CONFIDENTIAL FIRST RENEWAL LICENSE AGREEMENT FOR NINTENDO DS (EEA, AUSTRALIA, AND NEW ZEALAND)
CONFIDENTIAL
CONFIDENTIAL
FIRST RENEWAL LICENSE AGREEMENT
FOR
NINTENDO DS
(EEA,
AUSTRALIA, AND NEW ZEALAND)
THIS
FIRST RENEWAL LICENSE AGREEMENT ("Agreement") is entered into between NINTENDO
CO., LTD. ("NINTENDO") at 00-0 Xxxxxxxx Xxxxxxxx-xxx, Xxxxxx-xx, Xxxxx, Xxxxx
601-8501, Attn: General Manager, International Division, International Business
Department (Fax: 00.00.000.0000), and ZOO DIGITAL PUBLISHING LIMITED
("LICENSEE") at Xxxxxx Xxxxx, Xxxxxxx Xxxxx, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx
X0
0XX, U.K.; Attn: Xxxxx Xxxxx, Managing Director (x.xxxxx@xxxxxxxxxxxxxxxxxxxx.xxx).
(Contact: Xxxxxx Xxxxx - X.Xxxxx@xxxxxxxxxxxxxxxxxxxx.xxx)
(Fax:
(00) 000.000.0000). NINTENDO and LICENSEE agree as follows:
| 1. |
RECITALS
|
1.1
NINTENDO
designs, develops, manufactures, markets and sells advanced design, high-quality
video game systems, including the Nintendo DS system.
1.2
LICENSEE
desires use of the highly proprietary programming specifications, development
tools, unique and valuable security technology, trademarks, copyrights and
other
valuable intellectual property rights of NINTENDO, which rights are only
available for use under the terms of a license agreement, to develop, have
manufactured, advertise, market and sell video game software for play on the
Nintendo DS system.
1.3
NINTENDO
is willing to grant a license to LICENSEE on the terms and conditions set forth
in this Agreement.
1.4
By
a
prior agreement between the parties effective May 25, 2005 (hereinafter the
"Initial Agreement"), NINTENDO granted to LICENSEE the right to develop video
game software compatible with the DS System, embodying and using the Licensed
Intellectual Properties. The Initial Agreement is due to expire on May 25,
2008.
The parties desire to enter into a renewal agreement (hereinafter the
"Agreement") effective as of the expiration date of the Initial Agreement,
to
continue the relationship between the parties without interruption, with the
Agreement consisting of the terms and conditions set forth herein.
| 2. |
DEFINITIONS
|
2.1
"Artwork"
means the text and design specifications for the Game Card Label and Printed
Materials in the format specified by NINTENDO in the Guidelines.
2.2
"Bulk
Goods" means the Game Cards with Game Card Labels affixed.
2.3
"Confidential
Information" means the information described in Section 8.1.
2.4
"Development
Tools" means the development kits, programming tools, emulators and other
materials of NINTENDO, or third parties authorized by NINTENDO, that may be
used
in the development of Games under this Agreement.
2.5
"Effective
Date" means the expiration date of the Initial Agreement.
2.6
"Finished
Product(s)" means the fully assembled Game Card with a Game Card label, Printed
Materials, and packed in a plastic storage case or other form of protective
packaging .
2.7
"Game
Card(s)" means custom card media specifically manufactured under the terms
of
this Agreement for play on the Nintendo DS system, incorporating semiconductor
components in which a Game has been stored.
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CONFIDENTIAL
2.8
"Game(s)"
means any interactive programs (including source and object/binary code)
developed to be compatible with the Nintendo DS system.
2.9
"Guidelines"
means the then-current version of the "Nintendo DS Guidelines"; "Licensee
Packaging Guidelines", pertaining to the layout, trademark usage and
requirements of the Game Card label, instruction manual and Game Card packaging;
"Marketing Materials"; "Nintendo DS Development Manual"; "Trademark Guidelines";
"Guidelines on Ethical Content"; "Nintendo DS Software Submission Requirements",
together with other guidelines that NINTENDO may provide to LICENSEE from time
to time. The Guidelines on Ethical Content are attached as Annex A, and the
remainder of the Guidelines have been provided to LICENSEE independent of this
Agreement. The Guidelines may be changed or updated from time to time without
notice, and the versions current from time to time will be available on request
from NINTENDO.
2.10 "Independent
Contractor" means any individual or entity that is not an employee of LICENSEE,
including any independent programmer, consultant, contractor, board member
or
advisor.
2.11 "Intellectual
Property Rights" means individually, collectively or in any combination,
Proprietary Rights owned, licensed or otherwise held by NINTENDO that are
associated with the development, manufacturing, advertising, marketing or sale
of the Licensed Products, including, without limitation, (a) registered and
unregistered trademarks and trademark applications used in connection with
Games
for the Nintendo DS system including "Nintendo™", "Nintendo DS™", and the
"Official Nintendo Seal of Quality™", (b) select trade dress associated
with the Nintendo DS system and licensed Games for play thereon,
(c) Proprietary Rights in the Security Technology incorporated into the
Game Cards, (d) rights in the Development Tools for use in developing the
Games, excluding, however, rights to use, incorporate or duplicate select
libraries, protocols and/or sound or graphic files associated with the
Development Tools which belong to any third party and for which no additional
licenses or consents are required, (e) patents, patent applications,
utility models, design registrations, or copyrights which may be associated
with
the Game Cards, (f) copyrights in the Guidelines, and (g) other
Proprietary Rights of NINTENDO in the Confidential Information.
2.12 "Licensed
Products" means (a) Bulk Goods, and/or (b) Finished Products after being
assembled and packaged with the Printed Materials in accordance with the
Guidelines.
2.13
"Marketing
Materials" means marketing, advertising or promotional materials developed
by or
for LICENSEE (or subject to LICENSEE's approval) that promote the sale of
the
Licensed Products, including, but not limited to, television, radio and on-line
advertising, point-of-sale materials (e.g. posters, counter-cards), package
advertising, print media and all audio or video content other than the Game
that
is to be included on the Game Card.
2.14
"NDA"
means the non-disclosure agreement providing for the protection of Confidential
Information related to the Nintendo DS system previously entered into between
NINTENDO and/or NOA and LICENSEE.
2.15
"NOA"
means NINTENDO's subsidiary, Nintendo of America Inc., of Redmond, Washington,
USA.
2.16
"Notice"
means any notice permitted or required under this Agreement. All Notices
shall
be sufficiently given when (a) personally served or delivered, or
(b) transmitted by facsimile, with an original sent concurrently by mail,
or (c) deposited, carriage prepaid, with a guaranteed air courier service,
in each case addressed as stated herein, or addressed to such other person
or
address either party may designate in a Notice, or (d) transmitted by
e-mail with an express written acknowledgement of receipt sent personally
by or
on behalf of the recipient (which shall include any automated reply). Notice
shall be deemed effective upon the earlier of actual receipt or two (2) business
days after transmittal, provided, however, any Notice received after the
recipient's normal business hours will be deemed received on the next business
day.
2.17
"Price
Schedule" means the then-current version of NINTENDO's schedule of purchase
prices and minimum order quantities for the Finished Products and the Bulk
Goods. The Price Schedule has been provided to LICENSEE independent of this
Agreement and may be changed or updated from time to time without notice,
and
the version current from time to time will be available on request from
NINTENDO.
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CONFIDENTIAL
2.18
"Printed
Materials" means the Game Card label and title page, user instruction booklet,
poster, warranty card and LICENSEE inserts incorporating the Artwork, together
with a precautions booklet and optional printed materials.
2.19
"Proprietary
Rights" means any rights or applications for rights to the extent recognized
anywhere in the Territory relating to the Nintendo DS System, and owned,
licensed or otherwise held in patents, patent applications, trademarks, service
marks, copyrights and neighboring rights, semiconductor chip layouts or masks,
trade secrets, utility models, registered design rights, unregistered design
rights, database rights, get up, trade dress, moral rights and publicity
rights,
together with all inventions, discoveries, ideas, know-how, data, information,
processes, methods, procedures, formulas, drawings and designs, computer
programs, software source code and object code, and all amendments,
modifications, and improvements thereto for which such patents, patent
applications, trademarks, service marks, copyrights and neighboring rights,
semiconductor chip layouts or masks, trade secrets, utility models, registered
design rights, unregistered design rights, database rights, get up, trade
dress,
moral rights or publicity rights may exist or may be sought and obtained
in the
future.
2.20
"Reverse
Engineer(in)" means, without limitation, (a) the x-ray, electronic scanning
or physical or chemical stripping of semiconductor components, (b) the
disassembly, decompilation, decryption or simulation of object code or
executable code, or (c) any other technique designed to extract source code
or
facilitate the duplication of a program or product.
2.21
"Security
Technology" means the highly proprietary security features of the Nintendo
DS
system and the Licensed Products to minimize the risk of unlawful copying
and
other unauthorized or unsafe usage, including, without limitation, any security
signature, bios, data scrambling, password, hardware security apparatus,
watermark, hologram, encryption, digital rights management system, copyright
management information system, proprietary manufacturing process or any feature
which obstructs piracy, limits unlawful, unsafe, or unauthorized use, or
facilitates or limits compatibility with other hardware, software, accessories
or peripherals with respect to a video game system other than the Nintendo
DS
system, or limits distribution outside of the Territory.
2.22
"Sole
License" means a license under which only the licensor and a single licensee
can
utilize the subject matter of the license.
2.23
"Term"
means three (3) years from the Effective Date.
2.24
"Territory"
means any and all countries within the European Economic Area; namely Albania,
Austria, Belgium, Bosnia, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark,
Estonia, Finland, France, Germany, Greece, Herzegovina, Hungary, Iceland,
Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Macedonia,
Malta,
Montenegro, the Netherlands, Norway, Poland, Portugal, Romania, Serbia,
Slovakia, Slovenia, Spain, Sweden, and the United Kingdom. The Territory
also
includes Australia, New Zealand, Russia, Switzerland and Turkey. NINTENDO
may
add additional countries to the Territory upon written notice to
LICENSEE.
2.25
"TM"
means trad
| 3. |
GRANT
OF LICENSE; LICENSEE
RESTRICTIONS
|
3.1
Limited
License Grant.
For the
Term and for the Territory, NINTENDO grants to LICENSEE a nonexclusive,
nontransferable, limited license to use the Intellectual Property Rights for
the
purpose of and to the extent necessary, to develop (or have developed on
LICENSEE's behalf) Games for manufacture, advertising, marketing and sale by
LICENSEE as Licensed Products, subject to the terms and conditions of this
Agreement. This license is royalty-free.
3.2
LICENSEE
Acknowledgement.
LICENSEE's use of the Intellectual Property Rights shall not create any right,
title or interest of LICENSEE therein. LICENSEE is authorized and permitted
to
develop Games, and have manufactured, advertise, market and sell Licensed
Products, only for play on the Nintendo DS system and only in accordance with
this Agreement. In the event that LICENSEE challenges NINTENDO's ownership
or
the validity of the Intellectual Property Rights, NINTENDO may terminate this
Agreement without any notice or procedure.
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CONFIDENTIAL
3.3
Restrictions
on License Grant.
NINTENDO does not guarantee that the hardware for the Nintendo DS system is
distributed throughout the Territory. Moreover, the present limited license
to
LICENSEE does not extend to the use of the Intellectual Property Rights for
the
following purposes:
(a) grant
access to, distribute, transmit or broadcast a Game by electronic means or
by
any other means known or hereafter devised, including, without limitation,
by
wireless, cable, fiber optic, telephone lines, microwave, radiowave, computer
or
other device network, except (a) as a part of wireless Game play on and
among Nintendo DS systems, (b) for the purpose of facilitating Game
development under the terms of this Agreement, or (c) as otherwise approved
in writing by NINTENDO. LICENSEE shall use reasonable security measures,
customary within the high technology industry, to reduce the risk of
unauthorized interception or retransmission of any Game transmission. No right
of retransmission shall attach to any authorized transmission of a Game;
(b) authorize
or permit any online activities involving a Game, including, without limitation,
multi-player, peer-to-peer or online play, except as expressly permitted by
NINTENDO in writing;
(c) modify,
install or operate a Game on any server or computing device for the purpose
of
or resulting in the rental, lease, loan or other grant of remote access to
the
Game;
(d) emulate,
interoperate, interface or link a Game for operation or use with any hardware
or
software platform, accessory, computer language, computer environment, chip
instruction set, consumer electronics device, telephone, cellphone, PDA, or
other device, including for purposes of data interchange, password usage or
interactive video game play, other than a Nintendo DS system, an application
approved by NINTENDO, or the Development Tools;
(e) emulate
any past, current or future NINTENDO brand video game system, or any portion
thereof, in software or hardware or any combination thereof;
(f) embed,
incorporate, or store a Game in any media or format except the Game Card format
utilized by the Nintendo DS system, except as may be necessary as a part of
the
Game development process under this Agreement;
(g) design,
implement or undertake any process, procedure, program or act designed to
disable, obstruct, circumvent or otherwise diminish the effectiveness or
operation of the Security Technology;
(h) utilize
the Intellectual Property Rights to design or develop any interactive video
game
program, except as authorized under this Agreement;
(i) manufacture
or reproduce a Game developed under this Agreement, except through NINTENDO;
or
(j) Reverse
Engineer or assist in Reverse Engineering all or any part of the Nintendo DS
system, including the hardware, software (embedded or not), the Development
Tools or the Security Technology, except as specifically permitted under the
laws and regulations applicable in the Territory.
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CONFIDENTIAL
3.4
Development
Tools.
NINTENDO and NOA may lease, loan or sell Development Tools, including any
improvements made by NINTENDO or NOA from time to time, to LICENSEE to assist
in
the development of Games under this Agreement on such terms as may be agreed
between the parties. Ownership and use of any Development Tools, whether
provided by NINTENDO or NOA, prior to or during the Term hereof, shall be
subject to the terms of this Agreement and any separate license or purchase
agreement required by NINTENDO or any third-party licensing the Development
Tools. LICENSEE acknowledges the respective interests of NINTENDO, and in the
case of third-party Development Tools, such third parties, in and to the
Proprietary Rights associated with the Development Tools. LICENSEE's use of
the
Development Tools shall not create any right, title or interest of LICENSEE
therein. Any license to LICENSEE to use the Development Tools does not extend
to: (a) use of the Development Tools for any purpose except the design and
development of Games under this Agreement, (b) reproduction or creation of
derivatives of the Development Tools, except in association with the development
of Games under this Agreement, (c) Reverse Engineering of the Development
Tools (except as specifically permitted under the laws and/or regulations
applicable in the Territory), or (d) selling, leasing, assigning, lending,
licensing, encumbering or otherwise transferring the Development Tools. Any
tools developed or derived by LICENSEE as a result of a study of the
performance, design or operation of any NINTENDO Development Tools shall be
considered a derivative work of the Intellectual Property Rights, but may be
retained and utilized by LICENSEE in connection with this Agreement. Unless
LICENSEE can demonstrate that such derivative work has one or more applications
that are independent of and separate from the Intellectual Property Rights
("Independent Applications"), it shall be deemed to have granted NOA and
NINTENDO an indefinite, worldwide, royalty-free, transferable and Sole License
(including the right to sub-license) to such derivative work. To the extent
that
LICENSEE can demonstrate one or more Independent Applications, LICENSEE shall
be
deemed to have granted to NOA and NINTENDO a royalty-free and transferable
non-exclusive License (including the right to sub-license) in relation to such
Independent Applications for the Term. Any tools developed or derived by
LICENSEE as a result of a study of the performance, design or operation of
any
third-party Development Tools shall be governed by the terms of the license
agreement applicable to such Development Tools. Notwithstanding any referral
or
information provided or posted regarding third-party Development Tools, NINTENDO
and NOA make no representations or warranties with regard to any such
third-party Development Tools. LICENSEE acquires and utilizes third-party
Development Tools at its own risk.
3.5
In-Game
Advertising.
LICENSEE shall not include advertising or produce placements for products or
services of LICENSEE or third parties, whether in the Game, as separate content
(e.g., a trailer), or in the Printed Materials, without NINTENDO's prior written
consent.
| 4. |
SUBMISSION
OF GAME AND ARTWORK FOR
APPROVAL
|
4.1 Development
and Sale of the Games.
LICENSEE may develop Games and have manufactured, advertise, market and sell
Licensed Products for play on the Nintendo DS system only in accordance with
this Agreement.
4.2 Delivery
of Completed Game.
Upon
completion of a Game, LICENSEE shall deliver a prototype of the Game to NINTENDO
in a format specified in the Guidelines. Delivery shall be made in accordance
with the methods set forth in the Guidelines. Each submission shall include
such
other information or documentation deemed necessary by NINTENDO, including,
without limitation, a complete set of written user instructions, a complete
description of any security holes, backdoors, time bombs, cheats, "Easter eggs"
or other hidden features or characters in the Game and a complete screen text
script. NINTENDO shall promptly evaluate the Game with regard to its technical
compatibility with and error-free operation on the Nintendo DS system. LICENSEE
must establish that the Game and any other content included on the Game Card
complies with the guidelines of the Pan European Game Information System (PEGI),
the Unterhaltungssoftware Selbstkontrolle (USK), the Office of Film and
Literature Classification (OFLC), or any other national or regional game rating
system that NINTENDO may accept, as applicable. LICENSEE shall be responsible
for the submission of the Game to the appropriate national or regional game
rating organization and shall provide NINTENDO with a statement or certificate
in writing from the relevant organization, confirming the rating for the Game.
Where any such game has been rated as being suitable only for players aged
18
and over (or an equivalent rating), LICENSEE must submit a certificate in
writing that confirms the game is rated as no higher than "M" (Mature) by the
Entertainment Software Rating Board (ESRB) of the U.S. In addition, NINTENDO
reserves the right to require LICENSEE to provide NINTENDO with ***
***
Confidential treatment requested.
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CONFIDENTIAL
4.3
Approval
of Completed Game.
NINTENDO shall, within a reasonable period of time after receipt, approve or
disapprove each submitted Game. If a Game is disapproved, NINTENDO shall specify
in writing the reasons for such disapproval and state what corrections or
improvements are necessary. After making the necessary corrections or
improvements, LICENSEE shall submit a revised Game to NINTENDO for approval.
NINTENDO shall not unreasonably withhold or delay its approval of any Game.
The
approval of a Game by NINTENDO shall not relieve LICENSEE of its sole
responsibility for the development, quality and operation of the Game or in
any
way create any warranty for a Game or a Licensed Product by NINTENDO.
4.4
Submission
and Approval of Artwork.
Prior
to submitting a completed Game to NINTENDO under Section 4.2, LICENSEE shall
prepare and submit to NINTENDO all Artwork for the proposed Licensed Product.
Within ten (10) business days of receipt, NINTENDO shall approve or disapprove
the Artwork. If any Artwork is disapproved, NINTENDO shall specify in writing
the reasons for such disapproval and state what corrections or improvements
are
necessary. After making the necessary corrections or improvements, LICENSEE
shall submit revised Artwork to NINTENDO for approval. NINTENDO shall not
unreasonably withhold or delay its approval of any Artwork. The approval of
the
Artwork by NINTENDO shall not relieve LICENSEE of its sole responsibility for
the development and quality of the Artwork or in any way create any warranty
for
the Artwork or any Licensed Product by NINTENDO. All Artwork must be approved
prior to submitting an order for the Bulk Goods or Finished Products, and
LICENSEE shall not produce any Printed Materials for commercial distribution
until such Artwork or Finished Products has been approved by
NINTENDO.
4.5
Artwork
for Bulk Goods.
If
LICENSEE intends to submit an order for Bulk Goods, all Artwork and other
materials to be included with the Licensed Product shall be submitted to
NINTENDO in accordance with Section 4.4 herein. No Printed Materials shall
be
produced by LICENSEE until such Artwork has been approved by NINTENDO under
Section 4.4 herein.
| 5. |
ORDER
PROCESS, PURCHASE PRICE, PAYMENT AND DELIVERY
|
5.1
Submission
of Orders by LICENSEE.
After
receipt of NINTENDO's approval for a Game, LICENSEE may at any time submit
written purchase orders to NINTENDO for any approved Licensed Product title.
The
purchase order shall specify whether it is for Finished Products or Bulk Goods.
The terms and conditions of this Agreement shall take precedence over any
contrary or additional terms of such purchase order or any other written
documentation or verbal instructions from LICENSEE. All orders shall be subject
to acceptance by NINTENDO or its designee.
5.2
Purchase
Price and Minimum Order Quantities.
The
purchase price and minimum order quantities for Finished Products and Bulk
Goods
shall be set forth in NINTENDO's then current Price Schedule. Unless otherwise
specifically provided for, the purchase price includes the cost of manufacturing
the Licensed Products. No taxes, duties, import fees or other tariffs related
to
the development, manufacture, import, marketing or sale of the Licensed Products
except for taxes imposed on NINTENDO's income are included in the purchase
price
and all such taxes are the responsibility of LICENSEE. The Price Schedule is
subject to change by NINTENDO at any time without Notice, provided, however,
that any price increase shall be applicable only to purchase orders submitted,
paid for, and accepted by NINTENDO after the date of the price
increase.
5.3
Payment.
Upon
placement of an order with NINTENDO, LICENSEE shall pay the full purchase price
to NINTENDO either (a) by tender of an irrevocable letter of credit in
favor of NINTENDO (or its designee) and payable at sight, issued by a bank
acceptable to NINTENDO and confirmed, if requested by NINTENDO, at LICENSEE's
expense, or (b) in cash, by wire transfer to an account designated by
NINTENDO. All letters of credit shall comply with NINTENDO's written
instructions and all associated banking charges shall be for LICENSEE's
account.
5.4
Delivery
of Licensed Products.
NINTENDO shall deliver the Finished Products and Bulk Goods ordered by LICENSEE
to LICENSEE FOB Japan, CIP European Destination or ex-warehouse Grossostheim,
per the terms in the Price Schedule. Also per the Price Schedule, the minimum
shipping quantity is ***. Upon mutual consent of NINTENDO and LICENSEE, orders
may be delivered in partial shipments with a minimum shipment quantity as
specified in the Price Schedule. Such orders shall be delivered only to
countries within the Territory. Title to the Licensed Products shall vest in
accordance with the terms of the applicable letter of credit or, in the absence
thereof, per Incoterms 2000.
***Confidential
treatment requested
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| 6. |
MANUFACTURE
OF THE LICENSED
PRODUCT
|
6.1
Manufacturing.
Given
NINTENDO's ownership of the valuable Intellectual Property Rights, NINTENDO
shall be the exclusive source for the manufacture of the Game Cards, and shall
control all aspects of the manufacturing process, including the selection of
the
locations and specifications for any manufacturing facilities, determination
of
materials and processes, appointment of suppliers and subcontractors, and
management of all work-in-progress.
6.2
Manufacture
of the Licensed Products.
Upon
acceptance by NINTENDO of a purchase order from LICENSEE for an approved
Licensed Product title and receipt of payment as provided for under Section
5.3
herein, NINTENDO (through its suppliers and subcontractors) shall arrange for
the manufacture of Finished Product or Bulk Goods, as specified in LICENSEE's
purchase order. In this regard, LICENSEE shall submit to NINTENDO certain
technical information as set forth in a questionnaire entitled "Software
Submission Requirements" which has been provided to LICENSEE by
NINTENDO.
6.3
Security
Features.
The
final release version of the Game, Game Cards and Printed Materials shall
include such Security Technology as NINTENDO, in its sole discretion, deems
necessary or appropriate to (a) reduce the risk of unlawful copying or
other unlawful, unsafe or unauthorized uses, (b) protect the Proprietary
Rights of NINTENDO and of LICENSEE, (c) promote consumer confidence, and
(d) increase the quality, reliability or operation of the Nintendo DS
system.
6.4
Printed
Materials for Bulk Goods.
Upon
delivery to LICENSEE of Bulk Goods, LICENSEE shall assemble the Printed
Materials and Bulk Goods into the Licensed Products in accordance with the
Guidelines. No other materials, items, products or packaging may be included
or
assembled with the Bulk Goods without NINTENDO's prior written consent. Bulk
Goods may be sold or distributed by LICENSEE only when fully assembled in
accordance with the Guidelines.
6.5
Sample
Printed Materials and Bulk Goods.
Within
a reasonable period of time after LICENSEE's assembly of an initial order for
Bulk Goods title, LICENSEE shall provide NINTENDO with (a) one (1) sample
of the fully assembled, Licensed Product, and (b) five (5) samples of the
LICENSEE-produced Printed Materials for such Licensed Product.
6.6
Retention
of Sample Licensed Products by NINTENDO.
NINTENDO may, at its own expense, manufacture reasonable quantities of the
Game
Cards or the Licensed Products, and make a reasonable number of copies of the
Printed Materials, not to exceed fifty (50) copies, to be used for archival
purposes, legal proceedings against infringers of the Intellectual Property
Rights, and for other lawful purposes (but not for resale).
| 7. |
MARKETING
AND ADVERTISING
|
7.1
Approval
of Marketing Materials.
LICENSEE represents and warrants that the Printed Materials and the Marketing
Materials shall be of high quality and comply with (a) the Guidelines,
(b) the guidelines of the PEGI, and (c) all applicable laws,
regulations and official codes of practice in those jurisdictions in the
Territory where they will be used or distributed. All LICENSEE controlled
websites featuring the Games shall adopt a privacy policy that complies with
all
applicable local laws, regulations and official guidelines. To protect
NINTENDO's valuable Intellectual Property Rights, to prevent the dilution of
NINTENDO's trade marks, and to avoid use of the licensed Intellectual Property
Rights giving rise to any implication of NINTENDO's sponsorship, association,
approval or endorsement where this is not the case, prior to actual use or
distribution, LICENSEE shall submit to NINTENDO for review samples of all
proposed Marketing Materials. NINTENDO shall, within ten (10) business days
of
receipt, approve or disapprove the quality of such samples. If any of the
samples are disapproved, NINTENDO shall specify the reasons for such disapproval
and state what corrections and/or improvements are necessary. After making
the
necessary corrections and/or improvements, LICENSEE shall submit revised samples
for approval by NINTENDO. No Marketing Materials shall be used or distributed
by
LICENSEE without NINTENDO's prior written approval. NINTENDO shall not
unreasonably withhold or delay its approval of any proposed Marketing
Materials.
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CONFIDENTIAL
7.2
No
Bundling.
To
protect NINTENDO's valuable Intellectual Property Rights, to prevent the
dilution of NINTENDO's trademarks, and to avoid use of the licensed Intellectual
Property Rights giving rise to any implication of NINTENDO's sponsorship,
association, approval or endorsement where this is not the case, LICENSEE shall
not, without NINTENDO's prior written approval, market or distribute any
Licensed Products that have been bundled with (a) any peripheral designed
for use with the Nintendo DS system that has not been licensed or approved
in
writing by NINTENDO, provided that LICENSEE is responsible for ensuring that
any
such peripheral shall comply with all applicable laws and regulations in the
Territory, or (b) any other product or service where NINTENDO's
sponsorship, association, approval or endorsement might be suggested by bundling
the products or services.
7.3
Warranty
and Repair.
LICENSEE shall provide the original consumer with a minimum one hundred eighty
(180) day (or such longer minimum period as may be required by applicable law)
limited warranty on all Licensed Products. LICENSEE shall also provide
reasonable product service, including out-of-warranty service, for all Licensed
Products. LICENSEE shall make such warranty and repair information available
to
consumers as required by applicable law.
7.4
Business
Facilities.
LICENSEE agrees to develop and maintain sufficient customer service, either
directly or through a third party, to adequately support the Licensed Products.
7.5
No
Sales Outside the Territory.
LICENSEE represents and warrants that it shall not market, sell, offer to sell,
import or distribute the Licensed Products outside the Territory, or within
the
Territory when LICENSEE has actual or constructive knowledge that a subsequent
destination of the Licensed Product is outside the Territory.
7.6
Defects
and Recall.
In the
event of a material programming defect in a Licensed Product that would, in
NINTENDO's reasonable judgment, significantly impair the ability of a consumer
to play the Game, NINTENDO may, after consultation with LICENSEE, require the
LICENSEE to recall the Licensed Product and undertake suitable repairs or
replacements.
7.7
NINTENDO
Promotional Materials, Publications and Events.
With a
view to improving the competitiveness of the video game products consisting
of
Nintendo video game systems and services and compatible software published
by
LICENSEE and others, at its option and expense, NINTENDO may (a) insert in
the Printed Materials for the Licensed Products promotional materials concerning
publications and promotions for such video game products, (b) utilize
screen shots, Artwork and information regarding the Licensed Products in all
NINTENDO-published or officially licensed magazines, official NINTENDO-sponsored
web-sites,
or other
advertising, promotional or marketing media that promotes such video game
products, services or programs, and (c) exercise public performance rights
in the Games and use related trademarks and Artwork in connection with
NINTENDO-sponsored contests, tours, conventions, trade shows, press briefings
and similar events that promote such video game products.
7.8
Nintendo
Gateway System.
To
promote and increase demand for games on Nintendo video game systems, NINTENDO
licenses a system (the "Nintendo Gateway System") in various non-coin activated
commercial settings such as commercial airlines, cruise ships, rail systems
and
hotels, where customers play games on specially adapted Nintendo video game
systems. If NINTENDO identifies a Game for possible license on the Nintendo
Gateway System, the parties agree to conduct good faith negotiations toward
including the Game in the Nintendo Gateway System.
| 8. |
CONFIDENTIAL
INFORMATION
|
8.1
Definition.
"Confidential Information" means information provided to LICENSEE by NINTENDO
or
any third party working with NINTENDO or NOA relating to the hardware and
software for the Nintendo DS system or the Development Tools, including, but
not
limited to, (a) all current or future information, know-how, techniques,
methods, tools, emulator hardware or software, software development
specifications, proprietary manufacturing processes and/or trade secrets,
(b) any information on inventions, patents or patent applications,
(c) any business, legal, marketing, pricing or sales data or information,
and (d) any other information or data relating to development, design,
operation, manufacturing, marketing or sales. Confidential Information shall
include all confidential information disclosed, whether in writing, orally,
visually, or in the form of drawings, technical specifications, software,
samples, pictures, models, recordings, or other tangible items which contain
or
manifest, in any form, the above listed information. Confidential Information
shall not include (i) data and information that were in the public domain
prior to LICENSEE's receipt of the same hereunder, or that subsequently becomes
part of the public domain by publication or otherwise, except by the wrongful
act or omission of LICENSEE or any third party, (ii) data and information
that LICENSEE can demonstrate, through written records kept in the ordinary
course of business, were in its possession without restriction on use or
disclosure, prior to its receipt of the same hereunder and were not acquired
directly or indirectly from NINTENDO or NOA under an obligation of
confidentiality that is still in force, and (iii) data and information that
LICENSEE can show were received by it from a third party who did not acquire
the
same directly or indirectly from NINTENDO or NOA and to whom LICENSEE has no
obligation of confidentiality.
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CONFIDENTIAL
8.2
Disclosures
Required by Law.
LICENSEE shall be permitted to disclose Confidential Information if such
disclosure is required by an authorized governmental or judicial entity,
provided that LICENSEE shall notify NINTENDO at least thirty (30) days prior
to
such disclosure, or such lesser period as may be needed to comply with such
requirement. LICENSEE shall use its best efforts to limit the disclosure to
the
greatest extent possible, consistent with LICENSEE's legal obligations, and
if
required by NINTENDO, shall cooperate in the preparation and entry of
appropriate court orders limiting the persons to whom Confidential Information
may be disclosed and the extent of disclosure of such Confidential
Information.
8.3
Disclosure
and Use.
NINTENDO may provide LICENSEE with highly confidential development information,
Guidelines, Development Tools, systems, specifications and related resources
and
information constituting and incorporating the Confidential Information to
assist LICENSEE in the development of Games. LICENSEE agrees to maintain all
Confidential Information as strictly confidential and to use such Confidential
Information only in accordance with this Agreement. LICENSEE shall limit access
to the Confidential Information to LICENSEE's employees having a strict need
to
know, and shall advise such individuals of their obligation of confidentiality
as provided herein. LICENSEE shall require each such individual to retain in
confidence the Confidential Information pursuant to a written non-disclosure
agreement with LICENSEE. LICENSEE shall use its best efforts to ensure that
individuals who are permitted hereunder to work with or otherwise have access
to
Confidential Information shall not disclose or make any unauthorized use of
the
Confidential Information.
8.4
No
Disclosure to Independent Contractors.
LICENSEE shall not disclose the Confidential Information, including without
limitation the Guidelines and Intellectual Property Rights, to any Independent
Contractor, nor permit any Independent Contractor to perform or assist in
development work for a Game, without the prior written consent of NINTENDO.
Any
Independent Contractor seeking access to Confidential Information shall be
required to enter into a written non-disclosure agreement with NINTENDO or
NOA
that is no less restrictive than the terms of this Section 8, prior to
receiving any access to or disclosure of the Confidential Information from
either LICENSEE or NINTENDO.
At
LICENSEE's option, the written non-disclosure agreement may be with LICENSEE
rather than NINTENDO or NOA, in which case the form and substance of the
non-disclosure agreement must be acceptable to NINTENDO. Also, in such case
LICENSEE shall provide to NINTENDO on a continuing basis a listing of all
Independent Contractors who have received or been granted access to Confidential
Information along with copies of the applicable written non-disclosure
agreements. In addition, LICENSEE shall take all reasonable measures to ensure
that its Independent Contractors fulfill the requirements of the applicable
written non-disclosure agreements.
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CONFIDENTIAL
LICENSEE
shall use its best efforts to ensure that its employees and Independent
Contractors working with or otherwise having access to Confidential Information
shall not disclose or make unauthorised use of the Confidential Information.
LICENSEE agrees to *** .
8.5
Agreement
Confidentiality.
LICENSEE agrees that the terms, conditions and contents of this Agreement shall
be treated as Confidential Information. Any public announcement or press release
regarding this Agreement or the release dates for Games developed by LICENSEE
under this Agreement shall be subject to NINTENDO's prior written approval.
The
parties may disclose this Agreement (a) to accountants, banks, financing
sources, lawyers, parent companies and related parties under substantially
equivalent confidentiality obligations, (b) in connection with any formal
legal proceeding for the enforcement of this Agreement, (c) as required by
the regulations of the government agencies in the Territory that regulate
publicly-traded securities, provided that all Confidential Information shall
be
edited from such disclosures to the maximum extent allowed by such government
agencies, (d) in response to lawful process, subject to court order
limiting the persons to whom Confidential Information may be disclosed and
the
extent of disclosure of such Confidential Information, approved in advance
by
NINTENDO, and (e) to a third party proposing to enter into a business
transaction with LICENSEE or with NINTENDO, but only to the extent reasonably
necessary for carrying out the proposed transaction and only under terms of
mutual confidentiality.
8.6
Notification
Obligations.
LICENSEE shall promptly notify NINTENDO of the unauthorized use or disclosure
of
any Confidential Information by LICENSEE or any of its employees, or any
Independent Contractor or its employees, and shall promptly act to recover
any
such information and prevent further breach of the obligations herein. The
obligations of LICENSEE set forth herein are in addition to and not in lieu
of
any other legal remedy that may be available to NINTENDO under this Agreement
or
applicable law.
8.7
Continuing
Effect of the NDA.
The
terms of this Section 8 supplement the terms of the NDA, which shall remain
in effect. In the event of a conflict between the terms of the NDA and this
Agreement, the provisions of this Agreement shall control.
| 9. |
REPRESENTATIONS
AND WARRANTIES
|
9.1
LICENSEE's
Representations and Warranties.
LICENSEE represents and warrants that:
(a)
it is
a duly organized and validly existing corporation and has full authority
to
enter into this Agreement and to carry out the provisions hereof,
(b)
the
execution, delivery and performance of this Agreement by LICENSEE does not
conflict with any agreement or understanding to which LICENSEE may be bound,
and
(c)
excluding
the Intellectual Property Rights, LICENSEE is either (i) the sole owner of
all right, title and interest in and to the trademarks, copyrights and all
other
Proprietary Rights incorporated into the Game or the Artwork used in association
with the development, advertising, marketing and sale of the Licensed Products
or the Marketing Materials, or (ii) the holder of such rights, including
trademarks, copyrights and all other Proprietary Rights which belong to any
third party but have been licensed from such third party or an agent or licensee
of a third party such as a collecting society, by LICENSEE, as are necessary
for
the development, advertising, marketing or sale of the Licensed Products
and the
Marketing Materials under this Agreement.
9.2
NINTENDO's
Representations and Warranties.
NINTENDO represents and warrants that:
(a)
it is
a duly organized and validly existing corporation and has full authority
to
enter into this Agreement and to carry out the provisions hereof, and
***Confidential
treatment requested
PAGE
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CONFIDENTIAL
(b)
the
execution, delivery and performance of this Agreement by NINTENDO does not
conflict with any agreement or understanding to which NINTENDO may be bound.
9.3
INTELLECTUAL
PROPERTY RIGHTS DISCLAIMER BY NINTENDO.
NINTENDO
(ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES, SUBSIDIARIES, LICENSORS,
SUPPLIERS AND SUBCONTRACTORS), EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND
WARRANTIES CONCERNING THE SCOPE OR VALIDITY OF THE INTELLECTUAL PROPERTY RIGHTS.
NINTENDO (ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES, SUBSIDIARIES,
LICENSORS, SUPPLIERS AND SUBCONTRACTORS), EXPRESSLY DISCLAIMS WARRANTY THAT
THE
DESIGN, DEVELOPMENT, ADVERTISING, MARKETING OR SALE OF THE LICENSED PRODUCTS
OR
THE USE OF THE INTELLECTUAL PROPERTY RIGHTS BY LICENSEE WILL NOT INFRINGE UPON
ANY PATENT, COPYRIGHT, TRADEMARK OR OTHER PROPRIETARY RIGHTS OF A THIRD PARTY.
TO THE MAXIMUM EXTENT LEGALLY PERMISSIBLE, ANY WARRANTY, CONDITION OR TERM
THAT
MAY BE PROVIDED IN ANY APPLICABLE PROVISION OF ANY LAW OR REGULATION IN THE
TERRITORY GOVERNING COMMERCIAL ACTIVITY, OR ANY OTHER COMPARABLE LAW OR
REGULATION IS EXPRESSLY DISCLAIMED. LICENSEE HEREBY
ASSUMES THE RISK OF INFRINGEMENT.
9.4
GENERAL
DISCLAIMER BY NINTENDO.
NINTENDO
(ON
ITS
OWN BEHALF AND ON BEHALF OF ITS AFFILIATES, SUBSIDIARIES, LICENSORS, SUPPLIERS
AND SUBCONTRACTORS) EXPRESSLY DISCLAIMS
ANY AND ALL WARRANTIES WITH RESPECT TO THE LICENSED PRODUCTS, INCLUDING, WITHOUT
LIMITATION, THE SECURITY TECHNOLOGY. LICENSEE PURCHASES AND ACCEPTS ALL LICENSED
PRODUCTS ON AN "AS IS" AND "WHERE IS" BASIS. NINTENDO
(ON
ITS
OWN BEHALF AND ON BEHALF OF ITS AFFILIATES, SUBSIDIARIES, LICENSORS, SUPPLIERS
AND SUBCONTRACTORS) EXPRESSLY DISCLAIMS
ALL WARRANTIES, CONDITIONS OR OTHER TERMS OF ANY KIND UNDER THE APPLICABLE LAWS
OF ANY COUNTRY, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A GENERAL OR PARTICULAR PURPOSE.
9.5
LIMITATION
OF LIABILITY.
TO THE
MAXIMUM EXTENT PERMITTED BY LAW, NEITHER NINTENDO NOR ITS SUBSIDIARIES,
AFFILIATES, LICENSORS, SUBCONTRACTORS OR SUPPLIERS SHALL BE LIABLE FOR LOSS
OF
PROFITS, OR FOR ANY SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES
OF
LICENSEE OR ITS CUSTOMERS ARISING OUT OF OR RELATED TO THIS AGREEMENT,
INCLUDING, WITHOUT LIMITATION, THE BREACH OF THIS AGREEMENT BY NINTENDO, THE
MANUFACTURE OF THE LICENSED PRODUCTS OR THE USE OF THE LICENSED PRODUCTS ON
ANY
NINTENDO VIDEO GAME SYSTEM BY LICENSEE OR BY ANY END USER.
| 10. |
INDEMNIFICATION
|
10.1 Claim.
"Claim"
means any and all third-party claims, demands, actions, suits, proceedings,
losses, liabilities, damages, expenses and costs, including, without limitation,
reasonable attorneys' fees and costs, and any expenses incurred in the
settlement or avoidance of any such claim. "Claim" shall specifically include
civil, criminal, and regulatory matters, and those brought by any third party
(including governmental authorities or agencies) under any national,
subnational, or multinational law or regulation, or the rules of any
self-regulatory body (e.g., PEGI).
10.2
LICENSEE's
Indemnification.
LICENSEE shall indemnify and hold harmless NINTENDO (and any of its affiliates,
subsidiaries, licensors, suppliers, officers, directors, employees or agents)
from any Claims which are alleged to result from or be in connection
with:
(a)
a
breach by LICENSEE of any of the provisions in this Agreement,
(b)
any
infringement of a third party's Proprietary Rights as a result of the design,
development, advertising, marketing, sale or use of any aspect of the Licensed
Products or the Marketing Materials,
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CONFIDENTIAL
(c)
a defect,
failure to warn, bodily injury (including death) or other personal or property
damage arising out of, or in connection with, the design, development,
advertising, marketing, sale or use of any aspect of the Licensed Products,
and
(d)
the
design, development, advertising, marketing, sale or use of any aspect of
the
Licensed Products or the Marketing Materials.
NINTENDO
and LICENSEE shall give prompt Notice to the other of any Claim which is or
which may be subject to indemnification under this Section 10. With respect
to
such Claim, LICENSEE, as indemnitor, shall have the right to select counsel
and
to control the defense and/or settlement thereof. NINTENDO may, at its own
expense, participate in such action or proceeding with counsel of its own
choice. LICENSEE shall not enter into any settlement of any Claim in which
(i) NINTENDO has been named as a party, or (ii) Intellectual Property
Rights have been asserted without NINTENDO's prior written consent. NINTENDO
shall provide reasonable assistance to LICENSEE in its defense of any Claim.
10.3
LICENSEE's
Insurance.
LICENSEE shall, at its own expense, obtain a comprehensive policy of general
liability insurance (including coverage for advertising injury and product
liability Claims) from an insurance company rated at least B+ by A.M. Best
or a
comparable rating by another recognized insurance rating organization. Such
policy of insurance shall be in an amount of not less than the equivalent of
***
on a per-occurrence basis and shall provide for adequate protection against
any
Claims. Such policy shall name NINTENDO as an additional insured and shall
specify that it may not be canceled without thirty (30) days' prior written
Notice to NINTENDO. A Certificate of Insurance shall be provided to NINTENDO
not
later than the date of the initial order of Licensed Products under this
Agreement or within thirty (30) days of the Effective Date of this Agreement,
whatever date occurs later. If LICENSEE fails to provide NINTENDO with such
Certificate of Insurance or fails to maintain such insurance at any time during
the Term and for a period of two (2) years thereafter, NINTENDO, in its sole
discretion may: (a) terminate this Agreement in accordance with Section
13.2 herein; and/or (b) secure comparable insurance, at LICENSEE's expense,
for the sole benefit and protection of NINTENDO.
10.4
Suspension
of Production.
In the
event NINTENDO deems itself at risk with respect to any Claim under this
Section 10, NINTENDO may, at its sole option, suspend production, delivery
or order acceptance for any Licensed Products, in whole or in part, pending
resolution of such Claim.
11. PROTECTION
OF PROPRIETARY RIGHTS
11.1
Joint
Actions Against Infringers.
LICENSEE and NINTENDO may agree to jointly pursue cases of infringement
involving the Licensed Products, as such Licensed Products will contain
Proprietary Rights owned by each of them. Unless the parties otherwise agree,
or
unless the recovery is expressly allocated between them by the court, in the
event of such an action, any recovery shall be used first to reimburse LICENSEE
and NINTENDO for their respective reasonable attorneys' fees and costs,
pro rata,
and
any remaining recovery shall be distributed to LICENSEE and NINTENDO, pro rata,
based upon the fees and costs incurred in bringing such action.
11.2
Actions
by LICENSEE.
LICENSEE, without the consent of NINTENDO and to the extent permitted by law,
may bring any action or proceeding relating to an infringement or potential
infringement of LICENSEE's Proprietary Rights in the Licensed Products. LICENSEE
shall make reasonable good-faith efforts to inform NINTENDO of such actions
in a
timely manner. LICENSEE will have the right to retain all proceeds it may derive
from any recovery in connection with such actions.
11.3
Actions
by NINTENDO.
NINTENDO, without the consent of LICENSEE, may bring any action or proceeding
relating to an infringement or potential infringement of NINTENDO's Intellectual
Property Rights in the Licensed Products. NINTENDO shall, in a timely manner,
make reasonable good-faith efforts to inform LICENSEE of such actions likely
to
affect LICENSEE's rights. NINTENDO will have the right to retain all proceeds
it
may derive from any recovery in connection with such actions.
***Confidential
treatment requested.
PAGE
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CONFIDENTIAL
| 12. |
ASSIGNMENT
|
12.1
Definition.
"Assignment" means every type and form of assignment, transfer, sale,
sublicense, delegation, encumbrance, pledge and/or hypothecation of LICENSEE's
rights or obligations under this Agreement, including, but not limited to,
(a) a voluntary assignment, transfer, sale, sublicense, delegation,
encumbrance, pledge and/or hypothecation by LICENSEE of all or any portion
of
its rights or obligations under this Agreement, (b) the assignment,
transfer, sale, sublicense, delegation, encumbrance, pledge and/or hypothecation
of all or any portion of LICENSEE's rights or obligations under this Agreement
to or by LICENSEE's trustee in bankruptcy, receiver, or other individual or
entity appointed to control or direct the business and affairs of LICENSEE,
(c) an involuntary assignment, transfer, sale, sublicense, delegation,
encumbrance, pledge or hypothecation of all or a portion of LICENSEE's rights
or
obligations under this Agreement, including but not limited to a foreclosure
by
a third party upon assets of LICENSEE, (d) the merger or consolidation of
LICENSEE if LICENSEE is a corporation, and (e) any other means or method
whereby rights or obligations of LICENSEE under this Agreement are sold,
assigned or transferred to another individual or entity for any reason.
Assignment also includes the sale, assignment, transfer or other event affecting
a change in the controlling interest of LICENSEE, whether by sale, transfer
or
assignment of shares in LICENSEE, or by sale, transfer or assignment of
partnership interests in LICENSEE, or otherwise.
12.2
No
Assignment by LICENSEE.
This
Agreement and the subject matter hereof are personal to LICENSEE. No Assignment
of LICENSEE's rights or obligations hereunder shall be valid or effective
without NINTENDO's prior written consent, which consent may be withheld by
NINTENDO for any reason whatsoever in its sole discretion. In the event of
an
attempted Assignment in violation of this provision, NINTENDO shall have the
right at any time, at its sole option, to immediately terminate this Agreement.
Upon such termination, NINTENDO shall have no further obligation under this
Agreement to LICENSEE or to LICENSEE's intended or purported
assignee.
12.3
Proposed
Assignment.
Prior
to any proposed Assignment of this Agreement, LICENSEE shall give NINTENDO
not
less than thirty (30) days prior written Notice thereof, which Notice shall
disclose the name of the proposed assignee, the proposed effective date of
the
proposed Assignment and the nature and extent of the rights and obligations
that
LICENSEE proposes to assign. NINTENDO may, in its sole discretion, approve
or
disapprove such proposed Assignment. Unless written consent is given by NINTENDO
to a proposed Assignment, any attempted or purported Assignment shall be deemed
disapproved and NINTENDO shall have the unqualified right, in its sole
discretion, to terminate this Agreement at any time. Upon termination, NINTENDO
shall have no further obligation under this Agreement to LICENSEE or to
LICENSEE's intended or purported assignee.
12.4
LICENSEE's
Obligation of Non-Disclosure.
LICENSEE shall not (a) disclose NINTENDO's Confidential Information to any
proposed assignee of LICENSEE, or (b) permit access to NINTENDO's
Confidential Information by any proposed assignee or other third party, without
the prior written consent of NINTENDO to such disclosure.
| 13. |
TERM
AND TERMINATION
|
13.1
Term.
This
Agreement shall commence on the Effective Date and continue for the Term, unless
earlier terminated as provided for herein.
13.2
Default
or Breach.
In the
event that either party is in default or commits a material breach of this
Agreement which is not cured within thirty (30) days after Notice thereof,
then
this Agreement shall automatically terminate on the date specified in such
Notice.
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CONFIDENTIAL
13.3
Bankruptcy.
At
NINTENDO's option, this Agreement may be terminated immediately and without
Notice in the event that LICENSEE (a) makes an assignment for the benefit
of creditors, (b) becomes insolvent, (c) files a voluntary petition
for bankruptcy, (d) acquiesces to any involuntary bankruptcy petition,
(e) is adjudicated as a bankrupt, or (f) ceases to do
business.
13.4
Termination
Other Than by Breach.
Upon
(a) the expiration of this Agreement, (b) its termination other than
by LICENSEE's breach, or (c) termination of this Agreement by NINTENDO
after one hundred twenty days (120) Notice to LICENSEE in the event NINTENDO
reasonably believes that LICENSEE has developed, marketed, or sold a product
that infringes any intellectual property rights of NINTENDO anywhere in the
world (provided that if the parties are able to resolve such alleged
infringement within such 120-day period, such termination shall not take
effect), LICENSEE shall have a period of *** days to sell any unsold Licensed
Products. All Licensed Products in LICENSEE's control following the expiration
of such sell-off period shall be destroyed by LICENSEE within ten (10) days
and
proof of such destruction (certified by an officer of LICENSEE) shall be
provided to NINTENDO.
13.5
Termination
by LICENSEE's Breach.
If this
Agreement is terminated by NINTENDO as a result of a breach of its terms and
conditions by LICENSEE, LICENSEE shall immediately cease all distribution,
advertising, marketing or sale of any Licensed Products. All Licensed Products
in LICENSEE's control as of the date of such termination shall be destroyed
by
LICENSEE within ten (10) days and Notice of such destruction (with proof
certified by an officer of LICENSEE) shall be delivered to NINTENDO.
13.6
Breach
of NDA or Other NINTENDO License Agreements.
At
NINTENDO's option, any breach by LICENSEE of (a) the NDA, or (b) any other
license agreement between NINTENDO and LICENSEE relating to the development
of
games for any Nintendo video game system, which breach is not cured within
the
time period for cure allowed under the applicable agreement, (and which shall
give NINTENDO reasonable cause to believe that it needs to terminate this
Agreement so as to protect its legitimate business interests), shall be
considered a material breach of this Agreement, entitling NINTENDO to terminate
this Agreement in accordance with Section 13.5 herein.
13.7
No
Further Use of the Intellectual Property Rights.
Upon
expiration or termination of this Agreement, LICENSEE shall cease all use of
the
Intellectual Property Rights for any purpose, except as may be required in
connection with the sale of the Licensed Products authorized under
Section 13.4 herein. LICENSEE shall, within thirty (30) days of expiration
or termination, (a) return to NINTENDO all Development Tools provided to
LICENSEE by NINTENDO, and (b) return to NINTENDO or destroy any and all
copies of materials constituting, relating to, or disclosing any Confidential
Information, including but not limited to Guidelines, writings, drawings,
models, data and tools whether in LICENSEE's possession or in the possession
of
any past or present employee, agent or Independent Contractor who received
the
information through LICENSEE. Proof of such return or destruction shall be
certified by an officer of LICENSEE and promptly provided to
NINTENDO.
13.8
Termination
by NINTENDO's Breach.
If this
Agreement is terminated by LICENSEE as a result of a breach of its terms or
conditions by NINTENDO, LICENSEE may continue to sell the Licensed Products
in
the Territory until the expiration of the Term, at which time the provisions
of
Section 13.4 shall apply.
| 14. |
GENERAL
PROVISIONS
|
14.1
Compliance
with Applicable Laws and Regulations.
LICENSEE
shall at
all times comply with applicable laws, regulations and orders in the countries
of the Territory relating to or in any way affecting this Agreement and
LICENSEE's
performance under this Agreement, including, without limitation, the export
laws
and regulations of any country with jurisdiction over the Intellectual Property
Rights, Licensed Products, Development Tools and/or either party. LICENSEE
shall
not market, distribute, or sell the Game and/or Game Cards in any country in
the
Territory in which such marketing, distribution or sale would violate any
applicable laws, regulations or orders of such country.
***Confidential
treatment requested
PAGE
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14.2
Force
Majeure.
Neither
party shall be liable for any breach of this Agreement occasioned by any cause
beyond the reasonable control of such party, including governmental action,
war,
terrorism, riot or civil commotion, fire, natural disaster, labor disputes,
restraints affecting shipping or credit, delay of carriers, inadequate supply
of
suitable materials or any other cause that could not with reasonable diligence
be controlled or prevented by the parties. In the event of material shortages,
including shortages of materials or production facilities necessary for
production of the Licensed Products, NINTENDO reserves the right to allocate
such resources among itself and its licensees.
14.3
Records
and Audit.
During
the Term and for a period of two (2) years thereafter, LICENSEE agrees to keep
accurate, complete and detailed records relating to the use of the Confidential
Information, the Development Tools and the Intellectual Property Rights. Upon
reasonable Notice to LICENSEE, NINTENDO may, at its expense, arrange for a
third
party audit of LICENSEE's records, reports and other information related to
LICENSEE's compliance with this Agreement; provided, however, that NINTENDO
shall not, during the course of the audit, access LICENSEE's source code,
development plans, marketing plans, internal business plans or other items
deemed confidential by LICENSEE, except to the extent such materials
incorporate, disclose or reference NINTENDO's Confidential Information or
Intellectual Property Rights.
14.4
Waiver,
Severability, Integration, and Amendment.
The
failure of a party to enforce any provision of this Agreement shall not be
construed to be a waiver of such provision or of the right of such party to
thereafter enforce such provision. In the event that any term, clause or
provision of this Agreement shall be construed to be or adjudged invalid, void
or unenforceable, such term, clause or provision shall be construed as severed
from this Agreement, and the remaining terms, clauses and provisions shall
remain in effect. Together with the NDA, this Agreement constitutes the entire
agreement between the parties relating to the subject matter hereof. All prior
negotiations, representations, agreements and understandings are merged into,
extinguished by and completely expressed by this Agreement and the NDA. Any
amendment to this Agreement shall be in writing, signed by both
parties.
14.5
Survival.
In
addition to those rights specified elsewhere in this Agreement, the rights
and
obligations set forth in Sections 3, 8, 9, 10, 11, 13.4, 13.7, 13.8 and 14
shall survive any expiration or termination of this Agreement to the degree
necessary to permit their complete fulfilment or discharge.
14.6
Governing
Law and Venue.
This
Agreement shall be governed by the laws of Japan, without regard to its conflict
of laws principles. Any legal action (including judicial and administrative
proceedings) with respect to any matter arising under or growing out of this
Agreement, shall be brought in the Kyoto District Court. Each party hereby
consents to the jurisdiction and venue of such courts for such
purposes.
14.7
Injunctive
Relief.
LICENSEE acknowledges that in the event of its breach of this Agreement, no
adequate remedy at law may be available to NINTENDO and that NINTENDO shall
be
entitled to seek injunctive or other similar available relief in addition to
any
additional relief available to NINTENDO.
14.8
Attorneys'
Fees.
In the
event it is necessary for either party to this Agreement to undertake legal
action to enforce or defend any action arising out of or relating to this
Agreement, the prevailing party in such action shall be entitled to recover
from
the other party all reasonable attorneys' fees, costs and expenses relating
to
such legal action or any appeal therefrom.
14.9
Expansion
of Rights. NINTENDO
may expand the rights granted to LICENSEE under this Agreement by providing
written notice of such expansion of rights to LICENSEE and without having to
enter into a written addendum to the present Agreement with LICENSEE.
14.10
Delegation
of Duties. NINTENDO,
at its option, may delegate its duties under the present Agreement to a wholly
owned subsidiary. To the extent necessary for the parties to carry out their
duties under this Agreement, NINTENDO shall provide notice to LICENSEE of any
such delegation, including to whom at NINTENDO's wholly owned subsidiary
communications from LICENSEE under this Agreement may be directed. Also in
the
event of a delegation by NINTENDO, the provisions of this Agreement shall
continue to govern the relationship between NINTENDO and LICENSEE and shall
govern the relationship between NINTENDO's subsidiary and LICENSEE, subject
to
any amendments or modifications to this Agreement which such subsidiary and
LICENSEE may agree to in their relationship. NINTENDO shall remain obligated
under the present Agreement for the performance of NINTENDO's duties by
NINTENDO's subsidiary.
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CONFIDENTIAL
14.11
Counterparts
and Signature by Facsimile.
This
Agreement may be signed in counterparts, which shall together constitute a
complete Agreement. A signature transmitted by facsimile or electronically
via
computer network shall be considered an original for purposes of this
Agreement.
IN
WITNESS WHEREOF, the parties have entered into this Agreement on the dates
set
forth below.
|
NINTENDO:
|
LICENSEE:
|
|
NINTENDO
CO., LTD.
|
ZOO
DIGITAL PUBLISHING LTD.
|
|
By:
|
By:
|
|
Name:
|
Name:
|
|
Title:
|
Title:
|
|
Date:
|
Date:
|
Enclosure:
Annex
A -
Guidelines on Ethical Content
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Annex
A
Guidelines
on Ethical Content
The
following Guidelines on Ethical Content are presented for assistance in the
development of Games by defining the types of the theme inconsistent with
NINTENDO's corporate philosophy. Exceptions may be made when necessary to
maintain the integrity of the Game or the Game's theme. Games shall
not:
| (a) |
contain
sexually explicit content including but not limited to nudity, rape,
sexual intercourse and sexual touching; for instance, NINTENDO does
not
allow bare-breasted women in Games, however, mild displays of affection
such as kissing or hugging are
acceptable;
|
| (b) |
contain
language or depictions which specifically denigrate members of any
race,
gender, ethnicity, religion or political
group;
|
| (c) |
depict
gratuitous or excessive blood or violence. NINTENDO does not permit
depictions of animal cruelty or
torture;
|
| (d) |
depict
verbal or physical spousal or child
abuse;
|
| (e) |
permit
racial, gender, ethnic, religious or political stereotypes; for example,
religious symbols such as crosses will be acceptable when fitting
into the
theme of the Game and not promoting a specific religious
denomination;
|
| (f) |
use
profanity, obscenity or incorporate language or gestures that are
offensive by prevailing public standards and tastes;
and
|
| (g) |
promote
the use of illegal drugs, smoking materials, tobacco and/or alcohol;
for
example NINTENDO does not allow gratuitous beer or cigarette advertisement
anywhere in a Game; however, Sherlock Xxxxxx smoking a pipe would
be
acceptable as it fits the theme of the
Game.
|
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