Confidential information omitted where indicated by "[*]" and filed separately
with the Commission pursuant to a request for confidential treatment under Rule
24b-2 of the Securities Exchange Act of 1934.
MICROSOFT CORPORATION
XBOX(TM) PUBLISHER LICENSE AGREEMENT
This License Agreement (the "Agreement") is entered into and effective as of
October 10, 2000 (the "Effective Date") by and between MICROSOFT CORPORATION, a
Washington corporation ("Microsoft"), and ACCLAIM ENTERTAINMENT, INC.
("Licensee").
A. Whereas, Microsoft develops and licenses a computer game system,
known as the Xbox(TM) game system; and
B. Whereas, Licensee is an experienced publisher of software products
that wishes to develop and/or publish one or more software products running on
the Xbox game system, and to license proprietary materials from Microsoft, on
the terms and conditions set forth herein.
Accordingly, for and in consideration of the mutual covenants and conditions
contained herein, and for other good and valuable consideration, receipt of
which each party hereby acknowledges, Microsoft and Licensee agree as follows:
1. DEFINITIONS. For the purposes of this Agreement, the following terms will
have the respective indicated meanings.
1.1 "ART & MARKETING MATERIALS" shall mean art and mechanical formats for a
Software Title including the retail packaging, end user instruction manual with
end user license agreement and warranties, Finished Product Unit media label,
and any promotional inserts and other materials that are to be included in the
retail packaging, as well as all press releases, marketing, advertising or
promotional materials related to the Software Title and/or Finished Product
Units (including without limitation web advertising and Licensee's web pages to
the extent they refer to the Software Title(s) or the Finished Products Units).
1.2 "AUTHORIZED REPLICATOR" shall mean a software replicator certified and
approved by Microsoft for replication of games that run on Xbox. Upon Licensee's
written request, Microsoft will provide Licensee with a copy of the then-current
list of Authorized Replicators, but the status of a particular replicator and
such list may change from time to time in Microsoft's sole and absolute
discretion.
1.3 "BRANDING SPECIFICATION" shall mean the specifications in Exhibit C,
and such other design specifications as Microsoft may hereafter provide from
time to time, for using the Licensed Trademarks on a Software Title and/or on
related product packaging, documentation, and other materials.
1.4 "COMMERCIAL RELEASE" shall mean (a) with respect to Xbox, the first
distribution of an Xbox to the public for payment, and (b) with respect to a
Software Title, the earlier of the first distribution of the Software Title for
payment or distribution of Finished Product Units that are not designated as
beta or prerelease versions.
1.5 "FINISHED PRODUCT UNIT" shall means a DVD-9 copy, in software object
code only, of a Software Title, in whole or in part.
1.6 "LICENSED TRADEMARKS" shall mean the Microsoft trademarks depicted in
Exhibit B (which Microsoft unilaterally may modify from time to time during the
term of this Agreement upon written notice to Licensee).
1.7 "SOFTWARE TITLE" shall mean the single software product as described in
the applicable Exhibit A (i.e., Exhibit X-0, Xxxxxxx X-0, or Exhibit A-n, as the
case may be), developed by Licensee, and running on Xbox. A Software Title shall
include the improvements and patches thereto (if and to the extent approved by
Microsoft), but shall not include any "prequel" or "sequel." If Microsoft
approves one or more additional concept(s) for another single software product
proposed by Licensee to run on Xbox, pursuant to the procedure set forth in
Section 2.1.1 below and the Xbox Guide (as defined in Section 2.1), then upon
Microsoft's written approval of such concept, this Agreement, and the term
"Software Title," shall be broadened automatically to cover the respective new
software product and the parties will prepare, initial and append to this
Agreement a new Exhibit A-n for each such additional new software product.
1.8 "CERTIFICATION REQUIREMENTS" shall mean the requirements specified in
this Agreement (including without limitation the Xbox Guide) for quality,
compatibility, and/or performance of a Software Title, and, to the extent not
inconsistent with the foregoing standards, the standards of quality and
performance generally accepted in the console game industry.
1.9 "TERRITORY" shall be determined on a Software Title-by-Software Title
basis, and shall mean such countries as may be specified in writing by Microsoft
when the concept of the applicable Software Title is approved pursuant to
Section 2.1.1 below.
1.10 "XBOX" shall mean the first version (as of the Commercial Release) of
Microsoft's Xbox game system, including operating software and hardware design
specifications.
2. DEVELOPMENT; DELIVERY; APPROVAL
2.1 SOFTWARE TITLE DEVELOPMENT. Licensee's development activities with
respect to each Software Title shall be in accordance with the development
schedule set forth in the applicable Exhibit A-n. Furthermore, Licensee agrees
to be bound by all provisions contained in the then-applicable version of the
"Xbox Guide", the current version of which Microsoft or its affiliate will
deliver to Licensee when it is completed, after the execution of this Agreement.
Licensee understands and agrees that Microsoft may, in its discretion,
supplement, revise and update the Xbox Guide from time to time and that upon
Licensee's receipt of the applicable supplement, revision or updated version,
Licensee automatically shall be bound by all provisions of the then-current Xbox
Guide, Microsoft will specify in each such supplement, revision or updated
version a reasonable effective date of each change if such change or revision is
not required to be effective immediately. If Licensee proceeds with the
development of a Software Title, Licensee shall developer each milestone (as
described in this Section 2.1) to Microsoft for approval in writing. All
certification and playtesting (and applicable fees therefor, if any) will be in
accordance with the then-applicable version of the Xbox Guide. If Microsoft does
not approve Licensee's submission for a given milestone then Licensee shall
either correct the problems that contributed to the lack of approval or, if
Microsoft gives Licensee written
2
notice to cease development, Licensee shall immediately cease all development
activities for the applicable Software Title's subsequent milestones. Each
successive milestone shall comply in all material respects with the
characteristics of previously approved milestones. Each software milestone shall
be delivered in compiled object code form.
2.1.1 CONCEPT. Licensee shall deliver to Microsoft a written and
completed concept submission form (in the form provided by Microsoft to
Licensee), including without limitation: (a) a detailed description of the
Software Title, including but not limited to (to the extent applicable) title,
theme, plot, characters, play elements, and technical specifications; (b) the
identities of any proposed subcontractors, and general information about the
principal team of individual developers, and (c) an explanation of the design,
technical and marketing suitability of the Software Title. Evaluation of the
proposed design will be based on criteria including, but not necessarily limited
to, the following: (i) originality; (ii) play breadth and depth; (iii)
playability; (iv) replayability and long-term interest; and (v) theme,
characters and storyline. Technical evaluation of the concept will be based on
criteria including, but not necessarily limited to, feasibility of execution and
usage of system capabilities (such as graphics, audio, hard drive, play control,
online capabilities and peripherals). Marketing suitability will be evaluated
based on criteria including, but not necessarily limited to, the following: (i)
market viability; (ii) Licensee's marketing commitment (if any); (iii)
suitability to the target demographic; and (iv) overall fit with the Xbox
certified software products portfolio.
2.1.2 PRELIMINARY VERSIONS. Licensee may, but will not be required to,
deliver to Microsoft certain preliminary versions of the Software Title, as
addressed in the Xbox Guide.
2.1.3 FEATURE-COMPLETE VERSION. Licensee shall deliver to Microsoft a
feature-complete version of the Software Title (the "Beta Version"), which
includes all features of the Software Title and such other content as may be
required under the Xbox Guide. Concurrently with delivery of the Beta Version,
Licensee will disclose in writing to Microsoft the details about any and all
so-called "hidden characters," "cheats," "easter eggs," "bonus video and/or
audio," and similar elements included in the Beta Version and/or intended to be
included in the final release version of the Software Title.
2.1.4 FINAL RELEASE VERSION. Licensee shall deliver to Microsoft,
Licensee's proposed final release version of the applicable Software Title that
is complete and ready for manufacture and commercial distribution, with the
final content rating certification, with identified program errors corrected,
and with any and all changes previously by Microsoft implemented. However,
nothing herein will be deemed to relieve Licensee of its obligation to correct
program bugs and errors, whenever discovered (including without limitation after
Commercial Release), and Licensee agrees to correct such bugs and errors as soon
as possible after discovery (provided that, with respect to bugs or errors
discovered after Commercial Release of the applicable Software Title, Licensee
will use commercially reasonable efforts to correct the bug/error in all
Finished Product Units manufactured after discovery). In addition, Licensee will
comply with all certification procedures, guidelines and standards set forth in
the then-applicable version of the Xbox Guide. Licensee shall not distribute the
Software Title, nor manufacture any Finished Product Units intended for
distribution, unless and until Microsoft shall have given its final
certification and approval of the final release version of the Software
3
Title, and Microsoft shall have provided the code for the final release version
to the applicable Authorized Replicator(s).
2.1.5 PLAYTESTING. Microsoft will playtest the Beta Version and
proposed final release version of each Software Title; if Licensee delivers
preliminary versions of a Software Title, Microsoft may (but will not be
obligated to) playtest such versions. Microsoft will provide written comments to
Licensee regarding the results of its playtest results, and Licensee shall
comply with any requests made by Microsoft to improve the applicable Software
Title based on such playtest results. Licensee acknowledges that,
notwithstanding its receipt of approvals from Microsoft for prior milestones or
versions during the development process, Licensee's proposed final release
version of each Software Title must be approved by Microsoft, as set forth in
the Xbox Guide. In addition to conforming with the approved concept, with all
technical specifications, and with all other requirements set by Microsoft
during the development and approval process, each Software Title must achieve a
satisfactory rating in final playtesting. Notwithstanding anything to the
contrary contained herein, Licensee acknowledges and understands that, in part,
the results of playtesting will be subjective, that Microsoft will have the
right to deny final approval based on its determination, and that Licensee has
and will have no expectation of final approval of any Software Title regardless
of any approvals or assessments given or made by Microsoft, informally or
formally, at any time.
2.1.6 ART & MARKETING MATERIALS. Licensee shall deliver to Microsoft
for approval all Art & Marketing Materials as and when developed, whether during
development activities or thereafter. Licensee shall not distribute any specific
Art & Marketing Materials unless and until Microsoft shall have given its final
certification and approval of the specific item.
2.2 CONTENT RATING. Licensee understands and agrees that, without
limitation, Microsoft will not give final certification and approval of a
Software Title unless and until Licensee shall have obtained, at Licensee's sole
cost, a rating of no higher than "Mature (17+)" or its equivalent from the
appropriate rating bodies for the applicable Territory (such as, ESRB, ELSPA,
etc.) and/or any and all other independent content rating authority/authorities
reasonably designated by Microsoft. Licensee shall make any changes to the
Software Title required to obtain a rating of no higher than "Mature (17+)" (or
its equivalent). In no event shall Licensee distribute any Software Title under
an "Adults Only" or higher rating (or equivalent rating). Licensee shall include
the applicable rating(s) prominently on Finished Product Units, in accordance
with the applicable rating body guidelines.
2.3 DEVELOPMENTS KIT LICENSE. Microsoft or its affiliate will offer to
Licensee the opportunity to enter into one or more development kit license(s)
(each an "XDK License") pursuant to which Microsoft would license to Licensee
software development tools and hardware to assist Licensee in the development of
Software Titles, including without limitation certain sample code and other
redistributable code which Licensee could incorporate into Software Titles, on
such terms and conditions as are contained in the XDK License.
2.4 SUBCONTRACTORS. Licensee shall not use any subcontractors or any other
third parties to perform software development work in connection with a Software
Title unless and until (i) the proposed subcontractor or other third party and
(ii) Microsoft shall have executed an
4
XDK license; provided that nothing contained herein will be deemed to require
Microsoft or its affiliate to execute an XDK License with any particular person
or entity if Microsoft or its affiliate determines that it is not appropriate to
execute such an XDK License.
2.5 CHANGES OF REQUIREMENTS BY MICROSOFT. Unless otherwise reasonably
specified by Microsoft at the respective time: (a) after approval by Microsoft
of the Beta Version of a Software Title, Licensee will not be obligated to
comply, with respect to such Software Title only, with any subsequent changes
made by Microsoft to the technical or content requirements for Software Titles
generally in the Xbox guide; and (b) subject to the immediately preceding clause
(a), any changes made by Microsoft in Branding Specifications or other
requirements after final certification of a Software Title by Microsoft will be
effective as to such Software Title only on a "going forward" basis (i.e., only
to such Art & Marketing Materials and/or Finished Product Units as are
manufactured after Microsoft notifies Licensee of the change), unless (i) the
change can be accommodated by Licensee with insignificant added expense, or (ii)
Microsoft pays for Licensee's direct, out-of-pocket expenses necessarily
incurred as a result of its retrospective compliance with the change.
3. RIGHTS AND RESTRICTIONS
3.1 TRADEMARKS.
3.1.1 LICENSE. In each Software Title, and on each Finished Product
Unit (and the packaging therefor), Licensee shall incorporate the Licensed
Trademarks and include credit and acknowledgement to Microsoft as set forth in
the Branding Specifications and the Xbox Guide. Microsoft grants to Licensee a
non-exclusive, non-transferable, personal license to use the Licensed
Trademarks, according to the Branding Specifications and other conditions
herein, and solely in connection with marketing, sale, and distribution in the
Territory of Finished Product Units that meet the Certification Requirements.
3.1.2 LIMITATIONS. Licensee is granted no right, and shall not purport,
to permit any third party to use the Licensed Trademarks in any manner without
Microsoft's prior written consent. Licensee's license to use Licensed Trademarks
in connection with the Software Title and Finished Product Units shall not
extend to the merchandising or sale of related or promotional products under the
Licensed Trademarks.
3.1.3 BRANDING SPECIFICATIONS. Licensee's use of the Licensed
Trademarks (including without limitation in Finished Product Unit and Art &
Marketing Materials) shall comply with the Branding Specifications in Exhibit C.
License shall not use Licensed Trademarks in association with any third party
trademarks in a manner that might suggest co-branding or otherwise create
potential confusion as to source or sponsorship of the Software Title or
Finished Product Units or ownership of the Licensed Trademarks. Upon notice or
other discovery of any non-conformance with the requirements or prohibitions of
this section, Licensee shall promptly remedy such non-conformance and notify
Microsoft of the non-conformance and remedial steps taken.
3.1.4 CERTIFICATION REQUIREMENTS. Licensee may use the Licensed
Trademarks only in connection with the copies of the Software Title that meet
the Certification
5
Requirements. Licensee shall test the Software Title and Finished Product Units
for conformance with the Certification Requirements according to generally
accepted and best industry practices, and shall keep written or electronic
records of such testing during the term of this Agreement and for no less than
two (2) years thereafter ("Test Records"). Upon Microsoft's request, Licensee
shall provide Microsoft with copies of or reasonable access to inspect the Test
Records, Finished Product Units and Software Title (either in pre-release or
commercial release versions, as Microsoft may request). Upon notice or other
discovery of any non-conformance with the Certification Requirements, Licensee
shall promptly remedy such non-conformance in all Finished Products Units
wherever in the chain of distribution (subject to Sections 2.1.4 and 2.5 above),
and shall notify Microsoft of the non-conformance and remedial steps taken.
3.1.5 PROTECTION OF LICENSED TRADEMARKS. Licensee shall assist
Microsoft in protecting and maintaining Microsoft's rights in the Licensed
Trademarks, including preparation and execution of documents necessary to
register the Licensed Trademarks or record this Agreement, and giving immediate
notice to Microsoft of potential infringement of the Licensed Trademarks.
Microsoft shall have the sole right to and in its sole discretion may commence,
prosecute or defend, and control any action concerning the Licensed Trademarks
either in its own name or by joining Licensee as a party thereto. Licensee shall
not during the Term of this Agreement contest the validity of, by act or
omission jeopardize, or take any action inconsistent with, Microsoft's rights or
goodwill in the Licensed Trademarks in any country, including attempted
registration of any Licensed Trademark, or use or attempted registration of any
xxxx confusingly similar thereto.
3.1.6 OWNERSHIP. Licensee acknowledges Microsoft's ownership of all
Licensed Trademarks, and all goodwill associated with the Licensed Trademarks.
Use of the Licensed Trademarks shall not create any right, title or interest
therein in Licensee's favor. Licensee's use of the Licensed Trademarks shall
inure solely to the benefit of Microsoft.
3.1.7 NO BUNDLING WITH UNAPPROVED PERIPHERALS, PRODUCTS OR SOFTWARE.
Licensee shall not market or distribute any Finished Product Unit bundled with a
peripheral product software or other products, nor shall Licensee knowingly
permit or assist any third party in such bundling, without Microsoft's prior
written consent.
3.2 XXXX. Licensee shall distribute (directly or indirectly) the Software
Title to end users subject to an end user license agreement ("XXXX") in a form
to be approved by Microsoft prior to any distribution of the Software Title;
provided that, in any event, Licensee's XXXX for the Software Title shall (a)
name Microsoft as a third party beneficiary, with the right to enforce the
agreement, (b) grant the end user the right to use the Software Title on only
one Xbox console at a time, and (c) forbid the end user from reverse engineering
or decompiling the Software Title or Xbox. Microsoft will have the right to
modify its requirements for the XXXX at any time, in its discretion, and
Licensee shall implement, at its sole cost, all such new requirements as soon as
reasonably possible after receiving written notice from Microsoft of such
required modifications.
3.3 NO ELECTRONIC TRANSMISSION; NO ONLINE ACTIVITIES. Licensee shall
distribute the Software Title only as embodied in Finished Product Units;
specifically, but without limitation, Licensee shall not distribute the Software
Title by any means of electronic
6
transmission without the prior written approval of Microsoft, which Microsoft
may grant or withhold in its discretion. Furthermore, Licensee will not
authorize or permit any online activities involving the Software Title,
including without limitation multiplayer, peer-to-peer and/or online play,
without the prior written approval of Microsoft, which Microsoft may grant or
withhold in its discretion.
3.4 NO DISTRIBUTION OUTSIDE THE TERRITORY. Licensee shall distribute
Finished Product Units only in the Territory. Licensee shall not directly or
indirectly export any Finished Product Units from the Territory or shall
Licensee knowingly permit or assist any third party in doing so, nor shall
Licensee distribute Finished Product Units to any person or entity that it has
reason to believe may re-distribute or sell such Finished Product Units outside
the Territory.
3.5 NO REPRODUCTION OF FINISHED PRODUCT UNITS EXCEPT BY MICROSOFT OR
AUTHORIZED REPLICATORS. Licensee acknowledges that this Agreement does not grant
Licensee the right to reproduce or otherwise manufacture Finished Product Units
itself, or on its behalf, other than with Microsoft or an Authorized Replicator.
Licensee must use Microsoft or an Authorized Replicator to produce Finished
Product Units, pursuant to Section 4.
3.6 NO REVERSE ENGINEERING. Licensee may utilize and study the design,
performance and operation of Xbox solely for the purposes of developing the
Software Title. Notwithstanding the foregoing, Licensee shall not, directly or
indirectly, reverse engineer or aid or assist in the reverse engineering of all
or any part of Xbox except and only to the extent that such activity is
expressly permitted by applicable law notwithstanding this limitation. Reverse
engineering includes, without limitation, decompiling, disassembly, sniffing,
peeling semiconductor components, or otherwise deriving source code. In addition
to any other rights and remedies that Microsoft may have under the
circumstances, Licensee shall be required in all cases to pay royalties to
Microsoft in accordance with Section 6 below with respect to any games or other
products that are developed, marketed or distributed by Licensee, and derived in
whole or in part from the reverse engineering of Xbox or any Microsoft data,
code or other material.
3.7 RESERVATION OF RIGHTS. Microsoft reserves all rights not explicitly
granted herein.
3.8 OWNERSHIP OF THE SOFTWARE TITLES. Except for the intellectual property
supplied by Microsoft to Licensee (including without limitation the licenses in
the Licensed Trademarks hereunder and the licenses in certain software and
hardware granted by an XDK License), ownership of which is retained by
Microsoft, insofar as Microsoft is concerned, Licensee will own all rights in
and to the Software Titles.
4. MANUFACTURING
4.1 APPROVED REPLICATORS. Licensee shall retain only an Authorized
Replicator to manufacture all Finished Product Units.
4.2 TERMS OF USE OF AUTHORIZED REPLICATOR. Licensee will notify Microsoft
in writing of the identity of the applicable Authorized Replicator and unless
Microsoft agrees
7
Confidential information omitted where indicated by "[*]" and filed separately
with the Commission pursuant to a request for confidential treatment under Rule
24b-2 of the Securities Exchange Act of 1934.
otherwise, the agreement for such manufacturing/replication services shall be as
negotiated by Licensee and the applicable Authorized Replicator, subject to the
following requirements:
4.2.1 Microsoft, and not Licensee, will provide to the single
applicable Authorized Replicator the final release version of the Software Title
and all specifications required by Microsoft for the manufacture of the Finished
Product Units (including without limitation the Security Technology (as defined
in Section 4.4 below); Licensee will be responsible for preparing and delivering
to the Authorized Replicator all other items required for manufacturing Finished
Product Units; and Licensee agrees that all Finished Product Units must be
replicated in conformity with all of the quality standards and manufacturing
specifications, policies and procedures that Microsoft requires of its
Authorized Replicators, and that all so-called "adders" must be approved by
Microsoft prior to packaging (in accordance with Section 2.1.6 above);
4.2.2 Microsoft will have the right but not the obligation, to be
supplied with up to [*] Finished Product Units (including pre-production samples
and random units manufactured during production runs) at Licensee's cost but
without royalties, for quality assurance and archival purposes;
4.2.3 the initial manufacturing order for Finished Product Units of
each Software Title may not be less than a number specified by Microsoft in the
Xbox Guide; although such number may change from time to time during the term of
this Agreement, initially it will be [*];
4.2.4 as between Licensee and Microsoft, Licensee shall be responsible
for ensuring that all Finished Product Units are free of all defects;
4.2.5 Licensee will use commercially reasonable efforts to cause the
Authorized Replicator to deliver to Microsoft true and accurate monthly
statements of Finished Product Units manufactured in each calendar month, on a
Software Title-by-Software Title basis and in sufficient detail to satisfy
Microsoft, within fifteen (15) days after the end of the applicable month, and
Microsoft will have reasonable audit rights to examine the records of the
Authorized Replicator regarding the number of Finished Product Units
manufactured;
4.2.6 Microsoft will have the right to have included in the packaging
of Finished Product Units such marketing materials for Xbox and/or other Xbox
products or services as Microsoft may determine in its reasonable discretion.
Microsoft will be responsible for delivering to the Authorized Replicator all
such marketing materials as it desires to include with Finished Product Units,
and any incremental insertion costs relating to such marketing materials will be
borne by Microsoft;
4.2.7 Microsoft does not guarantee any level of performance by its
Authorized Replicators, and Microsoft will have no liability to Licensee for any
Authorized Replicator's failure to perform its obligations under any applicable
agreement between Microsoft and such Authorized Replicator and/or between
Licensee and such Authorized Replicator;
8
4.2.8 Prior to placing an order with a replicator/manufacturer for
Finished Product Units, Licensee shall confirm with Microsoft that such entity
is an Authorized Replicator, Microsoft will endeavor to keep an up-to-date list
of Authorized Replicators in the Xbox Guide. Licensee will not place any order
for Finished Product Units with any entity that is not at such time an
Authorized Replicator.
4.3 APPROVAL OF NEW AUTHORIZED REPLICATOR. If Licensee requests that
Microsoft certify and approve a third party replicator that is not then an
Authorized Replicator, Microsoft will consider such request in good faith.
Licensee acknowledges and agrees that Microsoft may condition certification and
approval of such third party on the execution of an agreement in a form
satisfactory to Microsoft pursuant to which such third party agrees to strict
quality standards, non-disclosure requirements, licensee fees for use of
Microsoft intellectual property and trade secrets, and procedures to protect
Microsoft's intellectual property and trade secrets. Notwithstanding anything
contained herein, Licensee acknowledges that Microsoft is not required to
certify or approve any particular third party as an Authorized Replicator, and
that the certification and approval process may be time-consuming.
4.4 SECURITY. Microsoft will have the right to add to the final release
version of the Software Title delivered by Licensee to Microsoft, and to all
Finished Product Units, such digital signature technology and other security
technology and copyright management information (collectively, "Security
Technology") as Microsoft may determine to be necessary, and/or Microsoft may
modify the signature included in any Security Technology included in the
Software Title by Licensee at Microsoft's direction. Additionally, Microsoft may
add Security Technology that prohibits the play of Software Titles on Xbox units
manufactured in a region or country different from the location of manufacture
of the respective Finished Product Units.
5. MARKETING, SALES AND SUPPORT
5.1 LICENSEE RESPONSIBLE. As between Microsoft and Licensee, Licensee shall
be solely responsible for marketing sales of the Software Title, and for
providing technical and all other support to the end users of the Finished
Product Units. Licensee will provide all end users of Software Titles contact
information (including without limitation Licensee's street address and
telephone number, and the applicable individual/group responsible for customer
support). Such end user support will be consistent with the then-applicable
console game industry standards. Licensee acknowledges and agrees that Microsoft
will have no support responsibilities whatsoever to end users of the Software
Title or with respect to Finished Product Units.
5.2 ART & MARKETING MATERIALS. In accordance with Section 2.1.6 above,
Licensee shall submit all Art & Marketing Materials to Microsoft, and Licensee
shall not distribute such Art & Marketing Materials unless and until Microsoft
has approved them in writing. Prior to publication of any Art & Marketing
Materials, Licensee agrees to incorporate all changes relating to use the
Licensed Trademarks that Microsoft may request, and will use its commercially
reasonable efforts to incorporate other changes reasonably suggested by
Microsoft (provided, however, that Licensee shall at all times comply with the
requirements set forth in the Branding Specifications and/or the Xbox Guide).
9
Confidential information omitted where indicated by "[*]" and filed separately
with the Commission pursuant to a request for confidential treatment under Rule
24b-2 of the Securities Exchange Act of 1934.
5.3 WARRANTY. Licensee shall provide the original end user of any Finished
Product Unit a minimum ninety (90) day limited warranty that the Finished
Product Unit will perform in accordance with its user documentation or Licensee
will provide a replacement Finished Product Unit at no charge.
5.4 RECALL. Notwithstanding anything to the contrary contained in this
Agreement (including without limitation Section 2.1.4), in the event of a
material defect in a Software Title and/or any Finished Product Units, which
defect in the reasonable judgement of Microsoft would significantly impair the
ability of an end user to play such Software Title or Finished Product Unit,
Microsoft may require Licensee to recall Finished Product Units and undertake
prompt repair or replacement of such Software Title and/or Finished Product
Units.
5.5 SOFTWARE TITLE LICENSE. Subject to third party rights of which Licensee
shall have informed Microsoft in writing at the time of delivery of the
feature-complete version of the applicable Software Title, Licensee hereby
grants to Microsoft a fully-paid, royalty-free, non-exclusive license (i) to
publicly perform the Software Titles at conventions, events, trade shows, press
briefings, and the like; and (ii) to use the title of the Software Title, and
screen shots from the Software Title, in advertising and promotional material
relating to Xbox and related Microsoft products and services, as Microsoft may
reasonably deem appropriate.
6. PAYMENTS
6.1 ROYALTIES. Licensee shall pay Microsoft royalties, on a Software
Title-by-Software Title basis, for each Finished Product Unit manufactured, in
accordance with the following table:
FINISHED PRODUCT UNITS MANUFACTURED ROYALTY PER APPLICABLE FINISHED PRODUCT
UNIT
US DOLLARS
YEN
EUROS
Units [*]-[*] [*]
[*]
[*]
Units [*]-[*] [*]
[*]
[*]
Units [*]-[*] [*]
[*]
[*]
Units [*] and [*] [*]
[*]
[*]
10
Confidential information omitted where indicated by "[*]" and filed separately
with the Commission pursuant to a request for confidential treatment under Rule
24b-2 of the Securities Exchange Act of 1934.
Notwithstanding the foregoing, no royalties will be payable hereunder with
respect to any Demo Finished Product Units. For the purposes hereof, a "Demo
Finished Product Unit" will mean a Finished Product Unit that (i) contains only
a small portion of the applicable Software Title, (ii) is provided to end users
only to advertise or promote the applicable Software Title (although it may
include demonstration versions of other games for Xbox published by Licensee),
(iii) is manufactured in a number of units that has been approved in advance by
Microsoft, which approval Microsoft agrees not to unreasonably withhold, and
(iv) is distributed free or with a suggested retail price of not more than [*].
6.2 ROYALTY PAYMENTS. Licensee shall have the option of paying the above
royalties in US Dollars, Japanese Yen or Euros, according to the terms of this
Section. By designating the appropriate box below, Licensee may choose to pay
royalties on either a "Worldwide" or "Regional" basis. Such designation shall be
binding throughout the term of this Agreement for all of Licensee's Software
Titles. If Licensee elects to pay on a Worldwide basis, it shall pay royalties
in US Dollars regardless of where the Finished Product Units are distributed or
manufactured. If Licensee elects to pay on a Regional basis, it shall pay
royalties in US Dollars, Japanese Yen or Euros in accordance with the table set
forth in Section 6.1 but subject to the rest of this Section 6.2:
(i) If the Authorized Replicator manufacturing the Finished Product
Units is located in Japan, Singapore, Malaysia or Taiwan, Licensee shall pay its
royalty denominated in Japanese Yen for such Finished Product Units.
(ii) If the Authorized Replicator manufacturing the Finished Product
Units is located in a member country of the European Union, Licensee shall pay
its royalty denominated in Euros for such Finished Product Units.
(iii) If the Authorized Replicator manufacturing the Finished
Product Units is located in any other country or region of the world, Licensee
shall pay its royalty denominated in U.S. Dollars for such Finished Product
Units.
Notwithstanding the foregoing, in the event the conversion ratio for either Yen
or Euros to Dollars, as described in the US edition of the Wall Street Journal,
falls outside the foreign exchange trading range as set forth in the chart
below, for a period of time greater than 30 consecutive days. Microsoft may then
readjust the royalty amounts set forth in Section 6.1 for that currency. Such
readjustments shall be made in Microsoft's good faith discretion according to
its normal practices.
YEN/EURO TO US DOLLAR TRADING RANGE
MINIMUM MAXIMUM
Yen [*] [*]
Euros [*] [*]
[ ] Worldwide _____ (initials)
[X] Regional _____ (initials)
11
Confidential information omitted where indicated by "[*]" and filed separately
with the Commission pursuant to a request for confidential treatment under Rule
24b-2 of the Securities Exchange Act of 1934.
6.3 PAYMENT PROCESS. After its receipt from the applicable Authorized
Replicator(s) of each monthly statement of Finished Product Units manufactured,
Microsoft will invoice Licensee for the amount owed to Microsoft pursuant to
Section 6.1 above based upon the applicable statement. Licensee shall pay to
Microsoft the full amount invoiced within thirty (30) calendar days after the
date of the respective invoice. Payment will be made by wire transfer, in
immediately available funds, to an account, and in accordance with a reasonable
procedure, to be specified in writing by Microsoft.
6.4 AUDIT. Licensee shall keep all usual and proper records related to its
performance (and any subcontractor's performance) under this Agreement,
including support for any cost borne by or income due to Microsoft, for a
minimum period of three (3) years from the date they are created. Such records,
books of account, and entries shall be kept in accordance with generally
accepted accounting principles. Microsoft reserves the right, upon twenty-four
(24) hours' notice, to audit Licensee's records and consult with Licensee's
accountants for the purpose of verifying Licensee's compliance with the terms of
this Agreement and for a period of two (2) years thereafter. Any such audit
shall be made by Microsoft's internal audit team or any Microsoft designee, and
shall be conducted during regular business hours at the Licensee's (or any
applicable subcontractor's) offices. Any such audit shall be paid for by
Microsoft unless material discrepancies are disclosed. "Material" shall mean [*]
of the royalties due to Microsoft within the audit period. If material
discrepancies are disclosed, Licensee agrees to pay Microsoft for the costs
associated with the audit, as well as reimburse Microsoft for all over-charged
amounts, plus interest at a rate of [*].
6.5 TAXES.
6.5.1 The royalties to be paid by Licensee to Microsoft herein do not
include any foreign, U.S. federal, state, local, municipal or other governmental
taxes, customs and other duties, levies, fees, excises or tariffs, arising as a
result of or in connection with the transactions contemplated under this
Agreement including, without limitation, any state or local sales or use taxes
or consumption tax or any value added tax or business transfer tax now or
hereafter imposed on the provision of goods and services to Licensee by
Microsoft under this Agreement, regardless of whether the same are separately
stated by Microsoft (all such taxes and other charges being referred to herein
as "Taxes"). All Taxes (and any penalties, interest, or other additions to any
Taxes), with the exception of taxes imposed on Microsoft's net income or with
respect to Microsoft's property ownership, shall be the financial responsibility
of Licensee. Licensee agrees to indemnify, defend and hold Microsoft harmless
from any such Taxes or claims, causes of action, costs (including, without
limitation, reasonable attorneys' fees) and any other liabilities of any nature
whatsoever related to such Taxes.
6.5.2 Licensee will pay all applicable value added, sales and use taxes
and other taxes levied on it by a duly constituted and authorized taxing
authority on the XDKs or any transaction related thereto in each country in
which the services and/or property are being provided or in which the
transactions contemplated hereunder are otherwise subject to tax, regardless of
the method of delivery. Any taxes that are owed by Licensee, (i) as a result of
entering into this Agreement and the payment of the fees hereunder, (ii) are
required or permitted to be collected from Licensee by Microsoft under
applicable law, and (iii) are based upon the
12
amounts payable under this Agreement (such taxes described in (i), (ii) and
(iii) above the "Collected Taxes"), shall be remitted by Licensee to Microsoft,
whereupon, upon request, Microsoft shall provide to Licensee tax receipts or
other evidence indicating that such Collected Taxes have been collected by
Microsoft and remitted to the appropriate taxing authority. Licensee may provide
to Microsoft an exemption certificate acceptable to Microsoft and to the
relevant taxing authority (including without limitation a resale certificate) in
which case, after the date upon which such certificate is received in proper
form, Microsoft shall not collect the taxes covered by such certificate.
6.5.3 If, after a determination by foreign tax authorities, any taxes
are required to be withheld, on payments made by Licensee to Microsoft, Licensee
may deduct such taxes from the amount owed Microsoft and pay them to the
appropriate taxing authority; provided, however, that Licensee shall promptly
secure and deliver to Microsoft an official receipt for any such taxes withheld
or other documents necessary to enable Microsoft to claim a U.S. Foreign Tax
Credit. Licensee will make certain that any taxes withheld are minimized to the
extent possible under applicable law.
6.5.4 This tax Section 6.5 shall govern the treatment of all taxes
arising as a result of or in connection with this Agreement notwithstanding any
other section of this Agreement.
7. NON-DISCLOSURE; ANNOUNCEMENTS
7.1 NON-DISCLOSURE AGREEMENT. The information, materials and software
exchanged by the parties hereunder or under an XDK License, including the terms
and conditions hereof and of the XDK License, shall be subject to the
Non-Disclosure Agreement between the parties attached hereto and incorporated
herein by reference as Exhibit D.
7.2 PUBLIC ANNOUNCEMENTS. The parties contemplate that they will coordinate
the issuance of initial press releases or a joint press release, announcing the
relationship established by the execution of this Agreement. However, neither
party shall issue any such press release or make any such public announcement(s)
without the express prior consent of the other party, which consent will not be
unreasonably withheld or delayed. Furthermore, the parties agree to use their
commercially reasonable efforts to coordinate in the same manner any subsequent
press releases and public announcements relating to their relationship hereunder
prior to the issuance of the same. Nothing contained in the Section 7.2 will
relieve Licensee of any other obligations it may have under this Agreement,
including without limitation its obligations to seek and obtain Microsoft
approval of Art & Marketing Materials.
7.3 REQUIRED PUBLIC FILINGS. Notwithstanding Sections 7.1 and 7.2, the
parties acknowledge that this Agreement, or portions thereof, may be required
under applicable law to be disclosed, as part of or an exhibit to a party's
required public disclosure documents. If either party is advised by its legal
counsel that such disclosure is required, it will notify the other in writing
and the parties will jointly seek confidential treatment of this Agreement to
the maximum extent reasonably possible, in documents approved by both parties
and filed with the applicable governmental or regulatory authorities, and/or
Microsoft will prepare a redacted version of this Agreement for filing.
13
Confidential information omitted where indicated by "[*]" and filed separately
with the Commission pursuant to a request for confidential treatment under Rule
24b-2 of the Securities Exchange Act of 1934.
8. TERM AND TERMINATION
8.1 TERM. The term of this Agreement shall commence on the Effective Date
and unless terminated earlier as provided herein, shall continue until three (3)
years after Commercial Release of Xbox.
8.2 TERMINATION FOR BREACH. In the event either party shall materially fail
to perform or comply with this Agreement or any provision thereof, and fail to
remedy the default within fifteen (15) days after the receipt of notice to that
effect, then the other party shall have the right, at its sole option and upon
written notice to the defaulting party, to terminate this Agreement upon written
notice. Any notice of default hereunder shall be prominently labeled "NOTICE OF
DEFAULT"; provided, however, that if the default is of Section 3 or 7.1 above,
or an XDK License, then the non-defaulting party may terminate this Agreement
immediately upon written notice, without being obligated to provide a
fifteen-day cure period. The rights and remedies provided in this Section shall
not be exclusive and are in addition to any other rights and remedies provided
by law or this Agreement. If the uncured default is related to a particular
Software Title, then the party not in default will have the right, in its
discretion, to terminate this Agreement in its entirety or with respect to the
applicable Software Title.
8.3 TERMINATION FOR CREATIVE REASONS. In the event that Microsoft
determines, at any time prior to the Commercial Release of a Software Title,
that such Software Title does not comply with the requirements set forth in the
Xbox Guide, then Microsoft will have the right to terminate this Agreement,
without cost or penalty, upon written notice to Licensee solely with respect to
such Software Title, in Microsoft's sole discretion and notwithstanding any
prior approvals given by Microsoft pursuant to Section 2 above.
8.4 EFFECT OF TERMINATION; SELL-OFF RIGHTS. Upon termination or expiration
of this Agreement, Licensee shall have no further right to exercise the rights
licensed hereunder or otherwise acquired in relation to this Agreement and shall
promptly return any and all copies of the Licensed Trademarks. Licensee shall
have a period of [*] following expiration of this Agreement, or termination for
a reason other than Licensee's breach, to sell-off its inventory of Finished
Product Units existing as of the date of termination or expiration, after which
sell-off period Licensee immediately shall destroy all Finished Product Units
then in its possession or under its control. All of Licensee's obligations under
this Agreement shall continue to apply during such [*] sell-off period. If
this Agreement is terminated due to Licensee's breach, Licensee shall
immediately destroy all Finished Product Units not yet distributed to Licensee's
distributors, dealers and/or end users. If requested by Microsoft in writing,
Licensee will deliver to Microsoft the written certification by an officer of
Licensee confirming the destruction of Finished Product Units required
hereunder.
8.5 SURVIVAL. The following provisions shall survive termination of this
Agreement: 1, 3.6, 5.1, 5.3, 5.4, 6, 7, 8.4, 8.5, 9, 10, 11 and 12.
9. WARRANTIES
9.1 LICENSEE. Licensee warrants and represents that:
14
9.1.1 It has the full power to enter into this Agreement;
9.1.2 It has not previously and will not grant any rights to any third
party that are inconsistent with the rights granted to Microsoft herein; and
9.1.3 The Software Title, Finished Product Units, Art & Marketing
Materials (excluding those portion that consist of the Licensed Material,
Licensed Trademarks, and redistributable components of the so-called "XDK" in
the form as delivered to Licensee by Microsoft pursuant to an XDK License) do
not and will not infringe upon or misappropriate any third party trade secrets,
copyrights, trademarks, patents, publicity, privacy or other proprietary rights.
9.2 MICROSOFT. Microsoft warrants and represents that:
9.2.1 It has the full power to enter into this Agreement; and
9.2.2 It has not previously and will not grant any rights to any third
party that are inconsistent with the rights granted to Licensee herein.
9.3 DISCLAIMER. EXCEPT AS EXPRESSLY STATED IN THIS SECTION 9, MICROSOFT
PROVIDES ALL MATERIALS (INCLUDING WITHOUT LIMITATION THE SECURITY TECHNOLOGY)
AND SERVICES HEREUNDER ON AN "AS IS" BASIS AND MICROSOFT DISCLAIMS ALL OTHER
WARRANTIES UNDER THE APPLICABLE LAWS OF ANY COUNTRY, EXPRESS OR IMPLIED,
REGARDING THE MATERIALS AND SERVICES IT PROVIDES HEREUNDER, INCLUDING ANY
IMPLIED WARRANTIES OF MECHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR
WARRANTY OF FREEDOM FROM COMPUTER VIRUSES. WITHOUT LIMITATION, MICROSOFT
PROVIDES NO WARRANTY OF NON-INFRINGEMENT.
9.4 LIMITATION OF LIABILITY. THE MAXIMUM LIABILITY OF MICROSOFT TO LICENSEE
OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT SHALL BE THE TOTAL AMOUNTS
RECEIVED BY MICROSOFT HEREUNDER. FURTHERMORE, UNDER NO CIRCUMSTANCES SHALL
MICROSOFT BE LIABLE TO LICENSEE FOR ANY DAMAGES WHATSOEVER WITH RESPECT TO ANY
CLAIMS RELATING TO THE SECURITY TECHNOLOGY AND/OR ITS AFFECT ON ANY SOFTWARE
TITLE.
10. INDEMNITY
10.1 INDEMNIFICATION. A claim for which indemnity may be sought hereunder
shall be referred to as a "Claim."
10.1.1 MUTUAL INDEMNIFICATION. Each party hereby agrees to indemnify,
defend, and hold the other party harmless from any and all claims, demands,
costs, liabilities, losses, expenses and damages (including reasonable
attorneys' fees, costs, and expert witnesses' fees) arising out of or in
connection with any claim that, taking the claimant's allegations to be
15
Confidential information omitted where indicated by "[*]" and filed separately
with the Commission pursuant to a request for confidential treatment under Rule
24b-2 of the Securities Exchange Act of 1934.
true, would result in a breach by the indemnifying party of any of its
warranties and covenants set forth in Section 9.
10.1.2 ADDITIONAL LICENSEE INDEMNIFICATION OBLIGATION. Licensee further
agrees to indemnify, defend, and hold Microsoft harmless from any and all
claims, demands, costs, liabilities, losses, expenses and damages (including
reasonable attorneys' fees, costs, and expert witnesses' fees) arising out of or
in connection with any claim regarding any Software Title or Finished Product
Unit, including without limitation any claim relating to quality, performance,
safety or conformance with the Certification Requirements, or arising out of
Licensee's use of the Licensed Trademarks in breach of this Agreement.
10.2 NOTICE AND ASSISTANCE. The indemnified party shall: (i) provide the
indemnifying party reasonably prompt notice in writing of any Claim and permit
the indemnifying part to answer and defend such Claim through counsel chosen and
paid by the indemnifying party; and (ii) provide information, assistance and
authority to help the indemnifying party defend such Claim. The indemnified
party may participate in the defense of any Claim at its own expense. The
indemnifying party will not be responsible for any settlement made by the
indemnified party without the indemnifying party's written permission, which
will not be unreasonably withheld or delayed. In the event the indemnifying
party and the indemnified party agree to settle a Claim, the indemnified party
agrees not to publicize the settlement without first obtaining the indemnifying
party's written permission.
10.3 INSURANCE. Prior to distribution of any Software Title, Licensee at
its sole cost and expense shall have endorsed Microsoft as an additional insured
on Licensee's media perils errors and omissions liability policy for claims
arising in connection with production, development and distribution of each
Software Title in an amount no less than [*] on a per occurrence or per incident
basis. Coverage provided to Microsoft under the policy shall be primary to and
not contributory with any insurance maintained by Microsoft. Upon request,
Licensee agrees to furnish copies of the additional insured endorsement and/or a
certificate of insurance evidencing compliance with this requirement.
11. PROTECTION OF PROPRIETARY RIGHTS
11.1 MICROSOFT INTELLECTUAL PROPERTY. In the event Licensee learns of any
infringement or imitation of the Licensed Trademarks, the Software Title or the
Finished Product Units, or the proprietary rights in or related to any of them,
it will promptly notify Microsoft thereof. Microsoft may take such action as it
deems advisable for the protection of its rights in and to such proprietary
rights and Licensee shall, if requested by Microsoft, cooperate in all
reasonable respects therein at Microsoft's expense. In no event, however, shall
Microsoft be required to take any action if it deems it inadvisable to do so.
Microsoft will have the right to retain all proceeds it may derive from any
recovery in connection with such actions.
11.2 LICENSEE INTELLECTUAL PROPERTY. Licensee, without the express written
permission of Microsoft, may bring any action or proceeding relating to this
infringement or potential infringement, to the extent such infringement involves
any proprietary rights of Licensee (provided that Licensee will not have the
right to bring any such action or proceeding involving Microsoft's intellectual
property). Licensee shall make reasonable efforts to inform
16
Microsoft regarding such actions in a timely manner. Licensee will have the
right to retain all proceeds it may derive from any recovery in connection with
such actions. Licensee agrees to use all commercially reasonable efforts to
protect and enforce its proprietary rights in the Software Title.
11.3 JOINT ACTIONS. Licensee and Microsoft may agree to jointly pursue
cases of infringement involving the Software Titles (since such products will
contain intellectual property owned by each of them). Unless the parties
otherwise agree, or unless the recovery is expressly allocated between them by
the court (in which case the terms of Sections 11.1 and 11.2 will apply). In the
event Licensee and Microsoft jointly prosecute an infringement lawsuit under
this provision, any recovery shall be used first to reimburse Licensee and
Microsoft for their respective reasonable attorneys' fees and expenses, pro
rata, and any remaining recovery shall also be given to License and Microsoft
pro rata based upon the fees and expenses incurred in bringing such action.
12. GENERAL
12.1 GOVERNING LAW; VENUE; ATTORNEYS FEES. This Agreement shall be
construed and controlled by the laws of the State of Washington, U.S.A., and
Licensee consents to exclusive jurisdiction and venue in the federal courts
sitting in King County, Washington, U.S.A., unless no federal jurisdiction
exists, in which case Licensee consents to exclusive jurisdiction and venue in
the Superior Court of King County, Washington, U.S.A. Licensee waives all
defenses of lack of personal jurisdiction and forum non conveniens. Process may
be served on either party in the manner authorized by applicable law or court
rule. If either party employs attorneys to enforce any rights arising out of or
relating to this Agreement, the prevailing party shall be entitled to recover
its reasonable attorneys' fees, costs and other expenses. This choice of
jurisdiction provision does not prevent Microsoft from seeking injunctive relief
with respect to a violation of intellectual property rights or confidentiality
obligations in any appropriate jurisdiction.
12.2 NOTICES; REQUESTS. All notices and requests in connection with this
Agreement shall be deemed given as of the day they are (i) deposited in the U.S.
mails, postage prepaid, certified or registered, return receipt requested; or
(ii) sent by overnight courier, charges prepaid, with a confirming fax; and
addressed as follows:
Licensee: Acclaim Entertainment, Inc.
Xxx Xxxxxxx Xxxxx
Xxxx Xxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxxxx
Fax: 000-000-0000
Phone: 000-000-0000
Microsoft: MICROSOFT CORPORATION
Xxx Xxxxxxxxx Xxx
Xxxxxxx, XX 00000-0000
17
Attention: Xx. Xxxxx Xxxxx
With a cc to: MICROSOFT CORPORATION
Xxx Xxxxxxxxx Xxx
Xxxxxxx, XX 00000-0000
Attention: Law & Corporate Affairs Development
Product Development & Marketing
Fax: (000) 000-0000
or to such other address as the party to receive the notice or request so
designates by written notice to the other.
12.3 ASSIGNMENT. Licensee may not assign this Agreement or any portion
thereof, to any third party unless Microsoft expressly consents to such
assignment in writing. Microsoft will have the right to assign this Agreement
and/or any portion thereof as Microsoft may deem appropriate for the purposes of
this Agreement, a merger, consolidation, or other corporate reorganization, or a
transfer or sale of a controlling interest in a party's stock, or of all or
substantially all of its assets shall be deemed to be an assignment. This
Agreement will inure to the benefit of and be binding upon the parties, their
successors, administrators, heirs, and permitted assigns.
12.4 NO PARTNERSHIP. Microsoft and Licensee are entering into a license
pursuant to this Agreement and nothing in this Agreement shall be construed as
creating an employer-employee relationship, a partnership, or a joint venture
between the parties.
12.5 SEVERABILITY. In the event that any provision of this Agreement is
found invalid or unenforceable pursuant to judicial decree or decision, the
remainder of this Agreement shall remain valid and enforceable according to its
terms. The parties intend that the provisions of this Agreement be enforced to
the fullest extent permitted by applicable law. Accordingly, the parties agree
that if any provisions are deemed not enforceable, they shall be deemed modified
to the extent necessary to make them enforceable.
12.6 INJUNCTIVE RELIEF. The parties agree that Licensee's threatened or
actual unauthorized use of the Licensed Trademarks whether in whole or in part,
may result in immediate and irreparable damage to Microsoft for which there is
no adequate remedy at law, and that either party's threatened or actual breach
of the confidentiality provisions may cause like damage to the nonbreaching
party, and in such event the nonbreaching party shall be entitled to appropriate
injunctive relief, without the necessity of posting bond or other security.
12.7 ENTIRE AGREEMENT; MODIFICATION; NO OFFER. The parties hereto agree
that this Agreement (including all Exhibits hereto, and the Microsoft
Non-Disclosure Agreement to the extent incorporated herein) and the Xbox Guide
(as applicable from time to time) constitute the entire agreement between the
parties with respect to the subject matter hereof and merges all prior and
contemporaneous communications. It shall not be modified except by a
18
written agreement dated subsequent hereto signed on behalf of Licensee and
Microsoft by their duly authorized representatives. Neither this Agreement nor
any written or oral statements related hereto constitute an offer, and this
Agreement shall not be legally binding until executed by both parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the Effective Date on the dates indicated below.
MICROSOFT CORPORATION
/s/ /s/
--------------------------------- ---------------------------------------
By (sign) By (sign)
X. Xxxxxx Xxxxxxx Xxxxxxxxx
--------------------------------- ---------------------------------------
Name (Print) Name (Print)
General Manager President and Chief Executive Officer
--------------------------------- ---------------------------------------
Title Title
October 26, 2000 October 26, 2000
--------------------------------- ---------------------------------------
Date Date
19
EXHIBIT A-1
DESCRIPTION OF SOFTWARE TITLE
EXHIBIT B
LICENSED TRADEMARKS
[insert Xbox design here]
EXHIBIT B
LICENSED TRADEMARKS
The following guidelines apply whenever Licensee places a copy of any Licensed
Trademark on the Software Title, or related collateral materials.
o Licensee may use the Licensed Trademarks solely on the retail box,
documentation, and Art & Marketing Materials for the Software Title,
and in no other manner.
o Licensee's name, logo, or trademark must appear on any materials where
the Licensed Trademarks are used, and must be larger and more prominent
that the Licensed Trademarks.
o The Licensed Trademarks may not be used in any manner that expresses or
might imply Microsoft's affiliation, sponsorship, endorsement,
certification, or approval, other than as contemplated by this
Agreement.
o The Licensed Trademarks may not be included in any non-Microsoft trade
name, business name, domain name, product or service name, logo, trade
dress, design, slogan, or other trademark.
o Licensee may use the Licensed Trademarks only as provided by Microsoft
electronically or in hard copy form. Except for size subject to the
restrictions herein, the Licensed Trademarks may not be altered in any
manner, including proportions, colors, elements, etc., or animated,
morphed, or otherwise distorted in perspective or dimensional
appearance.
o The Licensed Trademarks may not be combined with any other symbols,
including words, logos, icons, graphics, photos, slogans, numbers, or
other design elements.
o The Licensed Trademarks (including but not limited to Microsoft's
logos, logotypes, trade dress, and other elements of product packaging
and web sites) may not be initiated.
o The Licensed Trademarks may not be used as a design feature in any
materials.
o The Licensed Trademarks must stand alone. A minimum amount of empty
space must surround the Licensed Trademarks separating it from any
other object, such as type, photography, borders, edges, and so on. The
required area of empty space around the Licensed Trademarks must be
1/2x, where x equals the height of the Licensed Trademarks.
o Each use of the Licensed Trademarks must include the notice: "Xbox is a
trademark of Microsoft Corporation in the United States and/or other
countries and is used under license from Microsoft".
ADDITIONAL GUIDELINES FOR PROPER USE OF THE "XBOX" WORD XXXX:
o Use the trademark symbol ("(TM)") at the upper right corner or baseline
immediately following the name "Xbox". This symbol should be used at
the first or most prominent mention. Please be sure to spell Xbox as
one word, with no hyphen and with no space between "X" and "box".
o Include the following notice on materials referencing Xbox:
"Xbox is a trademark of Microsoft Corporation."
o Trademarks identify a company's goods or services. Xbox is not a
generic thing, but rather a brand of game system from Microsoft. A
trademark is a proper adjective that modifies the generic name or
descriptor of a product or service. The descriptor for Xbox is a "game
system," i.e., "Xbox(TM) game system." Use the descriptor immediately
after mention of "Xbox". You should not combine the Xbox trademark with
an improper generic name or descriptor. For example, game programs
designed to run on the Xbox game system are not "Xbox games," but
rather "games for the Xbox system" or "Xbox certified games."
o The Xbox trademark may never be abbreviated. Do not use "X" by itself
to represent "Xbox."
23
EXHIBIT D
NON-DISCLOSURE AGREEMENT
