CONFIDENTIAL LICENSE AGREEMENT FOR THE Wii™ CONSOLE (EEA, AUSTRALIA, AND NEW ZEALAND)
CONFIDENTIAL
LICENSE AGREEMENT
FOR
THE Wii™ CONSOLE
(EEA,
AUSTRALIA, AND NEW ZEALAND)
THIS
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 Business Administration
Department (Fax: 00.00.000.0000), and ACTIVISION, INC., a corporation
of Delaware, and its subsidiaries (Activision Publishing, Inc., a corporation
of
Delaware, Activision UK, Ltd., a limited company of the United Kingdom; ATVI
France, S.A.S., a corporation of France; Activision GmbH, a corporation of
Germany, and Activision Pty., Ltd., a limited company of Australia) (jointly
and
severally "LICENSEE") at 0000 Xxxxx Xxxx Xxxx., Xxxxx Xxxxxx, XX 00000,
Attn: Mr. Xxxxxx Xxxx (Fax: 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 Wii™ video game console ("Wii™").
1.2 LICENSEE
desires use of the highly proprietary programming specifications, 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 Wii™.
1.3 NINTENDO
is willing to grant a license to LICENSEE on the terms and conditions set
forth
in this Agreement.
2. |
DEFINITIONS
|
2.1 "Artwork"
means the text and design specifications for the Game Disc label and the
Printed
Materials in the format specified by NINTENDO in the Guidelines.
2.2 "Bulk
Goods" means Game Discs printed with the Game Disc label portion of the
Artwork
for delivery to LICENSEE without Printed Materials or other packaging.
2.3 "Check
Disc(s)" means the pre-production Game Discs to be produced by
NINTENDO.
2.4 "Confidential
Information" means the information described in Section 8.1.
2.5 "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.
2.6 "Effective
Date" means the date that LICENSEE placed its first order for Licensed
Products
of October 24, 2006.
2.7 "Finished
Product(s) means the fully assembled Game Disc with a Game Disc label,
Printed
Materials, and packed in a plastic storage case;
2.8 "Game
Disc(s)" means custom optical discs for play on Wii™ on which a Game has been
stored.
2.9 "Game(s)"
means any interactive programs (including source and object/binary code)
developed to be compatible with Wii™.
-1-
2.10 "Guidelines"
means the then-current version of "Wii™ Programming Guidelines;" "Licensee
Packaging Guidelines" pertaining to the layout, trademark usage and requirements
of the Game Disc label, instruction manual and Game Disc packaging; "Marketing
Materials"; "Nintendo Trademark Guidelines;" "Guidelines on Ethical Content";
and "Nintendo Wii™ Software Submission Requirements," together with other
guidelines provided by NINTENDO 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.
2.11 "Independent
Contractor" means any individual or entity that is not an employee of LICENSEE,
including any independent programmer, consultant, contractor, board member
or
advisor.
2.12 "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
WiiTM
including NintendoTM, WiiTM, Official Nintendo Seal of QualityTM, and MiiTM,
(b) select trade dress associated with Wii™ and licensed video games for
play thereon, (c) Proprietary Rights in the Security Technology employed in
the Games or Game Discs by Nintendo, (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, design registrations, utility models or copyrights which
may be
associated with the Game Discs or Printed Materials, (f) copyrights in the
Guidelines, and (g) other Proprietary Rights of Nintendo in the
Confidential Information.
2.13 "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.
2.14 "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 Disc.
2.15 "NDA"
means the non-disclosure agreement related to Wii™ previously entered into
between NINTENDO and/or NOA and LICENSEE.
2.16 "NOA"
means NCL's subsidiary, Nintendo of America Inc. of Redmond, Washington,
USA.
2.17 "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.
2.18 "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.
-2-
2.19 "Printed
Materials" means title page, instruction booklet, precaution booklet, and
optional printed materials.
2.20 "Promotional
Disc(s)" means custom optical discs compatible with Wii™ that incorporate select
game promotional or supplemental materials, as may be specified or permitted
in
the Guidelines.
2.21 "Proprietary
Rights" means any rights or applications for rights owned, licensed or
otherwise
held in patents, patent applications, utility models, registered design
rights,
unregistered design rights, trademarks, service marks, copyrights, and
neighboring rights, semiconductor chip layouts or masks, database rights,
trade
secrets, trade dress, get up, 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, utility models, registered
design rights, unregistered design rights, trademarks, service marks,
copyrights, and neighboring rights, semiconductor chip layouts or masks,
database rights, trade secrets, trade dress, get up, moral rights or publicity
rights may exist or may be sought and obtained in the future.
2.22 "Rebate
Program" means any then-current version of NINTENDO's optional rebate program,
establishing select terms for price rebates under this Agreement.
2.23 "Reverse
Engineer(ing)" 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.
2.24 "Security
Technology" means the highly proprietary security features of the Wii™ 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, or with respect to a video game system other than the Wii™, or
limits distribution outside of the Territory.
2.25 "Sole
License" means a license under which only the licensor and a single licensee
can
utilize the subject matter of the license.
2.26 "Term"
means three (3) years from the Effective Date.
2.27 "Territory"
means any and all countries within the European Economic Area; namely Austria,
Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France,
Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein,
Lithuania, Luxembourg, Malta, the Netherlands, Norway, Poland, Portugal,
Romania, Slovakia, Slovenia, Spain, Sweden, and the United Kingdom. The
Territory shall also include Australia, New Zealand, Russia, Switzerland
and
Turkey. NINTENDO may add additional countries to the Territory upon written
notice to LICENSEE.
2.28 "TM"
means trademark of NINTENDO, whether registered or not.
2.29 "Wii
Network Services" means and includes the Wii Shop Channel Services,
Wii™Connect24, and any related services and material delivered to a consumer's
Wii™ console over the Internet.
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-
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 Wii™ 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.
3.3 Restrictions
on License Grant. NINTENDO does not guarantee that the hardware for the Wii™
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 Wii™ systems, or between Wii™ and 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,
multiplayer, 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 or device other than Wii™, the
Nintendo DS system, the Development Tools or such other Nintendo system
as
NINTENDO may authorize in the Guidelines;
(e) embed,
incorporate, or store a Game in any media or format except the optical
disc
format utilized by Wii™, except as may be necessary as a part of the Game
development process under this Agreement;
(f) 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;
(g) utilize
the Intellectual Property Rights to design or develop any interactive video
game
program, except as authorized under this Agreement;
(h) manufacture
or reproduce a Game developed under this Agreement, except through NINTENDO;
or
(i) Reverse
Engineer or assist in Reverse Engineering all or any part of Wii™, including the
hardware, software (embedded or not) or the Security Technology, except
as
specifically permitted under the laws and regulations applicable in the
Territory.
-4-
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.
Anything
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 NINTENDO and NOA 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 NINTENDO and NOA a royalty-free and transferable
non-exclusive License (including the right to sub-license) in relation
to such
Independent Applications for the Term. Anything 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 Games
Developed for Linked Play on Two Systems. In the event the Guidelines permit
LICENSEE to develop a Game for simultaneous or linked play on Wii™ and on
another Nintendo video game system, LICENSEE shall be required to acquire
and
maintain with NINTENDO such additional licenses as are necessary for the
use of
the Proprietary Rights associated with such other Nintendo video game system.
3.6 In-Game
Advertising. LICENSEE shall not include advertising or product placements
for products or services of third parties, whether in the Game, as separate
content on a Game Disc (e.g., a trailer), or in the Printed Materials,
without
NINTENDO's prior written consent.
3.7 Use
of
Mii™ Characters. LICENSEE shall not develop any Game that permits
NINTENDO's Mii™ characters to appear in the Game without NINTENDO's prior
written consent.
3.8 Sending
Data to Consumers. LICENSEE shall not, without the prior written consent of
NINTENDO, send any data, content, messages, advertising, or other communications
of any kind to any consumer's Wii™ console through the Wii™ Network Services or
otherwise.
3.9 Downloadable
Content. If LICENSEE desires to develop Games or updates/additions of any
kind for any Licensed Product, to be downloaded to consumers through the
Wii
Network Services, the terms and conditions of such development shall be
separately agreed in writing between the parties. LICENSEE acknowledges
that the
rights granted herein do not include the right to use the Intellectual
Property
Rights to develop downloadable content.
4. |
SUBMISSION
AND APPROVAL OF GAME AND
ARTWORK
|
4.1 Submission
of a Completed Game to NINTENDO. 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. LICENSEE
must establish that the Game and any other content included on the Game
Disc
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.
-5-
4.2 Testing
of a Completed Game. Upon submission of a completed Game, NINTENDO shall
promptly test the Game with regard to its technical compatibility with,
and
error-free operation on, Wii™ utilizing the lot check process. Within a
reasonable period of time after receipt, NINTENDO shall approve or disapprove
such Game. If a Game is disapproved, NINTENDO shall specify in writing
the
reasons for such disapproval and state what corrections are necessary.
After
making the necessary corrections, LICENSEE shall submit a revised Game
to
NINTENDO for testing. NINTENDO shall not unreasonably withhold or delay
its
approval of any Game. Neither the testing nor approval of a Game by NINTENDO
shall relieve LICENSEE of its sole responsibility for the development,
quality
and operation of the Game or in any way create any warranty by NINTENDO
relating
to any Licensed Product.
4.3 Production
of Check Discs. By submission of a completed Game to NINTENDO in accordance
with Section 4.1, LICENSEE authorizes NINTENDO to proceed with production
of Check Discs for such Game. If NINTENDO approves a Game, it shall promptly,
and without further notification to or instruction from LICENSEE, submit such
Game for the production of Check Discs. Unless otherwise advised by LICENSEE,
following production of the Check Discs, NINTENDO shall deliver to LICENSEE
approximately ten (10) Check Discs for content verification, testing and
final
approval by LICENSEE.
4.4 Approval
or Disapproval of Check Discs by LICENSEE. If, after review and testing,
LICENSEE approves the Check Discs, it shall promptly transmit to NINTENDO
a
signed authorization for production in the form specified in the Guidelines.
If
LICENSEE does not approve the sample Check Discs for any reason, LICENSEE
shall
advise NINTENDO in writing and may, after undertaking any necessary changes
or
corrections, resubmit the Game to NINTENDO for approval in accordance with
the
procedures set forth in this Section 4. The absence of a signed
authorization form from LICENSEE within five (5) days after delivery of
the
Check Discs to LICENSEE shall be deemed disapproval of such Check Discs.
Production of any order for Finished Goods or Bulk Goods shall not proceed
without LICENSEE's signed authorization.
4.5 Cost
of Check Discs and Disc Xxxxxxx. If LICENSEE: (a) disapproves the Check
Discs for any reason (except if the disapproval is due to defects in or
failure
of the Check Discs due to NINTENDO's act, error or omission); (b) fails to
order the minimum order quantity of any Game approved by NINTENDO within
six (6)
months after the date the Game was first approved by NINTENDO; or
(c) submits a revised version of the Game to NINTENDO after production of
such Game has commenced, LICENSEE shall reimburse NINTENDO (or its designee)
for
the reasonable estimated cost of the production of the Check Discs, including
the cost of the disc xxxxxxx. The payment will be due (i) thirty (30) days
after NINTENDO's written notification to LICENSEE of the Check Disc fee
due
NINTENDO because of LICENSEE's failure to approve such Check Disc; (ii) six
(6) months after the date the Game was first approved by NINTENDO; or
(iii) upon the subsequent submission by LICENSEE of a revised version of
the Game to NINTENDO, as the case may be.
-6-
4.6 Submission
and Approval of Artwork. Prior to submitting a completed Game to NINTENDO
under Section 4.1, LICENSEE shall 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 the 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.
4.7 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 4.6 herein. No Printed
Materials shall be produced by LICENSEE until such Artwork has been approved
by
NINTENDO.
4.8 Promotional
Discs. In the event NINTENDO issues Guidelines in the future that permit
LICENSEE to develop and distribute Promotional Discs, either separately
or as a
part of the Licensed Product, the content and specifications of such Promotional
Disc shall be subject to all of the terms and conditions of this Agreement,
including, without limitation, the Guidelines, the Price Schedule and the
submission and approval procedures provided for in this Section 4.
5.
|
ORDER
PROCESS, PURCHASE PRICE, PAYMENT AND
DELIVERY
|
5.1 Submission
of Orders by LICENSEE. After receipt of NINTENDO's approval for a Game and
Artwork, LICENSEE may at any time submit a written purchase order 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 control over any contrary or additional terms of such
purchase order or any other written documentation or verbal instruction
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 a single Game Disc. 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 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 *** units for Finished
Products
and *** units for Bulk Goods. 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
-7-
5.5 Rebate
Program. NINTENDO, at its sole option, may elect to offer LICENSEE a Rebate
Program. The terms and conditions of any Rebate Program shall be subject
to
NINTENDO's sole discretion. LICENSEE shall not be entitled to offset any
claimed
rebate amount against other amounts owing NINTENDO. No interest shall be
payable
by NINTENDO to LICENSEE on any claimed rebate. The Rebate Program is subject
to
change or cancellation by NINTENDO at any time without
Notice.
6. |
MANUFACTURE
OF THE LICENSED
PRODUCT
|
6.1 Manufacturing.
Given NINTENDO's ownership of valuable Intellectual Property Rights, NINTENDO
shall be the exclusive source for the manufacture of the Game Discs, Check
Discs
and Promotional Discs, with responsibility for 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.
Upon
acceptance by NINTENDO of a purchase order from LICENSEE and receipt of
payment
as provided for at Section 5.3 herein, NINTENDO shall (through its
suppliers and subcontractors) arrange for manufacturing.
6.2 Security
Features. The final release version of the Game, the Game Disc and the
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 the LICENSEE,
(c) promote consumer confidence, and (d) increase the quality,
reliability or operation of Wii™.
6.3 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.
6.4 Sample
Printed Materials. Within a reasonable period of time after LICENSEE's
assembly of an initial order for Bulk Goods for a Game title, LICENSEE
shall
provide NINTENDO with (a) two (2) samples of the fully assembled
Licensed Product, and (b) twenty (20) samples of the LICENSEE produced
Printed Materials (excluding the plastic disc storage case, precaution
booklet,
and other optional printed materials) for such Game title.
6.5 Retention
of Sample Licensed Products by NINTENDO. NINTENDO may, at its own expense,
manufacture reasonable quantities of the Game Discs 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 and regulations and official codes of practice in those
jurisdictions in the Territory where they will be used or distributed,
including
without limitation all applicable privacy laws. 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, 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
of 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.
NINTENDO shall not unreasonably withhold or delay its approval of any proposed
Marketing Materials. No Marketing Materials shall be used or distributed
by
LICENSEE without NINTENDO's prior written approval.
-8-
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 Games or Game Discs that have been bundled with (a) any
peripheral designed for use with Wii™ 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
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 covenants 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) 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, which promote NINTENDO products,
services or programs, and (b) 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 which promote such video game products. NCL shall submit to LICENSEE
for
review printed materials and related art for the Game that NCL intends
to use in
publications or media or marketing programs.
7.8 Nintendo
Gateway System. To promote and increase demand for games on Nintendo video
game systems, NINTENDO licenses select games 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
hardware referred to as the "Nintendo Gateway System". If NINTENDO identifies
a
Game for possible license on the Nintendo Gateway System, the parties agree
to
conduct good faith negotiations to determine commercially reasonable terms
for
such participation.
-9-
8. |
CONFIDENTIAL
INFORMATION
|
8.1 Definition.
Confidential Information means information provided to LICENSEE by NINTENDO
or
any third party working with NINTENDO relating to the hardware and software
for
Wii™ 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 which was in the public domain prior to LICENSEE's
receipt of the same hereunder, or which subsequently becomes part of the
public
domain by publication or otherwise, except by LICENSEE's wrongful act or
omission, (ii) data and information which LICENSEE can demonstrate, through
written records kept in the ordinary course of business, was in its possession
without restriction on use or disclosure, prior to its receipt of the same
hereunder, and was not acquired directly or indirectly from NINTENDO or
NOA
under an obligation of confidentiality which is still in force, and
(iii) data and information which LICENSEE can show was 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.
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, and that expressly includes
the following language, prior to receiving any access to or disclosure
of the
Confidential Information from either LICENSEE or NINTENDO:
"Independent
Contractor may have access to highly-confidential and proprietary information,
intellectual property, and trade secrets of Nintendo Co., Ltd. and/or Nintendo
of America Inc. (collectively, "Nintendo"). Independent Contractor expressly
acknowledges (i) the valuable nature of such materials; and
(ii) Nintendo's right, title and interest in such materials. All such
materials constitute confidential information under this agreement and
shall be
treated by Independent Contractor as such. Independent Contractor's use
of such
materials shall not create any right, title or interest of Independent
Contractor therein. In the event that Independent Contractor challenges
Nintendo's ownership or the validity of such materials, Nintendo may terminate
the agreement without any notice or procedure. Nintendo Co., Ltd. and Nintendo
of America Inc. are intended third-party beneficiaries of this
agreement."
-10-
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.
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 unauthorized 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.
***Confidential
treatment requested
-11-
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 or used in
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 incorporation into the Game or the Artwork or as are used in the
development, advertising, marketing and sale of the Licensed Products or
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
(b) the
execution, delivery and performance of this Agreement by NINTENDO do not
conflict with any agreement or understanding to which NINTENDO may be
bound.
9.3 NTELLECTUAL
PROPERTY RIGHTS DISCLAIMER.
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 ANY 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.
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.
-12-
9.5 LIMITATION
OF LIABILITY.
TO THE
MAXIMUM EXTENT PERMITTED BY LAW, NEITHER NINTENDO NOR ITS AFFILIATES,
SUBSIDIARIES, LICENSORS, SUPPLIERS, OR SUBCONTRACTORS 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,
(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 any 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
(a) NINTENDO has been named as a party, or (b) 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 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.
***Confidential
treatment requested
-13-
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
make, in a timely manner, 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.
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.
-14-
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.
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 the expiration of this Agreement or its
termination other than by LICENSEE's breach, LICENSEE shall have a period
of ***
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 Notice of such destruction (with proof
certified by an officer of LICENSEE) shall be delivered 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.
***Confidential
treatment requested
-15-
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 Discs in any country
in the
Territory in which such marketing, distribution or sale would violate any
applicable laws, regulations or orders of such country.
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, 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 which 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 fulfillment 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 actions (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 court
for such purposes.
-16-
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.
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.
NCL:
|
LICENSEE:
|
Nintendo
Co., Ltd.
|
Activision,
Inc.
|
By:
|
By:
|
Xxxxxx
Xxxx
|
|
President
|
General
Counsel
|
Date:
|
Date:
|
Activision
Publishing, Inc.
|
|
By:
|
|
Xxxxxx
Xxxx
|
|
Title:
|
|
Date:
|
-17-
Activision
UK, Ltd.
|
|
By:
|
|
Xxxxxx
Xxxx
|
|
Director
|
|
Date:
|
|
ATVI
France, S.A.S.
|
|
By:
|
|
Xxxxxx
Xxxx
|
|
Director
|
|
Date:
|
|
Activision
GmbH
|
|
By:
|
|
Xxxxxx
Xxxx
|
|
Managing
Director
|
|
Date:
|
|
Activision
Pty, Ltd.
|
|
By:
|
|
Xxxxxx
Xxxx
|
|
Director
|
|
Date:
|
Enclosure:
Annex A:
Guidelines on Ethical Conduct
-18-
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.
|
JEN:hjd
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