SOFTWARE LICENSE AND DISTRIBUTION AGREEMENT
This
Software License and Distribution Agreement (this “Agreement”) is entered into
as of the 15th day of September, 2004 (the “Effective Date”), by and between
Infinium Labs, Inc., a Delaware corporation with its principal place of business
at 0000 Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, XX 00000 (“Infinium”), and
Eidos
Inc.,
a
California corporation with its principal place of business at 000 Xxxxxxx
Xxxxxx, Xxx Xxxxxxxxx, XX 00000 (“Licensor”).
| 1. |
Definitions.
|
“Converted
Product” means one instance of an End User either activating a Licensed Product
that is preloaded on client hardware distributed to such End User as part of
the
Service or downloading a Licensed Product from the Service, and then purchasing
unlimited use of that Licensed Product.
“End
User” means an individual subscriber to the Service located in the
Territory.
“Licensed
Products” means the current and future game titles Licensor licenses hereunder
to Infinium for redistribution via the Service, detailed in Exhibit
A
as
amended from time to time.
“Licensor
Deliverables” means the software, information and other materials described on
Exhibit
B.
“Net
Receipts” means the gross amounts actually received by Infinium from End Users
attributable to Converted Products, less the following: credit card processing
fees, amounts attributable to refunds, rebates, returns, allowances and
adjustments actually granted to End Users, costs of distributing the Converted
Products, taxes, duties or other governmental charges on production, sales,
transportation, delivery, importation or use actually borne by Infinium, and
an
amount equal to 10% of such gross amounts as a reserve for bad debt and
credit-card charge reverses, provided that such reserved amount shall be
reconciled with actual receipts on a quarterly basis.
“Royalty”
has the meaning set forth in Section 6, below.
“Service”
means the Phantom gaming service, including hardware, software and other
infrastructure, created and maintained by Infinium and described in detail
in
Exhibit A, attached hereto.
“Territory”
shall have the meaning set forth on Exhibit
C.
| 2. |
Licenses.
|
2.1 Licensed
Products.
Subject
to the terms and conditions of this Agreement, Licensor hereby grants to
Infinium the following non-exclusive right and license within the
Territory:
|
(i)
|
to
install, execute and reproduce the Licensed Products on computers
controlled by Infinium in order to evaluate and analyze the Licensed
Products to the extent reasonably necessary for Infinium to distribute
the
Licensed to End Users via the
Service;
|
|
(ii)
|
to
deconstruct the Licensed Products into small packets of information
that
facilitate the distribution of the Licensed Products to End Users
via the
Service;
|
-1-
|
(iii)
|
to
preload copies of the Licensed Products on client hardware for
distribution to End Users and to electronically distribute via the
Service
copies of the Licensed Products to End
Users;
|
|
(iv)
|
to
permit such End Users to use the Licensed Products on a perpetual,
subscription or time-limited basis, but only in conjunction with
the
Service; and
|
|
(iv)
|
to
cache copies of the Licensed Products on the Service and make a reasonable
number of copies of the Licensed Products for Infinium’s backup use.
|
2.2 Marketing
Materials.
Subject
to the terms and conditions of this Agreement, including Licensor’s prior
approval of all use of reformatted marketing and promotional materials, which
approval shall not be unreasonably withheld, Licensor hereby grants to Infinium
the following non-exclusive right and license within the Territory:
|
(i)
|
to
reformat and reproduce any marketing or promotional materials contained
in
the Licensor Deliverables, including cover art, animated demos, video
clips, trailers and screen shots of the Licensed Products (the “Marketing
Materials”) to the extent reasonably necessary for Infinium to engage in
the marketing activities set forth in Section 5;
and
|
|
(ii)
|
to
use, display and distribute the Marketing Materials and the Licensed
Products as part of the marketing activities set forth in Section
5.2.
|
2.3 End-User
Agreements.
Use of
the Licensed Products by End Users shall be governed by a “click-wrap” license
agreement between Licensor and the End Users accompanying the Licensed Product,
which shall be provided to Infinium by Licensor. Infinium shall have the right
to review and approve any such “click-wrap” license agreement prior to
Infinium’s distributing the applicable Licensed Product. Use of the Service,
including the right to download and to access the Licensed Products, shall
be
governed by an agreement between the End Users and Infinium. Licensor
understands and agrees that, if there is a conflict between the terms of the
click-wrap agreement between Licensor and the End Users and the agreement
between Infinium and the End Users, the agreement between Infinium and the
End
Users shall control, provided that Licensor has been given a reasonable
opportunity to approve and has approved the relevant click-wrap agreement
between Infinium and End User.
2.4 Restrictions.
The
licenses granted under this Agreement are expressly conditioned on Infinium’s
compliance with each of the following conditions:
|
(i)
|
Infinium
shall have no access to the source code of any of the Licensed Products
and shall not reverse engineer or decompile the Licensed Products
in order
to derive the source code of the Licensed Products;
and
|
|
(ii)
|
all
copies of the Licensed Products made by Infinium must retain Licensor’s
copyright and trademark notices.
|
| 3. |
Licensor’s
Obligations.
|
3.1 Licensor
Deliverables.
Licensor shall deliver to Infinium the Licensor Deliverables within fifteen
(15)
days following the Effective Date. For Licensed Products added to Exhibit
A
after
the Effective Date, Licensor shall deliver to Infinium the Licensor Deliverables
within fifteen (15) days following Licensor’s release of a completed, tested and
fully functional master version of a Licensed Product to Licensor’s designated
manufacturers or distributors for distribution to end users.
-2-
3.2 ESRB
Ratings.
Licensor shall, at its own cost and expense, apply for and obtain a rating
from
the Entertainment Software Rating Board (“ESRB”) for each of the Licensed
Products.
3.3 Quality
Assurance.
Licensor shall use industry-standard quality assurance methods in the
development and production of the Licensed Products. Licensor may, at its
option, test Licensed Products on the Service before they are made available
to
End Users. Infinium shall make Service hardware and software available to
Licensor to facilitate this QA testing as the same is mutually agreed upon
by
the parties hereto. In addition, Infinium shall provide Licensor with
information regarding its desired release schedule for Licensed Products on
the
Service.
3.4 Support
to End Users.
Licensor shall provide all End Users with the same customer service and
technical support that Licensor provides to other end users of the Licensed
Products. Infinium shall provide Licensor with standard FAQs regarding the
Service.
3.5 Support
to Infinium.
Licensor shall, during Licensor’s regular business hours, provide to Infinium
reasonable technical support via email regarding compatibility and/or
integration issues with the Licensed Products and the Service.
3.6 Compliance
with Laws.
Licensor shall comply with all applicable laws, rules and regulations in
connection with its performance of its obligations under this
Agreement.
| 4. |
Infinium’s
Obligations.
|
4.1 Implementation
of Service.
Infinium shall, at its own expense, implement and maintain the Service,
including acquiring and maintaining all hardware, software and other
infrastructure necessary the make the Service available to End
Users.
4.2 Support
to End Users.
Infinium shall provide all End Users with industry-standard customer service
and
technical support with regard to the Service, and shall be responsible for
billing and collecting all amounts due from End Users for use of the
Service.
4.3 Security.
Infinium shall implement and maintain reasonable technical measures, such as
encryption, to prevent unauthorized access or use of the Service and the
Licensed Products.
4.4 Reports.
Within
thirty (30) days following the end of each calendar month during the term of
this Agreement, Infinium shall provide to Licensor a written report of the
number of Converted Products distributed during such month on a
Licensed-Product-by-Licensed-Product basis.
4.5 Privacy
Policy; Certification.
Infinium shall implement and comply with a privacy policy for the Service,
and
shall use reasonable efforts to obtain a certification of such policy from
ESRB
or other similar independent organization.
4.6 Compliance
with Laws.
Infinium shall comply with all applicable laws, rules and regulations in
connection with its performance of its obligations under this Agreement
including, without limitation, the Children’s Online Privacy Protection
Act.
-3-
| 5. |
Marketing.
|
5.1 Promotion
of the Service.
Licensor may take part in promotional opportunities Infinium makes available
via
the Service. Such promotional opportunities are listed in Exhibit
D,
and may
be amended from time to time at Infinium’s sole discretion. In addition, as
mutually agreed upon by the parties hereto, Licensor shall promote Infinium
as a
distributor of the Licensed Products, including through use of logos provided
by
Infinium, in a manner and with a prominence no less favorable than other
distributors, whether online, “brick and mortar” or otherwise. On a quarterly
basis, personnel of Licensor and Infinium shall meet to disclose, review and
discuss future promotional opportunities for the Licensed Products and the
Service. Licensor shall otherwise promote the Service in marketing and
promotional materials for the Licensed Products as agreed upon by the parties
from time to time.
5.2 Promotion
of the Licensed Products.
As part
of promoting and marketing the Service, including at trade shows and in
association with co-marketers and co-promoters, Infinium shall be permitted
to
(i) use Licensor’s trade name and the marks and branding elements associated
with the Licensed Products (the “Marks”), (ii) use, display and distribute the
Marketing Materials and (iii) display the Licensed Products. In using the Marks,
Infinium shall comply with any branding guidelines provided by Licensor and
shall discontinue any such use upon Licensor’s request. Such use of the Marks
shall inure to the benefit of Licensor.
5.3 No
Tarnishment.
Neither
party shall disparage the other party or otherwise take any action with the
intent of tarnishing the other party’s reputation.
5.4 Publicity.
Neither
party shall issue a press release announcing the business relationship
established by this Agreement without the prior written consent of the other
party. Infinium may, however, disclose publicly that Infinium has become a
licensee of Licensor and is entitled to distribute the Licensed Products
electronically.
| 6. |
Payments.
|
6.1 Advance.
Infinium shall pay to Licensor a non-refundable advance against royalties as
set
forth on Exhibit
C
(the
“Advance”). The Advance shall be credited against any royalty payments owed
under Section 6.2, below.
6.2 Royalties.
Within
thirty (30) days following the end of each calendar quarter during the term
of
this Agreement, Infinium shall (i) pay to Licensor the percentage of Net
Receipts set forth in Exhibit
C
generated during the immediately preceding calendar quarter (the “Royalty”), and
(ii) provide to Licensor a written report, in such detail as Licensor may
reasonably require, of deductions taken from gross revenue received in
connections with the Service, of Net Receipts generated during the immediately
preceding calendar quarter and the Royalty due. If no Net Receipts have accrued
during any such period, a written statement to that effect shall be furnished.
6.3 Post-Termination
Report.
Infinium shall provide a written report to the Licensor within sixty (60) days
following the date of any expiration or termination of this Agreement, in such
detail as Licensor may reasonably require, of all Royalties due pursuant to
Section 6.2 but that were not previously reported to Licensor, and shall pay
to
Licensor all such Royalties due to Licensor.
6.4 Records.
Infinium shall keep accurate records of all operations affecting payments
hereunder, and shall permit Licensor or its duly authorized agent to inspect
all
such records for the purpose of determining the accuracy of Infinium’s payments
under this Agreement and to make copies of or extracts from such records no
more
often than once per calendar year during regular business hours during the
term
of this Agreement. All such records shall be deemed Confidential Information
of
Infinium and shall be used solely for the purpose of determining compliance
with
Infinium’s payment obligations under this Agreement. In the event that an
inspection reveals an underpayment to Licensor of five percent (5%) or more,
Licensor shall bear the costs of such inspection and shall reimburse Licensor
for the same upon receipt of a related invoice.
-4-
6.5 Exchange
Rate.
All
payments, including Royalties on Net Receipts from End Users located outside
of
the United States, shall be paid in United States dollars. For the purpose
of
computing royalties payable on Net Receipts from End Users located outside
of
the United States, amounts received by Infinium in foreign currencies shall
be
converted into United States dollars at that end of the calendar month in which
such amounts were received at the market rate of exchange as published by the
Wall Street Journal in effect as of the final business day of such calendar
month.
6.6 Late
Payments.
In the
event of late payment of any money due to Licensor hereunder, Infinium shall
pay
to Licensor interest accruing from day to day calculated at the monthly rate
of
one and one-half percent (1.5%) (or the maximum rate allowed by law, if less)
on
all such money overdue from the due date for payment until the actual date
of
payment, whether before or after any formal judgment.
| 7. |
Proprietary
Rights.
|
Infinium
acknowledges Licensor’s proprietary rights in the Licensed Products. Title to
the Licensed Products shall at all times remain solely with Licensor. Licensor
retains all rights not expressly granted. Except as expressly set forth herein,
Infinium shall not disassemble, decompile, reverse engineer, copy, modify,
transcribe, store, translate, sell, lease, or otherwise transfer or distribute
the Licensed Products, in whole or in part, without prior authorization in
writing from Licensor.
| 8. |
Warranties.
|
8.1 Limited
Product Warranty.
Licensor warrants to Infinium that for a period of one (1) year following
delivery of the Licensor Deliverables for a Licensed Product (the “Warranty
Period”) to the best of Licensor’s knowledge such Licensed Products will not
contain any undocumented back doors, trap doors, locks, time bombs, viruses,
worms, Trojan horses or other destructive code. During the Warranty Period,
Licensor shall, at its option, repair or replace or any Licensed Product that
does not comply with the limited warranty set forth in this Section.
8.2 By
Infinium. Infinium
represents and warrants to Licensor as follows: (a) Infinium has full
corporate power and authority to enter into and carry out its obligations under
this Agreement; (b) the execution, delivery and performance of this
Agreement will not conflict with, are not inconsistent with and will not result
in any breach of any terms, conditions or provisions of, or constitute (with
due
notice or lapse of time, or both) a default under any agreement, contract,
document or instrument to which Infinium is a party or by which it is otherwise
bound; (c) this Agreement has been duly executed and delivered by Infinium
and
constitutes the legal, valid and binding obligation of Infinium, enforceable
against Infinium in accordance with its terms; (d) no authorization, consent,
approval or similar action of or by any third party is required for or in
connection with Infinium’s authorization, execution, delivery or performance of
this Agreement; and (e) use of the Service and/ or Infinium Marks do not and
will not infringe upon or constitute the misappropriation of any third party
intellectual property or other propriety rights.
-5-
8.3 By
Licensor. Licensor
represents and warrants to Infinium as follows: (a) Licensor has full
corporate power and authority to enter into and carry out its obligations under
this Agreement; (b) the execution, delivery and performance of this
Agreement will not conflict with, are not inconsistent with and will not result
in any breach of any terms, conditions or provisions of, or constitute (with
due
notice or lapse of time, or both) a default under any agreement, contract,
document or instrument to which Licensor is a party or by which it is otherwise
bound; (c) this Agreement has been duly executed and delivered by Licensor
and
constitutes the legal, valid and binding obligation of Licensor, enforceable
against Licensor in accordance with its terms; (d) no authorization, consent,
approval or similar action of or by any third party is required for or in
connection with Licensor’s authorization, execution, delivery or performance of
this Agreement; (e) the promotion, distribution and use of the Licensed Products
as expressly authorized herein will not infringe upon, or constitute a
misappropriation of, any third party’s intellectual property rights; and (f) the
use of the Marks by Infinium as permitted under this Agreement will not
constitute an infringement or dilution of a third party’s trademark rights in
the Territory.
8.4 DISCLAIMER. THE
WARRANTIES SET FORTH IN THIS SECTION 8 ARE IN LIEU OF ALL OTHER
REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESSED OR IMPLIED. EXCEPT
FOR THE WARRANTIES SET FORTH IN THIS SECTION 8, EACH PARTY HEREBY DISCLAIMS
ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED,
WHETHER ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, INCLUDING, WITHOUT
LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
| 9. |
Indemnification.
|
9.1 Indemnification
by Infinium.
Infinium, at its own expense, shall indemnify, defend and hold harmless Licensor
against any third-party claim, suit, action, proceeding, debt or liability,
including reasonable attorneys’ fees, based on or arising from: (i) breach by
Infinium of any of its covenants, representations or warranties under this
Agreement; or (ii) breach by Infinium of any obligation owed by Infinium to
an
End User under a separate agreement (including the agreement for provision
of
the Service).
9.2 Indemnification
by Licensor.
Licensor, at its own expense, shall indemnify, defend and hold harmless
Infinium, its employees, representatives, agents and affiliates against any
third-party claim, suit, action, proceeding, debt or liability, including
reasonable attorneys’ fees, brought against Infinium based on or arising from:
(i) breach by Licensor of any of its covenants, representations or warranties
under this Agreement; or (ii) breach by Licensor of any obligation owed by
Licensor to an End User under a separate agreement (including the “click-wrap”
license agreement applicable to the Licensed Products).
9.3 Procedure.
In
claiming any indemnification hereunder, the party seeking indemnification shall
promptly provide the indemnifying party with written notice of any claim which
the party seeking indemnification believes falls within the scope of the
foregoing paragraphs, at which time the indemnifying party shall be obligated
to
defend the action in its sole expense. In the event that the indemnifying party
does not act promptly, but not less than thirty (30) days from receipt of notice
of a claim, to secure counsel to act on behalf of a party seeking
indemnification and defend such party against a claim, the party seeking
indemnification shall be entitled to secure counsel of its own, defend and
settle a relevant claim without the indemnifying party’s approval and the
indemnifying party agrees to reimburse the party seeking indemnification for
any
and all costs incurred with respect to the same within thirty (30) days of
its
receipt of a detailed invoice for the same. The indemnified party may, at its
own expense, participate in the defense if it so chooses, provided that the
indemnifying party shall control such defense and all negotiations relative
to
the settlement of any such claim and further provided that any settlement
intended to bind the indemnified party shall not be final without the
indemnified party’s written consent, which shall not be unreasonably withheld.,
at which time Licensor shall be obligated to defend Licensee with respect to
the
same at Licensor’s sole expense. In the event that Licensor does not act
promptly, but not less than thirty (30) days from receipt of notice of a claim,
to secure counsel to act on behalf of Licensee and defend Licensee against
a
Claim, Licensee shall be entitled to secure counsel of its own, defend and
settle a relevant Claim without Licensor’s approval and Licensor agrees to
reimburse Licensee for any and all costs incurred with respect to the same
within thirty (30) days of Licensor’s receipt of a detailed invoice for the
same. Licensee shall retain the right at all times, at its’ sole expense, to
participate in the defense or settlement of any such Claim with counsel of
its
own selection, provided that Licensee will not be entitled to enter into any
settlement of such Claim without Licensor’s prior written consent.
-6-
9.4 Additional
Rights for Claims of Infringement. In
the event a third party asserts or threatens any claim asserting: (a) that
the
marketing, licensing, distribution or use of any of the Licensed Products
infringes upon, or constitutes a misappropriation of, such third party’s
intellectual property rights in the Territory, then Licensor may, at its option
(i) procure for Infinium and the End Users a license to continue
distributing and using the Licensed Product, (ii) modify such Licensed Products
to make them non-infringing, or (iii) if neither of the foregoing is
commercially practicable, terminate this Agreement with respect to the allegedly
infringing Licensed Product in the jurisdiction in which infringement is
asserted, and pay to Infinium all amounts that Infinium refunds to End Users
as
a result of such termination.
| 10. |
Term
and Termination.
|
10.1 Term
of Agreement.
The
term of this Agreement shall commence on the Effective Date and, unless earlier
terminated in accordance with the provisions of this Agreement, continue
thereafter until December 31, 2005.
10.2 Termination
for Breach.
Either
party may terminate this Agreement in the event the other party has breached
any
material term or condition of the Agreement and such breach remains uncured
for
thirty (30) days following receipt of written notice from the non-breaching
party specifying the breach.
10.3 Termination
upon Insolvency.
This
Agreement may be terminated by either party immediately and without notice
in
the event the other (i) admits in writing its inability to pay its debts
generally as they become due, (ii) makes a general assignment for the benefit
of
creditors, (iii) institutes proceedings to be adjudicated a voluntary bankrupt,
or consents to the filing of a petition of bankruptcy against it, (iv) is
adjudicated by a court of competent jurisdiction as being bankrupt or insolvent,
(v) seeks reorganization under any bankruptcy act, or consents to the filing
of
a petition seeking such reorganization, or (vi) ceases to do business itself
or
through a successor.
-7-
10.4 Effect
of Termination.
Upon
termination of this Agreement, neither party shall be relieved of any obligation
or liability that has accrued prior to the date of such termination. Each party
shall return the other party’s Confidential Information or, at the request of
the owner of the Confidential Information, destroy it and certify in writing
that such destruction has been completed. In addition, upon termination or
expiration of this Agreement, any and all rights granted hereunder by Licensor
to Licensee shall terminate and shall revert in full back to
Licensor.
10.5 Survival.
The
obligations of the parties under the following Sections shall survive expiration
or termination of this Agreement for any reason: Sections 6.3, 6.4, 8, 9, 10.4,
10.5, 11 and 12.
| 11. |
Confidentiality.
|
11.1 Confidential
Information.
“Confidential Information” means any information (including, but not limited to,
customer lists, marketing and distribution plans and activities), report,
document or other materials disclosed or provided to the other party during
the
term of this Agreement which is of a trade secret, confidential, proprietary
or
like undisclosed nature or which is identified as such.
11.2 Non-disclosure.
All
Confidential Information shall be retained by the receiving party in confidence
for the term of this Agreement and for a period of three (3) years thereafter
and shall not be used by a party except in connection with performance of their
obligations or enjoyment of their rights under this Agreement. The receiving
party shall not disclose or otherwise make available any of the Confidential
Information to anyone, including employees and agents, except those employees
or
agents of the receiving party who need to know the Confidential Information
for
the receiving party to perform its obligations or enjoy its rights under this
Agreement. The receiving party shall (i) instruct any such employees and agents
not to disclose or otherwise make available any of the Confidential Information
to anyone, and (ii) be liable to the disclosing party for any action or inaction
of such employees or agents that would violate this Agreement, had the action
or
inaction been that of the receiving party directly. The receiving party shall
exercise the same care and safeguards with respect to Confidential Information
disclosed by the disclosing party as used to maintain the confidentiality of
its
own information of like character, but in any event a reasonable degree of
care.
11.3 Exceptions.
Nothing
in this Agreement shall in any way restrict the right of a receiving party
to
use, disclose, or otherwise deal with any information that (i) was already
known to the receiving party at the time of disclosure as evidenced by written
documents in the receiving party’s possession prior to disclosure, (ii) was
generally available to the public or becomes publicly known through no wrongful
act of the receiving party, (iii) was received by the receiving party from
a third party who had a legal right to provide it, or (iv) was developed
independently of knowledge of Confidential Information received by the receiving
party from the disclosing party. In addition, a receiving party shall be
permitted to disclose Confidential Information if required pursuant to the
request of any governmental agency or any court of competent jurisdiction,
provided that the receiving party shall limit disclosure to only that specific
information required, shall use its reasonable efforts to obtain confidential
treatment with respect to any such information disclosed, and shall notify
the
other party before providing such information in order to enable that party
to
seek a protective order.
-8-
| 12. |
Miscellaneous.
|
12.1 No
Agency.
The
parties hereto are independent contractors and nothing in this Agreement shall
create or imply any agency relationship between the parties, nor shall the
Agreement be deemed to constitute a joint venture or partnership between the
parties. Neither party shall have authority to bind or otherwise obligate the
other in any manner whatsoever.
12.2 Waiver.
No
waiver shall be implied from conduct or failure to enforce rights. No waiver
shall be effective unless in a writing signed by both parties.
12.3 Assignment.
Neither
this Agreement nor any of the rights, interest or obligations hereunder may
be
assigned by any party hereto without the prior written consent of the other
party, except that Licensor may assign its rights and obligations hereunder
to a
successor of a party in the event of a merger, acquisition or other change
in
control of such party. This Agreement shall bind and inure to the benefit of
the
parties and their respective successors and permitted assigns.
12.4 Notices.
All
notices, consents and other communications required or permitted to be given
hereunder shall be in writing and shall be deemed to have been duly given if
delivered by hand, mailed by registered or certified mail or sent by overnight
courier as follows:
If
to
Infinium:
Infinium
Labs, Inc.
0000
Xxxx
Xxxxxx, Xxxxx 000
Xxxxxxxx,
XX 00000
Attention:
__________________
with
a
copy to:
Infinium
Labs, Inc.
0000
Xxxx
Xxxxxx, Xxxxx 000
Xxxxxxxx,
XX 00000
Attention:
General Counsel
If
to
Licensor:
Eidos,
Inc.
000
Xxxxxxx Xxxxxx, 0xx
Xxxxx
Xxx
Xxxxxxxxx, XX 00000
Attention:
VP Legal and Business Affairs
or
to
such other address as a party may from time to time specify for itself by
written notice given as provided above. All notices shall be deemed to have
been
given on the date of delivery if delivered by hand, three business days after
mailing and on the business day after being sent by courier.
-9-
12.5 Entire
Agreement.
This
Agreement, including all exhibits hereto, constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes
all
prior and contemporaneous communications and agreements. In the event of a
conflict between the body of this Agreement and an exhibit, such exhibit shall
control. This Agreement may not be modified except by a written agreement dated
subsequent to the Effective Date and signed on behalf of the parties by their
respective duly authorized representatives.
12.6 Severability.
If any
provision of this Agreement is held to be invalid, void or unenforceable, such
provision shall be deemed to be restated to reflect as nearly as possible the
original intentions of the parties in accordance with applicable law, and the
remaining provisions of this Agreement shall remain in full force and
effect.
12.7 Governing
Law.
This
Agreement and all claims related to it, its execution or the performance of
the
parties under it, shall be construed and governed in all respects according
to
the laws of the State of California, without regard to the conflict of law
provisions thereof. Any claim, dispute or controversy of whatever nature arising
out of or relating to this Agreement must be brought exclusively in a court
of
competent jurisdiction, located in San Francisco, California, and in no other
jurisdiction. The parties hereto consent to personal jurisdiction and
venue in, and agree to service of process issued or authorized by, such
court.
12.8 Counterparts;
Facsimile Signatures.
This
Agreement may be executed in counterparts which, when taken together, shall
constitute one and the same instrument. Facsimile signatures shall have the
same
effect as original signatures.
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed by their
duly authorized representatives as of the date first written above.
|
INFINIUM
LABS CORPORATION
|
EIDOS
INC.
|
|
By:__________________________________
|
By:__________________________________
|
|
Print
Name: ___________________________
|
Print
Name: ___________________________
|
|
Title:
________________________________
|
Title:
________________________________
|
|
Date:
________________________________
|
Date:
________________________________
|
-10-
EXHIBIT
A
LICENSED
PRODUCTS
|
Full
Game Name, including trademarks
|
Term
limitations (if any)
|
|
Back
Catalog Titles
|
|
|
Deus
Ex: Game of the Year Edition
|
|
|
Thief
Gold
|
|
|
Thief
II
|
|
|
Any
content created by consumers using the Thief level editor for which
Eidos
controls rights via the XXXX
|
|
|
Other
titles to be added by Eidos prior to contract signing
|
|
|
Frontline
Titles
|
|
|
Deus
Ex: Invisible War
|
|
|
Thief:
Deadly Shadows
|
|
-11-
EXHIBIT
B
LICENSOR
DELIVERABLES
For
each Licensed Product:
Gold
master (without copy protection when available)
Box
cover
art
Digital
logo
Legal
lines
Patches
and other updates
Promotional
Screen Shots
Animated
Demos
Movie
trailers
Pre-release
demo code
-00-
XXXXXXX
X
XXXXXXXXX;
XXXXXXXX
Xxxxxxxxx:
Xxxxxx
Xxxxxx of America, its territories and possessions, Canada and
Mexico.
Advance:
$125,000,
payable
in two equal installments, the first installment due within ten (10) business
days following the Effective Date, and the second installment due immediately
upon Infinium's receipt of the Licensor Deliverables for all Licensed
Products.
Per
Title Recoupment:
The
Advance is recoupable against Royalties on a per-Licensed Product (i.e.
royalties paid hereunder shall not be cross-collateralized across Licensed
Products) basis as follows:
| o |
Thief:
Deadly Shadows - $50,000
|
| o |
Deus
Ex: Invisible War - $30,000
|
| o |
Deux
Ex; Game of the Year Edition -
$20,000
|
| o |
Thief
2 - $15,000
|
| o |
Thief
Gold - $10,000
|
Royalties:
|
Licensed
Product
|
Royalty
|
|
1)
Frontline
Titles (Licensed
Products that are distributed via usual and customary videogame channels,
and whose sales figures are reported by NPD):
|
25%
of Net Receipts
|
|
2)
Digitally
Distributed Titles
(Licensed Products that are only distributed
electronically):
|
50%
of Net Receipts
|
|
3)
Back-Catalog
Titles
(Licensed Products that have been, but are no longer, distributed
via
usual and customary videogame channels, and whose sales figures are
no
longer reported by NPD):
|
50%
of Net Receipts
|
-13-
EXHIBIT
D
PROMOTIONAL
OPPORTUNITIES FOR LICENSED PRODUCTS
N/A
-14-
