order or reorder but which have not yet been delivered
by SCEE. Such Platform Charge for finished units of Manufactured Materials
is exclusive of any value-added or similar sales tax, customs and excise
duties and other similar taxes or duties, which SCEE may be required to collect
or pay as a consequence of the sale or delivery of finished units of Manufactured
Materials. Publisher shall be solely responsible for the payment or reimbursement
of any such taxes or duties, and other such charges or assessments applicable
to the sale and/or purchase of finished units of Manufactured Materials. |
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PlayStation 2 Licensed Publisher |
C O N F I D E N T I A L |
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The Platform Charge for products
developed utilising Sony Materials and/or Sony Intellectual Property Rights
and/or, subject to Council Directive 91/250/EEC, Confidential Information
of Sony, but manufactured in reliance on Article 6, shall be the otherwise
applicable Platform Charge less only such sum as represents from time to
time the costs of raw materials and for production services (including for
utilisation of Sony's proprietary Disc Mastering technology) for the products
concerned which SCEE would otherwise have been invoiced for by SCEE's authorised
manufacturing facility ("the Article 6 Platform Charge"). If Publisher
has products so manufactured in reliance on Article 6, then Publisher shall
furnish SCEE, within [ * ] days following the close of each calendar
month: (i) a written reporting of the number of inventory units (by product
title) of products so manufactured during such calendar month; (ii) an external
auditor's certificate (or similar independent certificate reasonably acceptable
to SCEE) confirming the completeness and accuracy of such reporting; (iii)
Publisher's remittance for the Article 6 Platform Charge multiplied by the
number of inventory units reflected in such reporting. Any failure fully
and promptly to comply with the foregoing reporting and payment obligations
shall constitute a breach of this Agreement not capable of remedy, entitling
SCEE forthwith to terminate the Term pursuant to Clause 13.1 (i); and upon
termination by SCEE for such cause, the provisions of
Clause 14.2 shall come into effect. |
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SCEE shall upon reasonable written request provide Publisher details of the aforementioned costs of raw materials and production services if Publisher has legitimately exercised its rights under Article 6 or genuinely intends to exercise and rely upon such rights. However, SCEE reserves the right to require Publisher to execute a separate Non-Disclosure Agreement before making such information available. |
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| 7.2 |
No costs incurred in the development,
manufacture, marketing, sale and/or distribution of Licensed Products and/or
associated materials shall be deducted from any Platform Charge payable to
SCEE hereunder. Similarly, there shall be no deduction from the Platform
Charge otherwise payable to SCEE hereunder as a result of any uncollectable
accounts owed to Publisher, or for any credits, discounts, allowances or
returns which Publisher may credit or otherwise grant to any third party
customer in respect of any units of Licensed Products and/or associated materials,
or for any taxes, fees, assessments, or expenses of any kind which may be
incurred by Publisher in connection with its sale and/or distribution of
any units of Licensed Products and/or associated materials, and/or arising
with respect to the payment of Platform Charge hereunder. Publisher shall
furnish SCEE official tax receipts or other such documentary evidence issued
by the applicable tax authorities sufficient to substantiate the fact of
the deduction of any withholding taxes and/or other such assessments which
may be imposed by any governmental authority with respect to such payments
of Platform Charge hereunder and the amount of each such deduction. |
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| 7.3 |
Publisher shall effect payment for
the Platform Charge specified in Clause 7.1 for the finished units of Manufactured
Materials the subject matter of each purchase order issued pursuant to Clause
6.5 in accordance with the Specifications. Each delivery of Manufactured
Materials to Publisher shall constitute a separate sale obligating Publisher
to pay therefor, whether said delivery be whole or partial fulfilment of
any order. No claim for credit due to shortage of Manufactured Materials
as delivered to carrier will be allowed unless it is made within [ * ]
working days from the date of receipt at Publisher's receiving destination.
Title to Manufactured Materials the subject of each such purchase order shall
pass to Publisher only upon payment in full of the Platform Charge due in
respect thereof. The receipt and deposit by SCEE of any payment of Platform
Charge tendered by or on behalf of Publisher as aforesaid shall be without
prejudice to any rights or remedies of SCEE and shall not restrict or prevent
SCEE from thereafter successfully challenging the basis for calculation and/or
the accuracy of such payment. SCEE reserves the right, upon reasonable notice
to Publisher, to require that such payments of Platform Charge shall be
made to such other Sony entity as SCEE may designate from time to time. |
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Sony Computer Entertainment Europe
PlayStation 2 Licensed Publisher |
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Page 11 |
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| 8. |
Marketing & Distribution |
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| Publisher shall, at no expense
to SCEE, diligently market, distribute and sell Licensed Products throughout
(but only in) the Licensed Territory, and shall use all reasonable efforts
consistent with its best business judgment to stimulate demand therefor
in the Licensed Territory and to supply any resulting demand. Publisher
shall not market, distribute or sell Licensed Products outside the Licensed
Territory or to any person, firm, corporation or entity having its place
of business, or to any purchasing agency located, outside the Licensed
Territory. Publisher shall use all reasonable efforts consistent with
its best business judgment to protect Licensed Products from and against
illegal reproduction and/or copying by end users or by any other persons
or entities. Such methods of protection may include, without limitation,
markings or insignia providing identification of authenticity and packaging
seals as may be specified in the Specifications. SCEE shall be entitled,
at SCEE's sole cost and expense, to manufacture up to [ * ]
additional units of Manufactured Materials (or such greater number of
additional units as shall be agreed by Publisher, such agreement not
unreasonably to be withheld or delayed) for each PlayStation 2 format
Software title (and to purchase from Publisher, at a price equal to the
actual cost thereof to Publisher, a corresponding number of units of
Printed Materials for each such PlayStation 2 format Software title),
for the purposes of or in connection with the marketing and promotion
of PlayStation 2; provided however that SCEE shall not directly or indirectly
resell any such units of Manufactured Materials (and, if applicable,
of Printed Materials) within the Licensed Territory without Publisher's
prior written consent. Further, SCEE shall be entitled to utilise Publisher's
name and/or logo and the audio-visual content of, and/or the Printed
Materials for, PlayStation 2 format Software titles (not to exclude the
likenesses of any recognisable talent) for the purposes of or in connection
with such marketing and promotion. |
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| 9. |
Confidentiality |
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| 9.1 |
All the terms and provisions of
the CNDA shall apply to Confidential Information of Sony and, if and to the
extent applicable, Confidential Information of Publisher. |
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| 9.2 |
Where Confidential Information
of Publisher is not protected by the CNDA, SCEE shall hold the same in confidence
and shall take all reasonable steps necessary to preserve such confidentiality.
Except as may expressly be authorised by Publisher, SCEE shall not at any
time, directly or indirectly: (i) disclose any Confidential Information of
Publisher to any person other than a Sony employee who needs to know or have
access to such information for the purposes of this Agreement, and only to
the extent necessary for such purposes; (ii) except for the purposes of this
Agreement, duplicate or use the Confidential Information of Publisher for
any other purpose whatsoever; or (iii) remove any copyright notice, trademark
notice and/or other proprietary legend set forth on or contained within any
of the Confidential Information of Publisher. |
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| 9.3 |
The provisions of Clause 9.2 hereof
shall not apply to any Confidential Information of Publisher which: (i) has
become part of information in the public domain through no fault of SCEE;
(ii) was known to SCEE prior to the disclosure thereof by Publisher; (iii)
properly comes into the possession of SCEE from a third party which is not
under any obligation to maintain the confidentiality of such information.
SCEE may disclose Confidential Information of Publisher pursuant to a judicial
or governmental order provided that SCEE promptly advises Publisher in writing
prior to any such disclosure so that Publisher may seek other legal remedies
to maintain the confidentiality of such Confidential Information of Publisher,
and SCEE shall comply with
any applicable protective order or equivalent. |
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| 9.4 |
Unless and until a public announcement
regarding this Agreement shall have been made by Sony (or SCEE shall otherwise
have agreed in writing), the fact that the parties have entered into this
Agreement shall be Confidential Information of Sony and shall be treated
in all respects accordingly. The content of, and the timing and method of
the making of, any such public announcement shall be determined by SCEE in
its best business judgement. However, SCEE will give reasonable consideration
to any notice from Publisher requesting that no such public announcement be made, at or prior to a particular time or at all. |
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PlayStation 2 Licensed Publisher |
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| 10. |
Warranties |
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| 10.1 |
SCEE represents and warrants solely
for the benefit of Publisher that SCEE has the right, power and authority
to enter into, and fully to perform its obligations under, this Agreement. |
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| 10.2 |
SCEE warrants that units of PlayStation
2 Discs comprising Licensed Products manufactured by SCEE for Publisher pursuant
to Clause 6 hereof shall be free from defects in materials and workmanship
under normal use and service at time of delivery in accordance with Clause
6.6. The sole obligation of SCEE under this warranty shall be, for a period
of [ * ] days from the date of delivery of such discs in accordance
with Clause 6.6, at SCEE's election, either (i) to replace such defective
discs or (ii) to issue credit for, or to refund to Publisher the Platform
Charge of such defective discs (excluding PlayStation 2 Disc mastering charge)
and to reimburse Publisher its reasonable return shipping costs. Such warranty
is the only warranty applicable to Licensed Products manufactured by SCEE
for Publisher pursuant to Clause 6. This warranty shall not apply to damage
resulting from accident, fair wear and tear, wilful damage, alteration, negligence,
abnormal conditions of use, failure to follow directions for use (whether
given in instruction manuals or otherwise howsoever) or misuse of Licensed
Products, or to discs comprising less than [ * ] [or, if greater,
[ * ] units] in the aggregate of the total number of Licensed
Products manufactured by SCEE for Publisher per purchase order of any PlayStation
2 format Software title. If, during such [ * ] day period, defects
appear as aforesaid, Publisher shall notify SCEE and, upon request by SCEE
(but not otherwise), return such defective discs, with a
written description of the defect claimed, to such location as SCEE shall designate.
SCEE shall not accept for replacement, credit or refund as aforesaid any
Licensed Products except factory defective discs (i.e. discs that are not
free from defects in materials and workmanship under normal use and service).
All returns of defective discs shall be subject to prior written authorisation
by SCEE, not unreasonably to be withheld. If no defect exists or the defect
is not such as to be covered under the above warranty, Publisher shall reimburse
SCEE for expenses incurred in processing and analysing the discs. |
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| 10.3 |
Publisher represents, warrants,
covenants and agrees that: (i) Publisher has the right, power and authority
to enter into, and fully to perform its obligations under, this Agreement;
(ii) the making of this Agreement by Publisher does not violate any separate
agreement, rights or obligations existing between Publisher and any other
person, firm, corporation or entity, and, throughout the Term, Publisher
shall not make any separate agreement with any person or entity which is
inconsistent with any of the provisions hereof; (iii) both Licensed Developer
Software and PlayStation 2 format Software, and any name, designation or
title used in conjunction therewith, shall be free from any valid third party
claim of infringement of any Third Party Intellectual Property Rights; (iv)
there is no litigation, proceeding or claim pending or threatened against
Publisher or any subsidiary or affiliate of Publisher which may materially
affect Publisher's rights in and to Licensed Developer Software, the names,
designations or titles used in conjunction therewith, the works and performances
embodied therein and/or the copyrights pertaining thereto; (v) Publisher
shall have made or shall make any and all payments required to be made to
any person, firm, corporation or other entity, or to any body or group representing
authors or participants in the production of the works or performances embodied
in Licensed Developer Software and PlayStation 2 format Software, or to publishers
or other persons having legal or contractual rights of any kind
to participate in any income arising in respect of the exploitation of such works
or performances; (vi) neither Publisher nor any subsidiary or affiliate of
Publisher shall make any representation or give any warranty to any person
or entity expressly or impliedly on Sony's behalf, or to the effect that
Licensed Products are connected in any way with Sony (other than that Licensed
Products have been developed, marketed, manufactured, sold and/or distributed
under licence from Sony); (vii) PlayStation 2 format Software shall be distributed by Publisher solely in the form of Licensed Product; (viii) each Licensed Product shall be marketed, sold and distributed in an ethical manner and in accordance with all applicable laws and regulations; and (ix) Publisher's policies and |
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practices with respect to the marketing, sale and/or distribution of Licensed Products shall in no manner reflect adversely upon the name, reputation or goodwill of Sony. |
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| 10.4 |
Further, Publisher represents, warrants,
covenants and agrees that neither Publisher nor any parent company, subsidiary
or affiliate of Publisher shall during the Term, whether for itself or for
the benefit of any other person, firm, corporation or entity, whether by
itself or by its officers, employees or agents, directly or indirectly, induce
or seek to induce, on an individually targeted basis, the employment of,
or the engagement of the services of, any Relevant Employee. For these purposes "Relevant Employee" shall
mean and include any employee of (i) SCEE, (ii) Psygnosis Limited or (iii)
XxxxXxxxxxx.xxx (Europe) Limited (or any of their subsidiaries or branch
offices outside the United Kingdom), the services of which employee are (a)
specifically engaged in product development (or directly related) functions
or (b) otherwise reasonably deemed by his/her employer to be of material
importance to the protection of its legitimate business interests, and with
which employee Publisher (or any parent company, subsidiary or affiliate
of Publisher) shall have had contact or dealings during the Term. The foregoing
provisions shall continue to apply for a period of [ * ] following
expiry or earlier termination of the Term and are hereby deemed substituted
for any corresponding provisions in any agreement(s) previously entered into
between the parties hereto in relation to PlayStation 2 and/or to Sony's "PlayStation" predecessor video entertainment system. |
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| 11. |
Indemnities |
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| 11.1 |
SCEE shall indemnify and hold Publisher
harmless from and against any and all claims, losses, liabilities, damages,
expenses and costs, including without limitation reasonable fees for lawyers,
expert witnesses and litigation costs, and including costs incurred in the
settlement or avoidance of any such claim, which result from or are in connection
with a breach of any of the warranties provided by SCEE herein; provided
however that Publisher shall give prompt written notice to SCEE of the assertion
of any such claim, and provided further that SCEE shall have the right to
select counsel and control the defence and/or settlement thereof, subject
to the right of Publisher to participate in any such action or proceeding
at its own expense with counsel of its own choosing. SCEE shall have the
exclusive right, at its discretion, to commence and prosecute at its own
expense any lawsuit or to take such other action with respect to such matters
as shall be deemed appropriate by SCEE. Publisher shall provide SCEE, at
no expense to Publisher, reasonable assistance and cooperation concerning
any such matter. Publisher shall not agree to the compromise, settlement
or abandonment of any such claim, action or proceeding without SCEE's prior
written consent. |
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| 11.2 |
Publisher shall indemnify and hold
SCEE harmless from and against any and all claims, losses, liabilities, damages,
expenses and costs, including without limitation reasonable fees for lawyers,
expert witnesses and litigation costs, and including costs incurred in the
settlement or avoidance of any such claim, which result from or are in connection
with (i) a breach of any of the warranties provided by Publisher herein or
any breach of Publisher's confidentiality obligations as referred to in Clause
9.1 hereof, or (ii) any claim of infringement or alleged infringement of
any Third Party Intellectual Property Rights with respect to Licensed Developer
Software, or (iii) any claim of or in connection with any injury (including
death) or property damage, by whomsoever such claim is made, arising (in
whole or in part) out of the manufacture, sale and/or use of any of the Manufactured
Materials unless resulting from the proven negligence of Sony; provided however
that SCEE shall give prompt written notice to Publisher of the assertion
of any such claim, and provided further that Publisher shall have the right
to select counsel and control the defence and/or settlement therof, subject
to the right of SCEE to participate in any such action or proceeding at its
own expense with counsel of its own choosing. Publisher shall have the exclusive
right, at its discretion, to commence and/or prosecute at its own expense
any lawsuit or to take such other action with respect to such matter as shall
be deemed appropriate by Publisher.
SCEE shall provide Publisher, at no expense to SCEE, reasonable assistance and
cooperation concerning any such matter. SCEE shall not agree to the compromise,
settlement or abandonment of any such claim, action or proceeding without Publisher's prior written consent. |
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PlayStation 2 Licensed Publisher |
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Page 14 |
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| 12. |
Limitations of
Liability |
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| 12.1 |
IN NO EVENT SHALL SONY OR ITS SUPPLIERS BE LIABLE
FOR PROSPECTIVE PROFITS, OR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING WITHOUT LIMITATION THE
BREACH OF THIS AGREEMENT BY SCEE), WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING
NEGLIGENCE), INDEMNITY, PRODUCT LIABILITY OR OTHERWISE. IN NO EVENT SHALL SONY'S
LIABILITY ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING
WITHOUT LIMITATION ANY LIABILITY FOR DIRECT DAMAGES, AND INCLUDING WITHOUT
LIMITATION ANY LIABILITY UNDER CLAUSE 11.1, EXCEED [ * ]. EXCEPT AS EXPRESSLY
SET FORTH HEREIN, NO SONY ENTITY, NOR ANY OF THEIR RESPECTIVE DIRECTORS,
OFFICERS, EMPLOYEES OR AGENTS, SHALL BEAR ANY RISK, OR HAVE ANY RESPONSIBILITY
OR LIABILITY, OF ANY KIND TO PUBLISHER OR TO ANY THIRD PARTIES WITH RESPECT
TO THE FUNCTIONALITY AND/OR PERFORMANCE OF LICENSED PRODUCTS.
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| 12.2 |
IN NO EVENT SHALL PUBLISHER BE
LIABLE TO SCEE FOR PROSPECTIVE PROFITS, OR SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING WITHOUT
LIMITATION THE BREACH OF THIS AGREEMENT BY PUBLISHER), WHETHER UNDER THEORY
OF CONTRACT, TORT (INCLUDING NEGLIGENCE), INDEMNITY, PRODUCT LIABILITY OR
OTHERWISE, PROVIDED THAT PUBLISHER EXPRESSLY AGREES THAT SUCH LIMITATIONS
SHALL NOT APPLY TO DAMAGES RESULTING FROM PUBLISHER'S BREACH OF CLAUSES 2,
3, 4, 9 OR 11.2 OF THIS AGREEMENT. |
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| 12.3 |
SUBJECT AS EXPRESSLY PROVIDED IN
CLAUSES 10.1 AND 10.2, NO SONY ENTITY NOR ITS SUPPLIERS MAKE, NOR DOES PUBLISHER
RECEIVE, ANY WARRANTIES (EXPRESS, IMPLIED OR STATUTORY) REGARDING THE SONY
MATERIALS AND/OR UNITS OF MANUFACTURED MATERIALS MANUFACTURED HEREUNDER.
SONY SHALL NOT BE LIABLE FOR ANY INJURY, LOSS OR DAMAGE, DIRECT OR CONSEQUENTIAL,
ARISING OUT OF THE USE OF, OR INABILITY TO USE, SUCH UNITS OF MANUFACTURED
MATERIALS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ANY WARRANTIES,
CONDITIONS OR OTHER TERMS IMPLIED BY STATUTE OR COMMON LAW (INCLUDING AS
TO MERCHANTABILITY, SATISFACTORY QUALITY AND/OR FITNESS FOR A PARTICULAR
PURPOSE AND THE EQUIVALENTS THEREOF UNDER THE LAWS OF ANY JURISDICTION) ARE
EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. HOWEVER, NOTHING IN THIS
AGREEMENT SHALL LIMIT SONY'S LIABILITY IN RELATION TO CLAIMS ARISING FROM
THE INJURY OR DEATH OF ANY PERSON RESULTING FROM THE PROVEN NEGLIGENCE OF
SONY. |
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| 13.1 |
SCEE shall have the right forthwith
to terminate this Agreement by written notice to Publisher at any time after
the occurrence of any of the following events or circumstances: (i) any material
breach of Publisher's obligations under this Agreement (or, if Publisher
shall also have executed a PlayStation Non-Disclosure Agreement and/or PlayStation 2 Confidentiality & Non-Disclosure
Agreement which shall have been breached by Publisher, or a PlayStation Licensed
Developer Agreement, PlayStation Licensed Publisher Agreement, PlayStation
2 Tools & Materials Loan Agreement and/or a PlayStation 2 Licensed
Developer Agreement, or a PlayStation or PlayStation 2 licensed
developer, development system or licensed publisher agreement (or equivalent)
with an Affiliate of SCEE, which shall have been terminated for breach by
SCEE or by such party) which breach, if capable of remedy, shall not have
been corrected or cured in full within [ * ] days following notice
from SCEE (or the applicable Affiliate of SCEE as the case may be) specifying
and requiring the correction or cure of such breach, or any repetition of
a prior material breach of any such obligation, whether or not capable of
remedy; (ii) any refusal or failure by Publisher to effect payment of Platform
Charge, promptly in accordance with Clauses 7.1 or 7.3 or at all, or a statement
that Publisher is or will be unable to pay, any sum(s) due hereunder, or
Publisher being unable to pay its debts generally as the same fall due; (iii)
Publisher's filing of an application for, or consenting to or directing the
appointment of, or the taking of possession by, a receiver, custodian, trustee
or liquidator (or the equivalent of any of the foregoing under the laws of
any jurisdiction) of any of Publisher's property (whether tangible or intangible
and wherever located), assets and/or undertaking; (iv) the making by Publisher
of a general assignment for the benefit of creditors; (v) an |
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Sony Computer Entertainment Europe
PlayStation 2 Licensed Publisher |
C O N F I D E N T I A L |
Page 15 |
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adjudication in any jurisdiction
that Publisher is a bankrupt or insolvent; (vi) the commencing by Publisher
of, or Publisher's intention to commence, a voluntary case under applicable
bankruptcy laws of any jurisdiction; (vii) the filing by Publisher of, or
Publisher's intention to file, a petition seeking to take advantage of any
other law(s) of any jurisdiction providing for the relief of debtors; (viii)
Publisher's acquiescence in, intention to acquiesce in, or failure to have
dismissed within 90 (ninety) days, any petition filed against it in any involuntary
case brought pursuant to the bankruptcy or other law(s) of any jurisdiction
referred to in (vi) and (vii) above; (ix) a controlling partnership or equity
interest [or any such interest (other than an acquisition of, less than an
aggregate of [ * ] of the issued share capital of Publisher,
as quoted on a recognised investments exchange), in the case of a transfer
to any party which (a) shall previously have executed a PlayStation Non-Disclosure
Agreement and/or PlayStation 2 Confidentiality & Non-Disclosure
Agreement which shall have been breached by such party, or a PlayStation Licensed
Developer Agreement, PlayStation Licensed Publisher Agreement, PlayStation 2
Tools & Materials Loan Agreement, PlayStation 2 Licensed Developer Agreement
and/or a PlayStation 2 Licensed Publisher Agreement which shall have been terminated
for breach by SCEE, or a PlayStation or PlayStation 2 licensed developer, development
system or licensed publisher agreement (or equivalent) with an Affiliate of SCEE,
which shall have been terminated for breach by such party, or (b) is, or which
directly or indirectly holds or acquires a partnership or equity interest in,
the developer of (or other owner of intellectual property rights in) any interactive
hardware device or product which is or will be directly or indirectly competitive
with PlayStation 2, or (c) is in litigation with Sony concerning any proprietary
technology, trade secrets and/or intellectual property matter(s) and/or has challenged
the validity of any Sony Intellectual Property Rights] in Publisher or in all
or substantially all of Publisher's property (whether tangible or intangible),
assets and/or undertaking, being acquired, directly or indirectly, by any person,
firm, corporation or
other entity; (x)' Publisher enters into any third party business relationship
pursuant to which Publisher makes a material contribution to the development
of the core components of any interactive hardware device or product which is
or will be directly or indirectly competitive with PlayStation 2, or if Publisher
directly or indirectly holds or acquires a partnership or equity interest (other
than a holding or acquisition of less than an aggregate of [ * ]
of the issued share capital, as quoted on a recognised investments exchange)
in, or otherwise forms a strategic commercial relationship with, any third party
firm, corporation or other entity which has developed or during the Term develops
(or which owns or during the Term acquires ownership of intellectual property
rights in) any such device or product; (xi) Publisher failing to submit materials
relating to any new PlayStation 2 format Software in accordance with Clause 5.2,
and/or failing to issue any purchase orders for Manufactured Materials in accordance
with Clause 6.5, during any period of [ * ];
or (xii) Publisher (or any parent company, subsidiary or affiliate of Publisher)
being in litigation with Sony concerning any proprietary technology, trade secrets
and/or intellectual property matter(s) and/or challenging the validity of any
Sony Intellectual Property Rights. As used in this Clause 13.1, "controlling
interest" means (i) in relation to a body corporate, the power of the holder
of such interest to secure – (a) by means of the holding of shares
or the possession of voting power in, or in relation to, that or any other body
corporate or (b) by virtue of any powers conferred by the Articles of Association
or other document regulating that or any other body corporate – that the
affairs of such body corporate be conducted in accordance with the wishes of
the holder of such interest, and (ii) in relation to a partnership, the right
to a share of more than [ * ] of the assets or of the
income of the partnership. Forthwith upon such occurence, Publisher shall notify
SCEE of the occurence of any of the events or circumstances specified in (ii)
to (x) above; and Publisher's failure so to do shall be a material breach of
this Agreement not capable of remedy. |
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| 13.2 |
Further, SCEE shall have the right
by written notice to Publisher forthwith to terminate the licences and related
rights herein granted to Publisher in relation to any PlayStation 2 format
Software at any time after the occurrence of any of the following events:
(i) any failure by Publisher to submit to SCEE the materials required to
be submitted under Clauses 5.2 and 5.3 (or, if applicable, under |
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PlayStation 2 Licensed Publisher |
C O N F I D E N T I A L |
Page 16 |
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Clause 5.6) in the form and manner and in conformity with the standards and specifications therein prescribed; and (ii) any failure by Publisher promptly to notify SCEE in writing of any material change to any of the materials approved by SCEE pursuant to Clause 5.4 (or, if applicable, pursuant to Clause 5.6); provided however that SCEE shall not be entitled to exercise such right of termination if Publisher's failure under (i) above is directly caused by SCEE's failure to comply with any of its material obligations expressly set forth herein. |
| 14. |
Effect of Expiration
or Termination |
| |
|
| 14.1 |
Notwithstanding the expiration of
the Term, Publisher shall be entitled to continue to publish PlayStation2
format Software the development of which shall have been approved prior to
or during the Term hereof by SCEE (or by an Affiliate of SCEE) pursuant to
the applicable LDA2, and to use the Licensed Trademarks strictly, only and
directly in connection with such publication, until the expiration of the
Term or, if later, until the second anniversary of the 31 March next following
such approval. Upon expiration of the Term or, if applicable, such extended
period for publishing PlayStation 2 format Software, Publisher may sell off
existing inventories of the applicable PlayStation 2 format Software titles,
on a non-exclusive basis, for a period of [ * ] days
from the applicable expiration date; provided always that such inventory
thereof shall not have been manufactured solely or principally for sale within
such sell-off period. |
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|
| 14.2 |
However, upon the exercising by
SCEE of its right of termination, either of this Agreement pursuant to Clause
13.1(i) to (viii) or Clause 13.1(xii) or in relation to any PlayStation 2
format Software pursuant to Clause 13.2, all rights, licences and privileges
licensed or otherwise granted to Publisher hereunder, either generally or
in relation to such PlayStation2 format Software (as applicable), shall forthwith
and without further formality revert absolutely to SCEE and Publisher shall
forthwith cease and desist from any further use of the Sony Materials, any
Sony Intellectual Property Rights related thereto and the Licensed Trademarks,
and, subject to Clause 14.3, shall have no further right to continue the
marketing, sale and/or
distribution of any units of Licensed Product or of any units of
Licensed Product derived from such PlayStation 2 format Software (as applicable). |
|
|
| 14.3 |
In the event of termination by
SCEE pursuant to Clause 13.1(ix), (x) or (xi) or by Publisher pursuant to
Clause 25, Publisher may sell off then unsold units of Licensed Product(s),
for a period of [ * ] days from the effective date of termination;
provided always that such inventory thereof shall not have been manufactured
solely or principally for sale within such sell-off period. Subsequent to
the expiry of such [ * ] day or [ * ] day sell-off
period, or in the event of termination by SCEE pursuant to Clause 13.1(i)
to (viii), Clause 13.1(xii) or Clause 13.2, any and all units of Licensed
Products or the applicable Licensed Products (as the case may be) remaining
in Publisher's inventory and/or under its control shall be destroyed by Publisher
within [ * ] working days following such expiry or effective date of termination.
Within [ * ] working days following such destruction, Publisher shall
furnish SCEE an itemised statement, certified accurate by a duly authorised
officer, partner or other representative (as applicable) of Publisher, specifying
the number of then unsold units of Licensed Product(s) to which such termination
applies, on a PlayStation 2 format Software title-by-title basis, which remain
in its inventory and/or under its control at such date, confirming the number
of units of Licensed Products destroyed, on a P1ayStation 2 format Software
title-by-title basis, and indicating the location and date of such destruction
and the disposition of the remains of such
destroyed materials. SCEE shall be entitled to conduct a physical inspection
of Publisher's inventory during normal business hours in order to ascertain
or verify such inventory and/or statement. |
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|
| 14.4 |
Upon termination of the Term by
SCEE pursuant to Clause 13.1, Publisher shall forthwith deliver up to SCEE
(or, if so requested by SCEE in writing, destroy and promptly furnish SCEE
a certificate of such destruction signed by a duly authorised officer, partner
or other representative (as applicable) of Publisher) all Sony Materials,
and any Confidential Information of Sony of which Publisher shall have become
apprised and which has been reduced to tangible or written form, and any
and all copies thereof then in the possession, custody or control of Publisher. |
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| * CONFIDENTIAL TREATMENT REQUESTED |
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PlayStation 2 Licensed Publisher |
C O N F I D E N T I A L |
Page 17 |
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| 14.5 |
SCEE shall be under no obligation
to renew or extend this Agreement notwithstanding any actions taken by either
of the parties prior to its expiration or earlier termination. In the event
of termination pursuant to Clauses 13.1 or 13.2, no part of any payment(s)
whatsoever theretofore made to SCEE hereunder (or, if Publisher shall also
have executed a LDA2, thereunder) shall be owed or repayable to Publisher,
and nor shall either party be liable to the other for any damages (whether
direct, consequential or incidental, and including without limitation any
expenditures, loss of profits or prospective profits) sustained or arising
out of, or alleged to have been sustained or to have arisen out of, such
expiration or earlier termination. However, the expiration or earlier termination
of this Agreement shall not excuse either party from any prior breach of
any of the terms and provisions of this Agreement or from any obligations
surviving such expiration or earlier termination, and full legal and equitable
remedies shall remain available for any breach or threatened breach of this
Agreement or of any obligations arising therefrom. |
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|
| 14.6 |
The expiration or earlier termination
of this Agreement (whether by SCEE pursuant to Clause 13 or otherwise howsoever)
shall be without prejudice to any and all rights and remedies which either
party may then or subsequently have against the other party. |
|
|
| 15. |
Notices |
| |
|
| 15.1 |
All notices under this Agreement
shall be in writing and shall be given by courier or other personal delivery,
by registered or certified mail, by recognised international courier service
or by facsimile transmission (with an immediate confirmation copy by regular
mail or any of the methods specified above) at the appropriate address hereinbefore
specified or at a substitute address designated by notice by the party concerned
(and in the case of notices to SCEE shall be directed to its Vice President,
Business Affairs or such other Sony representative as shall from time to
time be designated by notice by SCEE). Notices given other than by facsimile
transmission shall be deemed given and effective when delivered. Notices
given by facsimile transmission shall be deemed given only upon receipt of
confirmation copy as aforesaid but, upon such receipt, shall be deemed effective
as of the date of transmission. |
|
|
| 15.2 |
Whenever Publisher is required to
obtain the authorisation, consent or approval of SCEE, Publisher shall request
the same by notice to SCEE as aforesaid, and with a copy under separate cover
to its Director of Third Party Relations or such other Sony representative
as shall from time to time be designated by notice to Publisher. Such authorisation,
consent or approval shall not be deemed to be granted unless and until SCEE
shall have given a written affirmative response to each request therefor
and shall in no event be implied or inferred from any delay or failure of
SCEE to give such or any response. |
|
|
| 16. |
Force Majeure |
| |
|
| Neither SCEE nor Publisher shall
be liable for any loss or damage or be deemed to be in breach of this Agreement
if its failure to perform, or failure to cure any breach of, its obligations
under this Agreement results from any events or circumstances beyond its
reasonable control, including without limitation any natural disaster,
fire, flood, earthquake or other act of God, inevitable accidents, lockout,
strike or other labour dispute, riot or civil commotion, act of public
enemy, enactment, rule, order or act of any government or governmental
authority, failure of technical facilities, or failure or delay of transportation
facilities. |
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| 17. |
Relationship of
the Parties |
| |
|
| The relationship hereunder between
SCEE and Publisher respectively is that of licensor and licensee. Publisher
is an independent contractor and shall not in any respect act as or be deemed
to be the legal representative, agent, joint venturer, partner or employee
of SCEE for any purpose whatsoever. Neither party shall have any right or
authority to assume or create any obligations of any kind or to make any
representation or warranty (express or implied) on behalf of the other party
or to bind the other party in any respect whatsoever. |
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Sony Computer Entertainment Europe
PlayStation 2 Licensed Publisher |
C O N F I D E N T I A L |
Page 18 |
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| 18. |
Assignability |
| |
|
| SCEE has entered into this Agreement
based on the particular reputation, capabilities and experience of Publisher
and of its officers, directors and employees. Accordingly, Publisher
may not assign, pledge or otherwise dispose of this Agreement or of any
of its rights hereunder, nor delegate or otherwise transfer any of its
obligations hereunder, to any third party unless the prior written consent
of SCEE shall first have been obtained in each case. Any attempted or
purported assignment, pledge, delegation or other disposition in contravention
of this Clause 18 shall be null and void and a material breach of this
Agreement not capable of remedy. SCEE shall be entitled, without the
consent of Publisher, to assign its rights and obligations hereunder
to any corporation or other entity in which Sony Corporation (or any
successor in interest thereto) holds a controlling interest, whether
directly or indirectly. Subject to the foregoing, this Agreement shall
enure to the benefit of the parties and their respective successors and
permitted assigns. |
|
|
| A person who is not party to
this Agreement shall have no right under the Contracts (Rights of Third
Parties) Xxx 0000 to enforce any term of this Agreement. This provision
does not affect any right or remedy of any person which exists or is
available otherwise than pursuant to such Act. |
|
|
| 19. |
Compliance
with Applicable Laws |
| |
|
| The parties. shall at all times
comply with all applicable regulations and orders of their respective
countries and all conventions and treaties to which their countries are
party or relating to or in any way affecting this Agreement and the performance
by the parties of this Agreement. Each party, at its own expense, shall
negotiate and obtain any approval, licence or permit required for the
performance of its obligations hereunder, and shall declare, record or
take such steps as may be necessary to render this Agreement binding,
including without limitation any required filing of this Agreement with
any appropriate governmental authorities. |
|
|
| 20. |
Governing Law |
| |
|
| This Agreement shall be governed
by, construed and interpreted in accordance with English Law, without
giving effect to the conflict of laws principles thereof. The parties
irrevocably agree for the exclusive benefit of SCEE that the English
Courts shall have jurisdiction to adjudicate any proceeding, suit or
action arising out of or in connection with this Agreement. However,
nothing contained in this Clause 20 shall limit the right of SCEE to
take any such proceeding, suit or action against Publisher in any other
court of competent jurisdiction, nor shall the taking of any such proceeding,
suit or action in one or more jurisdictions preclude the taking of any
other such proceeding, suit or action in any other jurisdiction, whether
concurrently or not, to the extent permitted by the law of such other
jurisdiction. Publisher shall have the right to take any such proceeding,
suit or action against SCEE only in the English Courts. |
|
|
| 21. |
Remedies |
| |
|
| Publisher acknowledges and agrees
that any breach by Publisher of this Agreement may cause Sony irreparable
harm and damage which may not be capable of remedy by damages alone and
therefore that in the event of any such breach SCEE may seek equitable
(including injunctive) relief against Publisher in addition to damages
and/or any other remedy available to SCEE at law or in equity. Either
party's election to avail itself of any of the remedies provided for
in this Agreement shall not be exclusive of any other remedies available
hereunder or otherwise at law or in equity, and all such remedies shall
be cumulative. Publisher shall indemnify SCEE for all losses, liabilities,
damages, expenses and costs, including without limitation reasonable
fees for lawyers, expert witnesses and litigation costs, which SCEE may
sustain or incur as a result of any breach or threatened breach by Publisher
of this Agreement. |
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Sony Computer Entertainment Europe
PlayStation 2 Licensed Publisher |
C O N F I D E N T I A L |
Page 19 |
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| 22. |
Severability |
| |
|
| In the event that any provision
of this Agreement (or any part(s) thereof), other than a provision in
respect of which SCEE gives a notice of amendment pursuant to Clause
25, is determined by a court of competent jurisdiction to be invalid
or otherwise unenforceable, such provision (or part(s) thereof) shall
be enforced to the extent possible consistent with the stated intention
of the parties or, if incapable of such enforcement, shall be deemed
to be deleted from this Agreement, but not in any way so as to affect
the validity or enforceability of any other provisions of this Agreement
which shall continue in full force and effect. |
|
|
| 23. |
Provisions Surviving
Expiration or Termination |
| |
|
| The following provisions of
this Agreement shall survive and continue in full force and effect notwithstanding
its expiration or earlier termination (whether by SCEE pursuant to Clause
13 hereof or otherwise howsoever): |
|
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|
Clause 3 |
Sub-Publishers |
|
|
Clause 4 |
Reservations |
|
|
Clause 5.7 + 5.8 |
Notices & Consumer Advisory
Ratings |
|
|
Clause 6 |
Manufacture of Licensed
Products |
|
|
Clause 7 |
Platform Charge |
|
|
Clause 9 |
Confidentiality |
|
|
Clause 10.2 to 10.4 |
Warranties |
|
|
Clause 11 |
Indemnities |
|
|
Clause 12 |
Limitations of Liability |
|
|
Clause 14 |
Effect of Expiration or
Termination |
|
|
Clause 18 |
Assignability |
|
|
Clause 20 |
Governing Law |
|
|
Clause 21 |
Remedies |
|
|
Clause 22 |
Severability |
|
|
|
|
| No failure or delay by either party
in exercising any right, power or remedy under this Agreement shall operate
as a waiver of any such right, power or remedy. No waiver of any provision
of this Agreement shall be effective unless in writing and signed by the
party against whom it is sought to enforce such waiver. Any waiver by either
party of any provision of this Agreement shall not be construed as a waiver
of any other provision of this Agreement, nor shall such waiver operate or
be construed as a waiver of such provision in relation to any future event
or circumstance. |
| NOTHING IN THIS AGREEMENT SHALL
BE READ OR APPLIED IN SUCH A WAY AS TO FRUSTRATE ARTICLE 6 AND, IF AND
TO THE EXTENT ANY PROVISION OF THIS AGREEMENT (OR ANY PART THEREOF) HAS
(OR IS CAPABLE OF HAVING) SUCH EFFECT, IT SHALL BE DEEMED MODIFIED ACCORDINGLY. |
|
|
| SCEE RESERVES THE RIGHT, AT ANY
TIME UPON REASONABLE NOTICE TO PUBLISHER, TO AMEND THE RELEVANT PROVISIONS
OF THIS AGREEMENT, THE SCHEDULES HERETO AND/OR THE SPECIFICATIONS HEREIN
REFERRED TO, TO TAKE ACCOUNT OF OR IN RESPONSE TO ANY DECISION OR ORDER OF,
OR OBJECTION RAISED BY, ANY COURT OR GOVERNMENTAL OR OTHER COMPETITION AUTHORITY
OF COMPETENT JURISDICTION AND/OR ANY STATUTORY OR SIMILAR MEASURES WHICH
MIGHT BE IMPLEMENTED TO GIVE EFFECT TO ANY SUCH DECISION, WHICH APPLY TO
THIS AGREEMENT, THE SCHEDULES HERETO AND/OR THE SPECIFICATIONS HEREIN REFERRED
TO (AND FROM WHICH THIS AGREEMENT, THE SCHEDULES HERETO AND/OR THE SPECIFICATIONS
HEREIN REFERRED TO ARE NOT EXEMPT) OR TO REFLECT ANY UNDERTAKING GIVEN BY
SONY TO ANY SUCH AUTHORITY IN RELATION TO ANY AND ALL SUCH MATTERS AFORESAID.
ANY SUCH AMENDMENT SHALL BE OF PROSPECTIVE APPLICATION ONLY AND SHALL NOT
BE APPLIED TO ANY LICENSED PRODUCT MATERIALS RELATING TO WHICH SHALL HAVE
BEEN SUBMITTED TO SCEE BY PUBLISHER PURSUANT TO CLAUSE 5.2 AND/OR 5.3 PRIOR
TO THE DATE OF SCEE'S NOTICE OF AMENDMENT.
IN THE |
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Sony Computer Entertainment Europe
PlayStation 2 Licensed Publisher |
C O N F I D E N T I A L |
Page 20 |
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| EVENT THAT PUBLISHER IS UNWILLING
TO ACCEPT ANY SUCH AMENDMENT, THEN PUBLISHER SHALL HAVE THE RIGHT FORTHWITH
TO TERMINATE THIS AGREEMENT BY WRITTEN NOTICE TO SCEE GIVEN NOT MORE
THAN 90 (NINETY) DAYS FOLLOWING THE DATE OF SCEE'S NOTICE OF AMENDMENT.
THE PROVISIONS OF CLAUSE 14.3 SHALL COME INTO EFFECT UPON ANY SUCH
TERMINATION BY PUBLISHER. |
| |
|
| Subject to the foregoing and
except as otherwise provided herein, this Agreement shall not be subject
to amendment, change or modification other than by another written instrument
duly executed by both of the parties hereto. |
| |
|
| 26. |
Headings |
| |
|
| The clause and other headings
contained in this Agreement are intended primarily for reference purposes
only and shall not alone determine the construction or interpretation
of this Agreement or any provision(s) hereof. |
| |
|
| 27. |
Integration |
| |
|
| This document (including the
Schedules hereto) constitutes the entire agreement between the parties
with respect to the subject matter contained herein, and supersedes all
prior or contemporaneous agreements, proposals, understandings and communications
between Sony and Publisher, whether oral or written, with respect to
the subject matter hereof. However, the generality of the foregoing notwithstanding,
the CNDA and, if applicable, the LDA 2 executed by Publisher shall continue
in full force and effect. |
| |
|
| 28. |
Counterparts |
| |
|
This Agreement
may be executed in 2 (two) counterparts, each of which shall be deemed
an original, and both of which together shall constitute one and the
same instrument.
|
| |
|
| IN WITNESS WHEREOF the parties
hereto have caused this Agreement to be executed as of the date first
above written. |
| |
|
| SONY COMPUTER ENTERTAINMENT EUROPE LIMITED |
EIDOS INTERACTIVE LIMITED |
 |
 |
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|
| Signature |
Signature |
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|
| Xxxxxxxxxxx Xxxxxxx |
Xxxxxxxx Xxxx |
|
|
| Name |
Signatory's Name (please print) |
| |
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| President |
Managing Director |
|
|
| Title |
Title |
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Sony Computer Entertainment Europe
PlayStation 2 Licensed Publisher |
C O N F I D E N T I A L |
Page 21 |
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|
SCHEDULE 1
to the PlayStation
2 Licensed Publisher Agreement dated the 22 day of November 2000
between Sony Computer Entertainment Europe Limited and Eidos Interactive Limited
|
| |
Licensed
Territory (Clause 1.2) |
| (1) |
|
|
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|
|
| Andorra |
|
|
Ireland |
|
Qatar |
|
| Armenia |
|
Israel |
|
Romania |
|
| Australia |
|
Italy |
|
Russian Federation |
|
| Austria |
|
Jordan |
|
San Marino |
|
| Azerbaijan |
|
Kazakhstan |
|
Saudi Arabia |
|
| Bahrain |
|
Kenya |
|
Serbia |
|
| Xxxxxxx |
|
Xxxxxx |
|
Xxxxxxxx |
|
| Xxxxxxx |
|
Xxxxxx |
|
Xxxxxxxx |
|
| Xxxxxx Xxxxxxxxxxx |
|
Lebanon |
|
Somalia |
|
| Botswana |
|
Liechtenstein |
|
South Africa & Namibia |
|
| Bulgaria |
|
Lithuania |
|
Spain |
|
| Croatia |
|
Luxembourg |
|
Sweden |
|
| Cyprus |
|
Macedonia |
|
Swaziland |
|
| Czech Republic |
|
Madagascar |
|
Switzerland |
|
| Denmark |
|
Malta |
|
Syria |
|
| Djibouti |
|
Mauritius |
|
Tanzania |
|
| Egypt |
|
Moldova |
|
Tunisia |
|
| Estonia |
|
Monaco |
|
Turkey |
|
| Ethiopia |
|
Morocco |
|
Turkmenistan |
|
| Finland |
|
Mozambique |
|
Ukraine |
|
| France |
|
Netherlands |
|
United Arab Emirates |
|
| Georgia |
|
New Zealand |
|
United Kingdom |
|
| Germany |
|
Nigeria |
|
Uzbekistan |
|
| Gibraltar |
|
Norway |
|
Vatican |
|
| Greece |
|
Oman |
|
Yemen |
|
| Hungary |
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Poland |
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Zambia |
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| Iceland |
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Portugal |
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Zimbabwe |
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and all other countries which from
time to time are members of the European Union or have otherwise implemented
the Treaty on a European Economic Area or where Articles 85 & 86 of the
Treaty of Rome (or provisions similar thereto) have been implemented or are
otherwise directly effective. |
| (2) |
Such countries in addition to those specified in (1) above in which the PAL television standard obtains and which SCEE, in its sole discretion as representative of Sony Computer Entertainment worldwide, determines from time to time to include within the Licensed Territory by notice to Publisher. Without limiting the generality of the foregoing, SCEE shall have the right not to include within the Licensed Territory or, having included, subsequently to exclude from the Licensed Territory by reasonable notice to Publisher (and intends so to exclude) any such country or countries in which, in SCEE's best business judgment, the laws or enforcement of such laws do not protect Sony Intellectual Property Rights. By not later than the expiry of any such
notice of exclusion, Publisher shall cease and desist, in the country or countries concerned, from any further use of the Sony Materials, any Sony Intellectual Property Rights related thereto and the Licensed Trademarks and shall have no further right to continue or authorise the marketing, sale and/or distribution of any units of PlayStation 2 format Software. |
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Sony Computer Entertainment Europe
PlayStation 2 Licensed Publisher |
C O N F I D E N T I A L |
Page 22 |
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SCHEDULE 2
to the PlayStation
2 Licensed Publisher Agreement dated the 22 day of November 2000
between Sony Computer Entertainment Europe Limited and Eidos Interactive Limited
Platform Charge (Clause 7.1)
Band |
Publisher's
maximum
price to trade
|
Platform Charge
per
unit |
|
| |
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[*] |
[*] |
[*] |
|
[*]
|
[*]
|
[*]
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[*]
|
[*]
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[*]
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[*]
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[*]
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[*]
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[*]
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[*]
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[*]
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For these purposes, "maximum price to trade" shall mean –
Publisher's (or, where applicable,
Publisher's distributor's) highest price net of trade margin to any trade
customer in the European Economic Area and Australia for Publisher's (or,
where applicable, Publisher's distributor's) minimum order quantity of the
relevant inventory, net of year end (or similar) volume rebates (if any)
properly attributable to sales of PlayStation software, but prior to any
credit, deduction or rebate for co-op advertising or other marketing support,
returns or otherwise howsoever.
Where Publisher's business (with the trade or through distributors) is conducted in local currencies other than , the local currency/ exchange rates to be applied for purposes of conforming to maximum price to trade for any given Band will be the closing mid-point spot rate as quoted in the London "Financial Times" on
the first business day of each [ * ] period, commencing 1 April 2000. Such
exchange rate will then reset for each successive [ * ] period thereafter
The local currency maximum price
to trade for any given title will then be that derived by applying the exchange
rate obtaining for the [ * ] period (as above) in which Publisher places
its first Purchase Order ("PO") for the title concerned and will continue
to apply for that title unless and until, on migration (see below), Publisher
places its first PO in a different Band in a subsequent [ * ] period.
SCEE reserves the right to review
local currency maximum prices to trade per Band applicable for any given
[ * ] period (as above) in the event of a material exchange rate fluctuation,
deemed for these purposes to be +/– [ * ]%.
The foregoing assumes a standard 1-Disc PlayStation 2 CD-ROM product and covers mastering, Disc, standard 2-colour Disc Label, PlayStation 2 box (or other packaging) and automated assembly of all components, but excludes the cost. of Printed Materials other than Disc Label.
For multi-disc PlayStation 2 CD-ROM
products and PlayStation 2 products in DVD5 format, the applicable Platform
Charge specified above shall be increased by + [ * ]/unit.
| * CONFIDENTIAL TREATMENT REQUESTED |
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Sony Computer Entertainment Europe
PlayStation 2 Licensed Publisher |
C O N F I D E N T I A L |
Page 23 |
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For the following optional non-standard Manufactured Materials, the following incremental charges (in addition to the otherwise applicable Platform Charge specified above) will apply
| • |
Multi-Colour Disc Label |
| • |
White Base Underlay |
[*] |
|
|
|
|
if the Disc Label is more than [*]-colour, |
|
for each additional colour |
|
(maximum [*] additional
colours / [*] ) |
[*] |
|
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|
| • |
Picture Disc – High Definition |
[*] |
|
[*]-Disc CD-ROM products (in standard PlayStation 2 box) |
[*] |
|
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> [*]-Disc CD-ROM
products |
[*] |
The Platform Charge and minimum order and reorder quantities for other "non-standard" Manufactured Materials and/or production processes shall be as detailed in the Specifications or, where not so detailed, and subject to availability, as individually quoted in each case.
P1ayStation 2 titles may "migrate" between
Bands at any time from and after [*] months (but not more than [*] months)
following initial PO (or first PO upon prior migration, as the case may be).
[*]
For migrated PlayStation
2 re-issues (but not new PlayStation 2 titles), the applicable Platform Charge
specified above, will be increased by [*] for orders placed [*] below
Band [*].
Minimum production order quantities
(Clause 6.5) shall be [*] units per pack sku for initial orders, [*] units
for re-orders, in Bands [*] or [*]. Minimum production order quantities shall
be [*] units per pack sku for all orders in Bands [*] and [*].
[*]
| * CONFIDENTIAL TREATMENT REQUESTED |
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Sony Computer Entertainment Europe
PlayStation 2 Licensed Publisher |
C O N F I D E N T I A L |
Page 24 |
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PlayStation2 Hit Title Rebate program.
Publisher's software orders in each
qualifying financial year (April – March) will determine the level of
Hit Title Rebate ("HTR") in the following financial year. The first
qualifying year runs 1 April 1999 – 31 March 2000
Titles with total bona fide orders
below [ * ] units will not be taken into account. Otherwise, all orders for
software for Sony's "PlayStation" predecessor video entertainment system (in one Band only per title) and all orders for PlayStation 2 format Software in each qualifying financial year will be taken into account, in calculating the Level of HTR for the following financial year.
Once qualified for (as above), HTR for each financial year will be at one of the following levels –
Level 1 (up to [*]
units
in qualifying financial year, ie. immediately preceding April – March),
Level 2 (over [*]
units in qualifying financial year),
Level 3 (over [*]
units in qualifying financial year).
HTR will be redeemable in the applicable
financial year, against orders for PlayStation 2 format Software only, as
follows –
units per
PlayStation2 title * |
Xxxxx 0 |
Xxxxx 0 |
Xxxxx 0 |
| |
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[*] |
[*] |
[*] |
[*] |
[*]
|
[*]
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[*]
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[*]
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[*]
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[*]
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[*]
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[*]
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[*]
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[*]
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[*]
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[*]
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[*]
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[*]
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[*]
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[*]
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[*]
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[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
|
[*]
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* NB: per title not per SKU and not cume across all PlayStation2 titles |
The HTR for each PlayStation2 title
shall continue to escalate (as above) for orders in the same Band notwithstanding
that such orders may be placed in a following financial year. Subsequent
orders for the same title but in a different Band will be counted for these
purposes as orders for a new "title".
In order to verify conformity with
the Band structure for PlayStation 2 format Software described above, SCEE
will require from time to time at its own expense to inspect and audit the
relevant of Publisher's financial records (and, where applicable, those of
Publisher's associated companies, subsidiaries and/or branch offices in the
Licensed Territory). Any such inspection and audit shall take place during
normal business hours at Publisher's principal place of business (or such
other location as the relevant books and records are maintained) upon reasonable
prior notice and shall, at SCEE's sole election, be conducted either by an
independent chartered or certified accountant or by an appropriately professionally
qualified member of SCEE's
staff.
Initialled by
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Initialled
by
|
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Sony Computer Entertainment Europe
|
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Eidos Interactive
|
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| * CONFIDENTIAL TREATMENT REQUESTED |
|
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Sony Computer Entertainment Europe
PlayStation 2 Licensed Publisher |
C O
N F I D E N T I A L |
Page 25 |
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