EXHIBIT 10.19
EXCLUSIVE RAGNAROK
LICENSE AND DISTRIBUTION AGREEMENT
THIS LICENSE AND DISTRIBUTION AGREEMENT (this "Agreement") is made and entered
into on this 25th day of March, 2003, by and between GRAVITY CORPORATION, a
corporation duly organised and existing under the laws of the Republic of Korea
("Korea") and having its offices at 6th Fl. Shingu Bldg., 000-0, Xxxxxx-Xxxx,
Xxxxxxx-Xx, Xxxxx, 000-000, Xxxxx ("Licensor"), and LEVEL UP! INC., a
corporation duly organised and existing under the laws of the Republic of the
Philippines, and having its offices at the 8/F, Pacific Star Building, Sen. Xxx
X. Xxxxx corner Makati Avenues, Makati City, Metro Manila, Philippines
("Licensee").
RECITALS:
WHEREAS, Licensor has developed and possesses all rights in computer programs of
online game "Ragnarok" ("Game") as well as the know-how and technical
information on the installation, design, service and use of the Game;
WHEREAS, Licensee desires to enter into an exclusive license agreement with
Licensor pursuant to which Licensee will distribute and market the Game in the
territory specified below; and
WHEREAS, Licensor desires to grant such license to Licensee under the mutual
terms and conditions hereinbelow specified.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein and other good and valuable consideration, the parties hereto agree as
follows:
ARTICLE 1
DEFINITIONS
The terms defined in this Article shall have the meaning ascribed to them herein
whenever they are used in this Agreement, unless otherwise clearly indicated by
the context.
1.1 "Agreement" shall mean this License and Distribution Agreement, and all
annexes, amendments and supplements hereto.
1.2 "Confidential Information" shall mean all materials, know-how, software
or other information including, but not limited to, proprietary
information and materials regarding a Party's technology, products,
business information or objectives, including the softwares for the
Game and Technical Information under this Agreement, which is
designated as confidential in writing by the providing Party or which
is the type that is customarily considered to be confidential
information by persons engaged in similar activities.
1.3 "End Users" shall mean the users of the Game through a network game
service system established and operated by Licensee with individually
assigned ID Numbers for each End User.
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1.4 "Game" shall have the meaning stipulated in the recitals above,
including any modified or advanced version of the Game distributed by
Licensor for error correcting, updating or debugging purpose, under the
same title. Any subtitled version, series or sequel to the Game which
may be developed or distributed by Licensor after the execution of this
Agreement shall be clearly excluded from the scope of this Agreement.
1.5 "ID Number" shall mean an identification number assigned to each End
User, with which such End User can access and use the network game
service system established and operated by Licensee.
1.6 "English Version" shall mean the Game provided in the English language.
1.7 "Intellectual Property" shall mean all patents, designs, utility
models, copyrights, know-how, trade secrets, trademarks, service xxxx,
trade dress and any other intellectual property rights in or related to
the Game or Technical Information.
1.8 "Local Language" shall mean the Philippino language and/or local
dialects used in the Territory.
1.9 "Local Version" shall mean the Game provided in the Local Language.
1.10 "Parties" and "Party" shall mean Licensor and Licensee, collectively
and individually, respectively.
1.11 "Servers" shall mean the servers established, installed and operated by
Licensee within the Territory only for the service of Game to End Users
in the Territory.
1.12 "Service-Sales Amount" shall mean the total service-sales amount that
has been paid by End Users for the Game, including the amounts paid by
way of prepaid card, and calculated by the billing system.
1.13 "Technical Information" shall mean the software, know-how, data, test
result, layouts, artwork, processes, scripts, concepts and other
technical information on or in relation to the Game and the
installation, operation, maintenance, service and use thereof.
1.14 "Territory" shall mean the Republic of the Philippines.
ARTICLE 2.
GRANT OF LICENSE
2.1 Licensor hereby grants to Licensee, subject to the terms and conditions
contained in this Agreement, the exclusive, royalty-bearing and
non-transferable license (the "License") to service, use, promote,
distribute and market the Game to End Users and to use the Technical
Information for such purpose within the Territory, and to grant a
sublicense subject, however, to the prior written approval of Licensor.
2.2 The service, use, promotion, distribution and marketing of the Game by
Licensee
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under this Agreement shall be made in the English language using the
English Version in the Territory, provided that upon the request of
Licensee, such service, use, promotion, distribution and marketing may
be made in the Local Language using the Local Version with prior
written approval from Licensor. Any service, use, promotion,
distribution and marketing of the Game outside the Territory and any
use of the Technical Information for any purpose other than performance
under this Agreement are strictly prohibited.
2.3 Licensee shall provide services of the Game only by the IBM PC on-line
method (excluding mobile access) using the Servers. However, in
consideration of the current level of development of information
technology in the Territory, which primarily operates on a narrow-band
basis, Licensee shall be allowed to manufacture, distribute and sell
the Game in a compact disk ("CD") format, subject, however, to the
prior written approval of Licensor, and the imposition of such terms
and conditions will serve to protect the rights of Licensor in and to
the Intellectual Property and Technical Information.
2.4 The Game shall be serviced, promoted, distributed and marketed under
the titles, trademark, character names and other names of the Game
("Title") as originally created and used by Licensor, as listed in the
schedule attached hereto as Annex "A" and made an integral part hereof,
provided, however, that if a change in any of such Titles is required
due to any special lingual or social circumstance of the Territory, the
Parties shall decide and use new Title ("New Title") for the Game. All
of the rights in or to the Title and New Title shall be exclusively
owned by Licensor and Licensee shall not use any such Title or New
Title in a manner that falls outside the scope of this Agreement
without the prior written approval of Licensor.
2.5.1 All of the rights in or to the Game, except as granted under this
Agreement, including but not limited to the rights to the character
business of the Game, shall remain exclusively with Licensor. However,
Licensor will grant to Licensee the right of first negotiation for
sixty (60) days to produce and/or sell and distribute in the Territory
merchandise relating to the Game, including, but not limited to,
character dolls, reproductions of the characters in [collaterals], and
such other merchandising accessories, under a separate merchandising
agreement. [Such right of first negotiation shall include the right of
Licensee to [match any written offer received by Licensor from any
third party]. Licensee shall also have the right of first negotiation
for thirty (30) days to service all new game titles of Licensor from
the date when such new game is available in the Territory. Also
included is the right of Licensee to match any offer received by
Licensor from any party.
Licensor shall notify licensee within seven (7) days upon receipt of an
offer from any party. The Licensee shall have thirty (30) days to match
an offer from another party upon written notice from Licensor.
ARTICLE 3
DELIVERY OF GAME
3.1 Subject to the terms and conditions of this Agreement, Licensor shall
provide Licensee with its full assistance and cooperation, including
preparation of the English
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Version and providing technical assistance, in order to enable a launch
of the beta service and commercial service of the Game in the
Territory.
3.2 Licensor and Licensee agree to launch the beta service of the Game in
the Territory within sixty (60) days from the date of execution of this
Agreement, and to launch the commercial service of the Game in the
Territory within ninety (90) days from the date of launch of the beta
service of the Game, provided, however, that all defects and bugs
detected in the Game during the beta service are corrected or rectified
by Licensor. The Parties agree to cooperate with each other and exert
their best efforts to launch the services of the Game in accordance
with the above schedule in this Section 3.2. The above target dates for
launching the services of the Game may be changed by mutual agreement
between the Parties.
3.3 Once Licensee receives the English Version and technical documents on
the Game (collectively "Delivery Materials") from Licensor, Licensee
shall perform its review and test promptly and inform Licensor of any
defect in or modifications that have to be made to the Delivery
Materials within forty five (45) days after receipt thereof. Licensee's
failure to so inform within the designated period shall be regarded as
acceptance by Licensee of the Delivery Materials, and any revision or
modification of any of the Delivery Materials which may be made by
Licensor thereafter upon the request by Licensee shall be at Licensee's
sole expense. Upon the request of Licensee and Licensor's approval
thereon, Licensee shall provide the translated transcript of the Game
into the Local Language and Licensor shall prepare Local Version by
incorporating such translation into the Game. Licensee shall guarantee
the accuracy of such translation in the Local Version. and all of the
rights in or related to Local Version shall be exclusively owned by
Licensor. Licensee hereby assign all of its right on the translation
and promises not to claim any right or reimbursement on the translation
or Local Version in any case. It is understood however that any defects
in the game that appear after said forty five (45) day period shall
continue to be rectified by Licensor.
3.4 The Game shall be serviced in the Territory only in the manners
permitted by Licensor under this Agreement. Licensee shall be strictly
prohibited from any modification, amendment or revision of any part of
the Game including the title of the Game and the name of the characters
in the Game, without the prior written approval of Licensor.
ARTICLE 4
TECHNICAL ASSISTANCE
4.1 During the term of this Agreement, Licensor shall provide Licensee free
of charge with the technical assistance, and technical support and
maintenance needed and requested by Licensee to enable the latter to
provide and maintain high-quality service for the Game, including, but
not limited to software installation and set-up, maintenance support,
patch updates in connection with the Game and the localization of the
Game into the English Version, training Licensee's technical personnel
in respect of the maintenance and operation of the Game provided that,
any and all expenses actually incurred by any engineers dispatched by
Licensor to perform the above technical assistance in this Section 4.1,
including, without limitation, economy or business class airfare ,
lodging, food and other general living expenses incurred
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during their stay at Licensee's premises, shall be borne by Licensee.
The Parties shall agree in writing on the budget for the aforesaid
expenses prior to Licensor's incurring the same.
4.2 Licensor shall, upon the request of Licensee, dispatch its engineers to
Licensee for the installation of Servers and training of Licensee's
personnel. The total period for such technical assistance excluding the
travelling time shall not exceed ten (10) man days based on eight (8)
hours of work per engineer per day, and any further assistance through
dispatch of Licensor's engineers shall be determined by the mutual
agreement of the Parties. After the initial dispatch by Licensor of its
engineers for the said 10 man-day period, the salaries of Licensor's
engineers for the dispatched period shall be reimbursed by Licensee to
Licensor. All the expenses incurred by the engineers of Licensor for
economy or business class airfare, lodging and food and other general
living expenses during their stay for the period of technical
assistance shall be borne by Licensee. Provided that, the same are
within the budget as agreed upon by the Parties under Section 4.1.
4.3 During the term of this Agreement, Licensor shall receive Licensee's
personnel in its office in Korea for training with respect to the
installation and service of the Game and the installation, maintenance
and operation of the Servers. The number of the trainees from Licensee
shall not exceed three (3) persons at one time and the total period of
training shall not exceed seven (7) man-days [based on eight (8) hours
of training per trainee per day], unless otherwise agreed in writing by
Licensor. All of the expenses for travel, lodging, food and other
general living expenses incurred by such dispatched personnel of
Licensee shall be borne by Licensee.
4.4 Any further assistance may be rendered by Licensor upon mutual
agreement of the Parties.
4.5 Each Party shall be fully responsible and fully indemnify the other
Party for the behaviour of and activities performed by its employees
and personnel during their stay at the other Party's facilities.
ARTICLE 5
PAYMENT
5.1 In consideration of the License and technical assistance granted under
this Agreement, Licensee shall pay the following amounts to Licensor:
(a) INITIAL PAYMENT
Licensee shall pay to Licensor a sum of Fifty Thousand United States
Dollars (USD 50,000) ("Initial Payment") within seven (7) days after
the date of commencement of commercial service of the Game ("Commercial
Service Date").
The Initial Payment, whether in part or in whole, shall not be refunded
to or recouped by Licensee, except for cases where the Game does not
function properly due to inherent defects or bugs therein, which are
not remedied by Licensor within eighty
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(80) days from the date when the Game is installed in the Licensee's
hardware. Such refund accorded to Licensee shall be fifty (50) percent
of the Initial Payment less the cost incurred by Licensor in localizing
the Game in the Territory.
(b) ROYALTY AND REPORT
In addition to the Initial Payment, Licensee shall pay to Licensor as
continuing royalties twenty five percent (25%) of the Service-Sales
Amount paid by End Users ("Royalty"). Subject to Section 5.3 below, the
Royalty shall be paid on a monthly basis within twenty (20) days after
the end of the applicable month. Payment shall be deemed made upon
presentation of Licensee whether in fax or any other means the
remittance confirmation or notice to Licensor. In any case, unless
Licensor actually receives the remitted amount, the payment shall not
be deemed to be paid. Licensee shall also provide Licensor with a
report ("Royalty Report") on a monthly basis within twenty (20) days
after the end of the applicable month. Each Royalty Report shall
contain detailed information on the calculation of Service-Sales Amount
for the applicable month.
For the first month after the Commercial Service Date, Licensee shall
be allowed to pay the Royalty due within sixty (60) days after the end
of the applicable month.
5.2 Any and all payments under this Agreement by Licensee to Licensor shall
be made in United States Dollar (USD) and by wire transfer to the
account designated by Licensor or in such other method as may be
mutually agreed between the Parties.
5.3 For all payments to be made in United States Dollar under this
Agreement, the applicable foreign exchange rate shall be the quoted
selling price of Citibank Philippines on the due date of the relevant
payment. Provided, however, that in the event of any delay in payment,
the most favourable exchange rate to Licensor among the rates during
the period from the due date for the relevant payment to the date of
actual payment shall apply.
5.4 In the event any payment is delayed by Licensee under this Agreement, a
default interest at a rate of [12]% per annum ("Default Interest")
shall apply. For the avoidance of doubt, Licensor's entitlement to such
Default Interest pursuant to this Section 5.4 shall not affect any of
the other rights of Licensor under this Agreement.
5.5 Licensee shall pay the Royalties in strict compliance with the due date
set forth in Section 5.1(b) above.
5.6 Any and all taxes including the sales tax, value added tax, income tax
on any payment to Licensor under this Agreement shall be borne by
Licensee, provided, however, if any government in the Territory
requires Licensee to withhold the income tax on the payment to
Licensor, Licensee is allowed to withhold such tax up to fifteen
percent (15%) from such payments only if Licensor is entitled to
receive such payments as a tax credit under the relevant laws of Korea
or any existing tax treaty between the respective countries of
operation of Licensor and Licensee. In the event that any amount is
withheld for the tax payment under this Section 6.5, Licensee shall
promptly inform Licensor of such payment and provide Licensor with a
certification issued by
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the relevant tax authorities with respect to the relevant payment. Any
withholding tax in excess of the aforesaid limit shall be borne by
Licensee, and Licensee shall not deduct such withheld amount from the
actual payment amount.
ARTICLE 6
REPORT & AUDIT
6.1 Licensee shall provide Licensor with all the information on the
development of its business in relation to the Game. Without limiting
the generality of the foregoing, Licensee shall inform Licensor
promptly in the event of its launch of the beta service or the
commercial service of the Game.
6.2 Licensee shall provide Licensor with a monthly report (the "Monthly
Report") within twenty (20) days after the end of the applicable month
in writing on its business activities in relation to the Game,
including, but not limited to, the list of End-Users, the fees charged
by Licensee, the total Service-Sales Amounts for the pertinent month,
advertising activities and the expenses therefor, complaints received
from End Users and market trends in the Territory.
6.3 Licensee shall keep all of its records, contractual and accounting
documents and company documents in relation to its business and
activities under this Agreement in its offices, during the term of this
Agreement and for two (2) years after the expiration or termination of
this Agreement.
6.4 During the term of this Agreement and two (2) years after the
expiration or termination thereof, Licensor may by itself or through an
accountant designated by Licensor investigate and audit the accounting
documents of Licensee with respect to its Game business. For this
purpose, Licensor may request Licensee to produce the relevant
documents, and may visit Licensee's office and make copies of
Licensee's documents. Licensee shall provide all assistance and
co-operation required by Licensor for such investigation and audit. All
expenses incurred for such investigation and audit shall be borne by
Licensor unless such investigation and audit reveals underpayment by
greater than five percent (5%) of the annual Royalty amount, in which
case Licensee shall bear all expenses for such investigation and audit
and shall also promptly pay to Licensor the unpaid amount together with
a per annum default interest thereon equivalent to twelve (12%) percent
thereof. [In the event of Licensee's understatement of the Royalty
amount without any justifiable reasons, Licensor shall be entitled to
terminate this Agreement pursuant to Section 13.3(b) below.]
ARTICLE 7
ADVERTISING & PROMOTION
7.1 Licensee shall exert its best efforts to advertise, promote and perform
marketing activities for the Game in the Territory.
7.2 For the MARKETING of the Game in the Territory, Licensee agrees to
spend no less than Xxx Xxxxxxx xxx Xxxxx Xxxxxx Xxxxxx Dollars
(USD150,000) for each twelve-month
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period after the commencement of the term of this Agreement. Licensee
shall provide Licensor with detailed information on Licensee's
advertising activities every month in the Monthly Reports as stipulated
in Section 6.2. In addition, Licensee shall provide Licensor with a
separate advertisement report on June 30 and December 31 of each year
covering the preceding six (6) months' period.
7.3 Licensor will provide Licensee with samples of the marketing and
promotional materials for the Game that have been or will be produced
and used by Licensor during the term of this Agreement. Licensee shall
pattern all its advertising, marketing and promotional materials for
the Game in the Territory after the samples furnished to Licensee by
Licensor, and Licensee shall provide Licensor with samples of the
advertising, marketing and promotional materials for the Game produced
by Licensee no later than seven (7) days after launching them. Within
seven (7) days from receipt by Licensor of samples of Licensee's
advertising, marketing and promotional materials, Licensor shall notify
Licensee in writing of Licensor's approval or disapproval thereof, or
of any changes that Licensor may require Licensee to make thereto.
Licensor's failure to respond within the said period of seven (7) days
after receipt of such samples of advertising material shall be deemed
as approval of such advertising materials.
7.4 The ownership of and the copyright in the marketing and advertising
materials produced or used by Licensee on the Game ("Advertising
Materials") shall remain exclusively with Licensor, and Licensee shall
not use the Advertising Materials for any purpose other than the
promotion, marketing and advertising of the Game permitted under this
Agreement.
7.5 Licensee may provide End Users with such number of free points and free
accounts as may be reasonably necessary, in Licensee's opinion, for the
purposes of the promotion, operation and advertisement of the Game only
with prior written approval from Licensor. The detailed information on
the free points and accounts provided by Licensee to End Users shall be
provided to Licensor on a monthly basis in the Monthly Report as
stipulated in Section 6.2.
ARTICLE 8
OTHER OBLIGATIONS OF LICENSEE
8.1 Licensee shall exert its best efforts to supply, distribute and sell
the Game in the Territory.
8.2 Licensee shall be solely responsible for service, use, promotion,
distribution and marketing of the Game in the Territory, and Licensor
shall not be responsible for or obligated to provide any of such
activities unless stipulated otherwise in this Agreement.
8.3 Licensee shall provide full and comprehensive technical support to End
Users to assist them in their use of the Game, including but not
limited to Licensee's maintaining 24-hour technical contact window,
on-line customer services, sufficient outbound bandwidth and circuits
for operating business under this Agreement, and game servers required
for on-line game operation.
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8.4 Licensee shall provide its best efforts to protect the Intellectual
Property rights of Licensor and shall assist Licensor to procure
appropriate legal and administrative measures against any and all
activities by third parties infringing the Game or any of the
Intellectual Property rights of Licensor on or in relation to the Game,
including without limitation to, manufacture or sales of counterfeiting
CDs, manuals, workbooks or other products.
8.5 Licensee shall abide by all laws and regulations of the Territory in
its service, use, promotion, distribution and marketing of the Game in
the Territory.
8.6 Licensee shall provide a prior written notice to Licensor in the event
Licensee intends to change its marketing strategies, including budget,
advertising, marketing, promotional materials, product packaging and
price policies relating to the Game, and other important policies.
8.7 Licensee shall indemnify and hold harmless Licensor and its officers
and employees from any kind of losses, costs, expenses or liabilities,
including reasonable attorneys' fees resulting from any claim by a
third party on or in relation to Licensee's service, use, promotion,
distribution and marketing of the Game in the Territory.
8.8 Upon prior arrangement of the Parties, Licensee shall provide Licensor
with suitable office space and office supplies in Licensee's office for
the auditing activities of Licensor. Access to such office space shall
be limited only to persons designated by Licensor. All expenses
incurred by Licensor's employees dispatched to Licensee's offices for
transportation, postage, telecommunications, lodging, food and other
general living expenses, and the salaries for such employees during
their stay at such offices shall be borne and paid by Licensor.
ARTICLE 9
TECHNICAL INFORMATION AND INTELLECTUAL PROPERTY
9.1 Technical Information and Intellectual Property shall be exclusively
owned by Licensor, and this Agreement shall not grant Licensee or
permit Licensee to exercise any right or license in or to the Technical
Information and Intellectual Property except for the License granted
under this Agreement. Licensee shall not obtain or try to obtain any
registered industrial property or copyright in or over any of the
Technical Information and Intellectual Property of Licensor regardless
of the territory and exploitation area.
9.2 Licensor hereby represents and warrants that Licensor is the legal
owner of the Technical Information and Intellectual Property; that it
has a legal and valid right to grant the rights and License under this
Agreement to Licensee, and that the Game and Technical Information do
not violate or infringe any patent, copyright and trademark of any
third party in Korea. Licensor shall take all reasonable action, legal
or otherwise, under the circumstances to prevent and/or halt any
threatened or actual infringement or violation of Intellectual Property
rights by third parties in the Territory, or to address and answer any
third party claims or demands in respect of the Intellectual Property
rights, so as to ensure that Licensee may continue to service, market,
distribute and use the Game in the Territory in the manner contemplated
under this Agreement.
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9.3 Licensor further guarantees and warrants to Licensee that the Game and
the corresponding Technical Information and accompanying Intellectual
Property:
a) do not violate any Intellectual Property rights of any third
party or any rights of publicity or privacy in Korea;
b) do not violate any law, statute, ordinance or regulation
(including without limitation the laws and regulations
governing export control, unfair competition,
anti-discrimination or false advertising) of Korea or any
other country; and
c) do not contain any obscene, child pornographic or indecent
contents.
9.4 Licensor agrees to indemnify and hold harmless Licensee from any kind
of losses, costs, expenses or liabilities, including reasonable
attorneys' fees and costs of settlement, resulting from the breach by
Licensor of its express warranties given herein provided that Licensee
(a) promptly notifies Licensor of such claim; (b) allows Licensor to
control the defense of such claim and/or any related settlement
negotiations; and (c) provides any reasonable assistance requested by
Licensor in connection with such claim.
9.5 It is understood that by the grant of the License to Licensee, Licensor
undertakes to accord to Licensee all rights and privileges normally
accorded and granted by Licensor to all other entities to which a
similar license for the Game has or will be granted by Licensor.
Licensor warrants there is no outstanding contract, commitment or
agreement to which it is a party, or legal impediment, prohibition or
restriction of any kind known to Licensor, which conflicts with this
Agreement or might limit, restrict or impair the rights granted to
Licensee hereunder.
ARTICLE 10
LIMITATION OF LIABILITY
10.1 Except as may be otherwise provided for herein, Licensor makes no
warranties, express or implied, concerning the Game including but not
limited to its merchantability or salability in the Territory.
10.2 In no event will either party be liable to the other for any indirect,
consequential, incidental, punitive or special damages, whether based
on breach of contract, tort (including negligence) or otherwise, and
whether or not such party has been advised of the possibility of such
damage.
10.3 The aggregate liability of either Party under or relating to this
Agreement whether in contract, tort (including without limitation
negligence) or otherwise, shall be limited to an amount equal to the
total amount of the payments made by Licensee during the preceding
period of six (6) months.
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ARTICLE 11
CONFIDENTIALITY
11.1 All Confidential Information disclosed by either Party under this
Agreement shall be maintained in confidence by the receiving Party and
shall not be used for any purpose other than explicitly granted under
this Agreement. Each Party agrees that it shall provide Confidential
Information received from the other Party only to its employees,
consultants and advisors who need to know for the performance of this
Agreement. The receiving Party shall be responsible for any breach of
this Article by its employees, consultants and advisors.
11.2 In the event that any Confidential Information, including but not
limited to the source codes of the Game, Technical Information and
financial information, is disclosed or divulged to any third party who
is not authorized to have access to or obtain such Confidential
Information under this Agreement, the Parties shall cooperate with each
other and exert their best efforts to protect or restore such
Confidential Information from such unauthorized disclosure or
divulgement. If such disclosure or divulgement of the Confidential
Information was made due to the receiving Party's gross negligence or
bad faith , the receiving Party shall be responsible for all of the
damages incurred by the disclosing Party, including but not limited to
any attorneys' fees incurred by the disclosing Party in order to
protect its rights under this Article 11.
11.3 The confidential obligation shall not apply, in the event that it can
be shown by competent documents that the Confidential Information;
(a) becomes published or generally known to the public before or
after the execution of this Agreement without any breach of
this Agreement by any Party;
(b) was known by the receiving Party prior to the date of
disclosure to the receiving Party;
(c) Either before or after the date of disclosure is lawfully
disclosed to the receiving Party by a third party who is not
under any confidentiality obligation to the disclosing Party
for such information;
(d) is independently developed by or for the receiving Party
without reference to or reliance upon the Confidential
Information; or
(e) is required to be disclosed by the receiving Party in
accordance with the applicable laws and orders from the
government or court; provided that, in this case, the
receiving Party shall provide prior written notice of such
disclosure to the providing Party and takes reasonable and
lawful actions to avoid and/or minimize the degree of such
disclosure.
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ARTICLE 12
TERM
12.1 This Agreement shall become effective on the execution date of this
Agreement and shall remain in effect for a period of two (2) years
counted from the Commercial Service Date, unless sooner terminated in
accordance herewith.
12.2 Provided that Licensee is in due performance of this Agreement,
Licensee shall have an option to renew the term of this Agreement for
an additional term of one (1) year ("Renewed Term") under the same
terms and conditions hereof \. At the expiration of the Renewed Term,
Licensee shall also have the further option to extend the term of this
Agreement on an on-going, yearly basis for an additional term of one
(1) year (the "Extended Term") under the same terms and conditions
provided for herein. Licensee shall exercise the aforesaid options to
renew at least six (6) months prior to the expiration of the original
term of this Agreement or the Renewed Term, as the case may be.
ARTICLE 13
TERMINATION
13.1 This Agreement may be terminated upon the mutual agreement of the
Parties.
13.2 Each Party shall have the right to immediately terminate this
Agreement:
(a) upon written notice to the other Party in the event of the
other Party's material breach of this Agreement and such
breach shall continue for a period of thirty (30) days after
the breaching Party's receipt of written notice setting forth
the nature of the breach or its failure to perform and the
manner in which it may be remedied;
(b) if the other Party or its creditors or any other eligible
party files for its liquidation, bankruptcy, reorganization,
composition or dissolution, or if the other Party is unable to
pay any kind of debts as they become due, or the creditors of
the other Party have taken over its management; or
(c) in accordance with Section 13.3 below.
13.3 Notwithstanding Section 13.2 above, Licensor may immediately terminate
this Agreement upon a written notice to Licensee:
(a) if the Royalty for any given month as set forth in Section
5.1(b) above is not paid by Licensee within twenty (20) days
after receiving written notice from Licensor for late payment;
(b) in the event of a willful, gross understatement by Licensee of
the Royalty payments due Licensor without any justifiable
reasons, as defined in Section 6.4 above;
(c) if the beta service of the Game is not launched in the
Territory within the
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period set forth in Section 3.2, unless such failure has been
caused by Licensor or is due to force majeure event as set
forth in Article 14;
(d) if the commercial service of the Game is not launched in the
Territory within the period set forth in Section 3.2, unless
such failure has been caused by Licensor or is due to force
majeure event as set forth in Article 14; or
(e) if the service of the Game in the Territory is stopped,
suspended, discontinued or disrupted for more than fifteen
(15) consecutive days during the term of this Agreement due to
causes attributable to Licensee.;
13.4 Upon the effective date of such termination, all rights granted to
Licensee hereunder shall immediately cease and shall revert to
Licensor, and Licensee shall immediately cease servicing of the Game
and return to Licensor any and all software, technical documents and
other materials or information provided by Licensor to Licensee under
this Agreement, and shall destroy any and all copies of such software,
technical documents, materials or information. Furthermore, Licensee
shall provide and deliver to Licensor any and all such information and
documents related to the Game, including but not limited to database
related to the Game and information and/or data source about the Game
users, as may be requested by Licensee.
13.5 No termination of this Agreement shall affect the Parties' rights or
obligations that were incurred prior to the termination. The expiration
or termination of this Agreement shall not affect the effectiveness of
Articles 6, 9, 10, 11, and 13.4, which shall survive the expiration or
termination of this Agreement.
ARTICLE 14
FORCE MAJEURE
14.1 Notwithstanding anything in this Agreement to the contrary, no default,
delay or failure to perform on the part of either Party shall be
considered a breach of this Agreement if such default, delay or failure
to perform is shown to be due entirely to causes occurring without the
fault of or beyond the reasonable control of the Party charged with
such default, delay or failure, including, without limitation, causes
such as strikes, lockouts or other labor disputes, riots, civil
disturbances, actions or inactions of governmental authorities or
suppliers, electrical power supply outage, a failure or breakdown in
the services of internet service providers, epidemics, war, embargoes,
severe weather, fire, earthquake and other natural calamities or, acts
of God or the public enemy.
14.2 If the default, delay or failure to perform as set forth above in
Section 14.1 exceeds sixty (60) days from the initial occurrence, a
Party who is not affected by such force majeure event shall have the
right to terminate this Agreement with a written notice to the other
Party.
ARTICLE 15
GENERAL PROVISIONS
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15.1 Licensee may not assign, delegate or otherwise transfer in any manner
any of its rights, obligations and responsibilities under this
Agreement, without prior written consent of Licensor. Licensor may,
with prior written notice to Licensee, assign, delegate or otherwise
transfer all or any part of its rights, obligations and
responsibilities under this Agreement to a third party designated by
Licensor, provided that such third-party transferee shall execute an
undertaking in favor of Licensee to respect this Agreement in its
entirety.
15.2 It is understood and agreed by the Parties that this Agreement does not
create a fiduciary relationship between them, that Licensee shall be an
independent contractor, and that nothing in this Agreement is intended
to constitute either Party an agent, legal representative, subsidiary,
joint venture, employee or servant of the other for any purpose
whatsoever.
15.3 If any kind of notices, consents, approvals, or waivers are to be given
hereunder, such notices, consents, approvals or waivers shall be in
writing, shall be properly addressed to the Party to whom such notice,
consent, approval or waiver is directed, and shall be either hand
delivered to such Party or sent by certified mail, return receipt
requested, or sent by FedEx, DHL or comparable international courier
service, or by telephone, facsimile or electronic mail (in either case
with written confirmation in any of the other accepted forms of notice)
to the following addresses or such addresses as may be furnished by the
respective Parties from time to time:
If to Licensor.
Attention: Hyunduck Na
6th Fl. Shingu Bldg., 000-0, Xxxxxx-Xxxx, Xxxxxxx-Xx, Xxxxx,
000000, Xxxxx
Fax: x00-0-0000-0000
If to Licensee
Attention: Xxxx Xxxxxxxx X. Xxxxxxx
8th Floor, Pacific Star Building, Sen. Xxx X. Xxxxx corner
Makati Aves., Makati City, Metro Manila
Fax: 0000000
15.4 No course of dealing or delay by a Party in exercising any right,
power, or remedy under this Agreement shall operate as a waiver of any
such right, power or remedy except as expressly manifested in writing
by the Party waiving such right, power or remedy, nor shall the waiver
by a Party of any breach by the other Party of any covenant, agreement
or provision contained in this Agreement be construed as a waiver of
the covenant, agreement or provision itself or any subsequent breach by
the other Party of that or any other covenant, agreement or provision
contained in this Agreement.
15.5 This Agreement, including all exhibits, addenda and schedules
referenced herein and attached hereto, constitutes the entire agreement
between the Parties hereto pertaining to the subject matter hereof, and
supersedes all negotiations, preliminary agreements, and all prior and
contemporaneous discussions and understandings of the Parties in
connection with the subject matter hereof.
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15.6 This Agreement shall be written in English and all disputes on the
meaning of this Agreement shall be resolved in accordance with English
version of this Agreement.
15.7 This Agreement may be amended only upon the execution of a written
agreement between Licensor and Licensee that makes specific reference
to this Agreement.
15.8 This Agreement shall be governed by and construed in accordance with
the laws of Korea.
15.9 Any controversy or claim arising out of or in relation to this
Agreement shall be finally settled by arbitration in Korea. The
arbitration shall be conducted before three arbitrators in accordance
with the Rules of Arbitration and Conciliation of the International
Chamber of Commerce then in effect. The Parties shall be bound by the
award rendered by the arbitrators and judgement thereon may be entered
in any court of competent jurisdiction. Any award rendered by the
arbitrators shall be final, and the Parties shall not have any right of
appeal.
15.10 If any section, subsection or other provision of this Agreement or the
application of such section, subsection or provision, is held invalid,
then the remainder of the Agreement, and the application of such
section, subsection or provision to persons or circumstances other than
those with respect to which it is held invalid shall not be affected
thereby.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the date first
above-written.
GRAVITY CORPORATION,
By: ___________________________
Name: Jung-Ryool Xxx
Title: Chairman
Date:
Witness:
LEVEL UP! INC.
By: ___________________________
Name: Xxxxxxxx X. Xxxxxxx
Title: President
Date:
Witness:
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