EXHIBIT 10.2
LICENSE AGREEMENT
This Agreement ("Agreement") is entered into between ACCOLADE, INC., a
California corporation, with offices at 0000 Xxxxxxx Xxxxx Xxxx., Xxx Xxxx,
Xxxxxxxxxx 00000 ("ACCOLADE"), XXXXXXXXX TECHNOLOGIES CORPORATION, a Delaware
corporation, with offices at 0000 Xxxxxxx xx Xxxxx Xxxxxxx Xxxxx, Xxxxx 000,
Xxxxxx, Xxxxx 00000 ("XXXXXXXXX"), and WARNER ADVANCED MEDIA OPERATIONS, a
Delaware corporation, with offices at 0000 Xxx Xxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxx 00000 ("WAMO").
1. Business Intent. ACCOLADE is an interactive entertainment software
developer and publisher and intends to offer to Original Equipment Manufacturers
("OEMs") at least one compilation of several interactive entertainment software
programs and demos thereof (such programs are hereinafter referred to
individually as "Game" or collectively as "Games"), bundled with interface
software created by or for ACCOLADE ("Interface Software") and additional
content in partially-encrypted DVD ROM format. (Such compilations shall be
referred to as "Encrypted Game Packs" throughout this Agreement.) ACCOLADE
wishes to contract with XXXXXXXXX and WAMO for encryption and manufacturing
services in connection with Encrypted Game Packs. The parties intend for
XXXXXXXXX to create master discs for such compilations containing encrypted
versions of the Games, the decrypting "wrapper" software, and the unlocking
software ("unlocking software") for use with ACCOLADE's non-encrypted Interface
Software and additional non- encrypted content provided by ACCOLADE. The parties
intend for ACCOLADE to provide the set-up programs and to perform the final
integration of the Encrypted Game Packs. The parties intend for WAMO to
replicate such compilations discs in DVD ROM format for ACCOLADE to distribute
to its OEM customers. The parties further intend for XXXXXXXXX to provide the
services necessary for end users to unlock the encrypted Games, including
establishing unlocking centers initially in the U.S.A. (Austin) and Europe
(Dublin, Ireland). A merchant account will be established at an agreed upon Bank
for the automatic handling and transfer to the parties of generated revenues
based on the formulas set forth in this Agreement.
2. Scope
a. General. The parties intend and agree that this Agreement, including its
attachments, shall constitute a master agreement under which ACCOLADE shall
initiate the creation, replication and distribution of Encrypted Game Packs
with XXXXXXXXX and WAMO. ACCOLADE shall initiate such creation by
submitting a specification for each Encrypted Game Packs ("Specification").
Each Specification shall be considered a separate agreement between the
parties incorporating the applicable terms and conditions hereof. In the
event of any inconsistency between this Agreement and the applicable
Specification, this Agreement shall control unless expressly superseded.
b. Specifications. Each Specification shall contain, at a minimum, (i) a
description of the Encrypted Game Packs, including a list of all content,
(ii) an implementation plan with the delivery date for each deliverable;
and (iii) any other material details for the Encrypted Game Packs.
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3. Licenses
x. Xxxxx of Distribution License.
(i) XXXXXXXXX grants ACCOLADE, pursuant to the terms and conditions
of this Agreement, a worldwide, nontransferable license to use,
copy, and distribute the computer encryption technology referred
to by XXXXXXXXX as "DigiGuard(TM)" and any corrections, bug
fixes, enhancements, updates or other standard or custom
modifications ("Wrapper Software") as installed by XXXXXXXXX only
as part of Encrypted Game Packs during the term of this
Agreement. This distribution license shall be sublicensable to
the extent necessary to allow ACCOLADE's OEM customers to
distribute copies of Encrypted Game Packs to end-users.
(ii) This license shall be exclusive in that XXXXXXXXX agrees that it
shall not grant any other licenses to use, copy or distribute the
Wrapper Software in connection with interactive entertainment
software compilations to be distributed in DVD ROM format through
the OEM channel. This license shall remain exclusive for a term
of one (1) year from the Effective Date or for as long as
ACCOLADE makes commercially reasonable efforts to market and sell
Encrypted Game Packs utilizing the Wrapper Software, whichever is
longer. In the event that this license becomes non-exclusive
under the terms of this Subsection, the exclusivity provision
contained in Subsection 3(a)(iii) shall be terminated.
(iii)During the term of this Agreement, ACCOLADE agrees that it will
not use any other third party's encryption technology to enable
distribution of its Encrypted Game Packs in the OEM channel for
as long as the following requirements are met:
1) The Wrapper Software continues to meet ACCOLADE's technical
requirements as set forth in Exhibit A hereto; and
2) If ACCOLADE becomes aware of features included in encryption
software offered by a third-party and requests that
XXXXXXXXX make such features available, XXXXXXXXX agrees to
make such features available within a reasonable amount of
time.
If the preceding requirements are not met, then ACCOLADE shall be
entitled to terminate the exclusivity requirement contained
herein and shall be free to use alternative encryption technology
in its Encrypted Game Packs. In such event, Subsection 3(a)(ii)
shall also be terminated such that XXXXXXXXX may license the
Wrapper Software to other companies for use in connection with
interactive entertainment software compilations to be distributed
in DVD ROM format through the OEM channel.
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iv) In the event that ACCOLADE or XXXXXXXXX assigns this Agreement
incident to the sale of substantially all of its assets, or
pursuant to any merger, consolidation or reorganization, the
exclusivity provisions contained in Subsections (ii) and (iii) of
this Section shall not apply to the business activities of the
acquiring, parent, or affiliated company and shall only apply to
the software products of ACCOLADE or XXXXXXXXX.
x. Xxxxx of Manufacturing Licenses. XXXXXXXXX grants WAMO a worldwide,
nontransferable license to use, manufacture, and copy the Wrapper
Software as installed by XXXXXXXXX as part of Encrypted Game Pack
during the term of this Agreement. ACCOLADE grants WAMO a worldwide,
nontransferable license to use, manufacture, and copy the Games,
Interface Software and any other content comprising the Encrypted Game
Packs for the sole purpose of fulfilling ACCOLADE's purchase orders
for Encrypted Game Packs. This license may be sublicensed by WAMO to
entities participating in the WAMO Worldwide Affiliate Program only to
the extent necessary to allow such entities to manufacture Encrypted
Game Packs for ACCOLADE; provided, however, such entities shall comply
with the obligations and restrictions imposed by this Agreement, and
WAMO shall be responsible to ACCOLADE and XXXXXXXXX for the
performance of its sublicenses. WAMO acknowledges that it shall have
no right to manufacture any ACCOLADE Encrypted Game Pack for any
entity other than ACCOLADE.
c. Restrictions on Use. ACCOLADE shall not permit any parent,
subsidiaries, affiliated entities or third parties to use or copy the
Wrapper Software, other than as contemplated in this Agreement.
Neither XXXXXXXXX nor WAMO shall permit third parties to use or copy
the Games, Interface Software, or any other content comprising any
Encrypted Game Pack other than as contemplated in this Agreement.
d. Copies. ACCOLADE shall ensure that all copies of any Encrypted Game
Packs shall include XXXXXXXXX'x and WAMO's proprietary notices,
substantially in the form of the text attached hereto as Schedule B.
e. Modifications, Reverse Engineering. ACCOLADE agrees that only
XXXXXXXXX shall have the right to alter, maintain, enhance or
otherwise modify the Wrapper Software. ACCOLADE shall not disassemble,
decompile or reverse engineer the Wrapper Software. XXXXXXXXX and WAMO
agree that, as between the parties, only ACCOLADE has the right to
alter, maintain, enhance or other wise modify the Games, Interface
Software, and any other content comprising the Encrypted Game Packs.
Neither XXXXXXXXX nor WAMO shall disassemble, decompile or reverse
engineer any of the Games, Interface Software, and any other content
comprising the Encrypted Game Packs.
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c. Reserved Rights. All rights in Encrypted Game Packs, Games, Interface
Software and any other content comprising the Encrypted Game Packs not
expressly granted to XXXXXXXXX or WAMO are reserved by ACCOLADE. All
rights in the Wrapper Software not expressly granted to ACCOLADE or
WAMO are reserved by XXXXXXXXX.
4. Delivery and Installation
a. Delivery by ACCOLADE. ACCOLADE shall be responsible for delivering the
Games, the Interface Software, and any other content comprising an
Encrypted Game Pack to XXXXXXXXX in accordance with the project
schedule set forth in a Specification. All such items shall be
delivered on a separate CD-ROM unless otherwise agreed by the parties.
The parties agree that ACCOLADE shall be entitled to include as part
of an Encrypted Game Pack both Games that ACCOLADE publishes and Games
that are published by companies other than ACCOLADE.
b. Delivery by XXXXXXXXX. XXXXXXXXX shall encrypt any Games and any other
content that are to be encrypted and combine them with the Wrapper
Software and Unlocking Software on master compact discs ("Master
Disc") for delivery to ACCOLADE within fourteen (14) days after
ACCOLADE delivers all the content required by such Encrypted Game
Pack. Upon completion of the encryption and delivery of a Master Disc,
XXXXXXXXX shall provide ACCOLADE with written notice certifying that
the Encrypted Game Pack Master Disc has been encrypted per the
Specification and the requisite Wrapper Software has been produced
("Certificate of Installation"). Upon receipt of the Encrypted Game
Pack Master Disc, ACCOLADE shall integrate the Unlock Software with
the Interface Software, complete the set-up programs and test the
delivered Master Disc to ensure that it meets ACCOLADE's requirements.
If a Master Disc does not meet the requirements, ACCOLADE shall
provide written notice to XXXXXXXXX, and XXXXXXXXX shall make any
necessary corrections.
5. Ownership
a. Title to Wrapper Software. The parties agree that XXXXXXXXX owns all
proprietary rights, including patent, copyright, trade secret,
trademark and other proprietary rights, in and to the Wrapper Software
and any corrections, bug fixes, enhancements, updates or other
modifications, including custom modifications, to the Wrapper
Software, whether made by XXXXXXXXX or any third party.
b. Title to Encrypted Game Packs and their Individual Components. The
parties agree that, as between the parties, ACCOLADE owns all
proprietary rights, including patent, copyright, trade secret,
trademark and other proprietary rights, in and to Encrypted Game
Packs, and each of the components which comprise the Encrypted Game
Packs, both before and after encryption with the Wrapper Software, and
any connections, bug fixes, enhancements, updates or other
modifications, including custom modifications, to Encrypted Game Pack,
whether made by ACCOLADE or any third party.
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6. Production, Distribution and Promotion
a. Production. During the term of this Agreement, after encryption of the
games and delivery of the Master Disc as called for in Section 4.b
above and the relevant Specification, WAMO shall have the exclusive
right to manufacture Encrypted Game Packs utilizing the Wrapper
Software for ACCOLADE. WAMO agrees to manufacture, package, and
assemble Encrypted Game Packs for ACCOLADE on behalf of its OEM
customers at the lower of: (i) the lowest unit price WAMO offers any
of its other non- affiliated manufacturing customers of similar
quantity and quality for DVD discs only; or (ii) the following
amounts:
Mastering: US$2950.00 per master
DVD-5: US$1.65 per unit
DVD-10: US$2.40 per unit.
WAMO may elect to arrange the manufacture of the Encrypted Game Packs
at a WAMO Affiliate. If such Affiliate is located outside the United
States, WAMO will be responsible for the cost of shipping the
Encrypted Game Packs from such Affiliate to Irvine, California. These
prices include all fees for both manufacturing, packaging (sleeve or
jewel case), and assembly, but do not include the cost of any printed
components or materials, nor the shipping of Encrypted Game Packs from
Irvine, California to the delivery location(s) designated by ACCOLADE.
b. Orders. WAMO agrees to accept purchase orders from ACCOLADE on behalf
of its OEM customers for orders for Encrypted Game Pack units. Such
purchase orders from Accolade will be placed at a minimum quantity of
50,000 units per order, and Accolade shall pay WAMO all amounts due to
WAMO with respect to each order within thirty (30) days of WAMO's
delivery of such units in accordance with Section 6(a) above.
x. Xxxxxx Content. If any of ACCOLADE's OEM customers ask ACCOLADE to
place Warner content on the reverse side of an Encrypted Game Pack,
WAMO shall have the option of making such content available and to
replicate such Encrypted Game Pack with Warner content on a DVD-10
disc at the DVD-5 pricing set forth in Section 6(a) above.
d. Press Releases. The parties agree to cooperate with one another in
issuing press releases relating to Encrypted Game Packs. The content
of such press releases shall be subject to the mutual agreement of the
parties.
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e. Selling Encrypted Game Packs. The parties agree that ACCOLADE shall be
solely responsible for marketing and selling Encrypted Game Packs to
its OEM customers; however, XXXXXXXXX and WAMO agree to provide
reasonable cooperation and assistance to ACCOLADE as requested by
ACCOLADE. WAMO agrees to make reasonable best efforts to incorporate
ACCOLADE's Encrypted Game Packs into its WAMO Worldwide Affiliate
program and that it shall not market or promote to the OEM channel any
other entity's Encrypted Game Packs for a period of one (1) year from
the Effective Date of this Agreement. In no event shall XXXXXXXXX or
WAMO discuss any pricing or OEM compensation with ACCOLADE's OEM
customers unless specifically authorized by ACCOLADE's Director of
Sales.
7. Unlock Centers
XXXXXXXXX shall establish unlock centers and be responsible for all
unlocks of Encrypted Game Packs, both in the U.S.A. and in Europe.
XXXXXXXXX agrees to establish the infrastructure necessary to allow
end-users to unencrypt or unlock Encrypted Game Packs by calling a
toll-free telephone number and speaking with a customer service
representative or by accessing a secure website. XXXXXXXXX shall
initially provide unlock centers in Xxxxxx, Xxxxx, xxx Xxxxxx,
Xxxxxxx. All unlock centers shall be secure, fireproof centers,
providing for limited, recorded access by management designated
persons of XXXXXXXXX only, on an as needed basis. XXXXXXXXX shall bear
full responsibility for paying administrative and other compensation
to be paid to the unlock center, including the per unit charge to be
assessed by the unlock center. XXXXXXXXX agrees that, once any
Encrypted Game Pack has been distributed by ACCOLADE's OEM customers,
it shall continue to administer the unlock centers for a period of two
(2) years after the last shipment of an Encrypted Game Pack by one of
ACCOLADE's OEM customers despite the earlier termination or expiration
of this Agreement. ACCOLADE shall provide XXXXXXXXX with written
notice of the date of the last such shipment.
8. Demographic Information
The parties understand that demographic information regarding the purchases
of Encrypted Game Packs will be collected at the time of unlock of the
Encrypted Game Packs product, and that this information shall be the sole
property and Confidential Information of ACCOLADE and shall be transferred
to ACCOLADE by XXXXXXXXX on a regular basis. XXXXXXXXX agrees that it shall
not copy, reproduce or transfer this information to any other party, nor
keep or use same for its own purposes, unless approved in advance in
writing by ACCOLADE for purposes of carrying out the terms of this
AGREEMENT. ACCOLADE agrees to make such demographic information available
to WAMO at its reasonable request.
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9. Confidential Information
a. Protection of Confidential Information. Each party acknowledges that,
during the term of this Agreement, it will have access to proprietary
or confidential information ("Confidential Information") of the other
party. Each party will use its best efforts to protect the
Confidential Information of the other party in the same manner in
which it protects its own Confidential Information (but in no event
less than reasonable care), and will not use or disclose such
Confidential Information, except to those employees or agents with an
absolute need to know such information provided that those employees
and agents shall also be bound by the term and conditions of this
Agreement.
b. Exceptions to Confidential Treatment. The obligations of
confidentiality and non-use required by Section 9.a will not apply to
any confidential or proprietary information of one party which:
(a) was known by the receiving party prior to the date of this
Agreement and not obtained or derived, directly or indirectly,
from the disclosing party or its affiliates; or if so obtained or
derived, was lawfully obtained or derived and is not held subject
to any confidentiality or non-use obligations;
(b) is or becomes public or available to the general public or the
computer software industry other than through any act or default
of the receiving party;
(c) is obtained or derived prior or subsequent to the date of this
Agreement from a third party which, to the best knowledge of the
party acquiring such information, is lawfully in possession of
such information and does not hold such information subject to
any confidentiality or non-use obligations;
(d) is independently developed by the receiving party without use of
the disclosing party's Confidential Information; or
(e) is required to be disclosed by the receiving party pursuant to
applicable law or under a government or court order, relating, in
whole or in part, to the Title or any other subject matter of
this Agreement; provided, however, that (i) the obligations of
confidentiality and non-use will continue to the fullest extent
not in conflict with such law or order, and (ii) if and when a
party is required to disclose such confidential or proprietary
information pursuant to any such law or order, such party will
use its reasonable efforts to obtain a protective order or take
such other actions as will prevent or limit, to the fullest
extent possible, public access to, or disclosure of, such
Confidential Information.
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c. Continuation of Obligations. The parties' obligations under this
Section 9 will extend for three (3) years following the expiration or
termination of this Agreement.
10. License and Unlock Fees
a. General. In consideration for the license granted by XXXXXXXXX for the
use by ACCOLADE of the Wrapper Software, XXXXXXXXX is entitled to the
collection of a license fee. However, in consideration of this entire
Agreement, XXXXXXXXX waives the collection of any and all upfront
license fees and agrees to be paid based upon the unlocks of any
Encrypted Game Packs.
b. The parties agree to share in the Net Revenues resulting from
end-users' purchases according to the following schedule. Net Revenues
shall be defined as gross amounts paid by end users minus: 1) any
compensation due ACCOLADE's OEM customer; 2) actual returns of
Encrypted Game Packs governed by this Agreement; 3) bank fees for the
Merchant Account contemplated by this Agreement; and 4) credit card
fees (inclusive of chargebacks) for end users' transactions. The
revenue-sharing schedule is as follows:
ACCOLADE: 60%
XXXXXXXXX: 33%, or US$2.40, whichever is higher.
WAMO: 7%
c. Payment Terms. All revenues from the unlocks of Encrypted Game Packs
shall be immediately credited to a Merchant Account established by
ACCOLADE. Within seven (7) business days of the close of each month,
ACCOLADE will issue a check to WAMO and XXXXXXXXX based on the revenue
breakdown shown above. At the end of each calendar quarter, ACCOLADE
shall distribute any funds remaining in the returns reserve to the
parties in accordance with the professional shares.
d. Taxes. ACCOLADE shall, in addition to the other amounts payable under
this Agreement, pay all use, value added or other taxes, federal,
state or otherwise, however designated, which are levied or imposed by
reason of the transactions contemplated by this Agreement, other than
sales taxes or taxes on the other parties' income.
e. Sales Taxes. In the event any sales taxes are due on any unlock of
Encrypted Game Packs sold to an individual customer, such tax shall be
collected at the time of the unlock, credited to the Merchant Account
and designated as sales tax, then transferred to ACCOLADE for payment
and reporting to the proper governmental authorities.
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11. XXXXXXXXX'x Representations and Warranties
a. Scope of Warranty. XXXXXXXXX warrants to ACCOLADE that during the term
of this Agreement the Wrapper Software will act in accordance with its
specifications and documentation and that each Master Disc shall be
free of defects in materials and workmanship. XXXXXXXXX further
warrants and represents that, based on its conducting diligent test
procedures, the Wrapper Software is sufficient to prevent unauthorized
users from accessing the games; provided, however, that due to the
nature of hacker operations, XXXXXXXXX cannot guarantee that the
Wrapper Software is absolutely immune from unauthorized access.
XXXXXXXXX also warrants that neither the Wrapper Software nor the
method of distributing Encrypted Game Packs to ACCOLADE's OEM
customers contemplated by this agreement infringes any trade secret,
patent, mask work right, copyright, moral right or contract right of
any third party. Finally, XXXXXXXXX warrants that it has the power and
authority to enter into this Agreement and to fully perform its
obligations hereunder; that this Agreement has been executed by its
duly authorized representative; and that it is under no contractual or
other legal obligation which would interfere in any way with the full,
prompt, and complete performance of its obligations pursuant to this
Agreement.
b. EXCEPT FOR THOSE WARRANTIES GIVEN IN SECTION 11.A, XXXXXXXXX DISCLAIMS
ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING OUT OF OR RELATING
TO THE WRAPPER SOFTWARE OR ANY USE THEREOF, INCLUDING (WITHOUT
LIMITATION) ANY WARRANTY WHATSOEVER AS THE FITNESS FOR A PARTICULAR
PURPOSE OR THE MERCHANTABILITY OF THE WRAPPER SOFTWARE.
12. ACCOLADE's Representations and Warranties.
a. Scope of Warrant. ACCOLADE represents and warrants that it has the
power and authority to enter into this Agreement and to fully perform
its obligations hereunder; that this Agreement has been executed by
its duly authorized representative; and that it is under no
contractual or other legal obligation which would interfere in any way
with the full, prompt, and complete performance of its obligations
pursuant to this Agreement. ACCOLADE further warrants that the Games,
the Interface Software, and any other content comprising the Encrypted
Game Packs shall not violate the intellectual property rights of any
third party.
b. EXCEPT FOR THOSE WARRANTIES GIVEN IN SECTION 12.A, ACCOLADE DISCLAIMS
ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING OUT OF OR RELATING
TO THE GAMES OR ENCRYPTED GAME PACK OR ANY USE THEREOF, INCLUDING
(WITHOUT LIMITATION) ANY WARRANTY WHATSOEVER AS THE FITNESS FOR A
PARTICULAR PURPOSE OR THE MERCHANTABILITY OF THE GAMES OR ENCRYPTED
GAME PACK.
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13. WAMO's Representations and Warranties.
a. Scope of Warranty. WAMO represents and warrants that it has the power
and authority to enter into this Agreement and to fully perform its
obligations hereunder; that this Agreement has been executed by its
duly authorized representative; and that it is under no contractual or
other legal obligation which would interfere in any way with the full,
prompt, and complete performance of its obligations pursuant to this
Agreement; and that the manufacturing services contemplated by this
agreement will be performed in a workmanlike manner and in accordance
with the generally prevailing standards in the industry. WAMO also
warrants that its participation in this Agreement does not infringe
any trade secret, patent, mask work right, copyright, moral right or
contract right of any third party.
b. EXCEPT FOR THOSE WARRANTIES GIVEN IN SECTION 13.A, WAMO DISCLAIMS ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION)
ANY WARRANTY WHATSOEVER AS THE FITNESS FOR A PARTICULAR PURPOSE OR
MERCHANTABILITY.
14. Limitation of Liability
EXCEPT FOR A WILFULL OR INTENTIONAL BREACH OF SECTIONS 3(E) OR 9, OR ANY
PARTY'S OBLIGATIONS UNDER SECTION 15, NO PARTY SHALL BE LIABLE TO ANY OTHER
PARTY FOR INDIRECT, SPECIAL INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES
(INCLUDING LOST PROFITS), HOWEVER CAUSED OR ON ANY THEORY OF LIABILITY,
WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGE. THIS LIMITATION IS INTENDED TO LIMIT THE LIABILITY OF THE PARTIES
AND SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY
LIMITED REMEDY.
15. Indemnification
a. Intellectual Property Rights Indemnity. XXXXXXXXX shall indemnify and
hold harmless ACCOLADE and/or WAMO from and against any claims,
including reasonable legal fees and expenses, that the Wrapper
Software infringes any third party's intellectual property right.
ACCOLADE and/or WAMO agrees to notify XXXXXXXXX of any such claim
promptly in writing and to allow XXXXXXXXX to control the proceedings.
ACCOLADE and/or WAMO agrees to cooperate fully with XXXXXXXXX during
such proceedings. XXXXXXXXX shall defend and settle at its sole
expense all proceedings arising out of the foregoing. In the event of
such infringement, XXXXXXXXX may replace, in whole or in part, the
Wrapper Software with a substantially compatible and functionally
equivalent product or modify the Wrapper Software to avoid the
infringement.
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b. General Indemnity.
i. Each party ("Indemnifying Party") agrees to defend, indemnify and
hold harmless any other party, its officers, directors, employees,
subcontractors, and agents ("Indemnified Parties") against any claims,
actions or demands, alleging facts which would constitute a breach of
the Indemnify Party's representations and warranties provided in this
agreement or of the Indemnifying Party's performance obligations under
this Agreement.
ii. In any case in which indemnification is sought, the Indemnified
Party agrees to (1) give prompt written notice to Indemnifying Party
of any such claim, action or demand, (2) allow Indemnifying Party to
control the defense and related settlement negotiations, and (3)
assist in the defense so long as Indemnifying Party reimburses the
Indemnified Party for its reasonable expenses. The Indemnified Party
will invoice Indemnifying Party for such expenses and time on a
calendar quarter basis and Indemnifying Party shall pay such
reimbursements within thirty (30) days after the invoice from the
Indemnified Party. The law firm used by Indemnifying Party to defend
the Indemnified Party shall be subject to the Indemnified Party's
reasonable approval. If the Indemnifying Party is unable to comply
with the indemnity obligation set forth above, the Indemnified Party
may defend such suit itself for all Indemnified Parties with counsel
of its choosing and may invoice the Indemnifying Party for all
expenses incurred in defending and/or settling any claim and/or
satisfying any resulting judgment. Any settlement shall be subject to
the Indemnified Party's prior written approval unless the Indemnifying
Party has obtained an unconditional release of all of the Indemnified
Parties in the proceeding.
16. Term and Termination
a. Effective Date. This Agreement and the license granted hereunder shall
take effect upon the date that the last party executes this Agreement,
and be effective for a term of three (3) years, unless sooner
terminated or extended by mutual agreement of the parties.
b. Termination. Each party shall have the right to terminate this
Agreement and the license granted herein upon the occurrence of the
following events (an "Event of Default"):
i. In the event the other party violates any provision of this
Agreement; or
(ii) In the event the other party (A) terminates or suspends its
business, (B) becomes subject to any bankruptcy or insolvency
proceeding under Federal or state statute, (C) becomes insolvent or
subject to direct control by a trustee, receiver or similar authority,
or (D) has wound up or liquidated, voluntarily or otherwise.
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c. Notice and Opportunity to Cure. Upon the occurrence of an Event of
Default, a party shall deliver to the defaulting party a Notice of
Intent to Terminate that identifies in detail the Event of Default. If
the Event of Default remains uncured for thirty (30) days, the party
may terminate this Agreement and the license granted herein by
delivering to the defaulting party a Notice of Termination that
identifies the effective date of the termination, which date shall not
be less than thirty (30) days after the date of delivery of the Notice
of Intent to Terminate.
d. The following provisions shall survive termination or the earlier
expiration of this Agreement: 5, 7, 8, 9, 10, 11, 12, 13, 16(d), 19,
and 20. The license granted in Section 3(a) shall also survive to the
extent necessary to allow ACCOLADE's OEM customers to distribute
Encrypted Game Packs manufactured before the expiration or termination
of this Agreement and to allow end-users to unlock Encrypted Game
Packs distributed before the expiration or termination of this
Agreement.
17. Assignment
Except as otherwise provided herein, no party shall assign or otherwise
transfer this Agreement to any third party without the prior written
consent of the other parties, except that any assignment incident to the
sale of substantially all of a party's assets, or pursuant to any merger,
consolidation or reorganization, shall not be considered a prohibited
assignment for purposes of this Section.
18. Force Majeure
Neither party shall be in default or otherwise liable for any delay in or
failure of its performance under this Agreement if such delay or failure
arises by any reason beyond its reasonable control, including any act of
God, any acts of the common enemy, the elements, earthquakes, floods,
fires, epidemics, riots, failures or delay in transportation or
communications, or any act or failure to act by the other party or such
other party's employees, agents or contractors; provided, however, that
lack of funds shall not be deemed to be a reason beyond a party's
reasonable control. The parties will promptly inform and consult with each
other as to any of the above causes which in their judgment may or could be
the cause of a delay in the performance of this Agreement.
19. Notices
All notices under this Agreement are to be delivered by (i) depositing the
notice in the mail, using registered mail, return receipt requested,
addressed to the address below or to any other address as the party may
designate by providing notice, (ii) telecopying the notice by using the
telecopier number set forth below or any other telecopier as the party may
designate by providing notice, (iii) overnight delivery service addressed
to the address below or to any other address as the party may designate by
providing notice, or (iv) hand delivery to the individual designated below
or to any other individual as the party may designate by providing notice.
The notice shall be deemed delivered (i) if by registered mail, four (4)
12
days after the notice's deposit in the mail, (ii) if by telecopy, on the
date the notice is delivered, (iii) if by overnight delivery service, on
the day of delivery, and (iv) if by hand delivery, on the date of hand
delivery.
XXXXXXXXX Xxxxxxxxx Technologies Corporation
0000 Xxxxxxx xx Xxxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxxxxxxx Xxxxxxx
Telecopy No.: 000-000-0000
ACCOLADE: Accolade Inc.
0000 Xxxxxxx Xxxxx Xxxx., Xxxxx 000
Xxx Xxxx, XX 00000
Attention: Director, Operations & OEM Sales
Telecopy No.: 000-000-0000
With a copy sent to the Attention of the Legal Dep't
WAMO: WEA Inc.
0000 Xxxxxx Xxxx.
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxx
Telepcopy No.:
20. General Provisions
a. Complete Agreement. The parties agree that this Agreement is the
complete and exclusive statement of the agreement between the parties,
which supersedes and merges all prior proposals, understandings and
all other agreements, oral or written, between the parties relating to
this Agreement. Notwithstanding the foregoing, the parties agree that
that certain MUTUAL NON-DISCLOSURE AGREEMENT executed by the parties
and dated October 7, 1998, a copy of which is appended hereto, is
hereby renewed and extended to be effective during the entire term of
this Agreement.
b. Year 2000 Compatibility. XXXXXXXXX warrants and agrees that the
Wrapper Software and all systems utilized by the Unlocking Center
shall be Year 2000 compatible.
c. Amendment. This Agreement may not be modified, altered or amended
except by written instrument duly executed by both parties.
d. Waiver. The waiver or failure of either party to exercise in any
respect any right provided for in this Agreement shall not be deemed a
waiver of any further right under this Agreement.
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e. Severability. If any provision of this Agreement is invalid, illegal
or unenforceable under any applicable statute or rule of law, it is to
that extent to be deemed omitted. The remainder of the Agreement shall
be valid and enforceable to the maximum extent possible.
f. Governing Law. This Agreement and performance hereunder shall be
governed by the laws of the State of California, without reference to
conflict of laws provisions.
g. Read and Understood. Each party acknowledges that it has read and
understands this Agreement and agrees to be bound by its terms.
AGREED:
ACCOLADE, Inc. XXXXXXXXX TECHNOLOGIES CORPORATION
By: ____________________________ By: ____________________________
Signature Signature
________________________________ ________________________________
Name Name
________________________________ ________________________________
Title Title
________________________________ ________________________________
Date Date
WAMO
By: ____________________________
Signature
________________________________
Name
________________________________
Title
________________________________
Date
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