PLAYSTATION 2®LICENSED PUBLISHER AGREEMENT
PLAYSTATION
2®LICENSED PUBLISHER AGREEMENT
THIS
AGREEMENT RELATES TO THE PUBLISHING OF APPLICATION SOFTWARE FOR THE
PLAYSTATION®2 COMPUTER ENTERTAINMENT SYSTEM. ALL TERMS USED HEREIN ARE SPECIFIC
TO THE PLAYSTATION®2 SYSTEM AND NOT TO SONY'S PREDECESSOR "PLAYSTATION" VIDEO
ENTERTAINMENT SYSTEM. PUBLISHING RIGHTS FOR SUCH PREDECESSOR SYSTEM ARE SUBJECT
TO SEPARATE AGREEMENTS WITH SCEE, AND ANY LICENCE OF RIGHTS TO PUBLISHER
UNDER
SUCH SEPARATE AGREEMENTS SHALL NOT CONFER ON PUBLISHER ANY RIGHTS IN RELATION
TO
THE PLAYSTATION ®2 SYSTEM, OR VICE VERSA.
This
Agreement
is
entered into the 22nd day of August 2002 by and between
SONY
COMPUTER ENTERTAINMENT EUROPE LIMITED
of
00
Xxxxxx Xxxxxx, Xxxxxx X0X 0XX
(hereinafter
referred to as "SCEE")
-
and
-
ZOO
DIGITAL GROUP PLC
of
Xxxxxxxx Xxxxx, 00 Xxxxxx Xxxxxx, Xxxxxxxxx X0 0XX
(hereinafter
referred to as "Publisher")
PUBLISHER
AUTHORISATION #: 195
Whereas
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(A)
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SCEE,
its parent company Sony Computer Entertainment Inc., and/or certain
of
their affiliates and companies within the group of companies of
which any
of them form part (hereinafter jointly and severally referred to
as
"Sony") have developed, and are licensing core components of, a
computer
entertainment system known and hereinafter referred to as "PlayStation
2",
and are the owners of, or have the right to grant licences of,
certain
proprietary information and intellectual property rights pertaining
to
PlayStation 2.
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(B)
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Publisher
desires to be granted a non-exclusive licence to market, distribute
and
sell Licensed Products (as defined below), and for such Licensed
Products
and associated materials to be manufactured by an authorised manufacturing
facility licensed by SCEE, on the terms and subject to the conditions
set
forth in this Agreement.
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(C)
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SCEE
is willing, on the terms and subject to the conditions of this
Agreement,
to grant Publisher the desired non-exclusive
licence.
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Now
therefore,
in
consideration of the undertakings, representations and warranties given herein,
and of other good and valuable consideration the receipt and sufficiency
of
which is acknowledged, Publisher
and SCEE hereby agree as follows:
1. Definitions
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1.1
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"Licensed
Products" means PlayStation 2 format Software product(s) in uniquely
marked or coloured CD-ROM or DVD-ROM format software discs (hereinafter
referred to as "PlayStation 2
Discs").
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| 1.2 |
"Licensed
Territory" means the countries specified in Schedule
1.
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1.3
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"Sony
Intellectual Property Rights" means all current and future patents
worldwide, pending patent applications and other patent rights
(under
licence or otherwise), copyrights, trademarks, service marks, trade
names,
semi-conductor topography rights, trade secret rights, technical
information and know-how (and the equivalents of each of the foregoing
under the laws of any jurisdiction) of Sony pertaining to Sony
Materials
and/or PlayStation 2, and all other proprietary or intellectual
property
rights worldwide (including, without limitation, all applications
and
registrations with respect thereto) of Sony pertaining to Sony
Materials
and/or PlayStation 2, and all renewals and extensions
thereof.
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1.4
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"PlayStation
2 format Software" means Publisher's object code software, which
includes
Licensed Developer Software and any software (whether in object
code or
source code form) which is provided by SCEE and intended to be
combined
with Licensed Developer Software for execution on PlayStation 2
and has
the ability to communicate with the software resident in PlayStation
2
.
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1.5
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"Term"
means the period from the date hereof until 31 March 2003 and continuing
thereafter unless and until terminated by not less than 1 (one)
month's
notice on either side given to expire on such date or any subsequent
31
March.
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1.6
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"Affiliate
of SCEE" means, as applicable, either Sony Computer Entertainment
Inc in
Japan, Sony Computer Entertainment America Inc in the USA or such
other
Sony Computer Entertainment entity as may be established by Sony
from time
to time.
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1.7
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"LDA
2" means the PlayStation 2 Licensed Developer Agreement between
Licensed
Developer of the applicable PlayStation 2 format Software and SCEE
(or an
equivalent such agreement between Licensed Developer and an Affiliate
of
SCEE).
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1.8
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"Licensed
Trademarks" means the "PS" family logo and PlayStation 2 logotype
and such
other trademarks, service marks, trade dress, logos and other icons
or
indicia as shall be specified in the Specifications or otherwise
designated by SCEE from time to time. SCEE may amend such Licensed
Trademarks upon reasonable notice to
Publisher.
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Publisher
is not authorised to use the PlayStation, PSone or XxxxXxxxxxx.xxx logos
and/or
logotypes, or the "PS2" or PlayStation Shapes devices, other than as expressly
permitted by separate agreement. Nothing contained in this Agreement shall
in
any way grant Publisher the right to use the trademark "Sony" in any manner
as
(or as part of) a trademark, trade name, service xxxx or logo or otherwise
howsoever.
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1.9
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"Licensed
Developer" means Publisher or such other third party as shall have
developed Licensed Developer Software and PlayStation 2 format
Software
pursuant to a then current LDA2.
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1.10
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"Sony
Materials" means any hardware, data, object code, source code,
documentation (or any part(s) of any of the foregoing) and related
peripheral items provided to the Licensed Developer of any PlayStation
2
format Software pursuant to the LDA 2 applicable for such PlayStation
2
format Software.
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1.11
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"Licensed
Developer Software" means Licensed Developer's application source
code and
data (including audio and visual material) developed by Licensed
Developer
in accordance with its LDA 2 which, when integrated with any software
(whether in object code or source code form) provided by SCEE,
creates
PlayStation2 format Software.
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1.12
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"Printed
Materials" means all artwork and mechanicals to be set forth on
the
Licensed Product itself, and on the PlayStation 2 box (or other
container)
and, if applicable, the box (or other) packaging for the Licensed
Product
and all instruction manuals, inlays, inserts, stickers and other
user
information and/or materials to be inserted in or affixed to such
PlayStation 2 box and/or packaging.
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1.13
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"Advertising
Materials" means all advertising, merchandising, promotional and
display
materials of or concerning the Licensed
Products.
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1.14
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"Manufactured
Materials" means all units of the Licensed Products, of the Printed
Materials to be set forth on the Licensed Products themselves and
of the
PlayStation 2 boxes for such Licensed Products (which expression
shall
include any alternative form of container for Licensed Products
subsequently introduced by SCEE).
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1.15
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"Specifications"
means such specifications relating to the content and/or manufacture
of
Licensed Products, Printed Materials, Advertising Materials and/or
related
matters or materials as may be issued by Sony, which specifications
(and/or procedures relating to the testing or verification of all
such
materials for conformity to the Specifications and/or relating
to the
ordering and manufacture of Licensed Products and associated materials)
may be amended from time to time upon reasonable notice to
Publisher.
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1.16
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"CNDA"
means the Confidentiality & Non-Disclosure (or similar) Agreement
between Publisher and SCEE or an Affiliate of SCEE relating to
PlayStation
2 and to Confidential Information of Sony and/or of Publisher
thereunder.
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1.17
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"Confidential
Information of Sony" means the content of this Agreement (including
the
Schedules hereto and the Specifications) and all confidential and/or
proprietary information, documents and related materials of whatever
nature (including, without limitation all processes, hardware,
software,
inventions, trade secrets, ideas, designs, research, know-how,
business
methods, production plans and marketing plans) concerning PlayStation
2
developed or owned by, licensed to or under the control of Sony
and,
without limitation, information otherwise related to Sony's technology,
know-how, products, potential products, research projects, promotional
advertising and marketing plans, schedules and budgets, licensing
terms
and pricing, customer lists and details, commercial relationships
or
negotiations, services, financial models and other business information,
whether relating to PlayStation 2 or otherwise including, unless
covered
by a separate Non-Disclosure Agreement between Publisher and SCEE,
relating to Sony's "PlayStation" predecessor video entertainment
system
disclosed by whatever means, whether directly or indirectly, by
or on
behalf of Sony to Publisher at any time, whether disclosed orally,
in
writing or in machine-readable or other form, or otherwise discovered
by
Publisher as a result of any information or materials provided
(whether
directly or indirectly) by or on behalf of Sony to
Publisher.
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1.18
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"Confidential
Information of Publisher" means any and all confidential and/or
proprietary information, documents and related materials of whatever
nature (including, without limitation all processes, hardware,
software,
inventions, trade secrets, ideas, designs, research, know-how,
business
methods, production plans and marketing plans) concerning PlayStation
2
format Software developed or owned by, licensed to or under the
control of
Publisher and, without limitation, information otherwise related
to
Publisher's technology, know-how, products, potential products,
research
projects, promotional advertising and marketing plans, schedules
and
budgets, licensing terms and pricing, customer lists and details,
commercial relationships or negotiations, services, financial models
and
other business information, whether relating to PlayStation 2 or
otherwise
disclosed by whatever means, whether directly or indirectly, by
or on
behalf of Publisher to SCEE at any time, whether disclosed orally,
in
writing or in machine-readable or other form, or otherwise discovered
by
SCEE as a result of any information or materials provided (whether
directly or indirectly) by or on behalf of Publisher to SCEE, which
information is designated by Publisher as, or becomes known to
SCEE under
circumstances indicating that such information is, confidential
or
proprietary.
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1.19
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"Third
Party Intellectual Property Rights" means all current and future
patents
worldwide, pending patent applications and other patent rights
(under
licence or otherwise), copyrights, trademarks, service marks, trade
names,
semi-conductor topography rights, trade secret rights, technical
information and know-how (and the equivalents of each of the foregoing
under the laws of any jurisdiction) of any third party other than
Publisher or Sony and all other proprietary or intellectual property
rights worldwide (including, without limitation, all applications
and
registrations with respect thereto), and all renewals and extensions
thereof.
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2. Grant
of Licence
SCEE
hereby grants to Publisher, and Publisher hereby accepts, within the Licensed
Territory only and under the Sony Intellectual Property Rights, a non-exclusive
non-transferable licence, without the right to sub-license (except as
specifically provided herein), to publish PlayStation 2 format Software in
such
genres or categories as SCEE shall from time to time designate in the
Specifications, and the right and obligation to use the Licensed Trademarks,
in
the form and manner prescribed in the Specifications, strictly, only and
directly in connection with such publication. For these purposes, to "publish"
shall mean any or all of the following: (i) produce Advertising Materials
and
Printed Materials; (ii) to issue to SCEE purchase orders for Manufactured
Materials as prescribed in Clause 6; (iii) to market, distribute and sell
Licensed Products (and to authorise others so to do); and (iv) to sub-license
to
end users the right to use Licensed Products for non-commercial purposes
only
and not for public performance.
3. Limitations
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3.1
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Subject
always to Article 6, Publisher shall publish PlayStation2 format
Software
only if developed by a Licensed Developer strictly in accordance
with all
the terms and conditions of such Licensed Developer's LDA 2 and
shall not
publish or attempt to publish any other software whatsoever intended
for
or capable of execution on PlayStation 2 . The onus of evidencing
that
PlayStation 2 format Software satisfies the foregoing criteria
shall rest
on Publisher and SCEE reserves the right to require Publisher to
furnish
evidence satisfactory to SCEE that the foregoing criteria are
satisfied.
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3.2
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Publisher
shall not publish outside the Licensed Territory PlayStation 2
format
Software unless and until Publisher shall be authorised and licensed
so to
do pursuant to a current licence agreement with the applicable
Affiliate
of SCEE. Further, Publisher shall not sub-publish such PlayStation2
format
Software through a third party either within or outside the Licensed
Territory unless and until such sub-publisher shall be authorised
and
licensed so to do either pursuant to a current PlayStation 2 Licensed
Publisher Agreement with SCEE or a current PlayStation 2 licence
agreement
with the applicable Affiliate of
SCEE.
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3.3
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The
licence granted in this Agreement extends only to the publication,
marketing, distribution and sale of Licensed Products in such formats
as
may be designated by SCEE. Without limiting the generality of the
foregoing and except as otherwise provided herein, Publisher and,
if
applicable, its sub-publishers shall at all times and in all territories
be strictly prohibited from undertaking or authorising the distribution
or
transmission of PlayStation 2 format Software or Licensed Products
through
electronic means or any other means now known or hereafter devised,
including without limitation, via wireless, cable, fiber optic
means,
telephone lines, microwave and/or radio waves, or over a network
of
interconnected computers or other devices. Notwithstanding this
limitation, Publisher may electronically transmit PlayStation 2
format
Software from site to site, or from machine to machine over a computer
network, for the sole purpose of facilitating development; provided
that
no right of retransmission shall attach to any such transmission,
and
provided further that Publisher shall use reasonable security measures
customary within the high technology industry to reduce the risk
of
unauthorised interception or retransmission of such
transmissions.
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For
the
avoidance of doubt, the foregoing shall apply only to PlayStation 2 format
Software and to Licensed Products and shall not apply to Licensed Developer
Software which does not utilise Sony Materials and/or Sony Intellectual Property
Rights and/or, subject to Council Directive 91/250/EEC, Confidential Information
of Sony.
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3.4
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Subject
only to Article 6, Publisher and, if applicable, its sub-publishers
shall
at all times be strictly prohibited from disassembling or decompiling
software, peeling semiconductor components or otherwise reverse
engineering or attempting to reverse engineer or derive source
code or
create derivative works from PlayStation 2 format Software, from
permitting or encouraging any third party so to do, and from acquiring
or
using any materials from any third party who does so. Publisher
shall in
all cases be primarily liable for the payment of Platform Charge
to SCEE
in accordance with Clause 7 hereof in respect of any product published
by
Publisher, or, if applicable, any of its sub-publishers, which
utilizes
Sony Materials and/or Sony Intellectual Property Rights and/or,
subject to
Council Directive 91/250/EEC, Confidential Information of Sony.
The onus
of evidencing that any such product is not so published shall rest
on
Publisher and SCEE reserves the right to require Publisher to furnish
evidence satisfactory to SCEE that the applicable of the foregoing
criteria are satisfied.
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3.5
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Publisher
shall inform all such sub-publishers of the obligations imposed
by this
Agreement and shall obtain their commitment to abide by the
same.
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3.6
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Any
breach of the provisions of this Clause 3 shall be a material breach
of
this Agreement not capable of
remedy.
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4. Reservations
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4.1
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This
Agreement does not grant any right or licence, under any Sony Intellectual
Property Rights or otherwise, except as expressly provided herein,
and no
other right or licence is to be implied by or inferred from any
provision
of this Agreement or the conduct of the parties hereunder. Subject
only to
the rights of Publisher under this Agreement, all right, title
and
interest in and to the Sony Materials and the Sony Intellectual
Property
Rights are and shall be the exclusive property of Sony, and Publisher
shall not make use of, or do or cause to be done any act or thing
contesting or in any way impairing or tending to impair any of
Sony's
right, title or interest in or to, any of the Sony Materials, Sony
Intellectual Property Rights, PlayStation 2 and/or Sony's "PlayStation"
predecessor video entertainment system except as authorised by
and in
compliance with the provisions of this Agreement or as may otherwise
expressly be authorised in writing by Sony; provided however that
the
foregoing shall not be taken to preclude Publisher from challenging
the
validity of any Sony Intellectual Property Rights. No right, licence
or
privilege has been granted to Publisher hereunder concerning the
development of any collateral product or other use or purpose of
any kind
whatsoever which displays or depicts any of the Licensed Trademarks.
No
promotional or novelty items or premium products (including, by
way of
illustration but without limitation, T-shirts, posters, stickers,
etc)
displaying or depicting any of the Licensed Trademarks shall be
developed,
manufactured, marketed, sold and/or distributed by, with the authority
of
or on behalf of, Publisher without the prior written consent and
authorisation of SCEE in each case.
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4.2
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The
Licensed Trademarks and the goodwill associated therewith are and
shall be
the exclusive property of Sony. Nothing herein shall give Publisher
any
right, title or interest in or to any of the Licensed Trademarks,
other
than the non-exclusive licence and privilege to display and use
the
Licensed Trademarks solely in accordance with the provisions of
this
Agreement. Publisher shall not do or cause to be done any act or
thing
contesting or in any way impairing or tending to impair any of
Sony's
right, title or interest in or to any of the Licensed Trademarks,
nor
shall Publisher register or apply to register any trademark in
its own
name or in the name of any other person or entity, or obtain or
seek to
obtain rights to employ Internet domain name(s) or address(es),
which is
or are similar to or is or are likely to be confused with any of
the
Licensed Trademarks; provided however that the foregoing shall
not be
taken to preclude Publisher from challenging the validity of any
Licensed
Trademarks.
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4.3
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Publisher
or Licensed Developer (as applicable) retains all right, title
and
interest in and to Licensed Developer Software, including Licensed
Developer's intellectual property rights therein and any names
or other
designations used as titles therefor, and nothing in this Agreement
shall
be construed to restrict the right of Licensed Developer to develop
and/or
the right of Publisher to publish products incorporating Licensed
Developer Software (separate and apart from Sony Materials), and/or
under
such names or other designations, for any hardware platform or
service
other than PlayStation 2 .
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4.4
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Subject
to the proviso to Clauses 4.1 and 4.2 above, Publisher shall, at
the
expense of SCEE, take all such steps as SCEE may reasonably require,
including the execution of licences and registrations, to assist
SCEE in
maintaining the validity and enforceability of Sony Intellectual
Property
Rights.
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4.5
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Without
prejudice to Clause 11, Publisher or SCEE (as applicable) shall
promptly
and fully notify the other in writing in the event that it discovers
or
otherwise becomes aware of any actual, threatened or suspected
infringement of any of the intellectual property or trademark rights
of
the other embodied in any of the Licensed Products, and of any
claim of
infringement or alleged infringement by the other of any Third
Party
Intellectual Property Rights, and shall at the request and expense
of the
other do all such things as may reasonably be required to assist
the other
in taking or resisting any proceedings in relation to any such
infringement or claim.
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5. Quality
Standards
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5.1
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Publisher
shall provide SCEE with a Product Planning Notification for each
Licensed
Product in accordance with the
Specifications.
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Each
Licensed Product, including without limitation the title and content thereof,
and/or Publisher's use of any of the Licensed Trademarks, shall be required
to
conform to the Specifications and shall not, except as specifically authorised
in writing by SCEE in each case, incorporate (in whole or in part) more than
1
(one) game product.
TESTING
OR VERIFICATION FOR CONFORMITY TO THE SPECIFICATIONS SHALL BE CONDUCTED BY
SCEE
OR, AT PUBLISHER'S ELECTION, BY AN INDEPENDENT EXTERNAL TESTING SERVICE (IF
ANT)
WHEN SUCH SERVICE BECOMES AVAILABLE).
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5.2
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Publisher
shall submit for testing for conformity to the Specifications such
information and materials relating to the PlayStation 2 format
Software
for each Licensed Product as shall be specified in the Specifications.
Such Specifications shall be comparable with the specifications
applied by
Sony with respect to its own PlayStation 2 format Software products.
SCEE
acknowledges and agrees that such Specifications shall be of prospective
application only and shall not be applied to any inventory units
of the
Licensed Products manufactured prior to, or in the active process
of
manufacture at the date of, the promulgation thereof by
SCEE.
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5.3
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For
each Licensed Product, Publisher shall be responsible, at Publisher's
expense, for the origination of all Printed Materials, and for
the
manufacture and delivery to the manufacturer of such Licensed Product
of
all Printed Materials other than those to be set forth on the Licensed
Product itself, all of which Printed Materials shall: (i) conform
in all
material respects to the Specifications; and (ii) include such
other
materials (including by way of illustration but not limitation,
consumer
health warnings in relation to epilepsy) and such consumer advisory
rating
code(s) as may from time to time be required by any governmental
entity or
in compliance with any voluntary code of practice operated by members
of
the interactive software development and publishing community.
The
Specifications referred to in (i) above shall be comparable with
the
specifications applied by Sony with respect to its own PlayStation
2
format Software products. SCEE acknowledges and agrees that such
Specifications shall be of prospective application only and shall
not be
applied to any inventory units of the Licensed Products manufactured
prior
to, or in the active process of manufacture at the date of, the
promulgation thereof. All materials to be submitted pursuant to
this
Clause 5.3 shall be delivered by such means and in such form as
shall be
prescribed in the Specifications and at Publisher's sole risk and
expense.
Publisher undertakes that the quality of such Printed Materials
shall be
of the same quality as that associated with high quality consumer
products.
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5.4
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Where
applicable, SCEE (or, where applicable, an independent external
testing
service as aforesaid) will test or verify for conformity to the
Specifications (as the case may be) all materials submitted by
Publisher
pursuant to Clause 5.2 and Clause 5.3. Where such testing or verification
is conducted by SCEE, SCEE shall advise Publisher of the results
of such
testing or verification within the applicable of the timeframes
specified
in the Specifications. Where such testing or verification is conducted
by
such independent external testing service, such service shall advise
Publisher of the results of such testing or verification within
timeframes
agreed between such service and Publisher (and SCEE shall have
no
responsibility or liability whatsoever arising from a failure by
such
service to meet such timeframes). If any of such materials (or
any
element(s) thereof) fail to conform to the Specifications, SCEE
(or, where
applicable, such independent external testing service) shall specify
the
reasons for such failure and state what revisions are required.
After
making the required revisions, Publisher may resubmit such materials
in
such revised form for re-testing or re-verification by SCEE (or,
where
applicable, such independent external testing service). The procedures
described in this Clause 5.4 shall if necessary be repeated until
all such
materials for each Licensed Product shall expressly have been certified
as
conforming to the Specifications, such certification to be validly
given
only if in writing and signed by the duly authorised representative(s)
of
SCEE as specified in the Specifications (or, where applicable,
by the duly
authorised representative(s) of such independent external testing
service). SCEE shall have no liability to Publisher for the accuracy
or
content (including translations and localisations) of Printed Materials
(except only items required to be included in accordance with the
Specifications) or in respect of costs incurred or irrevocably
committed
by Publisher as a result of any failure to conform to Specifications
(even
where certified for conformity) or in relation to, or to the use
of,
Printed Materials which shall not have been given a certificate
of
conformity by SCEE (or, where applicable, by such independent external
testing service). No production units of any Licensed Product shall
be
manufactured, marketed, distributed or sold by, with the authority
of or
on behalf of, Publisher unless and until such a certificate of
conformity
of such Licensed Product shall first have been given by SCEE (or,
where
applicable, by such independent external testing service). No certificate
of conformity from SCEE (or, where applicable, from such independent
external testing service) of any element of the materials so submitted
or
resubmitted shall be deemed a certificate of conformity of any
other
element of such materials, nor shall any such certificate of conformity
be
deemed to constitute a waiver of any of SCEE's rights under this
Agreement.
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The
generality of the foregoing notwithstanding, in the event that Publisher
wishes
to contest a finding by SCEE of non-conformity to the Specifications, and
as an
alternate to making required revisions and resubmissions as above, Publisher
may
have recourse to the appeals process specified in the
Specifications.
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5.5
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Publisher
shall not change in any material respect any of the materials for
which a
certificate of conformity shall have been given by SCEE (or, where
applicable, by an independent external testing service) pursuant
to Clause
5.4 (or, if applicable, pursuant to Clause 5.6) (or, alternately,
which
shall have been held to conform to the Specifications following
recourse
by Publisher to the appeals process specified in the Specifications).
If
any of the Licensed Products and/or related materials published
by, with
the authority of or on behalf of, Publisher fail to conform to
the
Specifications and the materials for which SCEE (or, where applicable,
such independent external testing service) shall from time to time
have
given a certificate of conformity, then the provisions of Clause
13.2
shall apply.
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5.6
|
SCEE
reserves the right to require that pre-production samples of all
Advertising Materials shall be submitted by Publisher to SCEE or,
at
Publisher's election, to an independent external testing service
(if and
when such service becomes available), free of charge and in accordance
with the procedure specified in the Specifications, for verification
for
conformity to the Specifications (including specifically, but without
limitation, in relation to the usage of any of the Licensed Trademarks),
prior to any actual production, use or distribution of any such
items by,
with the authority or on behalf of, Publisher. No such proposed
Advertising Materials shall be produced, used or distributed directly
or
indirectly by Publisher without first obtaining a certificate of
conformity to the Specifications. Where such verification is conducted
by
SCEE, SCEE shall advise Publisher of the results of such verification
within the applicable of the timeframes specified in the Specifications.
Where such verification is conducted by such independent external
testing
service, such service shall advise Publisher of the results of
such
verification within timeframes Sony Computer Entertainment Europe
agreed
between such service and Publisher (and SCEE shall have no responsibility
or liability whatsoever arising from a failure by such service
to meet
such timeframes). If any such Advertising Materials (or any element(s)
thereof) fail to conform to the Specifications, SCEE (or, where
applicable, such independent external testing service) shall specify
the
reasons for such failure and state what revisions are required.
After
making the required revisions, Publisher may resubmit such materials
in
such revised form for re-verification by SCEE (or, where applicable,
by
such independent external testing service). The procedures described
in
this Clause 5.6 shall if necessary be repeated until all such Advertising
Materials for each Licensed Product shall expressly have been certified
as
conforming to the Specifications, such certification to be validly
given
only if in writing and signed by the duly authorised representative(s)
of
SCEE as specified in the Specifications (or, where applicable,
by the duly
authorised representative(s) of such independent external testing
service). SCEE shall have no liability to Publisher in respect
of costs
incurred or irrevocably committed by Publisher in relation to,
or to the
use of, Advertising Materials which shall not have been given a
certificate of conformity by SCEE (or, where applicable, by such
independent external testing service). No certificate of conformity
from
SCEE (or, where applicable, from such independent external testing
service) of any element of Advertising Materials so submitted or
resubmitted shall be deemed a certificate of conformity of any
other
element of such Advertising Materials, nor shall any such certificate
of
conformity be deemed to constitute a waiver of any of SCEE's rights
under
this Agreement.
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The
generality of the foregoing notwithstanding, in the event that Publisher
wishes
to contest a finding of non-conformity to the Specifications by SCEE, and
as an
alternate to making required revisions and resubmissions as above, Publisher
may
have recourse to the appeals process specified in the
Specifications.
Subject
in each instance to the prior written consent of SCEE, Publisher may use
such
textual and/or pictorial advertising matter (if any) as may be created by,
with
the authority or on behalf of, Sony pertaining to the Sony Materials and/or
to
the Licensed Trademarks on such Advertising Materials as may, in Publisher's
judgment, promote the sale of Licensed Products within the Licensed Territory.
Sony shall have the right to use Licensed Products and/or other materials
relating to Publisher's PlayStation 2 format Software titles in any advertising
or promotion for PlayStation 2 at Sony's expense, subject to giving Publisher
reasonable prior notice of such advertisement or promotion. Sony shall confer
with Publisher regarding the text of any such advertisement. If required
by Sony
and/or any governmental entity or in compliance with any voluntary code of
practice operated by members of the interactive software development and
publishing community, Publisher shall, at Publisher's cost and expense, also
include consumer advisory rating code(s) and, if required, other materials
(including by way of illustration but not limitation, consumer health warnings
in relation to epilepsy) on any and all Advertising Materials used in connection
with Licensed Products. Such consumer advisory rating code(s) shall be procured
in accordance with the provisions of Clause 5.7.
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5.7
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Publisher
agrees that, if required by SCEE or any governmental entity, it
shall
submit each Licensed Product to a consumer advisory ratings system
designated by SCEE and/or such governmental entity for the purpose
of
obtaining rating code(s) for each Licensed Product. Any and all
costs and
expenses incurred in connection with obtaining such rating code(s)
shall
be borne solely by Publisher. Any required consumer advisory rating
code(s) thereby procured shall be displayed on Licensed Products
and
associated Printed Materials in accordance with the Specifications,
at
Publisher's cost and expense.
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5.8
|
In
the event Publisher fails to comply with its obligations in relation
thereto as specified in Clause 5.7, SCEE reserves the right in
its sole
discretion, at Publisher's sole cost and expense: (i) to display,
or to
require the display, on Licensed Products and/or associated Printed
Materials and/or associated Advertising Materials (as may be required)
materials (including by way of illustration but not limitation,
consumer
health warnings in relation to epilepsy) and/or to procure and
to display,
or to require the display of, consumer advisory rating code(s);
or (ii) to
require non-complying Licensed Products and/or associated Printed
Materials and/or associated Advertising Materials forthwith to
be
withdrawn from the market.
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6. Manufacture
of Licensed Products & Associated Materials
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6.1
|
Subject
only to Article 6, Publisher acknowledges and agrees that it shall
purchase Manufactured Materials only from an authorised manufacturing
facility licensed by SCEE. SCEE shall have the right, but no obligation,
to subcontract the whole or any part or phase of the production
of any or
all of the Manufactured Materials or any part(s)
thereof.
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6.2
|
Subject
always to Article 6, promptly following the giving by SCEE (or,
where
applicable, by an independent external testing service as aforesaid)
of a
certificate of conformity to the Specifications (or, alternately,
a
holding of conformity to the Specifications following recourse
by
Publisher to the appeals process specified in the Specifications)
for each
Licensed Product pursuant to Clause 5.2, SCEE shall create (from
one of
the CD copies of the finally approved version of the PlayStation
2 format
Software as submitted by Publisher pursuant to Clause 5.2) the
original
master PlayStation2 Disc ("Master PlayStation 2 Disc") from which
all
other copies of the Licensed Product are to be replicated in compliance
with the Specifications effective at the time of replication. Where
such
certificate of conformity shall have been given by such an independent
external testing service, then the CD copy of the finally approved
version
of the PlayStation 2 format Software as submitted by Publisher
pursuant to
Clause 5.2 from which the Master PlayStation2Disc is to be created
shall
be furnished SCEE by such service. Publisher shall be responsible
for the
costs, as set forth in Schedule 2, of creating such Master PlayStation
2
Disc. Publisher will retain duplicates of all such PlayStation2
format
Software. SCEE shall not be liable for loss of or damage to any
copies of
the PlayStation 2 format Software furnished SCEE hereunder. There
will be
no technology exchange between Sony and Publisher under this Agreement.
The mastering process being of a proprietary and commercially confidential
nature, neither SCEE nor any manufacturing subcontractor of SCEE
will
under any circumstances release any Master PlayStation2 Discs or
other
in-process materials to Publisher. All such physical materials
shall be
and remain the sole property of
Sony.
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6.3
|
Subject
always to Article 6, Publisher shall be solely responsible for
the
delivery, direct to an authorised manufacturing facility licensed
by SCEE
and in accordance with Clause 6.4, 110% (one hundred and ten percent)
of
the number of sets of the Printed Materials (other than those set
forth on
the applicable Licensed Product itself) required to fulfill Publisher's
purchase order for Manufactured Materials of each PlayStation 2
format
Software title, which Printed Materials shall be in strict compliance
with
the Specifications. SCEE shall, at Publisher's request, give Publisher
all
reasonable assistance in arranging the manufacture of Printed Materials
to
be used in conjunction with Licensed Products not manufactured
in reliance
on Article 6 through SCEE's authorised manufacturing facility (if
a Sony
company), but SCEE shall have no responsibility with respect to
pricing,
delivery or any other related matter whatsoever in connection with
such
manufacture.
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6.4
|
Subject
to the giving by SCEE of a certificate of conformity to the Specifications
(or, alternately, a holding of conformity following recourse by
Publisher
to the appeals process specified in the Specifications) for the
applicable
PlayStation 2 format Software and Printed Materials pursuant to
Clause 5,
and to the delivery to an authorised manufacturing facility licensed
by
SCEE of the materials to be delivered under Clause 6.3, SCEE will,
at
Publisher's expense and as applicable, manufacture, assemble, package
and
deliver the Manufactured Materials and the Printed Materials in
accordance
with the terms and conditions set forth in this Clause 6. The delivery
of
the materials specified in Clause 6.3 shall be made in accordance
with the
timetable for such delivery specified in the
Specifications.
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6.5
|
Subject
always to Article 6, Publisher shall issue to SCEE purchase order(s)
via
SCEE's Electronic Order System (or otherwise as specified by SCEE
from
time to time) in accordance with, and in compliance with the timetable
specified in, the Specifications. No such order shall be issued
unless and
until all necessary certificates of conformity shall have been
given (or,
alternately, there shall have been a holding of conformity following
recourse by Publisher to the appeals process specified in the
Specifications) pursuant to Clause 5. Each such order shall reference
Publisher authorisation number and purchase order reference number,
specify quantities of PlayStation 2 format Software by title by
pack sku
(in multiples of the minimum box shipment detailed in the Specifications),
state requested ex-factory delivery date and all packaging information
together with such other information as SCEE shall reasonably require
and
shall be for not less than the applicable minimum order quantity
as
specified in Schedule 2 hereto. All such purchase orders shall
be subject
to acceptance by SCEE, which acceptance will be advised to Publisher
not
more than 3 (three) working days following delivery in accordance
with
Clause 6.4 of the materials required to be delivered under Clauses
6.2 and
6.3. SCEE shall use all reasonable endeavours, subject to available
manufacturing capacity, to fulfil Publisher's purchase orders by
Publisher's requested ex-factory delivery date but does not in
any event
guarantee so to do. Publisher shall have no right to cancel or
reschedule
any purchase order or reorder (or any portion thereof) for any
Licensed
Product unless the parties shall first have reached mutual agreement
as to
Publisher's financial liability with respect to any desired cancellation
or rescheduling of any such purchase order or reorder (or any portion
thereof).
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6.6
|
Subject
only to the provisions of Clause 6.5 in relation to Printed Materials,
neither SCEE nor any manufacturing subcontractor of SCEE shall
be under
any obligation to store finished units of Manufactured Materials
or of
associated Printed Materials beyond the actual ex-factory delivery
date
thereof. Delivery of Manufactured Materials shall be made ex-factory
the
applicable authorised manufacturing facility licensed by SCEE in
the
Licensed Territory. All risk of loss or damage in transit to any
and all
Manufactured Materials manufactured by SCEE pursuant to Publisher's
orders
shall pass to Publisher forthwith upon first handling by Publisher's
carrier.
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6.7
|
Publisher
may inspect and test any units of Manufactured Materials not manufactured
in reliance on Article 6 at Publisher's receiving destination.
Any
finished units of such Manufactured Materials which fail to conform
to the
Specifications and/or any description(s) contained in this Agreement
may
be rejected by Publisher by providing written notice of rejection
to SCEE
within 30 (thirty) days of receipt of such units of such Manufactured
Materials at Publisher's receiving destination. In such event,
the
provisions of Clause 10.2 shall apply with respect to any such
rejected
units of Manufactured Materials. Notwithstanding the provisions
of Clause
10.2, if Publisher fails to reject any units of such Manufactured
Materials in the manner and within the 30 (thirty) day period prescribed
above, such units of Manufactured Materials shall irrevocably be
deemed
accepted by Publisher and shall not subsequently be
rejected.
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6.8
|
In
no circumstances shall SCEE or its authorised manufacturing facility
treat
any of Publisher's Licensed Products in any way more or less favourably,
in terms of production turnaround times or otherwise, than the
Licensed
Products of any other Licensed Publisher of SCEE or than PlayStation2
format Software products published by SCEE
itself.
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7. Platform
Charge
|
7.1
|
The
all-in Platform Charge for finished units of Manufactured Materials
in
respect of which SCEE accepts Publisher's purchase order in accordance
with Clause 6.5 shall be as specified in Schedule 2 (but subject
to
adjustment as therein provided). Such Platform Charge shall be
subject to
change by SCEE at any time upon reasonable notice to Publisher;
provided,
however, that such Platform Charge shall not be changed with respect
to
any units of Manufactured Materials which are the subject of an
effective
purchase order or reorder but which have not yet been delivered
by SCEE.
Such Platform Charge for finished units of Manufactured Materials
is
exclusive of any value-added or similar sales tax, customs and
excise
duties and other similar taxes or duties, which SCEE may be required
to
collect or pay as a consequence of the sale or delivery of finished
units
of Manufactured Materials. Publisher shall be solely responsible
for the
payment or reimbursement of any such taxes or duties, and other
such
charges or assessments applicable to the sale and/or purchase of
finished
units of Manufactured Materials.
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The
Platform Charge for products developed utilising Sony Materials and/or Sony
Intellectual Property Rights and/or, subject to Council Directive 91/250/EEC,
Confidential Information of Sony, but manufactured in reliance on Article
6,
shall be the otherwise applicable Platform Charge less only such sum as
represents from time to time the costs of raw materials and for production
services (including for utilisation of Sony's proprietary Disc Mastering
technology) for the products concerned which SCEE would otherwise have been
invoiced for by SCEE's authorised manufacturing facility ("the Article 6
Platform Charge"). If Publisher has products so manufactured in reliance
on
Article 6, then Publisher shall furnish SCEE, within 28 (twenty eight) days
following the close of each calendar month: (i) a written reporting of the
number of inventory units (by product title) of products so manufactured
during
such calendar month; (ii) an external auditor's certificate (or similar
independent certificate reasonably acceptable to SCEE) confirming the
completeness and accuracy of such reporting; (iii) Publisher's remittance
for
the Article 6 Platform Charge multiplied by the number of inventory units
reflected in such reporting. Any failure fully and promptly to comply with
the
foregoing reporting and payment obligations shall constitute a breach of
this
Agreement not capable of remedy, entitling SCEE forthwith to terminate the
Term
pursuant to Clause 13.1(i); and upon termination by SCEE for such cause,
the
provisions of Clause 14.2 shall come into effect.
SCEE
shall upon reasonable written request provide Publisher details of the
aforementioned costs of raw materials and production services if Publisher
has
legitimately exercised its rights under Article 6 or genuinely intends to
exercise and rely upon such rights. However, SCEE reserves the right to require
Publisher to execute a separate Non-Disclosure Agreement before making such
information available.
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7.2
|
No
costs incurred in the development, manufacture, marketing, sale
and/or
distribution of Licensed Products and/or associated materials shall
be
deducted from any Platform Charge payable to SCEE hereunder. Similarly,
there shall be no deduction from the Platform Charge otherwise
payable to
SCEE hereunder as a result of any uncollectable accounts owed to
Publisher, or for any credits, discounts, allowances or returns
which
Publisher may credit or otherwise grant to any third party customer
in
respect of any units of Licensed Products and/or associated materials,
or
for any taxes, fees, assessments, or expenses of any kind which
may be
incurred by Publisher in connection with its sale and/or distribution
of
any units of Licensed Products and/or associated materials, and/or
arising
with respect to the payment of Platform Charge hereunder. Publisher
shall
furnish SCEE official tax receipts or other such documentary evidence
issued by the applicable tax authorities sufficient to substantiate
the
fact of the deduction of any withholding taxes and/or other such
assessments which may be imposed by any governmental authority
with
respect to such payments of Platform Charge hereunder and the amount
of
each such deduction.
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7.3
|
Publisher
shall effect payment for the Platform Charge specified in Clause
7.1 for
the finished units of Manufactured Materials the subject matter
of each
purchase order issued pursuant to Clause 6.5 in accordance with
the
Specifications. Each delivery of Manufactured Materials to Publisher
shall
constitute a separate sale obligating Publisher to pay therefor,
whether
said delivery be whole or partial fulfilment of any order. No claim
for
credit due to shortage of Manufactured Materials as delivered to
carrier
will be allowed unless it is made within 5 (five) working days
from the
date of receipt at Publisher's receiving destination. Title to
Manufactured Materials the subject of each such purchase order
shall pass
to Publisher only upon payment in full of the Platform Charge due
in
respect thereof. The receipt and deposit by SCEE of any payment
of
Platform Charge tendered by or on behalf of Publisher as aforesaid
shall
be without prejudice to any rights or remedies of SCEE and shall
not
restrict or prevent SCEE from thereafter successfully challenging
the
basis for calculation and/or the accuracy of such payment. SCEE
reserves
the right, upon reasonable notice to Publisher, to require that
such
payments of Platform Charge shall be made to such other Sony entity
as
SCEE may designate from time to
time.
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8. Marketing
& Distribution
Publisher
shall, at no expense to SCEE, diligently market, distribute and sell Licensed
Products throughout (but only in) the Licensed Territory, and shall use all
reasonable efforts consistent with its best business judgment to stimulate
demand therefor in the Licensed Territory and to supply any resulting demand.
Publisher shall not market, distribute or sell Licensed Products outside
the
Licensed Territory or to any person, firm, corporation or entity having its
place of business, or to any purchasing agency located, outside the Licensed
Territory. Publisher shall use all reasonable efforts consistent with its
best
business judgment to protect Licensed Products from and against illegal
reproduction and/or copying by end users or by any other persons or entities.
Such methods of protection may include, without limitation, markings or insignia
providing identification of authenticity and packaging seals as may be specified
in the Specifications. SCEE shall be entitled, at SCEE's sole cost and expense,
to manufacture up to 200 (two hundred) additional units of Manufactured
Materials (or such greater number of additional units as shall be agreed
by
Publisher, such agreement not unreasonably to be withheld or delayed) for
each
PlayStation 2 format Software title (and to purchase from Publisher, at a
price
equal to the actual cost thereof to Publisher, a corresponding number of
units
of Printed Materials for each such PlayStation 2 format Software title),
for the
purposes of or in connection with the marketing and promotion of PlayStation
2;
provided however that SCEE shall not directly or indirectly resell any such
units of Manufactured Materials (and, if applicable, of Printed Materials)
within the Licensed Territory without Publisher's prior written consent.
Further, SCEE shall be entitled to utilise Publisher's name and/or logo and
the
audio-visual content of, and/or the Printed Materials for, PlayStation2 format
Software titles (not to exclude the likenesses of any recognisable talent)
for
the purposes of or in connection with such marketing and promotion.
9. Confidentiality
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9.1
|
All
the terms and provisions of the CNDA shall apply to Confidential
Information of Sony and, if and to the extent applicable, Confidential
Information of Publisher.
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9.2
|
Where
Confidential Information of Publisher is not protected by the CNDA,
SCEE
shall hold the same in confidence and shall take all reasonable
steps
necessary to preserve such confidentiality. Except as may expressly
be
authorised by Publisher, SCEE shall not at any time, directly or
indirectly: (i) disclose any Confidential Information of Publisher
to any
person other than a Sony employee who needs to know or have access
to such
information for the purposes of this Agreement, and only to the
extent
necessary for such purposes; (ii) except for the purposes of this
Agreement, duplicate or use the Confidential Information of Publisher
for
any other purpose whatsoever; or (iii) remove any copyright notice,
trademark notice and/or other proprietary legend set forth on or
contained
within any of the Confidential Information of
Publisher.
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9.3
|
The
provisions of Clause 9.2 hereof shall not apply to any Confidential
Information of Publisher which: (i) has become part of information
in the
public domain through no fault of SCEE; (ii) was known to SCEE
prior to
the disclosure thereof by Publisher; (iii) properly comes into
the
possession of SCEE from a third party which is not under any obligation
to
maintain the confidentiality of such information. SCEE may disclose
Confidential Information of Publisher pursuant to a judicial or
governmental order provided that SCEE promptly advises Publisher
in
writing prior to any such disclosure so that Publisher may seek
other
legal remedies to maintain the confidentiality of such Confidential
Information of Publisher, and SCEE shall comply with any applicable
protective order or equivalent.
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9.4
|
Unless
and until a public announcement regarding this Agreement shall
have been
made by Sony (or SCEE shall otherwise have agreed in writing),
the fact
that the parties have entered into this Agreement shall be Confidential
Information of Sony and shall be treated in all respects accordingly.
The
content of, and the timing and method of the making of, any such
public
announcement shall be determined by SCEE in its best business judgement.
However, SCEE will give reasonable consideration to any notice
from
Publisher requesting that no such public announcement be made,
at or prior
to a particular time or at all.
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10.
Warranties
|
10.1
|
SCEE
represents and warrants solely for the benefit of Publisher that
SCEE has
the right, power and authority to enter into, and fully to perform
its
obligations under, this Agreement.
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10.2
|
SCEE
warrants that units of PlayStation 2 Discs comprising Licensed
Products
manufactured by SCEE for Publisher pursuant to Clause 6 hereof
shall be
free from defects in materials and workmanship under normal use
and
service at time of delivery in accordance with Clause 6.6. The
sole
obligation of SCEE under this warranty shall be, for a period of
90
(ninety) days from the date of delivery of such discs in accordance
with
Clause 6.6, at SCEE's election, either (i) to replace such defective
discs
or (ii) to issue credit for, or to refund to Publisher the Platform
Charge
of such defective discs (excluding PlayStation 2 Disc mastering
charge)
and to reimburse Publisher its reasonable return shipping costs.
Such
warranty is the only warranty applicable to Licensed Products manufactured
by SCEE for Publisher pursuant to Clause 6. This warranty shall
not apply
to damage resulting from accident, fair wear and tear, wilful damage,
alteration, negligence, abnormal conditions of use, failure to
follow
directions for use (whether given in instruction manuals or otherwise
howsoever) or misuse of Licensed Products, or to discs comprising
less
than 1% (one percent) [or, if greater, 100 (one hundred) units]
in the
aggregate of the total number of Licensed Products manufactured
by SCEE
for Publisher per purchase order of any PlayStation 2 format Software
title. If, during such 90 (ninety) day period, defects appear as
aforesaid, Publisher shall notify SCEE and, upon request by SCEE
(but not
otherwise), return such defective discs, with a written description
of the
defect claimed, to such location as SCEE shall designate. SCEE
shall not
accept for replacement, credit or refund as aforesaid any Licensed
Products except factory defective discs (i.e. discs that are not
free from
defects in materials and workmanship under normal use and service).
All
returns of defective discs shall be subject to prior written authorisation
by SCEE, not unreasonably to be withheld. If no defect exists or
the
defect is not such as to be covered under the above warranty, Publisher
shall reimburse SCEE for expenses incurred in processing and analysing
the
discs.
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10.3
|
Publisher
represents, warrants, covenants and agrees that: (i) Publisher
has the
right, power and authority to enter into, and fully to perform
its
obligations under, this Agreement; (ii) the making of this Agreement
by
Publisher does not violate any separate agreement, rights or obligations
existing between Publisher and any other person, firm, corporation
or
entity, and, throughout the Term, Publisher shall not make any
separate
agreement with any person or entity which is inconsistent with
any of the
provisions hereof; (iii) both Licensed Developer Software and PlayStation
2 format Software, and any name, designation or title used in conjunction
therewith, shall be free from any valid third party claim of infringement
of any Third Party Intellectual Property Rights; (iv) there is
no
litigation, proceeding or claim pending or threatened against Publisher
or
any subsidiary or affiliate of Publisher which may materially affect
Publisher's rights in and to Licensed Developer Software, the names,
designations or titles used in conjunction therewith, the works
and
performances embodied therein and/or the copyrights pertaining
thereto;
(v) Publisher shall have made or shall make any and all payments
required
to be made to any person, firm, corporation or other entity, or
to any
body or group representing authors or participants in the production
of
the works or performances embodied in Licensed Developer Software
and
PlayStation 2 format Software, or to publishers or other persons
having
legal or contractual rights of any kind to participate in any income
arising in respect of the exploitation of such works or performances;
(vi)
neither Publisher nor any subsidiary or affiliate of Publisher
shall make
any representation or give any warranty to any person or entity
expressly
or impliedly on Sony's behalf, or to the effect that Licensed Products
are
connected in any way with Sony (other than that Licensed Products
have
been developed, marketed, manufactured, sold and/or distributed
under
licence from Sony);(vii) PlayStation 2 format Software shall be
distributed by Publisher solely in the form of Licensed Product;
(viii)
each Licensed Product shall be marketed, sold and distributed in
an
ethical manner and in accordance with all applicable laws and regulations;
and (ix) Publisher's policies and practices with respect to the
marketing,
sale and/or distribution of Licensed Products shall in no manner
reflect
adversely upon the name, reputation or goodwill of
Sony.
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10.4
|
Further,
Publisher represents, warrants, covenants and agrees that neither
Publisher nor any parent company, subsidiary or affiliate of Publisher
shall during the Term, whether for itself or for the benefit of
any other
person, firm, corporation or entity, whether by itself or by its
officers,
employees or agents, directly or indirectly, induce or seek to
induce, on
an individually targeted basis, the employment of, or the engagement
of
the services of, any Relevant Employee. For these purposes "Relevant
Employee" shall mean and include any employee of (i) SCEE, (ii)
Psygnosis
Limited or (iii) XxxxXxxxxxx.xxx (Europe) Limited (or any of their
subsidiaries or branch offices outside the United Kingdom), the
services
of which employee are (a) specifically engaged in product development
(or
directly related) functions or (b) otherwise reasonably deemed
by his/her
employer to be of material importance to the protection of its
legitimate
business interests, and with which employee Publisher (or any parent
company, subsidiary or affiliate of Publisher) shall have had contact
or
dealings during the Term. The foregoing provisions shall continue
to apply
for a period of 12 (twelve) months following expiry or earlier
termination
of the Term and are hereby deemed substituted for any corresponding
provisions in any agreement(s) previously entered into between
the parties
hereto in relation to PlayStation 2 and/or to Sony's "PlayStation"
predecessor video entertainment
system.
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11.
Indemnities
|
11.1
|
SCEE
shall indemnify and hold Publisher harmless from and against any
and all
claims, losses, liabilities, damages, expenses and costs, including
without limitation reasonable fees for lawyers, expert witnesses
and
litigation costs, and including costs incurred in the settlement
or
avoidance of any such claim, which result from or are in connection
with a
breach of any of the warranties provided by SCEE herein; provided
however
that Publisher shall give prompt written notice to SCEE of the
assertion
of any such claim, and provided further that SCEE shall have the
right to
select counsel and control the defence and/or settlement thereof,
subject
to the right of Publisher to participate in any such action or
proceeding
at its own expense with counsel of its own choosing. SCEE shall
have the
exclusive right, at its discretion, to commence and prosecute at
its own
expense any lawsuit or to take such other action with respect to
such
matters as shall be deemed appropriate by SCEE. Publisher shall
provide
SCEE, at no expense to Publisher, reasonable assistance and cooperation
concerning any such matter. Publisher shall not agree to the compromise,
settlement or abandonment of any such claim, action or proceeding
without
SCEE's prior written consent.
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11.2
|
Publisher
shall indemnify and hold SCEE harmless from and against any and
all
claims, losses, liabilities, damages, expenses and costs, including
without limitation reasonable fees for lawyers, expert witnesses
and
litigation costs, and including costs incurred in the settlement
or
avoidance of any such claim, which result from or are in connection
with
(i) a breach of any of the warranties provided by Publisher herein
or any
breach of Publisher's confidentiality obligations as referred to
in Clause
9.1 hereof, or (ii) any claim of infringement or alleged infringement
of
any Third Party Intellectual Property Rights with respect to Licensed
Developer Software, or (iii) any claim of or in connection with
any injury
(including death) or property damage, by whomsoever such claim
is made,
arising (in whole or in part) out of the manufacture, sale and/or
use of
any of the Manufactured Materials unless resulting from the proven
negligence of Sony; provided however that SCEE shall give prompt
written
notice to Publisher of the assertion of any such claim, and provided
further that Publisher shall have the right to select counsel and
control
the defence and/or settlement therof, subject to the right of SCEE
to
participate in any such action or proceeding at its own expense
with
counsel of its own choosing. Publisher shall have the exclusive
right, at
its discretion, to commence and/or prosecute at its own expense
any
lawsuit or to take such other action with respect to such matter
as shall
be deemed appropriate by Publisher. SCEE shall provide Publisher,
at no
expense to SCEE, reasonable assistance and cooperation concerning
any such
matter. SCEE shall not agree to the compromise, settlement or abandonment
of any such claim, action or proceeding without Publisher's prior
written
consent.
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12.1
|
IN
NO EVENT SHALL SONY OR ITS SUPPLIERS BE LIABLE FOR PROSPECTIVE
PROFITS, OR
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR
IN
CONNECTION WITH THIS AGREEMENT (INCLUDING WITHOUT LIMITATION THE
BREACH OF
THIS AGREEMENT BY SCEE), WHETHER UNDER THEORY OF CONTRACT, TORT
(INCLUDING
NEGLIGENCE), INDEMNITY, PRODUCT LIABILITY OR OTHERWISE. IN NO EVENT
SHALL
SONY'S LIABILITY ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT,
INCLUDING WITHOUT LIMITATION ANY LIABILITY FOR DIRECT DAMAGES,
AND
INCLUDING WITHOUT LIMITATION ANY LIABILITY UNDER CLAUSE 11.1, EXCEED
THE
PLATFORM CHARGE PAID BY PUBLISHER TO SCEE UNDER CLAUSE 7 WITHIN
THE 2
(TWO) YEARS PRIOR TO THE DATE OF THE FIRST OCCURENCE OF THE EVENT
OR
CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY. EXCEPT AS EXPRESSLY
SET FORTH
HEREIN, NO SONY ENTITY, NOR ANY OF THEIR RESPECTIVE DIRECTORS,
OFFICERS,
EMPLOYEES OR AGENTS, SHALL BEAR ANY RISK, OR HAVE ANY RESPONSIBILITY
OR
LIABILITY, OF ANY KIND TO PUBLISHER OR TO ANY THIRD PARTIES WITH
RESPECT
TO THE FUNCTIONALITY AND/OR PERFORMANCE OF LICENSED
PRODUCTS.
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12.2
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IN
NO EVENT SHALL PUBLISHER BE LIABLE TO SCEE FOR PROSPECTIVE PROFITS,
OR
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR
IN
CONNECTION WITH THIS AGREEMENT (INCLUDING WITHOUT LIMITATION THE
BREACH OF
THIS AGREEMENT BY PUBLISHER), WHETHER UNDER THEORY OF CONTRACT,
TORT
(INCLUDING NEGLIGENCE), INDEMNITY, PRODUCT LIABILITY OR OTHERWISE,
PROVIDED THAT PUBLISHER EXPRESSLY AGREES THAT SUCH LIMITATIONS
SHALL NOT
APPLY TO DAMAGES RESULTING FROM PUBLISHER'S BREACH OF CLAUSES 2,
3, 4, 9
OR 11.2 OF THIS AGREEMENT.
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12.3
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SUBJECT
AS EXPRESSLY PROVIDED IN CLAUSES 10.1 AND 10.2, NO SONY ENTITY
NOR ITS
SUPPLIERS MAKE, NOR DOES PUBLISHER RECEIVE, ANY WARRANTIES (EXPRESS,
IMPLIED OR STATUTORY) REGARDING THE SONY MATERIALS AND/OR UNITS
OF
MANUFACTURED MATERIALS MANUFACTURED HEREUNDER. SONY SHALL NOT BE
LIABLE
FOR ANY INJURY, LOSS OR DAMAGE, DIRECT OR CONSEQUENTIAL, ARISING
OUT OF
THE USE OF, OR INABILITY TO USE, SUCH UNITS OF MANUFACTURED MATERIALS.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ANY WARRANTIES,
CONDITIONS OR OTHER TERMS IMPLIED BY STATUTE OR COMMON LAW (INCLUDING
AS
TO MERCHANTABILITY, SATISFACTORY QUALITY AND/OR FITNESS FOR A PARTICULAR
PURPOSE AND THE EQUIVALENTS THEREOF UNDER THE LAWS OF ANY JURISDICTION)
ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. HOWEVER, NOTHING
IN
THIS AGREEMENT SHALL LIMIT SONY'S LIABILITY IN RELATION TO CLAIMS
ARISING
FROM THE INJURY OR DEATH OF ANY PERSON RESULTING FROM THE PROVEN
NEGLIGENCE OF SONY.
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13.
Termination
by SCEE
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13.1
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SCEE
shall have the right forthwith to terminate this Agreement by written
notice to Publisher at any time after the occurrence of any of
the
following events or circumstances: (i) any material breach of Publisher's
obligations under this Agreement (or, if Publisher shall also have
executed a PlayStation Non-Disclosure Agreement and/or PlayStation
2
Confidentiality & Non-Disclosure Agreement which shall have been
breached by Publisher, or a PlayStation Licensed Developer Agreement,
PlayStation Licensed Publisher Agreement, PlayStation 2 Tools &
Materials Loan Agreement and/or a PlayStation 2 Licensed Developer
Agreement, or a PlayStation or PlayStation 2 licensed developer,
development system or licensed publisher agreement (or equivalent)
with an
Affiliate of SCEE, which shall have been terminated for breach
by SCEE or
by such party) which breach, if capable of remedy, shall not have
been
corrected or cured in full within 30 (thirty) days following notice
from
SCEE (or the applicable Affiliate of SCEE as the case may be) specifying
and requiring the correction or cure of such breach, or any repetition
of
a prior material breach of any such obligation, whether or not
capable of
remedy; (ii) any refusal or failure by Publisher to effect payment
of
Platform Charge, promptly in accordance with Clauses 7.1 or 7.3
or at all,
or a statement that Publisher is or will be unable to pay, any
sum(s) due
hereunder, or Publisher being unable to pay its debts generally
as the
same fall due; (iii) Publisher's filing of an application for,
or
consenting to or directing the appointment of, or the taking of
possession
by, a receiver, custodian, trustee or liquidator (or the equivalent
of any
of the foregoing under the laws of any jurisdiction) of any of
Publisher's
property (whether tangible or intangible and wherever located),
assets
and/or undertaking; (iv) the making by Publisher of a general assignment
for
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the
benefit of creditors; (v) an adjudication in any jurisdiction
that
Publisher is a bankrupt or insolvent; (vi) the commencing by
Publisher of,
or Publisher's intention to commence, a voluntary case under
applicable
bankruptcy laws of any jurisdiction; (vii) the filing by Publisher
of, or
Publisher's intention to file, a petition seeking to take advantage
of any
other law(s) of any jurisdiction providing for the relief of
debtors;
(viii) Publisher's acquiescence in, intention to acquiesce in,
or failure
to have dismissed within 90 (ninety) days, any petition filed
against it
in any involuntary case brought pursuant to the bankruptcy or
other law(s)
of any jurisdiction referred to in (vi) and (vii) above; (ix)
a
controlling partnership or equity interest [or any such interest
(other
than an acquisition of less than an aggregate of 5% (five percent)
of the
issued share capital of Publisher, as quoted on a recognised
investments
exchange), in the case of a transfer to any party which (a) shall
previously have executed a PlayStation Non-Disclosure Agreement
and/or
PlayStation 2 Confidentiality & Non-Disclosure Agreement which shall
have been breached by such party, or a PlayStation Licensed Developer
Agreement, PlayStation Licensed Publisher Agreement, PlayStation
2 Tools
& Materials Loan Agreement, PlayStation 2 Licensed Developer Agreement
and/or a PlayStation 2 Licensed Publisher Agreement which shall
have been
terminated for breach by SCEE, or a PlayStation or PlayStation
2 licensed
developer, development system or licensed publisher agreement
(or
equivalent) with an Affiliate of SCEE, which shall have been
terminated
for breach by such party, or (b) is, or which directly or indirectly
holds
or acquires a partnership or equity interest in, the developer
of (or
other owner of intellectual property rights in) any interactive
hardware
device or product which is or will be directly or indirectly
competitive
with PlayStation 2 , or (c) is in litigation with Sony concerning
any
proprietary technology, trade secrets and/or intellectual property
matter(s) and/or has challenged the validity of any Sony Intellectual
Property Rights] in Publisher or in all or substantially all
of
Publisher's property (whether tangible or intangible), assets
and/or
undertaking, being acquired, directly or indirectly, by any person,
firm,
corporation or other entity; (x) Publisher enters into any third
party
business relationship pursuant to which Publisher makes a material
contribution to the development of the core components of any
interactive
hardware device or product which is or will be directly or indirectly
competitive with PlayStation 2 , or if Publisher directly or
indirectly
holds or acquires a partnership or equity interest (other than
a holding
or acquisition of less than an aggregate of 5% (five percent)
of the
issued share capital, as quoted on a recognised investments exchange)
in,
or otherwise forms a strategic commercial relationship with,
any third
party firm, corporation or other entity which has developed or
during the
Term develops (or which owns or during the Term acquires ownership
of
intellectual property rights in) any such device or product;
(xi)
Publisher failing to submit materials relating to any new PlayStation
2
format Software in accordance with Clause 5.2, and/or failing
to issue any
purchase orders for Manufactured Materials in accordance with
Clause 6.5,
during any period of 12 (twelve) consecutive calendar months;
or (xii)
Publisher (or any parent company, subsidiary or affiliate of
Publisher)
being in litigation with Sony concerning any proprietary technology,
trade
secrets and/or intellectual property matter(s) and/or challenging
the
validity of any Sony Intellectual Property Rights. As used in
this Clause
13.1, "controlling interest" means (i) in relation to a body
corporate,
the power of the holder of such interest to secure - (a) by means
of the
holding of shares or the possession of voting power in, or in
relation to,
that or any other body corporate or (b) by virtue of any powers
conferred
by the Articles of Association or other document regulating that
or any
other body corporate - that the affairs of such body corporate
be
conducted in accordance with the wishes of the holder of such
interest,
and (ii) in relation to a partnership, the right to a share of
more than
50% (fifty percent) of the assets or of the income of the partnership.
Forthwith upon such occurrence, Publisher shall notify SCEE of
the
occurrence of any of the events or circumstances specified in
(ii) to (x)
above; and Publisher's failure so to do shall be a material breach
of this
Agreement not capable of remedy.
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13.2
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Further,
SCEE shall have the right by written notice to Publisher forthwith
to
terminate the licences and related rights herein granted to Publisher
in
relation to any PlayStation2 format Software at any time after
the
occurrence of any of the following events: (i) any failure by Publisher
to
submit to SCEE the materials required to be submitted under Clauses
5.2
and 5.3 (or, if applicable, under Clause 5.6) in the form and manner
and
in conformity with the standards and specifications therein prescribed;
and (ii) any failure by Publisher promptly to notify SCEE in writing
of
any material change to any of the materials approved by SCEE pursuant
to
Clause 5.4 (or, if applicable, pursuant to Clause 5.6); provided
however
that SCEE shall not be entitled to exercise such right of termination
if
Publisher's failure under (i) above is directly caused by SCEE's
failure
to comply with any of its material obligations expressly set forth
herein.
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14.
Effect
of Expiration or Termination
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14.1
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Notwithstanding
the expiration of the Term, Publisher shall be entitled to continue
to
publish PlayStation2 format Software the development of which shall
have
been approved prior to or during the Term hereof by SCEE (or by
an
Affiliate of SCEE) pursuant to the applicable LDA2, and to use
the
Licensed Trademarks strictly, only and directly in connection with
such
publication, until the expiration of the Term or, if later, until
the
second anniversary of the 31 March next following such approval.
Upon
expiration of the Term or, if applicable, such extended period
for
publishing PlayStation 2 format Software, Publisher may sell off
existing
inventories of the applicable PlayStation2 format Software titles,
on a
non-exclusive basis, for a period of 180 (one hundred and eighty)
days
from the applicable expiration date; provided always that such
inventory
thereof shall not have been manufactured solely or principally
for sale
within such sell-off period.
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14.2
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However,
upon the exercising by SCEE of its right of termination, either
of this
Agreement pursuant to Clause 13.1(i) to (viii) or Clause 13.1(xii)
or in
relation to any PlayStation 2 format Software pursuant to Clause
13.2, all
rights, licences and privileges licensed or otherwise granted to
Publisher
hereunder, either generally or in relation to such PlayStation
2 format
Software (as applicable), shall forthwith and without further formality
revert absolutely to SCEE and Publisher shall forthwith cease and
desist
from any further use of the Sony Materials, any Sony Intellectual
Property
Rights related thereto and the Licensed Trademarks, and, subject
to Clause
14.3, shall have no further right to continue the marketing, sale
and/or
distribution of any units of Licensed Product or of any units of
Licensed
Product derived from such PlayStation2 format Software (as
applicable).
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14.3
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In
the event of termination by SCEE pursuant to Clause 13.1(ix), (x)
or (xi)
or by Publisher pursuant to Clause 25, Publisher may sell off then
unsold
units of Licensed Product(s), for a period of 90 (ninety) days
from the
effective date of termination; provided always that such inventory
thereof
shall not have been manufactured solely or principally for sale
within
such sell-off period. Subsequent to the expiry of such 180 (one
hundred
and eighty) day or 90 (ninety) day sell-off period, or in the event
of
termination by SCEE pursuant to Clause 13.1(i) to (viii), Clause
13.1(xii)
or Clause 13.2, any and all units of Licensed Products or the applicable
Licensed Products (as the case may be) remaining in Publisher's
inventory
and/or under its control shall be destroyed by Publisher within
5 (five)
working days following such expiry or effective date of termination.
Within 5 (five) working days following such destruction, Publisher
shall
furnish SCEE an itemised statement, certified accurate by a duly
authorised officer, partner or other representative (as applicable)
of
Publisher, specifying the number of then unsold units of Licensed
Product(s) to which such termination applies, on a PlayStation
2 format
Software title-by-title basis, which remain in its inventory and/or
under
its control at such date, confirming the number of units of Licensed
Products destroyed, on a PlayStation 2 format Software title-by-title
basis, and indicating the location and date of such destruction
and the
disposition of the remains of such destroyed materials. SCEE shall
be
entitled to conduct a physical inspection of Publisher's inventory
during
normal business hours in order to ascertain or verify such inventory
and/or statement.
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14.4
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Upon
termination of the Term by SCEE pursuant to Clause 13.1, Publisher
shall
forthwith deliver up to SCEE (or, if so requested by SCEE in writing,
destroy and promptly furnish SCEE a certificate of such destruction
signed
by a duly authorised officer, partner or other representative (as
applicable) of Publisher) all Sony Materials, and any Confidential
Information of Sony of which Publisher shall have become apprised
and
which has been reduced to tangible or written form, and any and
all copies
thereof then in the possession, custody or control of
Publisher.
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14.5
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SCEE
shall be under no obligation to renew or extend this Agreement
notwithstanding any actions taken by either of the parties prior
to its
expiration or earlier termination. In the event of termination
pursuant to
Clauses 13.1 or 13.2, no part of any payment(s) whatsoever theretofore
made to SCEE hereunder (or, if Publisher shall also have executed
a LDA2,
thereunder) shall be owed or repayable to Publisher, and nor shall
either
party be liable to the other for any damages (whether direct,
consequential or incidental, and including without limitation any
expenditures, loss of profits or prospective profits) sustained
or arising
out of, or alleged to have been sustained or to have arisen out
of, such
expiration or earlier termination. However, the expiration or earlier
termination of this Agreement shall not excuse either party from
any prior
breach of any of the terms and provisions of this Agreement or
from any
obligations surviving such expiration or earlier termination, and
full
legal and equitable remedies shall remain available for any breach
or
threatened breach of this Agreement or of any obligations arising
therefrom.
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14.6
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The
expiration or earlier termination of this Agreement (whether by
SCEE
pursuant to Clause 13 or otherwise howsoever) shall be without
prejudice
to any and all rights and remedies which either party may then
or
subsequently have against the other
party.
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15.
Notices
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15.1
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All
notices under this Agreement shall be in writing and shall be given
by
courier or other personal delivery, by registered or certified
mail, by
recognised international courier service or by facsimile transmission
(with an immediate confirmation copy by regular mail or any of
the methods
specified above) at the appropriate address hereinbefore specified
or at a
substitute address designated by notice by the party concerned
(and in the
case of notices to SCEE shall be directed to its Vice President,
Business
Affairs or such other Sony representative as shall from time to
time be
designated by notice by SCEE). Notices given other than by facsimile
transmission shall be deemed given and effective when delivered.
Notices
given by facsimile transmission shall be deemed given only upon
receipt of
confirmation copy as aforesaid but, upon such receipt, shall be
deemed
effective as of the date of
transmission.
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15.2
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Whenever
Publisher is required to obtain the authorisation, consent or approval
of
SCEE, Publisher shall request the same by notice to SCEE as aforesaid,
and
with a copy under separate cover to its Director of Third Party
Relations
or such other Sony representative as shall from time to time be
designated
by notice to Publisher. Such authorisation, consent or approval
shall not
be deemed to be granted unless and until SCEE shall have given
a written
affirmative response to each request therefor and shall in no event
be
implied or inferred from any delay or failure of SCEE to give such
or any
response.
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16.
Force
Majeure
Neither
SCEE nor Publisher shall be liable for any loss or damage or be deemed to
be in
breach of this Agreement if its failure to perform, or failure to cure any
breach of, its obligations under this Agreement results from any events or
circumstances beyond its reasonable control, including without limitation
any
natural disaster, fire, flood, earthquake or other act of God, inevitable
accidents, lockout, strike or other labour dispute, riot or civil commotion,
act
of public enemy, enactment, rule, order or act of any government or governmental
authority, failure of technical facilities, or failure or delay of
transportation facilities.
17.
Relationship
of the Parties
The
relationship hereunder between SCEE and Publisher respectively is that of
licensor and licensee. Publisher is an independent contractor and shall not
in
any respect act as or be deemed to be the legal representative, agent, joint
venturer, partner or employee of SCEE for any purpose whatsoever. Neither
party
shall have any right or authority to assume or create any obligations of
any
kind or to make any representation or warranty (express or implied) on behalf
of
the other party or to bind the other party in any respect
whatsoever.
18.
Assignability
SCEE
has
entered into this Agreement based on the particular reputation, capabilities
and
experience of Publisher and of its officers, directors and employees.
Accordingly, Publisher may not assign, pledge or otherwise dispose of this
Agreement or of any of its rights hereunder, nor delegate or otherwise transfer
any of its obligations hereunder, to any third party unless the prior written
consent of SCEE shall first have been obtained in each case. Any attempted
or
purported assignment, pledge, delegation or other disposition in contravention
of this Clause 18 shall be null and void and a material breach of this Agreement
not capable of remedy. SCEE shall be entitled, without the consent of Publisher,
to assign its rights and obligations hereunder to any corporation or other
entity in which Sony Corporation (or any successor in interest thereto) holds
a
controlling interest, whether directly or indirectly. Subject to the foregoing,
this Agreement shall enure to the benefit of the parties and their respective
successors and permitted assigns.
A
person
who is not party to this Agreement shall have no right under the Contracts
(Rights of Third Parties) Xxx 0000 to enforce any term of this Agreement.
This
provision does not affect any right or remedy of any person which exists
or is
available otherwise than pursuant to such Act.
19.
Compliance
with Applicable Laws
The
parties shall at all times comply with all applicable regulations and orders
of
their respective countries and all conventions and treaties to which their
countries are party or relating to or in any way affecting this Agreement
and
the performance by the parties of this Agreement. Each party, at its own
expense, shall negotiate and obtain any approval, licence or permit required
for
the performance of its obligations hereunder, and shall declare, record or
take
such steps as may be necessary to render this Agreement binding, including
without limitation any required filing of this Agreement with any appropriate
governmental authorities.
20.
Governing
Law
This
Agreement shall be governed by, construed and interpreted in accordance with
English Law, without giving effect to the conflict of laws principles thereof.
The parties irrevocably agree for the exclusive benefit of SCEE that the
English
Courts shall have jurisdiction to adjudicate any proceeding, suit or action
arising out of or in connection with this Agreement. However, nothing contained
in this Clause 20 shall limit the right of SCEE to take any such proceeding,
suit or action against Publisher in any other court of competent jurisdiction,
nor shall the taking of any such proceeding, suit or action in one or more
jurisdictions preclude the taking of any other such proceeding, suit or action
in any other jurisdiction, whether concurrently or not, to the extent permitted
by the law of such other jurisdiction. Publisher shall have the right to
take
any such proceeding, suit or action against SCEE only in the English
Courts.
21.
Remedies
Publisher
acknowledges and agrees that any breach by Publisher of this Agreement may
cause
Sony irreparable harm and damage which may not be capable of remedy by damages
alone and therefore that in the event of any such breach SCEE may seek equitable
(including injunctive) relief against Publisher in addition to damages and/or
any other remedy available to SCEE at law or in equity. Either party's election
to avail itself of any of the remedies provided for in this Agreement shall
not
be exclusive of any other remedies available hereunder or otherwise at law
or in
equity, and all such remedies shall be cumulative. Publisher shall indemnify
SCEE for all losses, liabilities, damages, expenses and costs, including
without
limitation reasonable fees for lawyers, expert witnesses and litigation costs,
which SCEE may sustain or incur as a result of any breach or threatened breach
by Publisher of this Agreement.
22.
Severability
In
the
event that any provision of this Agreement {or any part(s) thereof), other
than
a provision in respect of which SCEE gives a notice of amendment pursuant
to
Clause 25, is determined by a court of competent jurisdiction to be invalid
or
otherwise unenforceable, such provision (or part(s) thereof) shall be enforced
to the extent possible consistent with the stated intention of the parties
or,
if incapable of such enforcement, shall be deemed to be deleted from this
Agreement, but not in any way so as to affect the validity or enforceability
of
any other provisions of this Agreement which shall continue in full force
and
effect.
23.
Provisions
Surviving Expiration or Termination
The
following provisions of this Agreement shall survive and continue in full
force
and effect notwithstanding
its expiration or earlier termination (whether by SCEE pursuant to Clause
13
hereof or otherwise howsoever):
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Clause
3
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Sub-Publishers
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Clause
4
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Reservations
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Clause
5.7 + 5.8
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Notices
& Consumer Advisory Ratings
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Clause
6
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Manufacture
of Licensed Products
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Clause
7
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Platform
Charge
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Clause
9
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Confidentiality
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Clause
10.2 to 10.4
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Warranties
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Clause
11
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Indemnities
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Clause
12
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Limitations
of Liability
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Clause
14
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Effect
of Expiration or Termination
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Clause
18
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Assignability
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Clause
20
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Governing
Law
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Clause
21
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Remedies
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Clause
22
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Severability
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12.
Waiver
No
failure or delay by either party in exercising any right, power or remedy
under
this Agreement shall operate as a waiver of any such right, power or remedy.
No
waiver of any provision of this Agreement shall be effective unless in writing
and signed by the party against whom it is sought to enforce such waiver.
Any
waiver by either party of any provision of this Agreement shall not be construed
as a waiver of any other provision of this Agreement, nor shall such waiver
operate or be construed as a waiver of such provision in relation to any
future
event or circumstance.
25.
Amendments
NOTHING
IN THIS AGREEMENT SHALL BE READ OR APPLIED IN SUCH A WAY AS TO FRUSTRATE
ARTICLE
6 AND, IF AND TO THE EXTENT ANY PROVISION OF THIS AGREEMENT (OR ANY PART
THEREOF) HAS (OR IS CAPABLE OF HAVING) SUCH EFFECT, IT SHALL BE DEEMED MODIFIED
ACCORDINGLY.
SCEE
RESERVES THE RIGHT, AT ANY TIME UPON REASONABLE NOTICE TO PUBLISHER, TO AMEND
THE RELEVANT PROVISIONS OF THIS AGREEMENT, THE SCHEDULES HERETO AND/OR THE
SPECIFICATIONS HEREIN REFERRED TO, TO TAKE ACCOUNT OF OR IN RESPONSE TO ANY
DECISION OR ORDER OF, OR OBJECTION RAISED BY, ANY COURT OR GOVERNMENTAL OR
OTHER
COMPETITION AUTHORITY OF COMPETENT JURISDICTION AND/OR ANY STATUTORY OR SIMILAR
MEASURES WHICH MIGHT BE IMPLEMENTED TO GIVE EFFECT TO ANY SUCH DECISION,
WHICH
APPLY TO THIS AGREEMENT, THE SCHEDULES HERETO AND/OR THE SPECIFICATIONS HEREIN
REFERRED TO (AND FROM WHICH THIS AGREEMENT, THE SCHEDULES HERETO AND/OR THE
SPECIFICATIONS HEREIN REFERRED TO ARE NOT EXEMPT) OR TO REFLECT ANY UNDERTAKING
GIVEN BY SONY TO ANY SUCH AUTHORITY IN RELATION TO ANY AND ALL SUCH MATTERS
AFORESAID. ANY SUCH AMENDMENT SHALL BE OF PROSPECTIVE APPLICATION ONLY AND
SHALL
NOT BE APPLIED TO ANY LICENSED PRODUCT MATERIALS RELATING TO WHICH SHALL
HAVE
BEEN SUBMITTED TO SCEE BY PUBLISHER PURSUANT TO CLAUSE 5.2 AND/OR 5.3 PRIOR
TO
THE DATE OF SCEETS NOTICE OF AMENDMENT. IN THE EVENT THAT PUBLISHER IS UNWILLING
TO ACCEPT ANY SUCH AMENDMENT, THEN PUBLISHER SHALL HAVE THE RIGHT FORTHWITH
TO
TERMINATE THIS AGREEMENT BY WRITTEN NOTICE TO SCEE GIVEN NOT MORE THAN 90
(NINETY) DAYS FOLLOWING THE DATE OF SCEE'S NOTICE OF AMENDMENT. THE PROVISIONS
OF CLAUSE 14.3 SHALL COME INTO EFFECT UPON ANY SUCH TERMINATION BY
PUBLISHER.
Subject
to the foregoing and except as otherwise provided herein, this Agreement
shall
not be subject to amendment, change or modification other than by another
written instrument duly executed by both of the parties hereto.
26.
Headings
The
clause and other headings contained in this Agreement are intended primarily
for
reference purposes only and shall not alone determine the construction or
interpretation of this Agreement or any provision(s) hereof.
27.
Integration
This
document (including the Schedules hereto) constitutes the entire agreement
between the parties with respect to the subject matter contained herein,
and
supersedes all prior or contemporaneous agreements, proposals, understandings
and communications between Sony and Publisher, whether oral or written, with
respect to the subject matter hereof. However, the generality of the foregoing
notwithstanding, the CNDA and, if applicable, the LDA 2 executed by Publisher
shall continue in full force and effect.
28.
Counterparts
This
Agreement may be executed in 2 (two) counterparts, each of which shall be
deemed
an original, and both of which together shall constitute one and the same
instrument.
IN
WITNESS WHEREOF the parties hereto have caused this Agreement to be executed
as
of the date first above written.
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SONY
COMPUTER ENTERTAINMENT
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ZOO
DIGITAL GROUP PLC
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EUROPE
LIMITED
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/s/ Xxxxxxxxxxx Xxxxxxx
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Signature
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Signature
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Xxxxxxxxxxx Xxxxxxx
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Name
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Name
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President
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Title
|
Title
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