Exhibit 10.10
LICENCE AGREEMENT
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THIS AGREEMENT (the "Agreement") is entered into as of September 2004 (the
"Effective Date"), by and between GIZMONDO EUROPE LTD. , its principal office
located at:- Gizmondo Europe Ltd, 0 Xxxxxx Xxxx Xxxxxx, Xxxxxxxxxxx Business,
Xxxxxxxxxxx, Xxxxx, XX00 0XX, Xxxxxxx ('Gizmondo") and Northern Lights Software
Ltd.) of 0 Xxxxxxxxxx Xxxxxx, Xxxxxx, X00 0XX, Xxxxxxx ("Northern Lights"), with
reference to the following details:
RECITALS
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WHEREAS Northern Lights owns or controls the publishing rights in and
owns certain interactive software products and other intellectual property
related thereto, and
WHEREAS, Gizmondo is engaged in the business of, among other things,
publishing, developing, marketing, distributing and selling wireless interactive
entertainment software products, and
WHEREAS, Gizmondo desires to obtain certain rights in and to the
Northern Lights Materials (as defined below in Section 1 hereof) and Northern
Lights desires to grant Gizmondo such rights on the terms set forth in this
Agreement
NOW THEREFORE, the parties do hereby agree as follows:
1. DEFINITIONS.
1.1 "Games" shall mean those entertainment video games which have been
published or will be published by Northern Lights for use on the
Gizmondo multi-entertainment device and any variants thereof
1.2 "Product" shall mean an application program created by Gizmondo in
accordance with this agreement or adapted or modified by Gizmondo so as
to enable the same to operate as a handheld version which is to be
published by Gizmondo for operation on the Devices pursuant to the terms
of this Agreement
1.3 "Game Exhibit" shall mean an addendum to this Agreement that is (and
shall, be far future Games, as amended) attached hereto and incorporated
herein for each Gar-re licensed to Gizmondo for development of the
corresponding Product pursuant to the terms of this Agreement and such
Game Exhibit The format of the Game Exhibit is attached to this
Agreement as Exhibit A Northern Lights may change the format of the Game
Exhibits at any time, but not so as to increase the scope of Gizmondo's
obligations under this Agreement The Game Exhibit includes, but is not
limited to, intellectual property information development schedule and
any additional requirements or limitations on development or publication
of the applicable Product
1.4 "Game Developer/Licensor" shall mean a third party developer or licensor
that developed the Game on Northern Lights behalf or licensed the Game
or its elements to Northern Lights and who retains rights in the Game.
1.5 "Game Content" shall mean without limitation those copyrightable aspects
of the particular Game that may be perceived by the user, including,
without limitation, artwork; sound; graphic and/or music files; audio
visual elements and displays; user interface, logos, trademarks,
characters and names; dialog: story line; plot and data
1.6 "Northern Lights Materials" shall mean collectively Games, Game Content,
Documentation, and any other materials owned or licensed by Northern
Lights provided to Gizmondo under this Agreement
1.7 "Minimum Product Skus" shall mean the WinCE net Gizmondo versions of
each Product.
1.8 "Territory" shall mean the entire world for all of the Products on the
Devices.
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1.9 "Distribution Channel(s)" shall mean the following means of distributing
software designed to operate in the wireless environment over the air
provisioning via Wireless Networks, merchants, including carrier online
or wireless mobile shops, storefronts or portals (whether operated by
the carrier itself or on the carrier's behalf by a third party service
provider) retailers, carrier retail locations: other retail locations
where Devices are generally sold, OEM methods of distribution including
embedded or bundling transactions (subject to clause 24i. and through
the use or sale of SD. MMC cards, memory stick or other similar physical
media that enable the delivery of such wireless products to the Devices
1.10 "Distribution Partner" shall mean any third party, not including
Gizmondo Affiliates, who sub-licenses any of the rights granted to
Gizmondo pursuant to this Agreement for the purpose of distributing the
Products to End-Users subject to clause 2.4 (4).
1.11 "Documentation" shall mean the user documentation, manuals and/or
written product specifications for a Game or Product. as applicable
1.12 "Devices" shall mean the "Gizmondo" handheld portable entertainment
device. and licensed or re-branded variants of the Devices, under
manufacture or licensed from Tiger Telematics Gizmondo subject to any
licensing or rebranding being subject to Northern Lights prior written
approval (not to be unreasonably withheld or delayed).
1.13 "Gizmondo Affiliates" shall mean the parent and those subsidiaries of
Gizmondo as specified in Exhibit E
1.14 "Final Product" means a finished version of any of the Games in an
appropriate format which is ready for publishing by Northern Lights
1.15 "Intellectual Property Rights" shall mean publishing, patent rights and
registrations and applications, renewals and extensions thereof ,
copyright (including, but not limited to. ownership rights in all
titles, computer code, themes, objects, characters, character names,
stories, dialog, catch phrases, locations, concepts, artwork, animation,
sounds, musical compositions, audio-visual effects and methods of
operation, moral rights and any related documentation), copyright
registrations and applications, renewals and extensions therefore
trademark registrations and applications renewals and extensions
therefore, rights in trade dress and packaging, trade secrets and all
other intellectual property rights recognized by English and U.S. laws
and applicable foreign and international laws, treaties and conventions
1.16 "Platform(s)" shall mean the underlying computer systems or technologies
on which Products and other application program(s) are operated in
conjunction with Devices, expressly limited to GSM/GPS/GPRS and any
version of the Microsoft operating system
1.17 "Term" shall mean two years from the delivery to Gizmondo of the Final
Product and subject to any variations set out in any Game Exhibit
1.18 "End-User (s)" shall mean a person or entity that purchases or licenses
for its use a Product pursuant to a signed purchase order, end-user
license agreement or other similar agreement
1.19 "Wireless Network(s)" shall mean a network that allows users of Devices
to connect to and receive telecommunication transmission services in the
Territory.
1.20 "Wireless Network Operator(s)" shall mean any person or entity that
offers telecommunication transmission services to users of a Device in
the Territory over a Wireless Network operated by such person or entity.
1.21 "Licensed Marks" shall mean those Northern Lights trademarks specified
under "Licensed Marks" in each Game Exhibit.
1.22 "Net Receipts" shall mean with respect to a particular Product all
monies actually received by Gizmondo from the license, sale or other
exploitation of such Product, after deducting the
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following (1) any amounts payable to any Wireless Network Operator,
Platform owner, including deductions made by the Wireless Network
Operator or Device manufacturer; (2) the actual returns attributable to
such Product; and (3) taxes and other governmental charges actually paid
or incurred in connection with the sale of such Product (other than the
income tax of Gizmondo). For the avoidance of doubt; Gizmondo Net
Receipts shall not be deemed to include monies derived or collected from
the distribution of the Product to End-Users by any third parties. but
shall refer only to those monies actually received by Gizmondo from such
third parties after such third parties have retained or withheld any
markups, revenue share amounts, or license or other fees due to them
pursuant to the terms of Gizmondo's agreements with such third parties.
1.23 Minimum Guarantee" shall mean the non-refundable fully recoupable
against Earned Royalties guarantee payable by Gizmondo to Northern
Lights under clause 6.2.
2. LICENSE.
2.1 Grant of Rights. Subject to the terms and conditions of this Agreement
Northern Lights grants to Gizmondo the non-transferable, terminable,
exclusive right and license during the Term for each of the Games
specified in the Game Exhibit (the "License") to
(a) develop and produce Products based on the Game and Game Content for
use solely on Devices running on the Platform; and
(b) adapt or convert the version of the Game supplied by Northern Lights
to operate on the Gizmondo platform and to make such changes adaptations
and adjustments as may be required to render the game operable and
attractive on the Gizmondo handheld subject to the prior written consent
of Northern Lights or its Game Licensers.
(c) advertise. promote, market, distribute and sub-distribute, sell,
license and sub-license such Products
(i) in the applicable Territory
(ii) either directly or through any Distribution Channel; and
(iii) solely to End-Users, Distribution Partners or Wireless
Network Operators,
provided that
(1) all such Distribution Partners are subject to Northern Lights
prior written approval (not to be unreasonably withheld or
delayed),
(2) sub-licenses to Distribution Partners shall be only as necessary
to allow Distribution Partners to distribute and sell the
Products to End-Users in the Territory,
(3) Gizmondo's agreements with such Distribution Partners shall
contain terms that are at least as protective of Northern Lights
(and its Game Licensers ) rights (including without limitation,
its approval rights) as those contained in this Agreement, and
(4) Gizmondo shell at all times remain primarily liable under the
terms of this Agreement for any actions or omissions on the part
of such Distribution Partners. In converting the Games to
Products. Gizmondo may make such changes to the Games as are
required to accommodate the capabilities and requirements of the
Devices, Platforms and Wireless Networks.
In connection with the foregoing License, Northern Lights further grants
to Gizmondo the limited right and license to the applicable Intellectual
Property Rights in the Games or the Games Content to carry out the
purpose and intent thereof.
Notwithstanding anything to the contrary, for purposes of this Section,
nothing herein shall prevent Northern Lights from publishing the Game on
other video games, computer systems, hand held devices mobile devices or
technologies or from publishing any Northern Lights game products other
than the Games licensed to Gizmondo hereunder on the Platforms.
2.2 Retained Rights. For the avoidance of any doubt. the rights granted to
Gizmondo in Section 2.1 shall be specifically limited to the devices and
shall not extend to any other platform.
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2.3 Limited Publication Rights. Parties agree that Gizmondo has the right to
publish on the Devices only Distribution rights for any and all future
personal media players are subject to mutual approval and good faith
negotiations on the parts of both parties.
2.4 OEM's Subject to Northern Lights prior written approval Gizmondo may
install, pre-load or embed Products on the Device prior to sale, subject
to Northern Lights receiving an equivalent Earned Royalty as it would
have had the Game been sold at retail at full retail price.
2.5 Northern Lights hereby grants to Gizmondo a non-exclusive,
non-transferable, royalty-free, personal license to use the Licensed
Marks and a sublicense or the applicable third party game studio logos
as specified in the Game Exhibits during the Term, according to the
branding specifications in Exhibit C and other conditions herein, and
solely +n connection with the development and distribution of the
Products based on the Games Subject to compliance by Northern Lights
with its warranties in this Agreement relating to the quality of the
Northern Lights Materials, Gizmondo agrees to maintain the quality of
Product at a level that meets or exceeds standards of quality and
performance generally accepted '.n the wireless gaming industry, and
that is at least commensurate with the quality set forth in Section 4 5
and Exhibit B to this Agreement. Gizmondo agrees to fully correct and
remedy any deficiencies in its use of the Northern Lights Licensed Marks
or the Product within a reasonable time upon receipt of notice from
Northern Lights. Gizmondo shall cease any further use of the Northern
Lights Licensed Marks upon expiration or termination of this Agreement.
2.6 All rights to the Northern Lights Licensed Marks not expressly granted
herein are reserved by Northern Lights. Gizmondo acknowledges Northern
Lights sole ownership of the Northern Lights Licensed Marks, and all
associated goodwill, and that Northern Lights retains all right, title,
and interest in such Licensed Marks. All goodwill arising from use of
such Licensed Marks by Gizmondo will inure to the sole benefit of
Northern Lights. Gizmondo will not use the Northern Lights Licensed
Marks in any manner that will diminish or otherwise damage Northern
Lights goodwill in such Licensed Marks Gizmondo will not adopt, use or
register any corporate name, trade name, trademark, domain name, service
xxxx or certification xxxx, or other designation that violates Northern
Lights rights in such Licensee Marks. Northern Lights shall have the
sole right to and in its sole discretion may control any action
concerning the Northern Lights Licensed Marks.
3. OWNERSHIP OF INTELLECTUAL PROPERTY.
3.1 Ownership of Games and Related Rights. Subject to the terms of this
Agreement, Northern Lights (or as applicable its Game Licensors) shall
at all times be and remain the sole and exclusive owner of the Games and
all Intellectual Property Rights pertaining thereto Without limiting the
generality of the foregoing. nothing in this Agreement shall be deemed
to grant or assign to Gizmondo any proprietary or ownership interest or
Intellectual Property Rights in or to the Games other than the license
rights set forth herein.
3.2 Gizmondo Ownership of Products and Related Rights. Notwithstanding
Section 2 hereof, Northern Lights acknowledges and agrees that it has no
right, title and/or interest in and to the Products and in and to the
work product and other materials originally developed or created by
Gizmondo either before or pursuant to this Agreement to develop and
produce the Products which do not involve, :include, embody or
constitute a derivative work of, and are not otherwise based on, any
portion of the software code compromising the Games, including (a) all
originally created or licensed computer software code, routines, tools,
algorithms and other technology contained in or used in the development
of the Products, (b) all originally created art, sound, music. graphics:
and other assets and designs embodied in the Products, (c) the technical
and/or maintenance documentation, if any, of or concerning the Products,
and (d) the related instruction manuals and packaging, if any, for the
Products (collectively, the "Gizmondo Materials"). Gizmondo (or as
applicable, its licensors) shall own all rights title and interest,
including all Intellectual Property Rights, in and to the Gizmondo
Materials, to the extent the Gizmondo Materials do not involve include,
embody or constitute a derivative work of, and are not otherwise based
on, any portion of the Northern Lights Materials.
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3.3 No Reverse Engineering. Versions of the Game(s) provided to Gizmondo,
unless otherwise specified in the applicable Game Exhibit, shall be in
their compiled object code format and Gizmondo shall make no effort to
discover or otherwise learn the source code for each Game On a case by
case basis. Northern Lights may provide Gizmondo with source code for a
Game in the event Gizmondo demonstrates a good cause reason to require
source code to complete a Product, however, prior to any delivery of
source code (at such time as mutually agreed upon by the parties), if
the Product is based on a Game developed by a third party, Gizmondo
shall be required to execute such Game Developer's nondisclosure
agreement and/or license agreements (the 'Game Developer Documents") as
requested by such Game Developer Gizmondo may utilize and study the
design, performance and operation of the Games solely for the purposes
of developing a Product. Notwithstanding the foregoing, Gizmondo shall
not, directly or indirectly, reverse engineer or aid or assist in the
reverse engineering of aIl or any part of the Games except and only to
the extent that such activity is expressly permitted by applicable law
notwithstanding this limitation In the event applicable law grants
Gizmondo the right to reverse engineer the Games notwithstanding this
limitation, Gizmondo shall provide Northern Lights with written notice
prior to such reverse engineering activity, information sufficient
regarding Gizmondo's intended method of reverse engineering. its purpose
and the legal authority for such activity and shall afford Northern
Lights a reasonable period of time before initiating such activity in
order to evaluate the activity and/or challenge the reverse engineering
activity with the appropriate legal authorities Gizmondo shall refrain
from such reverse engineering activity until such time as any legal
challenge is resolved in Gizmondo's favor Notwithstanding anything to
the contrary, in the event Gizmondo chooses to reverse engineer any Game
without Northern Lights consent, Northern Lights may immediately
terminate this Agreement with no further obligation to Gizmondo Reverse
engineering includes, without limitation, decompiling, disassembly,
sniffing, peeling semiconductor components, or otherwise deriving source
code.
4. DEVELOPMENT OF THE PRODUCTS.
4.1 Northern Lights agrees to use its reasonable endeavors to complete the
development of the Games by the dates set out at Schedule F and to
deliver to Gizmondo all appropriate Materials to support porting of the
Games to the Devices, provided that Northern Lights shall not be obliged
to deliver any assets where such delivery a prohibited under the terms
of any third party agreement.
4.2 In the event that Northern Lights fails or is unable for any reason to
deliver the Final Product in relation to any of the Games then Northern
Lights and Gizmondo shall agree to substitute such Game with another
game in the Northern Lights current or forthcoming publication
catalogue.
4.3 At its discretion but subject to the approval of Northern Lights and its
Game Licensors as set out in this Agreement, Gizmondo shall be entitled
to port the Games to the Device or to develop the Products inn either
event at its sole cost and expense, pursuant to the terms and conditions
of this Agreement Except as expressly provided in this Agreement
Gizmondo shall assume full responsibility for the creation, development
adaptation and production of the Products, which shall include, without
limitation, (a) designing creating adapting or modifying the technical
specifications for the Products, (b) creating modifying adapting or
emulating all computer code for the Products, (c) creating adapting or
modifying all audio and visual assets for the Products except for such
assets as may be reused and as are contained in the Northern Lights
Materials, (d) acquiring and/or licensing any and all other technology,
software and hardware needed for purposes of creating adapting modifying
emulating and distributing the Products, and (e) conducting quality
assurance testing of the Products.
4.4 Third Party Development In the event that Gizmondo seeks to hire a third
party developer to develop a Product as specified herein ("Third Party
Developer"), Gizmondo shall, subject to Northern Lights approval as
specified herein, enter into written agreements with such Third Party
Developers that contain language substantially equivalent to Section 3
and in any event are as protective of Northern Lights Intellectual
Property Rights as the terms of this Agreement. Gizmondo shall cause all
Third Party Developers to execute Northern Lights.
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and/or the Game Developer/Licensor's Nondisclosure Agreement (and other
relevant documents, if requested). Any act or omission by any Third
Party Developer shall be deemed that of Gizmondo for the purposes of
this Agreement and Gizmondo shall be jointly and severally liable for
such acts or omissions. Northern Lights must approve in writing all
Third Party Developers and development work on any Product by such Third
Party Developer as shall not begin until such written approval has been
provided.
4.5 Completion of Products Gizmondo agrees to use its commercially
reasonable efforts to complete the Products within a reasonable time
after being supplied with the Final Products for each of the Games.
4.6 Progress Reports. Upon Northern Lights request Gizmondo will submit
progress reports in connection with each "build" of the Product.
Gizmondo shall then submit for Northern Lights review and approval the
final builds (as such term is commonly understood in the entertainment
software industry) of the each Product. Northern Lights shall consider
all such reports in good faith and shall provide reasonable assistance
to Gizmondo in relation to the compliance with the reasonable quality
standards of Northern Lights.
4.7 Standard of Development. Gizmondo agrees that: (a) the Products shall be
of the standard customary to high-quality entertainment software
products in the wireless/hand held industry. and of such style,
appearance and according to the Quality Standards listed in Exhibit B(b)
the Products shall be developed, produced, distributed, sold licensed
advertised and serviced in accordance with all applicable laws; and (c)
the policy of sale, distribution, and/or exploitation by Gizmondo shall
be of the equivalent standard customary to high-quality entertainment
software products in the Wireless/Handheld industry.
4.8 Approvals
4.8.1 Gizmondo agrees to submit the Products and all marketing
materials to be utilized in connection with the advertising,
marketing and promotion of the Products, to Northern Lights for
Northern Lights (and its Game Licensors') prior approval or
disapproval for the purpose of Northern Lights or its Game
Licensors determining whether such 'Products' and all marketing
materials maintain the agreed-upon design specifications and
quality standards applicable for such items. Gizmondo will
comply with the obligations required by Northern Lights' Game
Licensors with regard :o the Products and marketing materials
and will not release any Product or marketing materials without
Northern Lights' or its Game Licensors' prior written consent.
4.8.2 Gizmondo shall submit builds" of each Product for Northern
Lights approval at the following stages:
(i) Prototype Design Document: Outline of the planned
deliverables and expectations for a Prototype of the
Product. This may be preceded by a "high concept"
document submitted for approval
(ii) Prototype Phase: as defined in Section 4.6.3 below
(iii) Full Product Design document: Detailed description of
game concept and level design for each Platform
(iv) First playable version: First indication of what the end
user experience will be;
(v} Code Complete version: All features implemented. All
future software work dedicated to fixing bugs;
(vi) Release Candidate version: Version submitted to Northern
Lights of Product for release approval;
(vii) Commercial Release version: Final version that is
actually published.
4.8.3 Prototype. The Prototype should feature a playable experience
that can be used with a relatively high degree of accuracy to
make predictions about the viability of the actual Product The
deliverables as outlined below should be of sufficient quality
and depth to achieve this purpose and inclusive of the
following at a minimum:
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(i) Prototype Binary
- Primary gameplay and display engine for a target
Platform agreed to by Northern Lights
(XxxXx.xxx) is viewable Performance
optimizations have not been performed.
- Primary gameplay elements are playable (e.g.,
drive the car, place a unit, move the
character). No tuning has been performed.
Secondary functionalities (e.g., extra vehicle
behavior, extensive character moves) are not
inclusive.
- Key Playable Experience Binary able to
demonstrate the core mechanic or primary feature
of the game.
- Binary is sufficiently stable to review the
above described elements.
- Realized character art that is representative of
what will be seen m the final Product which
covers at least the main character The art is to
be shown in XxxXx.xxx format.
(ii) Initial Design Document (GDD)
- Core gameplay functionality described sufficient
to understand the primary gameplay elements and
their gameplay interactions Competitive features
and player proxy are also described.
- Projected list of platform feature differences.
- Projected list of tools and technologies needed
to realize the game as described.
- Mitigated Risks, Gizmondo's perceived risks in
taking this particular approach and thus not
being able to deliver in terms of originality,
fun, etc.
(iii) Additional Documentation including a description of
Prototype's features, what works and what doesn't.
4.8.4 Once Northern Lights gives an approval for submitted materials
and information about the proposed Product it cannot retract or
modify that approval and Gizmondo will have the right to rely on
such approval in proceeding to the subsequent development stages
based on the approved materials and information, provided there
are no material deviations, modifications or other changes from
the submitted materials and information.
4.8.5 Northern Lights shall use reasonable efforts to approve, and to
procure that Northern Lights Game Licensor's approve, "builds"
and other submissions submitted by Gizmondo within fifteen (15)
business days after receipt, which approval shall not be
unreasonably withheld, provided such "builds" and other
submissions maintain the agreed-upon design specifications and
quality standards applicable for such items In the event
Northern Lights or its Game Licensors neither approves nor
disapproves the submitted material within such fifteen (15)
business day period. Gizmondo shall provide written notice to
Northern Lights and Northern Lights and its Game Licensors shall
have an additional five (5) business days to approve or
disapprove the submitted material. In the event Northern Lights
and/or its Game Licensors fail to approve or disapprove within
such five (5) business days, the submitted material shall be
deemed approved unless Northern Lights notifies Gizmondo in
writing during such period that it has not received approval
from one or more of its Game Licensors in which case the
submitted material will not be approved until such Game Licensor
has given its approval and all applicable time limits in this
Agreement shall be correspondingly extended. The commercial
release version of the Product and all marketing materials must
be approved by the written signature of the person(s) designated
by Northern Lights in the Game Exhibit In the event Northern
Lights and/or its Game Licensors disapprove of a deliverable,
Northern Lights shall provide Gizmondo with sufficient
information in which to discern the nature of the disapproval
and Gizmondo shall modify the deliverable prior to resubmission.
Gizmondo agrees to make such changes as will be reasonably
required to correct any deficiencies
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noted by Northern Lights or its Game Licensors promptly upon
receipt of such notice. This procedure will be repeated with
each submission until Northern Lights determines that its
request(s) for changes has been met. No distribution of any
Products or related materials may occur without Northern Lights
and its Game Licensors prior written approval Once approved, the
Products and related materials shall not deviate from the form
in which such items were approved.
4.9 Hardware Gizmondo shall provide such hardware and carrier service,
and/or comparable method of access to the Products as is necessary to
facilitate Northern Lights review and approval of the Products.
4.10 Defects Correction. Gizmondo shall be responsible for correcting all
bugs and errors found in the Products as needed to have the Products
approved by Northern Lights as specified herein and deemed ready for
"code release" (i.e., the Product is in final form, without any
significant bugs or errors and is ready to be reproduced into units for
sale in the Territory).
4.11 Northern Lights Materials. For each Game, Northern Lights agrees to
deliver to Gizmondo the Northern Lights Materials as may be specified in
the Game Exhibit for such Game.
4.12 Copyright Acknowledgment. Gizmondo shall include the appropriate
copyright and trademark acknowledgement in the credit screen, package,
manual, marketing and promotional materials and paid advertisements for
the Product as identified on the Game Exhibit.
4.13 Gizmondo will display and not remove or alter any trademarks, copyrights
or notices pertaining to the Games as provided by Northern Lights, and
reproduce such trademarks, copyrights and notices in all applicable
advertising and marketing materials for the Products including but not
limited to applicable ratings symbols for each Products Gizmondo will
comply with all Entertainment Software Ratings Board ("ESRB")
requirements and procedures and equivalent applicable requirements and
procedures of similar ratings organizations in other countries in
connection with its distribution and marketing of the Products The
content and game play of the Product shall not materially differ from
the applicable Game such that the Product would receive a different
content rating than the Game in any jurisdiction.
4.14 Credit.
4.14.1 Each Product shall be co-branded equally with the Northern
Lights and Gizmondo brands and the Game developer and Northern
Lights Game Licensor(s) (if applicable), and bear the same title
as the Game Use of Northern Lights brands and logos will conform
to the Branding Specifications attached hereto as Exhibit C.
4.14.2 Subject to the limitations stated in Sections 4 6 and 11, the
parties shall mutually agree to a press release concerning
Gizmondo's publication of the Products that shall identify
Northern Lights as the original publisher of each of the Games,
the Game Developer/Licensor of each applicable Game, and
Gizmondo as the publisher of the Products. The press releases
shall also be subject to Northern Lights Game Licensors approval
where relevant.
4.14.3 Subject to the approval of Northern Lights and its Game
Licensors as to all aspects of the display or presentation of
the Licensed Marks Gizmondo shall provide Northern Lights with
the trademark attribution supplied to Gizmondo by Northern
Lights and give credit to Northern Lights and any Game Licensors
on the back of the Product packaging and within the Products in
all areas where credit is given to Gizmondo Examples of such
'in-game" credit include Northern Lights name and logo in the
splash screen upon "boot-up', within the game manual, and in the
credit section of each Product Gizmondo shall also include
Northern Lights and any Game Licensor's name and logo on all
marketing and promotional materials and paid advertisements in a
manner that clearly identifies Northern Lights as the publisher
of the Game. Trademark attribution for each Product shall be
included in each Game Exhibit or as provided by Northern Lights
from time to time under this Agreement. In addition,
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Gizmondo shall grant credit to Game Developer/Licensor as
follows or as otherwise instructed by Northern Lights on the
Game Exhibit.
o Game Developer/Licensor's name and logo within the manual for
the Product
o Game Developer/Licensor's name within the credit section of
the Product
4.14.4 The Products shall reference all credit and copyright
information found in the original Games with the exception of
additions or deletions agreed to in writing by Northern Lights
Notwithstanding the foregoing, Gizmondo shall have the right to
credit the Third Party Developers of the Products or third
parties who assist in the development or distribution of the
Products provided that such credit is consistent with the
presentation of credits contained in the applicable Game.
5. CERTIFICATION; TESTING.
5.1 Certification And Testing. Gizmondo shall, as required, submit each
Product for testing and certification by an appropriate testing
facility, in-house Quality Assurance department or Gizmondo
certification department All testing fees shall be paid by Gizmondo. In
the event any Product is not certified due to its failure to meet
applicable standards set-forth by the certifying entity or body.
Gizmondo shall at its sole expense, make such revisions and further
modifications until such time as the Product is certified. The Licensor
retains the rights for final approval but will not unreasonably withhold
the release of the product.
5.2 Technical Support. Gizmondo or a party designated by Gizmondo shall be
responsible for all customer support for the Product Northern Lights
acknowledges that Gizmondo may rely on its Wireless Network Operators
and Distribution Partners to provide support, subject to the terms of
this Agreement. Gizmondo will, through clear and conspicuous language in
the Product and on the packaging and documentation for the Product,
notify users of Products how to obtain technical support for the Product
and that Northern Lights is not responsible for providing support for
such Product Northern Lights shall, however, at its own expense use
reasonable commercial endeavors to provide Gizmondo with such support in
relation to the Northern Lights Materials as Gizmondo may reasonably
require for the purpose of performing its obligations under this Clause
provided that the information required by Gizmondo is readily available
to Northern Lights and/or its Game Developers.
6. FINANCIAL TERMS.
6.1 Product Price Gizmondo shall promptly inform Northern Lights of all
prices applicable to the distribution and sale of the Products (the
"Product Price") provided that the Product Price is substantially the
same as similar quality products and subject to Northern Lights prior
written approval, not to be unreasonably withheld In addition Gizmondo,
a hardware manufacturer, Merchant or a Distribution Partner shall have
the right subject to any approval rights of Gizmondo, if any to reduce
the Product Price or offer discounts to third parties.
6.2 Game Title Minimum Guarantee
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Colors/City (pound)800 000
The Minimum Guarantee shall be paid to Northern Lights on the Effective
Date or by stage payments within three months of the effective date.
Subject to the provisions of this Agreement the Minimum Guarantee for
each Product shall be non-refundable but fully recoupable against Earned
Royalties for each Product.
6.4 With respect to each Product. Gizmondo agrees to pay to Northern Lights
an earned royalty (the "Earned Royalty or Royalties") of 50% of Net
Receipts.
6.5 Royalty Statements. Gizmondo will provide royalty statements including
quarterly unit sales and revenue reporting of sell-in to Northern Lights
with detail by stock-keeping unit (SKU), for each geographic region in
the Territory, with such reports delivered to Northern Lights within
9
forty five (45i days after the end of each fiscal quarter after the
commercial launch of any Product with Earned Royalties shown thereby to
be due to Northern Lights. Payment of Earned Royalties shall be in
pounds sterling within fifteen (15) business days of receipt of
corresponding invoice and shall be paid according to the procedure
identified in the attached Exhibit D. The royalty statement shall be
based upon units distributed and not returned for the quarter then
ended, and shall contain information sufficient to discern how the
royalty payment was computed. Earned Royalties are payable on the number
of physical copies or downloads of the Products sold less the number of
returns Gizmondo may maintain and withhold from payment Earned Royalties
shown to have accrued on any statement reasonable reserves (not
exceeding 15%) of the Earned Royalty payable in respect of each fiscal
quarter in respect of Products which may be returned {"Returns } and
will subsequently make adjustments based on the number of Products
actually returned, provided that any unused reserve shall be released
within the second fiscal quarter following that in which it was first
maintained.
6.6 Audits. For at least two years after the Term, Gizmondo will maintain
accurate books and records that report the sales o` each Product.
Northern Lights shall have the right to designate an independent
certified public accountant on Northern Lights behalf (who shall not be
compensated on a contingent fee basis), at Northern Lights own expense,
to examine those books and records solely for the purpose of verifying
the accuracy of royalty statements rendered by Gizmondo hereunder
Northern Lights accountant may only make such examination during regular
business hours and upon reasonable notice and in a manner that is not
unreasonably disruptive to Gizmondo's business Each examination will
take place at the place Gizmondo normally keeps the books and records to
be examined Northern Lights shall be limited to one (1) such examination
each twelve (12) months while the applicable Product is being
commercially exploited by Gizmondo and for 12 months thereafter Gizmondo
shall have no obligation to permit Northern Lights, nor shall Northern
Lights have any right. to examine Gizmondo s books or records relating
to any particular statement more than once unless there is an unresolved
issue. Northern Lights acknowledges that Gizmondo claims that Gizmondo's
books and records contain confidential trade secret information Neither
Northern Lights nor Northern Lights independent certified public
accountant or other representatives shall communicate at any time or use
on behalf of any other person, firm or corporation other than
representatives of Northern Lights any facts or information obtained as
a result of any such examination of Gizmondo's books and records.
Further, prior to the commencement of any examination of Gizmondo's
books and records in accordance with the provisions of this Section,
Northern Lights shall cause the independent certified public accountant
engaged by Northern Lights to sign a letter and/or agreement in a form
approved by Gizmondo which acknowledges his or her agreement (and the
agreement of his or her firm) to he bound by the foregoing The rights
granted to Northern Lights in this Section shall constitute Northern
Lights sole and exclusive right to examine Gizmondo 's books and records
If Northern Lights establishes as a result of an audit conducted by
Northern Lights that there is an underpayment in the royalty payments
due to Northern Lights of five per cent (5,'/,,) or more for the period
covered by the audit, then Gizmondo shall pay to Northern Lights, upon
settlement of the audit, Northern, Lights accountable auditor's fees
actually paid together with the underpayment.
6.7 In the event that Gizmondo is late in making any payment or if Northern
Lights establishes as a result of an audit conducted by Northern Lights
that there is an underpayment in the royalty payments due to Northern
Lights of five percent (5%) or more for the period covered by the audit,
then Gizmondo shall pay to Northern Lights interest from the due date of
such monies until the day payment is received at the rate of 11% such
interest to run from day to day and to accrue after as well as before
any Judgment.
7. MARKETING AND DISTRIBUTION
7.1 At Gizmondo's sole expense and subject to Northern Lights approvals as
set forth in Section 4, Gizmondo shall prepare and execute a marketing
plan in support of the sales effort for the Products. Gizmondo shall
spend on its marketing. and promotional efforts for each Product, an
amount commensurate with amounts spent by Gizmondo on its other top-tier
products.
10
Gizmondo shall use commercially reasonable efforts to market, promote
and distribute the Window's mobile versions of the Products in the
Territory on no less favorable terms as Gizmondo markets, promotes and
distributes other interactive games distributed by Gizmondo. Northern
Lights shall have approval of the marketing plan, to be obtained prior
to, and as a condition of, a Product being certified by Northern Lights
as ready for release to manufacturing.
7.2 XXXX. Gizmondo shall include an End User License Agreement (XXXX) with
the Products m paper or electronic form The XXXX shall indicate that
Gizmondo is the licensor of the Product and the supplier of Product
warranties and support The Products shall be licensed to End Users under
terms as protective of Northern Lights Intellectual Property Rights as
the terms specified herein, except in no event will the XXXX xxxxx any
rights to End Users beyond the right to use the Product as a game
Product support information shall include, at a minimum Gizmondo's or
other designated partner or operator web site and e-mail address for end
users to use to obtain support for the Product. Northern Lights must
approve any material changes to the XXXX in writing that may affect
Northern Lights rights under this Agreement.
7.3 Undertaking Penetration in Distribution Channels. Gizmondo shall use its
commercially reasonable efforts to cause the Products to be distributed
in at least ninety percent (90%) of the Distribution Channel in which
Gizmondo normally distributes consumer software products in the
applicable Territory.
7.4 Gizmondo grants to Northern Lights the unlimited right to copy, use
during the Term and distribute to Northern Lights employees and
contractors the Gizmondo versions of Products for reference promotions
and the like but not for resale or commercial exploitation.
7.5 Gizmondo shall provide to Northern Lights at least (i) thirty (30) free
copies of each retail version of a Product for each Platform from the
first manufacturing run of such Product; and (ii) thirty (30) free
simulators to be able to play non retail versions of a Product for each
platform upon commercial release. Northern Lights shall notify Gizmondo
regarding any commitment it may have to provide copies to any Game
Licensor and Gizmondo shall provide Northern Lights with such copies.
7.5 Gizmondo will provide Northern Lights with three (3) pre-production
units of the Device and fifteen (15) commercial retail versions of the
Device when each such Device first becomes available.
7.7 Gizmondo shall include nn its website or webpage for a Product a link to
the applicable Game website or webpage as designated by Northern Lights.
7.8 Northern Lights shall use commercially reasonable efforts in its
discretion to cross promote the Products based on the Games.
8. TERMINATION.
8.1 Term. This Agreement will continue in full force and effect for the Term
unless terminated earlier as set forth below.
8.2 Termination for Cause. A party hereto which is not in default or breach
of this Agreement may terminate this Agreement as it relates to a given
Game licensed hereunder by written notice to the other party at any time
prior to its original expiration date (as may be extended) upon the
occurrence of any of the following events (each an "Event of Default"):
27 The breach or default of any material term, agreement,
representation, warranty, covenant or obligation set forth in
this Agreement as to such Game, related materials or Products
and such breach or default continues uncured for a period of
thirty (30) calendar days following the receipt by the breaching
party of a written notice thereof; or
11
(ii) If either party becomes insolvent, files or has filed against it
a petition under any bankruptcy law (which, if involuntary, is
unresolved after sixty (60) calendar days), proposes any
dissolution, liquidation, composition, financial reorganization,
or recapitalization with creditors, makes an assignment or trust
mortgage for the benefit of the creditors. or a receiver trustee
custodian, or similar agent is appointed or takes possession
with respect to any property or business of such party
Notwithstanding the foregoing, the parties agree that a good faith
disagreement as to the amount of any payments due under this Agreement
will not be considered a breach of this Agreement.
8.3 Partial Termination for Loss of Product Distribution Rights In the event
Northern Lights loses the right to grant to Gizmondo the rights with
respect to any Northern Lights Materials, Northern Lights may
immediately terminate the rights granted to Gizmondo for such Northern
Lights Materials and the associated Product(s) without effect on the
rights related to other Northern Lights Materials and associated
Product(s}, and, if so indicated by Northern Lights due to its loss of
rights, without a Sell Off Period for such affected Product(s) as
specified in Section 8 5 If any Minimum Guarantees for the affected
Product(s) have yet to be fully recouped by Gizmondo, Northern Lights
will replace the affected Product(s) with comparable product(s)
acceptable to Gizmondo.
8.4 Enforcement Right Without Termination. Without limiting the foregoing or
anything to the contrary contained herein, Northern Lights breach of
this Agreement shall not cause this Agreement and the rights hereunder
to terminate unless Gizmondo specifically elects in writing to terminate
the Agreement Without limiting the foregoing or anything to the contrary
contained herein, Gizmondo's breach of this Agreement shall not cause
this Agreement and the rights hereunder to terminate unless Northern
Lights specifically elects in writing to terminate the Agreement.
8.5 Effect of Expiration or Termination. The parties agree that in case of
expiration or early termination of this Agreement except if such
termination is due to a breach of this Agreement by Gizmondo:
27 Gizmondo shall have (i) one hundred eighty (180) days from the
date of expiration or termination to sell packaged retail
versions of the Product already in inventory prior to the date
of termination; and (ii; ninety (90) days from the date of
expiration or termination to continue to offer download versions
of the Product via electronic distribution (each period
collectively, the "Sell Off Period");
(ii) Except as otherwise set forth in this Agreement the parties
shall have no further obligations to one another under this
Agreement.
8.6 Survival of Certain Obligations. Subject to the terms of this Agreement
to the contrary, Sections 2.'7, 3, 6.6 and 9 through 114 shall survive
the termination or expiration of this Agreement.
9 REPRESENTATIONS, WARRANTIES AND COVENANTS.
9.1 Representations, Warranties and Covenants of Northern Lights. Northern
Lights represents, warrants and covenants that (i) Northern Lights is
duly incorporated, validly existing and in good standing under the laws
of the ;jurisdiction in which it is incorporated, and that it has the
full rights, power, legal capacity and authority to enter into this
Agreement, and to carry out the terms hereof (ii) this Agreement has
been executed by its duly authorized representative and is a valid,
legally binding and enforceable obligation of Northern Lights; (iii)
Northern Lights is either the owner of the Games, the Northern Lights
Materials including the Game Content the Licensed Marks (in countries of
the Territory in which such Licensed Marks are registered, as specified
in the applicable Game Exhibit) and all Intellectual Property Rights
therein or has procured all necessary rights and licenses from the
owners of such rights to enter into and carry out the terms of this
Agreement; (iv) the Games and Game Content have
12
not been sold, assigned, leased, licensed or in any other way disposed
of by Northern Lights or mortgaged, pledged or encumbered by Northern
Lights in a manner that would violate the exclusive license granted to
Gizmondo hereunder; and (v} Northern Lights will comply in all material
respects with all applicable laws, statutes and regulations in
performing its obligations under this Agreement
9.2 Representations and Warranties of Gizmondo. Gizmondo represents,
warrants and covenants that:
(i) It is duly incorporated, validly existing and in good standing
under the laws of the jurisdiction in which it is incorporated,
and that it has the full rights, power, legal capacity and
authority to enter into this Agreement, and to carry out the
terms hereof,
(ii) this Agreement has been executed by its duly authorized
representative and is a valid, legally binding and enforceable
obligation of Gizmondo;
(iii) Gizmondo has the full rights, power, legal capacity and
authority to enter into this Agreement, and to carry out the
terms hereof; and materials furnished by Gizmondo, if any, under
this Agreement, do not or will not infringe upon or otherwise
violate the rights of any third party;
(iv) Gizmondo will comply in all material respects with all
applicable laws, statutes and regulations in distributing the
Products under this Agreement;
(v) Gizmondo has full power and authority to enter into and perform
this Agreement without approval from any governmental entity or
third party, and that such ability is not limited or restricted
by any agreements or understanding between Gizmondo and any
other person or company;
(vi) Gizmondo and its affiliated companies have the know-how and
experience to develop the Products and are otherwise fully
capable of performing the obligations under this Agreement, or
will engage Third Party Developers approved by Northern Lights
who have such know-how, experience and capability;
(vii) Gizmondo shall maintain sufficient insurance coverage to enable
it to meet its obligations created by this Agreement and by law
Without limiting the foregoing. Gizmondo warrants that such
insurance shall include the following lines o` coverage to the
extent the Agreement creates exposures generally covered by
these insurance policies Commercial General Liability, product
liability and Employer's Liability.
(viii) The Products, computer code technology, information and
materials created, developed or used by Gizmondo pursuant to
this Agreement, other than the Game Content will not infringe
upon or misappropriate the Intellectual Property Rights or any
other legal rights of any third party and should any aspect of
thereof, or such other computer code, technology information or
materials created or developed by Gizmondo pursuant to this
Agreement, become, or, in Northern Lights reasonable opinion, is
likely to become, the object of any infringement or
misappropriation claim or suit. Gizmondo will use its best
efforts to procure, at Gizmondo's expense, the right to use such
computer code, technology, information or materials in all
respects, or to replace or modify the affected material to make
it non-infringing, and if it is unable to do so at reasonable
expense, it shall be entitled to surrender its rights under this
Agreement with respect to the Product or Products in question.
10. INDEMNIFICATION.
10.1 Indemnification by Northern Lights. Northern Lights hereby agrees to
indemnify. defend and hold harmless Gizmondo from and against any and
all suits, losses, liabilities, damages, awards, claims, settlements,
costs and expenses, including reasonable attorneys' fees,
13
arising out of or otherwise relating to a breach by Northern Lights of
its warranties, representations and covenants contained in this
Agreement.
10.2 Indemnification by Gizmondo. Gizmondo hereby agrees to indemnify, defend
and hold harmless Northern Lights against any and all suits: losses,
liabilities, damages, awards. claims, settlements, costs and expenses,
including reasonable attorneys' fees, arising out of or otherwise
relating to a breach by Gizmondo of its warranties, representations and
covenants contained in this Agreement.
10.3 Limitation On Indemnification. Notwithstanding this Section 10, neither
party shall have obligation to indemnify the other if the Claim for
which indemnification is sought arises Out of a breach of this Agreement
or of a representation warranty or covenant made by the party seeking
indemnification
10.4 Notice of Claim. In the event either party wishes to assert a claim for
indemnification hereunder (the Indemnified Party"), it shall deliver
written notice (a 'Claims Notice') to the other party (the "Indemnifying
Party"), specifying the facts constituting the basis for, and the amount
(if known) of the claim asserted.
10.5 Right to Contest Claims of Third Parties.
10.5.1 If an Indemnified Party asserts, or may in the future seek to
assert, a claim for indemnification hereunder because of any
action, cause of action or suit brought by any person not a
party to this Agreement {a "Third Party Claimant") that may
result in a loss with respect to which the Indemnified Party
would be entitled to indemnification pursuant to this Section
(an "Asserted Liability'), the Indemnified Party shall deliver
to the Indemnifying Party a Claims Notice with respect thereto,
which Claims Notice shall in accordance with the provisions of
Section 10.4 hereof be delivered as promptly as practical after
an action in connection with such Asserted Liability is
commenced against the Indemnified Party.
10.5.2 The Indemnifying Party shall have the right upon written notice
to the Indemnified Party, to investigate, contest, defend or
settle any Asserted Liability that may result in a loss with
respect to which the Indemnified Party is entitled to
indemnification pursuant to this Section, provided that the
Indemnified Party may at its option and at its own expense.
participate in the investigation, contesting, defense or
settlement of any such Asserted Liability through
representative,,; and counsel of its own and, provided further,
that the Indemnifying Party shall not settle any Asserted
Liability unless such settlement provides as an unconditional
term an immediate release of the Indemnified Party for all
liability with respect to such Asserted Liability, and the
Indemnified Party has consented to the other terms of such
settlement If requested by the Indemnifying Party, the
Indemnified Party will, at the sole cost and expense of the
Indemnifying Party, cooperate with reasonable requests of the
Indemnifying Party and its counsel in contesting any Asserted
Liability. including, if appropriate and related to the Asserted
Liability in question, in making any counterclaim against the
Third Party Claimant, or any cross-complaint against any Person
(other than the Indemnified Party or its Affiliates). If the
Indemnifying Party fails to undertake the defense of the
Asserted Liability reasonably promptly, the indemnified Party
may at its option and at the Indemnifying Party's expense, to do
so in such manner as it deems appropriate; provided, however,
that the Indemnified Party shall not settle or compromise any
Asserted Liability for which it seeks indemnification hereunder
without the prior written consent of the Indemnifying Party
(which shall not be unreasonably withheld or delayed).
10.5.3 The Indemnifying Party may participate in (but not control) the
defense of any Asserted Liability that it has not elected to
defend with its own counsel and at its own expense.
10.5.4 The Indemnifying Party and the Indemnified Party shall make
mutually available to each other all relevant information in
their possession not protected under
14
confidentiality agreements relating to any Asserted Liability
(except to the extent that such action would result in a loss of
attorney-client privilege or would violate any applicable law)
and shall cooperate with each other in the defense thereof.
10.6 Except for the parties' indemnification obligations set forth in section
10, in no event shall either party be liable for incidental exemplary,
punitive, special or consequential damages of any kind or the loss of
anticipated profits incurred or suffered by the other party arising from
any breach of this agreement. In no event will Northern Lights aggregate
liability under this agreement exceed the amount of fees paid to
northern lights hereunder. Nothing m this exclusion shall exclude
liability for fraud.
11. CONFIDENTIALITY.
11.1 The parties to this Agreement recognize that in connection with the
performance of this Agreement, each of them may disclose to the other
information about the disclosing party's business or activities which
the disclosing party considers proprietary and confidential. All of such
proprietary and confidential information of the disclosing party (which
shall include, without limitation; this Agreement, all business,
financial and technical information of a party, identities of customers,
clients or licensees, proprietary software code and any other
information whether oral or written which is not generally known or
available to the public) is hereinafter referred to as "Confidential
Information."
11.2 The party who receives any Confidential Information agrees to maintain
the confidential status for such Confidential Information, not to use
any such Confidential Information for any purpose other than the purpose
for which it was originally disclosed to the receiving party and not to
disclose any of such Confidential Information to any third party.
11.3 All terms and conditions of this Agreement shall be deemed Confidential
Information as defined herein. In the event Gizmondo transfers
Confidential Information to other parties (e.g., Third Party Developers)
as allowed under this Agreement, that party shall enter into agreements
with such parties which protect the Confidential Information of Northern
Lights to no less a degree than it is protected herein Without limiting
the foregoing, ail terms and conditions of this Agreement shall be
considered confidential and shall not be disclosed (except to either
party's attorneys or accountants on a need-to-know basis) without the
prior written consent of the other party.
11.2 Press-Release. The parties shall issue a press release announcing this
relationship provided that such press release shall be subject to their
mutual approval.
11.3 Injunctive Relief. Each party further acknowledges and agrees that, in
the event of a breach or threatened breach of this Section, the other
party may have no adequate remedy in money or damages and, accordingly
shall be entitled to seek preliminary. permanent and other injunctive
relief.
11.4 Non-Impairment. Nothing in this Agreement will affect any obligation of
either party to maintain the confidentiality of a third party's
confidential information. Nothing in this Agreement will impair the
right of either party to use, develop or market technologies, ideas or
products similar to those of the other party so long as such use,
development or marketing does not infringe or the intellectual Property
Rights of the other party.
12. PROTECTION OF PROPRIETARY RIGHTS.
12.1 Third Party Infringement If either party hereto becomes aware that any
Product or Game Content governed by this Agreement has been or will be
infringed, such party shall promptly notify the other thereof in writing
and the parties shall promptly seek to mutually determine a joint course
of action with respect to said infringement If joint action is
undertaken, the expenses incurred by each party will be paid off the top
from any recovery received in connection with such action and the
remainder of such recovery shall then be split by the parties in
proportion to their expenses for such action. If, however, no mutually
acceptable
15
basis for joint action is agreed upon within a reasonable period of time
and Gizmondo reasonably believes that action is required to protect its
rights, Gizmondo may take action in its own name and Northern Lights
shall cooperate including with respect to the issues of standing and
venue, with Gizmondo in connection with the prosecution of such action
at Northern Lights expense and reasonable request. If, however: no
mutually acceptable basis for joint action is agreed upon within a
reasonable period of time and Gizmondo fails to take action in a
reasonable amount of time thereafter, Northern Lights may take action in
its own name. and Gizmondo shall cooperate, including with respect to
issues of standing and venue, with Northern Lights in connection with
the prosecution of such action at Northern Lights expense and reasonable
request. The party who commences any such unilateral action shall be
entitled to recover its actual out of pocket costs and expenses
associated with such action with the balance retained by Gizmondo and
deemed Net Receipts.
12.2 Third Party Claims. Gizmondo will promptly notify Northern Lights in
writing of any legal proceeding instituted, or written claim or demand
asserted by, any third party against Gizmondo with respect to the
infringement of any Intellectual Property Right, which is alleged to
result from the license, sale or use of the Game Content by Gizmondo.
Such a claim shall be deemed a breach of Northern Lights representations
and warranties.
13. MISCELLANEOUS.
13.1 Public Announcements. Neither party will make any public announcement in
relation to this Agreement without the express written consent of the
other.
13.2 Assignment. Gizmondo may not assign this Agreement or any portion
thereof, to any third party other than Gizmondo Affiliates unless
Northern Lights expressly consents to such assignment in writing, such
consent shall not be unreasonably withheld.
13.3 Force Majeure. Neither party will be responsible for any failure to
perform its respective obligations under this Agreement due to causes
beyond its reasonable control (each a 'Force Majeure Event") including,
but not limited to, strikes, riots embargoes, war, acts of terrorism,
acts of civil or military authorities, fire floods, explosion,
earthquakes, accidents. network catastrophes, acts of God. and all other
delays beyond the party's reasonable control provided that such party
gives prompt written notice of such Force Majeure Event to the other
party within five (5) business days. The time for performance will be
extended for a period equal to the duration of the Force Majeure Event,
but in no case longer than thirty (30) days.
13.4 Severability. In the event that any provision in this Agreement will be
subject to an interpretation under which it would be void or
unenforceable, such provisions will be construed so as to constitute it
a valid and enforceable provision to the fullest extent possible, and in
the event that it cannot be so construed, it will, to that extent, be
deemed deleted and separable from the other provisions of this
Agreement, which will remain in full force and effect and will be
construed to effectuate its purposes to the maximum legal extent.
13.5 Notice Any notice herein required or permitted to be given will be given
in writing and may be delivered personally to any officer of Northern
Lights or Gizmondo, or as appropriate; by express courier, registered or
certified mail (postage and fees prepaid, with return receipt
requested), or by facsimile transmission to the address set forth below.
Either party may from time to time specify or change the address for
such notice by giving written notice thereof to the other party in the
manner provided in this Section. A notice will be deemed given three (3)
days after deposit if by express courier, five (5) days after deposit if
by regular mail, or upon transmission if by facsimile.
With a copy to: Gizmondo Europe Ltd
0 Xxxxxx Xxxx Xxxxxx
Xxxxxxxxxxx Xxxxxxxx Xxxx
Farnborough
Hants
16
XX00 0XX Xxxxxxx
If to Northern Lights: Northern Lights Software Ltd
0 Xxxxxxxxxx Xxxxxx
Xxxxxx X00 0XX
Xxxxxxx
13.6 Independent Contractors The parties hereto are independent contractors.
Northern Lights will not be entitled to any compensation except as
provided in the Agreement. Each party shall be responsible for payment
of its employees' compensation, disability benefits, unemployment
insurance, and for withholding income taxes and social security. Neither
party shall be entitled to receive any benefits provided by the other
party to such party's employees. Neither Gizmondo nor Northern Lights
shall be deemed to be partners or agents of the other In addition to the
parties other indemnification obligations set forth herein, each party
agrees to indemnify and hold the other and its directors, officers and
employees harmless from and against any claims, liabilities or
obligations asserted against any of them for not withholding taxes or
making unemployment and worker compensation payments and the like, as a
result of such party's independent contractor status. Such
indemnification shall include any penalties and interest assessed
thereon as well as the payment of reasonable attorneys' fees.
13.7 Governing Law 2nd Venue, This Agreement shall be construed and
controlled by English law and the parties shall be subject to the
non-exclusive jurisdiction of the English Courts. In any action or suit
to enforce any right or remedy under this Agreement or to interpret any
provision of this Agreement, the prevailing party shall be entitled to
recover its reasonable attorney's fees, costs and other expenses.
13.8 Headings and Presumptions. The headings of the sections and sub-sections
of this Agreement are provided for convenience only and will not be used
to limit or construe the contents of this Agreement As this Agreement is
a negotiated agreement reviewed by each party's legal counsel and there
will be no presumption for or against one party on the ground that the
other party was responsible for preparing this Agreement or any part of
it.
13.9 Counterparts. This Agreement may be executed in counterparts, each of
which will be deemed an original Agreement for all purposes and which
collectively will constitute one and the same Agreement.
13.10 Remedies. Unless expressly set forth to the contrary, either party's
election of any remedies provided for in this Agreement will not be
exclusive of any other remedies available hereunder or otherwise at law
or in equity.
13.11 Complete Agreement, Waiver, and Modification This Agreement and the
Schedule attached hereto constitutes the complete and exclusive
understanding between the parties with respect to the subject matter
hereof, superseding all prior negotiations, preliminary agreements,
correspondence, proposals or understandings both written or oral. No
waiver or modification of any provision of this Agreement will be
binding unless it is in writing and signed by authorized representatives
of each of the parties. No waiver of a breach hereof will be deemed to
constitute a waiver of a further breach, whether of a similar or
dissimilar nature.
17
ACCEPTED AND AGREED TO:
FOR AND ON BEHALF OF FOR AND ON BEHALF OF
GIZMONDO EUROPE NORTHERN LIGHTS
By: _________________________ By: _________________________
Its__________________________ Its__________________________
Date:________________________ Date:________________________
18
EXHIBIT A
---------
GAME EXHIBIT FORMAT
-------------------
Game Title and Version: Colors/city
Developer: Gizmondo or other approved third
party developer
Product: Gizmondo 2020
Platform: Gizmondo 2020
U K Release Date: October 2004
U S Release Date: April 2005
Projected Sales Figures: Five million
Countries of Licensed Xxxx Registration: USA, Europe (under application)
Rights Restrictions: Exclusive to Gizmondo
Third Party Approvals: Northern Lights
Content provided Gizmondo: Publishing rights
Licensed Marks: TBD
Game Title Presentation: Colors/city
Studio Logo: Northern Lights Software Ltd
Northern Lights Attributions: Title and logo
Third Party Credit Obligations: Xxxxxx Xxxxxx by agreement
between Gizmondo and Xxxxxx
Xxxxxx.
Assigned developer
Development Schedule: End of second quarter 2005
19
EXHIBIT B
---------
QUALITY STANDARDS
-----------------
(1) The Product shall appear, operate and perform in all substantial
respects consistent with the final design specifications approved by
Northern Lights for the Product.
(2) The Product shall be of similar quality and playability to that of other
games published by Gizmondo on the same platform.
(3) The Product shall qualify for an ESRB rating or equivalent content
rating no more restrictive than the rating designated for the Game.
(4) In developing the Product, Gizmondo shall ensure that the Product runs
on and is fully compatible with the latest version of the applicable
Platform, and Gizmondo shall comply with Northern Lights logo
certification requirements for applications through the Designed for
Windows for WinCe net logo programs.
20
EXHIBIT C
---------
BRANDING SPECIFICATIONS
-----------------------
Branding Specifications:
1. Gizmondo may use the Licensed Marks only on Product packaging,
documentation and marketing materials in accordance with the Agreement
and specifications below.
2. Gizmondo may use the Licensed Marks in the manner set forth on each game
exhibit showing the specific artwork used in relation to that title.
Artwork for each title is listed under "Game Title Presentation" and
artwork for the Studio is listed under "Studio Logo."
3. Gizmondo's name; logo or trademark must appear on any materials where
the Licensed Marks are used and must clearly identify the source of the
Products as Gizmondo.
4. Licensed Marks may not be used in any manner that expresses or might
imply Northern Lights affiliation, sponsorship, endorsement,
certification, or approval, other than as contemplated by the Agreement.
5. Except as expressly licensed in the Agreement, Licensed Marks may not be
included in any non-Northern Lights trade or business name, domain name,
product or service name, logo, trade dress design, slogan, or other
trademarks.
6. The Licensed Marks may not be combined with any other symbols including
words, logos, icons, graphics photos, slogans, numbers or other design
elements.
7. Gizmondo shall xxxx the first and most prominent use of the Licensed
Marks in the Product, including on packaging and in advertising and
marketing materials, with the trademark symbols provided by Northern
Lights on each Game Exhibit or other appropriate trademark designations
set forth from time to time by Northern Lights.
8. All published material in relation to Northern Lights branding
specification is to be approved and countersigned by an officer of
Northern Lights Software Ltd.
21
EXHIBIT D
---------
FINANCIAL REPORTING AND CONTACT INFORMATION
-------------------------------------------
Gizmondo Information Northern Lights Information
--------------------------------------------------------------------------------
Name: Name:
Gizmondo Ltd. Northern Lights
--------------------------------------------------------------------------------
Street Address and/or post office box: Street Address and/or post office
0 Xxxxxx Xxxx Xxxxxx, Xxxxxxxxxxx box 0 Xxxxxxxxxx Xxxxxx
Xxxxxxxx Xxxx
--------------------------------------------------------------------------------
City and State / Province: City and State 1 Province:
Farnborough Hants London
--------------------------------------------------------------------------------
Country and Postal Code: Postal Code:
XX00 0XX, Xxxxxxx X00 0XX, Xxxxxxx
--------------------------------------------------------------------------------
Accounting Contact Name and title: Attention:
Xxx Xxxx Xxxxx Xxxxxxxx
Finance Director
--------------------------------------------------------------------------------
Phone Number: Phone Number:
00000 000 000 0207 6299870
--------------------------------------------------------------------------------
Fax Number: Fax Number:
00000 000 000 0207 629 3022
--------------------------------------------------------------------------------
E-Mail Address E-Mail Address (if applicable):
all xxxx@xxxxxxxxxxxxxxx.xxx xxxxxxxxxxxxxxx@xxxxxxx.xx
--------------------------------------------------------------------------------
Contact address With a Copy of the Notice To:
Gizmondo Europe Ltd Tiger Telematics Inc.
0 Xxxxxx Xxxx Xxxxxx
Xxxxxxxxxxx Xxxxxxxx
Xxxxxxxxxxx
Hants
GU14 6FG
--------------------------------------------------------------------------------
Gizmondo shall remit payment to the following account (or such other account(s)
as Northern Lights may specify)
Bank details:
Account no 00000000
Sort code 40-D5-50
Bank: HSBC
Address: 0 Xx Xxxxx Xxxxxx, Xxxxxx
22
EXHIBIT E
---------
GIZMONDO'S AFFILIATES
---------------------
1. Tiger Telematics Inc.
2. Indie Stuidios
3. Warthog Games Ltd.
4. Any assigned developer approved by both parties
23
SCHEDULE F
----------
GAME COMPLETION DATES
---------------------
PUBLISHING RIGHTS
-----------------
Colors/City 1st quarter 2005
24
