EXHIBIT 10.17
ELECTRONIC ARTS INC.
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is made as of June
___, 1997 (the "Effective Date") by and between ELECTRONIC ARTS
INC., a Delaware corporation with its offices at 0000 Xxxxxxx
Xxxxxx Xxxxxxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000 ("EA") and
Adrenalin Entertainment, a division of Western Technologies, a
California corporation with offices at 0000 Xxxxxxxxx Xxxxxx,
Xxx Xxxxxxx, XX 00000-0000 ("Consultant").
1. DEVELOPMENT
1.01 Deliverable Items. Consultant hereby agrees to develop and
to deliver to EA each of the items noted as a Deliverable Item
("Deliverable Items") on Exhibit A hereto, at the times set forth
on such Exhibit A.
1.02 Product. Consultant agrees and acknowledges that EA is not
obligated to develop a product based on the Deliverable Item and,
furthermore, that if EA does decide to develop such a product,
that it is not obligated to contract with Consultant for the
development of such product.
2. COMPENSATION
In consideration of the development and delivery of the
Deliverable Items and of the assignment set forth in Section 3,
EA agrees to pay to Consultant the sums set forth on Exhibit B at
the times set forth on such Exhibit B. Consultant shall not be
entitled to any additional compensation in connection with EA's
use and/or exploitation of the rights granted to EA under this
Agreement, unless such compensation is specifically designated in
this Agreement.
3. ASSIGNMENT
3.01 General. Consultant hereby grants and assigns to EA without
reservation all Consultant's right, title and interest in and to
each Deliverable Item.
3.02 Moral Rights. For purposes of this subsection, "Moral
Rights" means any rights of paternity or integrity, any right to
claim authorship of the Deliverable Items, to object to any
distortion, mutilation or other modification of, or other
derogatory action in relation to, any Deliverable Item, whether
or not such would be prejudicial to Consultant's honor or
reputation, and any similar rights existing under judicial or
statutory law of any country in the world, or under any treaty,
regardless of whether or not such right is denominated or
generally referred to as a "moral" right. Consultant hereby
irrevocably transfers and assigns to the EA any and all Moral
Rights that Consultant may have in each Deliverable Item.
Consultant also hereby forever waives and agrees never to assert
any and all Moral Rights it may have in each Deliverable Item,
even after termination of Consultant's work on behalf of the EA
or this Agreement.
3.03 Execution of Documents. Consultant will cooperate with EA,
at EA's expense, in obtaining patent, copyright, trademark or
other statutory projections for each Deliverable Item in each
country in which one or more is sold, distributed or licensed and
in taking any enforcement action, including any public or private
prosecution, to protect EA's intellectual property rights in or
to each Deliverable Item. Consultant hereby grants EA the
exclusive right, and appoints EA as attorney-in-fact, to execute
and prosecute in Consultant's name as author or inventor or in
EA's name as assignee any application for registration or
recordation of any copyright, trademark, patent or other right in
or to any Deliverable Item, and to undertake any enforcement
action with respect to any Deliverable Item. Consultant will
execute such other documents of registration and recordation as
may be necessary to perfect in EA, or protect, the rights
assigned to EA hereunder in each country in which EA reasonably
determines to be prudent.
3.04 Survival. The assignment set forth in this Section 3 will
survive any expiration or termination of this Agreement.
4. EQUIPMENT, SOFTWARE AND ASSISTANCE PROVIDED BY EA
To assist Consultant in the development of any Deliverable Item,
EA may from time to time provide Consultant with certain
equipment, software and assistance as described in Exhibit C. At
any time upon demand of EA, Consultant shall return to EA all
equipment and software provided to Consultant hereunder.
Consultant shall obtain no rights to any equipment or software
provided by EA except for the limited right to use the same in
the development of Deliverable Items.
5. CONFIDENTIALITY
5.01 Definitions
(a) "Confidential Information" means Confidential Information
of Consultant and Confidential Information of EA, except to the
extent any of the following may be included therein: (i)
information that becomes known to the general public without
breach of the nondisclosure obligations of this Agreement; (ii)
information that is obtained from a third party or independently
developed without breach of a nondisclosure obligation and
without restriction on disclosure; and (iii) information that is
required to be disclosed in connection with any suit, action or
other dispute related to this Agreement.
(b) "Confidential Information of Consultant" means: any
information designed in writing as "confidential" by Consultant.
(c) "Confidential Information of EA" means: (i) the contents of
the Deliverable Item(s) to be delivered by Consultant hereunder;
(ii) the concepts embodied in any source code developed or
supplied by EA hereunder; (iii) any concepts or source code
included in EA's development aids; (iv) any information
concerning the existing or future products of hardware
manufacturers; (v) any methods used by EA or its affiliates to
prevent unauthorized duplication of software programs; (vi) the
terms of this Agreement and any Exhibit, Addenda or other
attachment hereto; (vii) any information contained on the reports
provided to Consultant hereunder; and (viii) any additional
information designated in writing as "confidential" by EA or its
Affiliates.
5.02 Protection of Confidential Information. Each party agrees
to hold in confidence, and not to use except as expressly
authorized in this Agreement, all Confidential Information of the
other party an to use at least the same degree of care that it
uses to protect its own Confidential Information of like
importance, but in no event less than reasonable care, to prevent
the unauthorized disclosure or use of the other party's
Confidential Information, both during and after the term of this
Agreement.
5.03 Survival. After termination of this Agreement, the
provisions of this Section 5 will continue in effect except that
nothing in this Agreement will impair the right of either party
to use, develop or market ideas or programs similar to those in
the Deliverable Items so long as such use, development or
marketing does not infringe on the copyright, trademark, patent,
license or other rights of the other party.
6. REPRESENTATIONS AND WARRANTIES
6.01 Consultant's Representations. Consultant represents and
warrants to EA that:
(a) Each of the Deliverable Items will be the original work of
Consultant and will not infringe upon any patent, copyright,
trade secret, trademark, or other intellectual property or
proprietary rights of any third party;
(b) Consultant is the sole and exclusive owner of all rights in
each of the Deliverable Items subject; only to the rights herein
assigned to EA;
(c) Consultant has not previously granted and will not grant any
rights in the Deliverable Items to any third party which are
inconsistent with the rights assigned to EA herein;
(d) Each of Consultant's employees, contractors, artists or
partners who has been or will be involved in the development of
the Deliverable Items, or who will have access to any
Confidential Information of EA, will have signed, before
beginning such involvement, an agreement with Consultant with
respect to proprietary rights and confidentiality substantially
in the form attached to this Agreement as Exhibit D; and
(e) Consultant has full power to enter into this Agreement, to
carry out its obligations hereunder and to grant the rights
herein granted to EA.
6.02 Survival. The representations and warranties stated in
this Section 6 will survive the expiration or termination of this
Agreement.
7. TERM AND TERMINATION
The term of this Agreement will commence on the Effective Date
and will continue in effect until acceptance of all Deliverable
Items and payment for the same by EA, unless sooner terminated by
mutual written consent of the parties in accordance with the
following:
7.01 Termination of EA's Convenience. If EA determines at any
time and in its sole discretion that, due to progress of the
development, market conditions or for any other reason, EA
desires to terminate this Agreement, EA may do so by giving
written notice to Consultant, without further liability of any
kind to Consultant.
7.02 Termination for Breach. In the event of a material breach
by either party of a material provision hereof, which breach is
not cured within thirty (30) days after written notice thereof by
the other party, then the nonbreaching party may, effective
thirty (30) days after written notice of failure to cure to the
breaching party, terminate this Agreement.
8. LIMITATION OF LIABILITY
REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS
ESSENTIAL PURPOSE, NEITHER PARTY WILL BE LIABLE TO THE OTHER
PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL
DAMAGES OR THE LOSS OF ANTICIPATED PROFITS ARISING FROM OR
RELATED TO THIS AGREEMENT, EVEN IF SUCH PARTY IS NOTIFIED OF THE
POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT SUCH DAMAGES ARE
FORESEEABLE.
9. GENERAL TERMS
9.01 Amendment. No amendment or modifications of this Agreement
will be made except by an instrument in writing signed by both
parties.
9.02 Independent Contractors. Consultant is an independent
contractor, and nothing in this Agreement will be deemed to place
the parties in the relationship of employer-employee, principal-
agent, partners or joint venturers.
9.03 Tax Withholdings. EA shall have the right to withhold all
amounts required by law for any foreign, national, state or local
sales, use, value added, withholding or other taxes, customs
duties or similar tariffs and fees and such amounts may be
deducted from amounts due and payable to Consultant under this
Agreement.
9.04 Equitable Relief. Consultant acknowledges that the
performance of Consultant's obligations hereunder and the rights
and licenses assigned to EA hereunder are of a unique, unusual,
extraordinary and intellectual character which gives them a
special value, the loss of which cannot be reasonably or
adequately compensated in damages in an action at law, that a
material breach by Consultant of this Agreement will cause EA
great and irreparable injury and damage and, therefore, that EA
will be entitled to injunctive relief to prevent such injury or
damage.
9.05 Force Majeure. Neither party will be deemed in default of
this Agreement to the extent that performance of disaster,
accident, act of government, shortages of material or supplies or
any other cause reasonably beyond the control of such party
("Force Majeure"), provided that such party gives the other party
written notice thereof promptly and, in any event, within fifteen
(15) days of discovery thereof, and uses its diligent, good faith
efforts to cure the breach. In the event of such Force Majeure,
the time for performance or cure will be extended for a period
equal to the duration of the Force Majeure but no in excess of
six (6) months.
9.06 Assignment. This Agreement may not be assigned in whole or
in part by Consultant without the prior written consent of EA,
which consent will not be unreasonably withheld, except that
Consultant may assign (subject to any rights of EA) Consultant's
interest in all or part of the payments due Consultant hereunder
upon notice in writing to EA.
9.07 Right of Offset. Notwithstanding any provision contained
in this Agreement, neither party will be prohibited from
exercising any right of offset that may be available at law.
9.08 Governing Law; Forum. This Agreement will be deemed
entered into in San Mateo County, California and will be governed
by and interpreted in accordance with the substantive laws of the
State of California without application of conflict of law
principles. The parties agree that any dispute arising under
this Agreement will be resolved in the sate or federal courts
within the Northern District of California and Consultant
expressly consents to jurisdiction therein.
9.09 Severability. Should any provision of this Agreement be
held to be void, invalid or inoperative, such provision will be
enforced to the maximum extent permissible and the remaining
provisions of this Agreement will remain in full force and
effect.
9.10 Notices. Any notice required or permitted to be sent
hereunder will be given by hand delivery, by registered, express
or certified mail, return receipt requested, postage prepaid, or
by nationally-recognized private express courier or by facsimile
to either party at the address listed above, or to such other
addresses of which either party may so notify the other. Notices
will be deemed given when hand delivered if by hand delivery, or
when sent if by any other authorized method.
9.11 Complete Agreement. This Agreement, together with the
exhibits hereto, which are incorporated into this Agreement by
this reference, constitutes the entire agreement between the
parties with respect to the subject matter hereof, and supersedes
all prior and contemporaneous negotiations, understandings,
correspondence and agreements with respect to which subject
matter.
ELECTRONICS ARTS INC. CONSULTANT
By: s/Xxxxxxx Xxxxxxxx By: s/Xxx Xxxxx
Name: Xxxxxxx Xxxxxxxx Name: Xxx Xxxxx
Date: July 8, 1997 Date: July 7, 1997
Exhibits:
Exhibit A: DELIVERABLE ITEMS, DELIVERY DATES AND ACCEPTANCE
PROCEDURE
Exhibit B: PAYMENT SCHEDULE
Exhibit C: EQUIPMENT, SOFTWARE AND ASSISTANCE PROVIDED BY EA
Exhibit D: ASSIGNMENT, AND CONFIDENTIALITY AGREEMENT
EXHIBIT A
DELIVERABLE ITEMS, DELIVERY DATES AND ACCEPTANCE PROCEDURE
ACCEPTANCE PROCEDURE
After delivery of any Deliverable Item, EA will have thirty (30)
business days to examine and analyze the delivered item to
determine whether it conforms to its specifications and whether
it is, in EA's sole judgment, acceptable. EA will notify
Consultant of EA's acceptance or rejection of the Deliverable
Item and, in the case of any rejection, will provide Consultant
with a reasonably detailed list of deficiencies in the
Deliverable Item. If EA fails to notify Consultant of EA's
acceptance or rejection within such period, Consultant may
request a written acceptance or rejection. If EA does not
provide such a written acceptance or rejection by no later than
ten (10) business days after Consultant's request, then the
Deliverable Item will be deemed accepted. In the case of a
rejection, Consultant will use diligent efforts to correct the
deficiencies and will resubmit the Deliverable Item, as
corrected, within five (5) business days of EA's rejection. This
procedure will be repeated until EA either accepts the
Deliverable Item or elects to terminate this Agreement pursuant
to Section 7.01.
EXHIBIT B
PAYMENT SCHEDULE
1. Execution of Agreement $20,000
2. Acceptance of Deliverable Item $20,000
Total $40,000
EXHIBIT C
EQUIPMENT, SOFTWARE AND ASSISTANCE PROVIDED BY EA
NONE
WP51\DATA\MISC\CONSL.AGR
EXHIBIT 21
Subsidiaries of Wanderlust Interactive, Inc.
Name Jurisdiction of Incorporation
Western Technologies, Inc. Delaware
