EXHIBIT 10.9
Application Development Agreement
This application development agreement ("Agreement") by and between Intel
Corporation, a Delaware corporation having a place of business at 0000 Xxxxxxx
Xxxxxxx Xxxx., Xxxxx Xxxxx, XX 00000 ("Intel") and Mpath Interactive, Inc.
("Developer"), a corporation having a place of business at 000 Xxxxx Xxxxxx,
Xxxxxxxx Xxxx, XX 00000 is effective November 19, 1998 (the "Effective Date").
Background
A. Intel is in the business of developing and marketing microprocessors
and associated chipsets. In connection with the anticipated introduction of
Intel's Katmai Processor and the capabilities enabled by Processor Number, Intel
desires to have certain Applications available for use in connection with its
marketing efforts.
B. In exchange for certain marketing rights described in this Agreement,
Intel is willing to sponsor Developer's creation of an application which will
use and demonstrate the advantages of Intel's Katmai Processor and Processor
Number features, all as described below.
Agreement
Intel and Developer agree as follows:
1. Developer's Efforts
1.1 Definitions:
1.1.1 The Application. The title of the application is
xxxxxxx.xxx. In this Agreement it is referred to as the "Application." A
description of the Application is appended as Attachment A.
1.1.2 "Katmai Launch" means the day on which Intel formally
announces and Original Equipment Manufacturers make available for sale,
personal computer systems based on the Katmai Processor. The target date
for the Katmai Launch is March 1, 1999.
1.2 Development Efforts. Developer shall use commercially reasonable
efforts to meet the Target Delivery Dates set out below and shall report to
Intel on the progress of the Application's development at least biweekly. Intel
may call periodic detailed design review meetings with Developer at reasonable
intervals. Intel shall maintain Developer's confidential disclosures in
confidence pursuant to CNDA #75561. The development plan is set out with
greater detail in Attachment B.
Milestone Target Delivery Date
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Execution of the Agreement [XXXXX]
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Functional and demonstrable incorporation of processor # reference [XXXXX]
implementation*
(Problem button cut into client)
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Functional and demonstrable incorporation of processor # reference [XXXXX]
implementation into xxxxxxx.xxx*
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Katmai-Only Protected Room incorporation live on xxxxxxx.xxx March 1, 1999
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* Must be functional with Katmai references in the xxxxxxx.xxx QA lab but
no publicly visible Katmai references may be made.
1.3 Pre-Existing Works and Licenses. Developer shall identify on
Attachment A any preexisting works upon which the Application is based.
Developer need not identify standard development tools which do not affect the
right to distribute titles based on their use. Developer shall also identify
any contractual or other known limitations on its rights to distribute or
demonstrate the Application publicly or to license Intel or its licensees to do
so.
1.4 Platform Dependencies. The dates set out herein are based on certain
anticipated introduction dates of certain Intel products. If such dates are
extended by Intel in its sole discretion then Intel shall notify Developer of
such extensions and the Target Delivery Dates and other dates related to them
shall be extended by a like period.
1.5 Application Obligations. Developer will offer users of its
xxxxxxx.xxx game service the Application for a period of at least [XXXXX] from
initial Katmai launch. Developer shall perform measurement as described in
Attachment D.
2. Technical Assistance from Intel
2.1 Intel Technology. Intel shall provide Developer with the information,
development software, and loaner hardware/systems identified on Attachment C
("Intel's Technical Assistance"), and may provide other similar items to
Developer, (collectively "Intel Technology"). Intel Technology remains Intel's
property and is deemed confidential information delivered under CNDA #75561
executed by and between the parties as of March 8, 1996.
2.2. Intel Consulting. Depending on Developer's interest and needs and
availability of Intel staff, Intel may provide consultation to Developer on
methods to improve the Application to take advantage of Processor Number, the
Katmai Processor, and on technical problems encountered in developing the
Application.
2.3 As Is. The Intel Technology, and any Intel consulting, is provided
"AS IS" with no warranties.
[XXXXX] CONFIDENTIAL TREATMENT REQUESTED
OMITTED PORTIONS FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
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3. Marketing Rights; Sponsorship Payments
3.1 Demonstration and Marketing Rights. Unless and until Intel's rights
are terminated under the terms of this Agreement, Intel shall have the following
worldwide rights and licenses:
3.1.1 Intel may use and display the Application publicly and
privately in displays, performances, and broadcasts for promotional
purposes, including at trade shows, in customer visits, in advertisements,
and by means of video or other electronic transmission of sounds, text and
images. Intel may license other parties to exercise such rights in
connection with the promotion and marketing of Intel products, but shall
not license or distribute copies of the Application for end-user
distribution except as expressly permitted in writing.
3.1.2 Intel may include copies of the sounds, text and images
included in the Application (including software screen displays) in Intel's
printed and digital publications for promotional purposes. This includes
use in annual reports, corporate web site, advertising, and point-of-sale
displays, all of which may be reproduced and distributed.
3.1.3 Except as provided in the following section, Developer may not,
without prior written approval from Intel, display, perform publicly, or in
any other way show the Katmai to a third party until the Katmai Launch. The
parties agree to negotiate, in good faith, a written, mutually acceptable
arrangement to use Developer's elite beta testing group to test the
Application.
3.1.4 The Developer shall not use Intel's name, logos, or trademarks
for marketing purposes without Intel's written permission.
3.15 Developer will designate Application-enabled game rooms with
text or pictorials subject to Intel approval.
3.1.6 Intel may copy the Application as reasonably necessary to
exercise the rights granted hereunder, provided that any copies of the
Application provided to third parties permitted hereunder shall be under a
commercially reasonable "shrink-wrap," "click-wrap," or similar license
terms which prohibit reverse engineering, reverse compiling, reducing to
human perceivable form, disassembling, copying and distribution not
permitted hereunder.
3.2 Sponsorship Payments. Intel shall make a first sponsorship fee
payment of [XXXXX] upon execution hereof. Thereafter, within thirty days of
Developer's completion and delivery of each of the following milestones
(including as they may be further defined in this Agreement), Intel shall either
notify Developer that it will pay Developer the sponsorship fee set out below or
decline to do so. If Intel declines to pay the sponsorship fee, then Intel's
license under Section 3.1 shall terminate, Intel must make the appropriate
payment under Section 4.3 and Intel shall discontinue all activities thereunder
within sixty days from such delivery, otherwise, Intel shall pay the appropriate
fee as set out below.
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Milestone Date Sponsorship Fee
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Execution of this Agreement [XXXXX] [XXXXX]
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Functional and demonstrable incorporation of [XXXXX] [XXXXX]
processor # reference implementation
(Problem button cut into client)*
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Functional and demonstrable incorporation of [XXXXX] [XXXXX]
processor # reference implementation into
xxxxxxx.xxx*
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Katmai-Only Room incorporation live on xxxxxxx.xxx** March 1, 1999 [XXXXX]
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Total [XXXXX]
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* Must be functional with Katmai references in the xxxxxxx.xxx QA lab but
no publicly visible Katmai references may be made.
** Production release with publicly visible Katmai references.
3.3 Manner of Payment. All payments shall be made in US dollars, and
shall be sent to the address specified in this Agreement.
3.4 Discretionary Exercise. Intel's exercise of its rights hereunder will
be at Intel's sole discretion, and Intel is not hereby committing to use the
Application in any activities or to refrain from using any other product in any
activities.
4. Term and Termination
4.1 Term. This Agreement expires on March 31, 2001, unless earlier
terminated pursuant to its terms.
4.2 Termination. Before payment of the final sponsorship fee hereunder,
either party may terminate this Agreement at any time with or without cause by
giving the other written notice of termination. After such payment, a party may
terminate this Agreement by written notice if the other party is in material
breach of any of its terms and fails to cure such breach within thirty (30) days
after receipt of written notice of such breach.
4.3 Effect of Termination. If Intel terminates the Agreement other than
for breach, Developer may retain all sponsorship fees paid hereunder without
further obligation and Intel agrees to pay Developer [XXXXX] specified in
Section 3.2. The parties agree that in no event will the payment made by Intel
for termination for convenience exceed the amount of the next milestone
payment. If however Developer terminates the Agreement other than for breach,
it shall refund all fees received from Intel hereunder. Regardless of the
reason for termination, Developer shall retain full title to its own work in
the Application, but Developer shall on Intel's written request, return all
materials that Intel provided hereunder.
[XXXXX] CONFIDENTIAL TREATMENT REQUESTED
OMITTED PORTIONS FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
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5. Developer Support and Warranty
5.1 Support. Developer shall provide technical support for the
Application consistent with standard commercial practices.
5.2 Rights. Developer warrants and represents that it has or shall obtain
all rights necessary to undertake the activities described in this Agreement and
to grant the licenses described herein. Developer shall promptly notify Intel
of any charge or claim of infringement of any third party's right relating to
development, distribution, or display of the Application.
5.3 Suits based on Application. Developer shall defend, indemnify, and
hold Intel harmless from and against any suit or proceeding brought against
Intel, its subsidiaries or customers, based upon Intel's use, as authorized in
this Agreement, of the Application, including any claim that the Application
infringes any third-party intellectual property right (a "Claim"). Developer's
indemnity will include all damages and costs awarded, including reasonable
attorneys' fees, and settlement costs, provided that Intel shall not settle any
claim without Developer's consent.
5.3.1 Intel shall promptly notify Developer of any Claim and will
provide information, assistance, and cooperation in defending against it (at
Developer's expense).
5.3.2 Intel will have the right to participate in the defense of any
Claim, at its own expense.
5.3.3 If there appears, in Intel's opinion, to be a reasonable
likelihood that distribution of any portion of the Application may be found to
infringe the rights of any third party, then Intel may terminate this Agreement.
5.3.4 This indemnity shall not apply to portions of the Application
prepared or provided by Intel.
6. General Provisions
6.1 Confidential Terms. The parties may disclose, subject to written
confidentiality agreement, this Agreement to their lawyers, accountants and in
the course of due diligence for investment or financing. Intel and Developer
may each make press releases about the existence and contents of the Agreement
(except with respect to specific financial terms) with the prior approval of the
other of the contents of the press release, which approval shall not be
unreasonably withheld or delayed. In no event will any press release be made
prior to [XXXXX] launch without mutual written consent.
6.2 Title. Except for the licenses expressly provided here, no licenses
are granted by either party, either expressly or by implication, to any
intellectual property of the other.
6.3 Relationship of Parties. The parties are not partners or joint
venturers, or liable for the obligations, acts, or activities of the other.
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6.4 Amendments and Assignments. Any change, modification or waiver to
this Agreement must be in writing and signed by an authorized representative of
each party. Neither party may assign its rights or obligations under this
Agreement, by operation of law or otherwise, without the express written consent
of the other party; except that either party may assign this Agreement to an
affiliate commonly owned and controlled by or with the party or to any other
third party in connection with the merger or acquisition of the party or sale of
all or substantially all of its assets used primarily in connection with this
Agreement. Each party agrees to provide no less than three (3) business days'
prior notification of any authorized assignment under this Agreement, including
assignment to an affiliate or as part of an asset sale. Any attempted
assignment except as allowed by the immediately preceding sentence is null and
void. Subject to the foregoing, this Agreement will benefit and bind the
successors and permitted assigns of the parties.
6.5 Merger and Waiver. This Agreement is the entire agreement between the
parties with respect to the development and distribution of the Application, and
it supersedes any prior or contemporaneous agreements and negotiations relating
thereto. No waiver of any breach or default shall constitute a waiver of any
subsequent breach or default.
6.6 Limited Liability. Neither party shall be liable to the other for
lost profits, expected revenues, or development or support costs arising from
any termination of this Agreement. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO
THE OTHER FOR LOSS OF PROFITS, REVENUE, DATA, OR USE OR ANY INDIRECT, SPECIAL,
CONSEQUENTIAL OR INCIDENTAL DAMAGES, HOWEVER CAUSED, EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGE. THE PARTIES ACKNOWLEDGE THAT THESE LIMITATIONS ON
POTENTIAL LIABILITIES WERE AN ESSENTIAL ELEMENT IN SETTING CONSIDERATION UNDER
THIS AGREEMENT. THE TOTAL CUMULATIVE AMOUNT RECOVERABLE UNDER THIS AGREEMENT IS
HEREBY CAPPED AT AN AMOUNT EQUAL TO THE TOTAL CUMULATIVE AMOUNT PAID UNDER THIS
AGREEMENT BY INTEL TO DEVELOPER. THE FOREGOING ALLOCATION OF RISK IS REFLECTED
IN THE AMOUNT OF THE COMPENSATION CONTEMPLATED IN THIS AGREEMENT.
6.7 Notices and Requests. All notices and requests under this Agreement
must be in writing and shall be personally delivered, sent by certified or
registered mail, or overnight courier to the addresses below:
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To Intel To Developer
Intel Corporation
0000 Xxxxxxx Xxxxxxx Xxxx. Mpath Interactive, Inc.
Xxxxx Xxxxx, XX 00000 000 Xxxxx Xxxxxx
Xxxx: General Counsel Xxxxxxxx Xxxx, XX 00000
Attn: General Counsel
Copy to:
Intel Corporation
0000 Xxxx Xxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxx Xxxxx
Mailstop JF3-216
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6.8 Choice of Law. This Agreement is governed, controlled, interpreted
and defined by and under the laws of the State of California, without regard to
the conflicts of laws provisions thereof, and the United States. Any litigation
arising under this Agreement will be brought in the federal or state courts of
the Northern District of California. If any litigation or proceeding is brought
by either party against the other in connection with this Agreement, the
prevailing party in such litigation or other proceeding shall be entitled to
recover from the other party all costs, reasonable attorneys' fees and other
expenses incurred by such prevailing party.
In witness of their agreement, the parties have caused the Agreement to be
executed below by their authorized representatives.
Intel Corporation Mpath Interactive, Inc. (Developer)
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxx, Xx.
----------------------- ---------------------------
Name: Xxxxxx Xxxxxxxx Name: Xxxxxx X. Xxxxxxx, Xx.
General Manager, ----------------------
Content Group Title: Vice President
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Date: 11/24/98 Date: 11/20/98
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ATTACHMENT A
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Application Specifications
General Description: Within the xxxxxxx.xxx web-based game service, Katmai
users will be able to create game rooms exclusive to those who have enabled the
Processor Number feature on their Katmai-based personal computers.
Pre-Existing Works, Rights: (Identify any titles, or parts of titles that
the Application is based on or incorporates. Specify any contractual or other
limitations which may impact distribution of demonstration of the Application.)
xxxxxxx.xxx client software as it has evolved since 1995.
Internet usage (Does the SW include multiplayer, download, upload, chat,
etc.)? [XXXXX]
Will the Application run under:
Microsoft Windows 95 & 98? [XXXXX] Windows NT? [XXXXX]
Contractual Limitations
Certain screen shots may contain proprietary third party material such as
game content, trademarks and/or text. In such instances, Developer will have to
seek authorization from such third parties before Intel can exercise certain of
its rights under this Agreement.
[XXXXX] CONFIDENTIAL TREATMENT REQUESTED
OMITTED PORTIONS FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
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ATTACHMENT B
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Development Schedule and Plan
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Milestone Target Delivery Date
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Initial application specification Execution of the Agreement [XXXXX]
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Functional and demonstrable incorporation of processor # [XXXXX]
reference implementation
(The addition to the xxxxxxx.xxx client interface the
"Report a Problem" feature. This feature will enable
members with the push of a button to send an incident
report to xxxxxxx.xxx customer support. This report will
contain the name of the reporter, space for a claim, and
pass some portion of the recent chat text as applicable.
If a Katmai user is the banned, their xxxxxxx.xxx ID is
suspended, and the Katmai machine they most recently logged
in from is similarly banned.) The "Report a Problem"
Feature will launch for non-Katmai users first and is
required for Katmai users at launch.
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Functional and demonstrable incorporation of processor # [XXXXX]
reference implementation into xxxxxxx.xxx
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Katmai-Only Room incorporation live on xxxxxxx.xxx (Room March 1, 1999
Intercept Filter/Room Access Filter: Any xxxxxxx.xxx
member using a Katmai system will be given the option at
the time of room creation to only admit other members with
the Katmai Processor feature turned on and who are not
banished)
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The "Live" Katmai-only Room application will be commercially available on
the Internet and require Processor Number to operate.
[XXXXX] CONFIDENTIAL TREATMENT REQUESTED
OMITTED PORTIONS FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
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ATTACHMENT C
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Intel's Technical Assistance Information
Items
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Information
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? General information regarding Katmai New Instructions, Katmai Processor Number
? Access to Intel's secure web site relating to the technology
? Documentation, such as programming manuals
? Technical assistance in the use of the development tools, simulator and development
? systems.
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? Development Software
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? Processor Number Reference Implementation
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? Hardware/Systems [XXXXX]
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? development systems based on a silicon implementation of the Katmai CPU in
___/___/___ ("Critical")
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Third-party Code
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?
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?
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[XXXXX] CONFIDENTIAL TREATMENT REQUESTED
OMITTED PORTIONS FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
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ATTACHMENT D
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Dl. Initial Measurement Requirements: Developer will offer users of its
xxxxxxx.xxx game service the application for a period of at least [XXXXX] from
initial Katmai launch. During this initial [XXXXX] period, the Developer shall
measure the effectiveness of the application using the following monthly
indices:
D1.1. Total number of users who create game rooms within each individual
game offered on the xxxxxxx.xxx service.
Dl.2. Total number of users who play a game (sorted by genre and not
specific game titles) offered on the xxxxxxx.xxx service.
Dl.3. Total number of Katmai-only rooms created within each game genre
offered on the xxxxxxx.xxx service.
Dl.4. Total number of users who play a Katmai-only game offered on the
xxxxxxx.xxx service.
Dl.5 Due Date: within [XXXXX] after the first day of each month.
[XXXXX] CONFIDENTIAL TREATMENT REQUESTED
OMITTED PORTIONS FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
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