PLAYSTATION ® PORTABLE LICENSED PUBLISHER AGREEMENT
PLAYSTATION
® PORTABLE LICENSED PUBLISHER AGREEMENT
THIS
AGREEMENT RELATES TO THE PUBLISHING OF APPLICATION SOFTWARE FOR THE
PLAYSTATION
PORTABLE ENTERTAINMENT SYSTEM. ALL TERMS USED HEREIN ARE SPECIFIC
TO
THE PLAYSTATION PORTABLE SYSTEM AND NOT TO SONY’S PREDECESSOR “PLAYSTATION” OR
“PLAYSTATION 2” VIDEO AND COMPUTER ENTERTAINMENT SYSTEMS. PUBLISHING RIGHTS FOR
SUCH PREDECESSOR SYSTEMS ARE SUBJECT TO SEPARATE AGREEMENTS WITH SCEE, AND
ANY
LICENCE OF RIGHTS TO PUBLISHER UNDER SUCH SEPARATE AGREEMENTS SHALL NOT
CONFER
ON PUBLISHER ANY RIGHTS IN RELATION TO THE PLAYSTATION PORTABLE SYSTEM,
OR
VICE VERSA.
This
Agreement is
entered into the 7th
day
of August
2008 by and between
SONY
COMPUTER ENTERTAINMENT EUROPE LIMITED
of
00
Xxxxx Xxxxxxxxxxx Xxxxxx, Xxxxxx X0X 0XX
(hereinafter
referred to as "SCEE")
-
and
-
ZOO
DIGITAL PUBLISHING LIMITED
of
Arundel House, 000
Xxxxxxx Xxxxxx, Xxxxxxxxx, X 0 0XX, Xxxxxx Xxxxxxx
(hereinafter
referred to as "Publisher")
PUBLISHER
AUTHORISATION
#:
271
Recitals
|
(A)
|
SCEE,
its parent company Sony Computer Entertainment Inc., and/or certain
of
their affiliates and
companies within the group of companies of which any of them form
part
(hereinafter jointly and severally referred to as "Sony") have developed,
and are licensing core components of, a computer entertainment system
known and hereinafter referred to as “PlayStation®
Portable” or
“PSP
”, and
are the owners of, or have the right to grant licences of, certain
proprietary information
and intellectual property rights pertaining to
PSP.
|
|
(B)
|
Publisher
desires to be granted a non-exclusive licence, on a product by product
basis, to market, distribute and sell Licensed Products (as defined
below), and for such Licensed Products and associated
materials to be manufactured by an authorised manufacturing facility
licensed by SCEE,
on the terms and subject to the conditions set forth in this
Agreement.
|
|
(C)
|
SCEE
is willing, on the terms and subject to the conditions of this Agreement,
to grant Publisher the desired non-exclusive
licences.
|
In
consideration of the undertakings, representations and warranties given herein,
and of other good and
valuable consideration the receipt and sufficiency of which is acknowledged,
Publisher and SCEE agree as follows:
| 1. |
Definitions
|
|
1.1
|
“Licensed
Products” means the PSP format Software games listed in Schedule 3, and
such further PSP format Software games as shall, from time to time,
achieve unconditional pass status under SCEE’s product assessment process,
in unique UMD format software discs and
shells.
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|
1.2
|
“Licensed
Territory” means the countries specified in Schedule
1.
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Page
1
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1.3
|
“Sony
Intellectual Property Rights” means all worldwide current and future
rights in or in relation to
the Licensed Trademarks, any patents, inventions, designs, copyrights,
rights in databases, trademarks,
service marks, trade names (including any goodwill associated with
any
trademarks or
names), semi-conductor topography rights, Confidential Information
of
Sony, rights in technical
information and know-how, rights in the nature of unfair competition
rights and rights to
xxx for passing off and all other proprietary or intellectual property
rights (and the equivalents of
each of the foregoing under the laws of any jurisdiction) of Sony
pertaining to Sony Materials and/or PSP (including, without limitation,
all registrations, applications to register and rights to apply
for registration of the same) for their full term including all renewals
and extensions thereof.
|
|
1.4
|
“Specifications”
means such specifications relating to the content and/or manufacture
of
Licensed Products,
Printed Materials, Advertising Materials and/or related matters or
materials as may from
time to time be promulgated by Sony, which specifications (and/or
procedures relating to the testing
or verification of all such materials for conformity to the Specifications
and/or relating to the
ordering and manufacture of Licensed Products and associated materials)
are incorporated into
and form part of this Agreement and may be amended from time to time
upon
reasonable notice
to Publisher.
|
|
1.5
|
“Licensed
Trademarks” means the “PS” family logo and PlayStation Portable and “PSP”
logotypes
and such other trademarks, service marks, trade dress, logos and
other
icons or indicia as
shall be specified in the Specifications or otherwise designated
by SCEE
from time to time. SCEE
may amend such Licensed Trademarks upon reasonable notice to
Publisher.
|
|
Publisher
is not authorised to use the PlayStation, PSone, PlayStation 2, “PS2”,
xxxxxxxxxxx.xxx or
xxx.xxx logos and/or logotypes or the PlayStation Shapes devices,
other
than as expressly permitted by separate agreement. Nothing contained
in
this Agreement shall in any way grant Publisher the right to use
the
trademark "Sony" in any manner as (or as part of) a trademark, trade
name,
service xxxx or logo or otherwise
howsoever.
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|
1.6
|
“Advertising
Materials” means all advertising, merchandising, promotional and display
materials of
or concerning the Licensed
Products.
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1.7
|
“Printed
Materials” means all artwork and mechanicals to be set forth on the
Licensed Product itself,
and on the box (or other) packaging for the Licensed Product and
all
instruction manuals, inlays, inserts, stickers and other user information
and/or materials to be inserted in or affixed to such box and/or
packaging.
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|
1.8
|
“Manufactured
Materials” means all units of the Licensed Products, of the Printed
Materials to be set
forth on the Licensed Products themselves and of the boxes for such
Licensed Products (which expression shall include any alternative
form of
container for Licensed Products subsequently introduced by
SCEE).
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|
1.9
|
“Licensed
Developer Software” means Licensed Developer's application source code and
data (including audio and visual material) developed by Licensed
Developer
in accordance with its LDAP which, when integrated with any software
(whether in object code or source code form) provided by SCEE, creates
PSP
format Software.
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|
1.10
|
“Licensed
Developer” means Publisher or such other third party as shall have
developed Licensed Developer Software and PSP format Software pursuant
to
a then current LDAP.
|
|
1.11
|
“LDAP”
means the PSP Licensed Developer Agreement between Licensed Developer
of
the applicable PSP format Software and SCEE (or an equivalent such
agreement between Licensed Developer and an Affiliate of
SCEE).
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Page
2
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1.12
|
“Article
6” means Article 6 of Council Directive 91/250/EEC of 14 May 1991 on
the
legal protection
of computer programs.
|
|
1.13
|
“Affiliate
of SCEE” means, as applicable, either Sony Computer Entertainment Inc in
Japan, Sony
Computer Entertainment America Inc in the USA, Sony Computer Entertainment
Korea or such other Sony Computer Entertainment entity as may be
established by Sony from time to
time.
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|
1.14
|
“PSP
format Software” means Publisher's object code software, which includes
Licensed Developer
Software and any software (whether in object code or source code
form)
which is provided by SCEE and intended to be combined with Licensed
Developer Software for execution on PSP and has the ability to communicate
with the software resident in PSP.
|
|
1.15
|
“Sony
Materials” means any hardware, data, object code, source code,
documentation (or any part(s)
of any of the foregoing) and related peripheral items provided to
the
Licensed Developer of
any PSP format Software pursuant to the LDAP applicable for such
PSP
format Software.
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|
1.16
|
“Confidential
Information of Sony” means the content and/or substance of this Agreement
(including
the Schedules hereto and the Specifications) and any and all confidential
and/or proprietary information, documents and related materials of
whatever nature (including, without limitation, all information made
available to Publisher on xxx.xxxxxxxxx.xxxx.xxx
or
other Sony websites
or otherwise and all processes, hardware, software, inventions, trade
secrets, ideas, designs,
research, know-how, business methods, production plans and marketing
plans) concerning
PSP and related products, developed or owned by, licensed to or under
the
control of Sony and, without limitation, information otherwise related
to
Sony's technology, know-how, products,
potential products, research projects, trials, promotional advertising
and
marketing plans,
schedules and budgets, licensing terms and pricing, customer lists
and
details, commercial relationships or negotiations, services, financial
models and other business information, whether relating to PSP or
otherwise including relating to Sony’s “PlayStation” and “PlayStation 2”
predecessor video and computer entertainment system(s), disclosed
by
whatever means, whether directly
or indirectly, by or on behalf of Sony to Publisher at any time,
whether
disclosed orally, in
writing or in machine-readable or other form, or otherwise discovered
by
Publisher (or any parent
company, subsidiary or affiliate of Publisher) as a result of any
information or materials provided (whether directly or indirectly)
by or
on behalf of Sony to Publisher (or any parent company, subsidiary
or
affiliate of Publisher).
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1.17
|
“UMD”
means Universal Media Disc, a proprietary disc format developed by
or on
behalf of Sony.
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1.18
|
“Third
Party Intellectual Property Rights” means all worldwide current and future
rights in or in relation to any patents, inventions, designs, copyrights,
rights in databases, trademarks, service marks, trade names (including
any
goodwill associated with any trademarks or names), semiconductor
topography rights, trade secret rights, technical information and
know-how, rights in the
nature of unfair competition rights and rights to xxx for passing
off and
all other proprietary or intellectual property rights (and the equivalents
of each of the foregoing under the laws of any jurisdiction) of any
third
party other than Publisher or Sony (including, without limitation,
all
registrations, applications to register and rights to apply for
registrations of the same) for their full term including all renewals
and
extensions thereof.
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1.19
|
“Term”
means, the period from the date hereof to 31 March 2011, and continuing
thereafter unless
and until terminated by not less than 1 (one) month's notice on either
side given to expire on
such date or any subsequent 31
March.
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Page
3
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1.20
|
“CNDA
(PSP)” means the Confidentiality & Non-Disclosure (or similar)
Agreement between Publisher and SCEE or an Affiliate of SCEE relating
to
PSP and to Confidential Information of Sony and/or of Publisher
thereunder.
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|
1.21
|
“Confidential
Information of Publisher” means any and all confidential and/or
proprietary information,
documents and related materials of whatever nature (including, without
limitation, all
processes, hardware, software, inventions, trade secrets, ideas,
designs,
research, know-how, business
methods, production plans and marketing plans) concerning PSP format
Software developed
or owned by, licensed to or under the control of Publisher and, without
limitation, information otherwise related to Publisher's technology,
know-how, products, potential products, research projects, trials,
promotional advertising and marketing plans, schedules and budgets,
licensing terms and pricing, customer lists and details, commercial
relationships or negotiations, services,
financial models and other business information, whether relating
to PSP
format Software
or otherwise, disclosed by whatever means, whether directly or indirectly,
by or on behalf
of Publisher to SCEE at any time, whether disclosed orally, in writing
or
in machine-readable
or other form, or otherwise discovered by SCEE as a result of any
information or materials
provided (whether directly or indirectly) by or on behalf of Publisher
to
SCEE, which information is designated by Publisher as, or becomes
known to
SCEE under circumstances indicating that such information is, confidential
or proprietary.
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2.
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Grant
of Licence
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2.1
|
SCEE
hereby grants to Publisher, and Publisher hereby accepts, within
the
Licensed Territory only
and under the Sony Intellectual Property Rights, a non-exclusive
non-transferable licence, without the right to sub-license (except
as
specifically provided herein), to publish Licensed Products
in such genres or categories as SCEE shall from time to time designate
in
the Specifications,
and the right and obligation to use the Licensed Trademarks, in the
form
and manner
prescribed in the Specifications, strictly, only and directly in
connection with such publication.
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2.2
|
For
these purposes, to "publish" shall mean any or all of the following:
(i)
produce Advertising Materials
and Printed Materials; (ii) to issue to SCEE purchase orders for
Manufactured Materials
as prescribed in Clause 6; (iii) to market and advertise Licensed
Products; (iv) to distribute
and sell Licensed Products (and to authorise others so to do); and
(iv) to
sub-license to end
users the right to use Licensed Products for non-commercial purposes
only
and not for public performance.
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3.
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Limitations
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3.1
|
Publisher
shall publish Licensed Products only if based on Licensed Developer
Software developed
by a Licensed Developer strictly in accordance with all the terms
and
conditions of such
Licensed Developer's LDAP and shall not, subject to Article 6, publish
or
attempt to publish any
other software whatsoever intended for or capable of execution on
PSP. The
onus of evidencing
that each Licensed Product satisfies the foregoing criteria shall
rest on
Publisher and SCEE reserves the right to require Publisher to furnish
evidence satisfactory to SCEE that the foregoing criteria are
satisfied.
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| 3.2 |
Publisher
shall not publish PSP format Software or Licensed Products outside
the
Licensed Territory
unless and until Publisher shall be authorised and licensed so to
do
pursuant to a current licence agreement with the applicable Affiliate
of
SCEE. Further, Publisher shall not sub-publish PSP
format Software or Licensed Products through a third party either
within
or outside the Licensed
Territory unless and until such sub-publisher shall be authorised
and
licensed so to do either
pursuant to a current PSP Licensed Publisher Agreement with SCEE
or a
current PSP licence
agreement with the applicable Affiliate of
SCEE.
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Page
4
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3.3
|
The
licence granted in this Agreement extends only to the publication,
marketing, distribution and
sale of Licensed Products in such formats as may be designated by
SCEE.
Without limiting the
generality of the foregoing and except as otherwise provided herein,
Publisher and, if applicable,
its sub-publishers shall at all times and in all territories be strictly
prohibited from undertaking or authorising the distribution or
transmission of PSP format Software or Licensed Products
through electronic means or any other means now known or hereafter
devised, including
without limitation, via wireless, cable, fiber optic means, telephone
lines, microwave and/or
radio waves, or over a network of interconnected computers or other
devices. Notwithstanding
this limitation, Publisher may (i) authorise the sharing of insubstantial
parts of PSP
format Software between PSPs (so called “game sharing”) and ad hoc playing
of a PSP format
Software game between PSPs and, in each case by the use of the wireless
features of the PSP and not via the internet or other publicly available
network; (ii) undertake or authorise the distribution
or transmission of PSP format Software, or user-contributed content
for
use with PSP format Software, over the internet or other publicly
available network, and the playing of PSP
format Software games between players via the internet or other publicly
available network strictly for non-commercial purposes (so that no
rights
are granted under this Agreement where Publisher
receives any direct or indirect income from such downloads or services
including, without
limitation, one-off payments, subscriptions, revenue sharing, advertising
revenue or a combination
of all or any of the same); and (iii) electronically transmit PSP
format
Software from
site to site, or from machine to machine over a computer network,
for the
sole purpose of facilitating development; provided that no right
of
retransmission shall attach to any such transmission,
and provided further that Publisher shall use reasonable security
measures
customary
within the high technology industry to reduce the risk of unauthorized
interception or retransmission of such
transmissions.
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3.4
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Subject
only to Article 6, Publisher and, if applicable, its sub-publishers
shall
at all times be strictly
prohibited from disassembling or decompiling software, peeling
semiconductor components
or otherwise reverse engineering or attempting to reverse engineer
or
derive source code or create derivative works from PSP format Software,
from permitting or encouraging any third party so to do, and from
acquiring or using any materials from any third party who does so.
Publisher
shall in all cases be primarily liable for the payment of Platform
Charge
to the applicable
authorised manufacturing facility licensed by SCEE in accordance
with
Clause 7 hereof
in respect of any product published by Publisher, or, if applicable,
any
of its sub-publishers,
which utilizes Sony Materials and/or Sony Intellectual Property Rights
and/or, subject to Council Directive 91/250/EEC, Confidential Information
of Sony. The onus of evidencing that any such product is not so published
shall rest on Publisher and SCEE reserves the right to require Publisher
to furnish evidence satisfactory to SCEE that the applicable of the
foregoing criteria are satisfied.
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3.5
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Publisher
shall inform all such sub-publishers of the obligations imposed by
this
Agreement and shall
obtain their commitment to abide by the
same.
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3.6
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Publisher
acknowledges and agrees that: (i) no rights are granted under this
Agreement in respect of
non-game products or products which contain significant elements
of, or
are a hybrid with, audio
or video profile products for UMDs; (ii) no Licensed Product shall,
except
as specifically authorised
in advance writing by SCEE in each case, incorporate (in whole or
in part)
more than 1
(one) game product; and (iii) it may publish, market, distribute,
sell or
otherwise dispose of Licensed Products only on a standalone basis,
and may
not do the same in conjunction or bundled with any other goods, products
or services except as specifically authorised in advance in writing
by
SCEE in each case.
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Page
5
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3.7
|
Any
breach of the provisions of this Clause 3 shall be a material breach
of
this Agreement not capable
of remedy.
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| 4. |
Reservations
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4.1
|
This
Agreement does not grant any right or licence, under any Sony Intellectual
Property Rights or
otherwise, except as expressly provided herein, and no other right
or
licence is to be implied by
or inferred from any provision of this Agreement or the conduct of
the
parties hereunder. Subject
only to the rights of Publisher under this Agreement, all right,
title and
interest in and to the
Sony Materials and the Sony Intellectual Property Rights are and
shall be
the exclusive property
of Sony, and Publisher shall not make use of, or do or cause to be
done
any act or thing contesting or in any way impairing or tending to
impair
any of Sony's right, title or interest in or to, any of the Sony
Materials, Sony Intellectual Property Rights and PSP except as authorised
by and
in compliance with the provisions of this Agreement or as may otherwise
expressly be authorised
in writing by Sony; provided however that the foregoing shall not
be taken
to preclude
Publisher from challenging the validity of any Sony Intellectual
Property
Rights. No right,
licence or privilege has been granted to Publisher hereunder concerning
the development of
any collateral product or other use or purpose of any kind whatsoever
which displays or depicts
any of the Licensed Trademarks. No promotional or novelty items or
premium
products (including,
by way of illustration but without limitation, T-shirts, posters,
stickers, etc) displaying
or depicting any of the Licensed Trademarks shall be developed,
manufactured, marketed, sold and/or distributed by, with the authority
of
or on behalf of, Publisher without the prior written consent and
authorization of SCEE in each case.
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4.2
|
The
Licensed Trademarks and the goodwill associated therewith are and
shall be
the exclusive property
of Sony. Nothing herein shall give Publisher any right, title or
interest
in or to any of the
Licensed Trademarks, other than the non-exclusive licence and privilege
to
display and use the
Licensed Trademarks solely in accordance with the provisions of this
Agreement. Publisher shall not do or cause to be done any act or
thing
contesting or in any way impairing or tending to impair any of Sony's
right, title or interest in or to any of the Licensed Trademarks,
nor
shall Publisher register or apply to register any trademark in its
own
name or in the name of any other person
or entity, or obtain or seek to obtain rights to employ internet
domain
name(s) or address(es),
which is or are similar to or is or are likely to be confused with
any of
the Licensed Trademarks; provided however that the foregoing shall
not be
taken to preclude Publisher from challenging the validity of any
Licensed
Trademarks.
|
| 4.3 |
Publisher
or Licensed Developer (as applicable) retains all right, title and
interest in and to Licensed
Developer Software, including Licensed Developer's intellectual property
rights therein and
any names or other designations used as titles therefor, and nothing
in
this Agreement shall be
construed to restrict the right of Licensed Developer to develop
and/or
the right of Publisher to publish products incorporating Licensed
Developer Software alone (which do not contain or rely on Sony Materials
and/or Sony Intellectual Property Rights and/or, subject to Council
Directive 91/250/EEC, Confidential Information of Sony), and/or under
such
names or other designations, for any hardware platform or service
other
than PSP.
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Page
6
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4.4
|
Subject
to the proviso to Clauses 4.1 and 4.2 above, Publisher shall, at
the
expense of SCEE, take all
such steps as SCEE may reasonably require, including the execution
of
licences and obtaining registrations, to assist SCEE in maintaining
the
validity and enforceability of Sony Intellectual Property
Rights.
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4.5
|
Without
prejudice to Clause 11, Publisher or SCEE (as applicable) shall promptly
and fully notify
the other in writing in the event that it discovers or otherwise
becomes
aware of any actual,
threatened or suspected infringement of, or challenge to, any of
the
intellectual property
or trademark rights of the other embodied in any of the Licensed
Products,
and of any claim of infringement
or alleged infringement by the other of any Third Party Intellectual
Property Rights, and
shall at the request and expense of the other do all such things
as may
reasonably be required to assist the other in taking or resisting
any
proceedings in relation to any such infringement or
claim.
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5.
|
Quality
Standards
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|
5.1
|
Each
Licensed Product, including without limitation the title and content
thereof, and/or Publisher's
use of any of the Licensed Trademarks, shall be required to conform
to the
Specifications.
Testing or verification for conformity to the Specifications shall
be
conducted by SCEE or, at Publisher’s election, by an independent external
testing service (if and when such service becomes
available).
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5.2
|
Publisher
shall submit for testing for conformity to the Specifications such
information and materials
relating to the PSP format Software for each Licensed Product as
shall be
specified in the
Specifications. Such Specifications shall be comparable with the
specifications applied by Sony
with respect to its own PSP format software products. SCEE acknowledges
and agrees that such
Specifications shall be of prospective application only and shall
not be
applied to any inventory
units of the Licensed Products manufactured prior to, or in the active
process of manufacture at the date of, the promulgation thereof by
SCEE.
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|
5.3
|
For
each Licensed Product, Publisher shall be responsible, at Publisher's
expense, for the origination
of all Printed Materials, and for the manufacture and delivery to
the
manufacturer of such Licensed Product of all Printed Materials other
than
those to be set forth on the Licensed Product itself, all of which
Printed
Materials shall conform in all material respects to the Specifications.
The Specifications referred to above shall be comparable with the
specifications applied by Sony with respect to its own PSP format
software
products. SCEE acknowledges and agrees
that such Specifications shall be of prospective application only
and
shall not be applied to
any inventory units of the Licensed Products manufactured prior to,
or in
the active process of manufacture
at the date of, the promulgation thereof. All materials to be submitted
pursuant to this
Clause 5.3 shall be delivered by such means and in such form as shall
be
prescribed in the Specifications and at Publisher's sole risk and
expense.
Publisher undertakes that the quality of such Printed Materials shall
be
of the same quality as that associated with high quality consumer
products.
|
| 5.4 |
SCEE
(or, where applicable, an independent external testing service as
aforesaid) will test or verify
for conformity to the Specifications (as the case may be) all materials
submitted by Publisher
pursuant to Clause 5.2 and Clause 5.3. Where such testing or verification
is conducted by SCEE, SCEE shall advise Publisher of the results
of such
testing or verification within the applicable of the timeframes specified
in the Specifications. Where such testing or verification is conducted
by such independent external testing service, such service shall advise
Publisher of the results
of such testing or verification within timeframes agreed between
such
service and Publisher
(and SCEE shall have no responsibility or liability whatsoever arising
from a failure by such
service to meet such timeframes). If any of such materials (or any
element(s) thereof) fail to
conform to the Specifications, SCEE (or, where applicable, such
independent external testing service) shall specify the reasons for
such
failure and state what revisions are required. After making the required
revisions, Publisher may resubmit such materials in such revised
form for
re-testing or re-verification by SCEE (or, where applicable, such
independent external testing service). The procedures described in
this
Clause 5.4 shall if necessary be repeated until all such materials
for
each Licensed Product shall expressly have been certified as conforming
to
the Specifications, such certification to be validly given only if
in
writing and signed by the duly authorized representative(s) of SCEE
as
specified in the Specifications
(or, where applicable, by the duly authorised representative(s) of
such
independent external testing service). SCEE shall have
no liability to Publisher for the accuracy or content (including
translations and localizations)
of Printed Materials (except only items required to be included in
accordance with the
Specifications) or in respect of costs incurred or irrevocably committed
by Publisher as a result
of any failure to conform to Specifications (even where certified
for
conformity) or in relation
to, or to the use of, Printed Materials which shall not have been
given a
certificate of conformity by SCEE (or, where applicable, by such
independent external testing service). No production
units of any Licensed Product shall be manufactured, marketed, distributed
or sold by,
with the authority of or on behalf of, Publisher unless and until
such a
certificate of conformity
of such Licensed Product shall first have been given by SCEE (or,
where
applicable, by
such independent external testing service). No certificate of conformity
from SCEE (or, where
applicable, from such independent external testing service) of any
element
of the materials so submitted or resubmitted shall be deemed a certificate
of conformity of any other element of such
materials, nor shall any such certificate of conformity be deemed
to
constitute a waiver of any
of SCEE's rights under this
Agreement.
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Page
7
The
generality of the foregoing notwithstanding, in the event that Publisher wishes
to contest a finding
by SCEE of non-conformity to the Specifications as an alternate to making
required revisions
and resubmissions as above, or in the event that Publisher wishes to contest
the
outcome
of SCEE’s product assessment process in relation to any specific product,
Publisher may
have
recourse to the appeals process specified in the Specifications.
|
5.5
|
Publisher
shall not change in any material respect any of the materials for
which a
certificate of conformity shall have been given by SCEE (or, where
applicable, by an independent external testing service) pursuant
to Clause
5.4 (or, if applicable, pursuant to Clause 5.6) (or, alternately,
which
shall have been held to conform to the Specifications following recourse
by Publisher to the
appeals process specified in the Specifications). If any of the Licensed
Products and/or related
materials published by, with the authority of or on behalf of, Publisher
fail to conform to the Specifications and the materials for which
SCEE
(or, where applicable, such independent external testing service)
shall
from time to time have given a certificate of conformity, then the
provisions of Clause 14.2 shall
apply.
|
|
5.6
|
SCEE
reserves the right to require that pre-production samples of all
Advertising Materials shall be
submitted by Publisher to SCEE or, at Publisher’s election, to an
independent external testing service (if and when such service becomes
available), free of charge and in accordance with the procedure specified
in the Specifications, for verification for conformity to the
Specifications (including specifically, but without limitation, in
relation to the usage of any of the Licensed Trademarks), prior to
any
actual production, use or distribution of any such items by, with
the
authority or on behalf of, Publisher. No such proposed Advertising
Materials shall be produced, used
or distributed directly or indirectly by Publisher without first
obtaining
a certificate of conformity
to the Specifications. Where such verification is conducted by SCEE,
SCEE
shall advise
Publisher of the results of such verification within the applicable
of the
timeframes specified
in the Specifications. Where such verification is conducted by such
independent external
testing service, such service shall advise Publisher of the results
of
such verification within
timeframes agreed between such service and Publisher (and SCEE shall
have
no responsibility
or liability whatsoever arising from a failure by such service to
meet
such timeframes).
If any such Advertising Materials (or any element(s) thereof) fail
to
conform to the Specifications,
SCEE (or, where applicable, such independent external testing service)
shall specify
the reasons for such failure and state what revisions are required.
After
making the required
revisions, Publisher may resubmit such materials in such revised
form for
re-verification by SCEE (or, where applicable, by such independent
external testing service). The procedures described in this Clause
5.6
shall if necessary be repeated until all such Advertising Materials
for
each
Licensed Product shall expressly have been certified as conforming
to the
Specifications, such
certification to be validly given only if in writing and signed by
the
duly authorised representative(s) of SCEE as specified in the
Specifications (or, where applicable, by the duly authorised
representative(s) of such independent external testing service).
SCEE
shall have no liability to Publisher in respect of costs incurred
or
irrevocably committed by Publisher in relation to,
or to the use of, Advertising Materials which shall not have been
given a
certificate of conformity
by SCEE (or, where applicable, by such independent external testing
service). No certificate
of conformity from SCEE (or, where applicable, from such independent
external testing
service) of any element of Advertising Materials so submitted or
resubmitted shall be deemed
a certificate of conformity of any other element of such Advertising
Materials, nor shall any such certificate of conformity be deemed
to
constitute a waiver of any of SCEE's rights under this
Agreement.
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Page
8
The
generality of the foregoing notwithstanding, in the event that Publisher wishes
to contest a finding of non-conformity to the Specifications by SCEE, and as
an
alternate to making required revisions and resubmissions as above, Publisher
may
have recourse to the appeals process specified
in the Specifications.
Subject
in each instance to the prior written consent of SCEE, Publisher may use such
textual and/or
pictorial advertising matter (if any) as may be created by, with the authority
or on behalf of,
Sony
pertaining to the Sony Materials and/or to the Licensed Trademarks on such
Advertising Materials as may, in Publisher's judgment, promote the sale of
Licensed Products within the Licensed Territory. Sony shall have the right
to
use Licensed Products and/or other materials relating
to Publisher's PSP format Software games in any advertising or promotion for
PSP
at Sony's
expense, subject to giving Publisher reasonable prior notice of such
advertisement or promotion. Sony shall confer with Publisher regarding the
text
of any such advertisement.
|
5.7
|
No
Licensed Product may be published in any country of the Licensed
Territory
unless the Licensed
Product itself and associated Printed Materials bear a consumer advisory
age rating either:
(i) as required by local law; or (ii) where no such local law obtains,
as
prescribed under the
Pan European Games Information age rating system (“PEGI”) promulgated by
the Interactive Software Federation of Europe. Each such rating shall
be
displayed as prescribed by local law or under
PEGI as the case may be. Publisher shall also conform to local law
or to
the requirements of
PEGI as the case may be in relation to the display of consumer advisory
age ratings in Advertising
Materials. No Licensed Product, nor any Printed Materials or Advertising
Materials, may bear more than one consumer advisory age
rating.
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Page
9
| 6. |
Manufacture
of Licensed Products & Associated Materials
|
|
6.1
|
Subject
only to Article 6, Publisher acknowledges and agrees that it shall
purchase Manufactured Materials
only from an authorised manufacturing facility licensed by SCEE.
SCEE
shall have the right, but no obligation, to subcontract the whole
or any
part or phase of the production of any
or all of the Manufactured Materials or any part(s)
thereof.
|
|
6.2
|
Promptly
following the giving by SCEE (or, where applicable, by an independent
external testing service as aforesaid) of a certificate of conformity
to
the Specifications (or, alternately, a holding of
conformity to the Specifications following recourse by Publisher
to the
appeals process specified
in the Specifications) for each Licensed Product pursuant to Clause
5.4,
SCEE shall create
(from one of the copies of the finally tested version of the PSP
format
Software as submitted
by Publisher pursuant to Clause 5.2) an encrypted copy of such PSP
format
Software for transmission to the authorised manufacturing facility
licensed by SCEE for the creation of the master UMD Disc ("Master
UMD
Disc") from which all other copies of the Licensed Product are to
be
replicated in compliance with the Specifications effective at the
time of
replication. Where such
certificate of conformity shall have been given by such an independent
external testing service,
then the copy of the finally tested version of the PSP format Software
as
submitted by Publisher pursuant to Clause 5.2 from which the Master
UMD
Disc is to be created shall be furnished
to SCEE by such service. Publisher will retain duplicates of all
such PSP
format Software.
SCEE shall not be liable for loss of or damage to any copies of the
PSP
format Software
furnished to SCEE hereunder. There will be no technology exchange
between
Sony and
Publisher under this Agreement. The encryption and mastering process
being
of a proprietary
and commercially confidential nature, neither SCEE nor any manufacturing
subcontractor
of SCEE will under any circumstances release any Master UMD Discs
or other
in-process
materials to Publisher. All such physical materials shall be and
remain
the sole property of
Sony.
|
|
6.3
|
Publisher
shall be solely responsible for the delivery, direct to an authorised
manufacturing facility
licensed by SCEE and in accordance with Clause 6.4, of 110% (one
hundred
and ten percent)
of the number of sets of the Printed Materials (other than those
set forth
on the applicable
Licensed Product itself) required to fulfill Publisher's purchase
order
for Manufactured Materials
of each PSP format Software game, which Printed Materials shall be
in
strict compliance
with the Specifications. SCEE shall, at Publisher's request, give
Publisher all reasonable
assistance in arranging the manufacture of Printed Materials to be
used in
conjunction with Licensed Products not manufactured in reliance on
Article
6 through SCEE's authorised manufacturing
facility (if a Sony company), but SCEE shall have no responsibility
with
respect to
pricing, delivery or any other related matter whatsoever in connection
with such manufacture.
|
|
6.4
|
Subject
to the giving by SCEE of a certificate of conformity to the Specifications
(or, alternately, a
holding of conformity following recourse by Publisher to the appeals
process specified in the Specifications)
for the applicable PSP format Software and Printed Materials pursuant
to
Clause
5, and to the delivery to an authorised manufacturing facility licensed
by
SCEE of the materials
to be delivered under Clause 6.3, the applicable authorised manufacturing
facility licensed
by SCEE will, at Publisher's expense and as applicable, manufacture,
assemble, package and
deliver the Manufactured Materials and the Printed Materials in accordance
with the terms and
conditions set forth in this Clause 6 and such other conditions as
Publisher and the applicable authorised
manufacturing facility may agree. The delivery of the materials specified
in Clause
6.3 shall be made in accordance with the timetable for such delivery
specified in the Specifications.
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Page
10
|
6.5
|
Publisher
shall issue to the applicable authorised manufacturing facility licensed
by SCEE purchase
order(s) via SCEE’s Electronic Order System (or otherwise as specified by
SCEE from time
to time) in accordance with, and in compliance with the timetable
specified in, the Specifications.
No such order shall be issued unless and until all necessary certificates
of conformity
shall have been given (or, alternately, there shall have been a holding
of
conformity following
recourse by Publisher to the appeals process specified in the
Specifications) pursuant to
Clause 5. Each such order shall reference Publisher authorization
number
and purchase order reference
number, specify quantities of Licensed Products by title by pack
sku (in
multiples of the
minimum box shipment advised from time to time by the authorised
manufacturing facility licensed
by SCEE), state requested ex-factory delivery date and all packaging
information together
with such other information as SCEE shall reasonably require and
shall be
for not less than
the applicable minimum order quantity as specified from time to time
by
SCEE or the applicable
authorised manufacturing facility licensed by SCEE. All such purchase
orders shall be subject to acceptance by the applicable authorised
manufacturing facility licensed by SCEE (and approval
by SCEE), which acceptance will be advised to Publisher not more
than 3
(three) working
days following delivery in accordance with Clause 6.4 of the materials
required to be delivered
under Clauses 6.2 and 6.3. The applicable authorised manufacturing
facility shall use all
reasonable endeavours, subject to available manufacturing capacity,
to
fulfill Publisher's purchase
orders by Publisher's requested ex-factory delivery date but does
not in
any event guarantee
so to do. Publisher shall have no right to cancel or reschedule any
purchase order or reorder
(or any portion thereof) for any Licensed Product unless the parties
shall
first have reached
mutual agreement as to Publisher's financial liability with respect
to any
desired cancellation
or rescheduling of any such purchase order or reorder (or any portion
thereof).
|
|
6.6
|
Subject
only to the provisions of Clause 6.3 in relation to Printed Materials,
neither SCEE nor any
authorised manufacturing facility licensed by SCEE shall be under
any
obligation to store finished units of Manufactured Materials or of
associated Printed Materials beyond the actual ex-factory delivery
date
thereof. Delivery of Manufactured Materials shall be made ex-factory
the
applicable
authorised manufacturing facility licensed by SCEE in the Licensed
Territory. All risk
of loss or damage in transit to any and all Manufactured Materials
manufactured pursuant to Publisher's orders shall pass to Publisher
forthwith upon first handling by Publisher's
carrier.
|
|
6.7
|
Publisher
must advise the applicable authorised manufacturing facility in writing
where any finished
units of such Manufactured Materials fail to conform to the Specifications
and/or any description(s)
contained in this Agreement. Publisher and the applicable authorised
manufacturing
facility shall agree the terms, if any, for any rejection, rectification
or remedy with respect
to such units.
|
|
6.8
|
In
no circumstances shall SCEE or its authorised manufacturing facility
treat
any of Publisher’s Licensed Products in any way more or less favorably, in
terms of production turnaround times or otherwise, than the Licensed
Products of any other Licensed Publisher of SCEE or than PSP format
software games published by SCEE
itself.
|
|
7.
|
Platform
Charge
|
|
7.1
|
The
all-in Platform Charge for finished units of Manufactured Materials
in
respect of which the applicable authorised manufacturing facility
licensed
by SCEE accepts Publisher's purchase order in accordance with Clause
6.5
shall be as specified in Schedule 2 (but subject to adjustment as
therein
provided) and shall be paid to the applicable authorised manufacturing
facility licensed by SCEE.
The all-in Platform Charge reflects monies due to SCEE in respect
of each
unit manufactured
and the raw materials costs and production services provided by the
applicable manufacturing
facility licensed by SCEE for each such unit. Such Platform Charge
shall
be subject
to change by SCEE at any time upon reasonable notice to Publisher
and SCEE
shall advise
Publisher of such changes; provided, however, that such Platform
Charge
shall not be changed with respect to any units of Manufactured Materials
which are the subject of an effective purchase order or reorder but
which
have not yet been delivered by the applicable authorised manufacturing
facility licensed by SCEE. Such Platform Charge for finished units
of
Manufactured
Materials is exclusive of any value-added or similar sales tax, customs
and excise duties and other similar taxes or duties, which the applicable
authorised manufacturing facility licensed by SCEE may be required
to
collect or pay as a consequence of the sale or delivery of finished
units of Manufactured Materials. Publisher shall be solely responsible
for
the payment or
reimbursement of any such taxes or duties, and other such charges
or
assessments applicable to the sale and/or purchase of finished units
of
Manufactured Materials.
|
Page
11
The
Platform Charge for products developed utilizing Sony Materials and/or Sony
Intellectual Property
Rights and/or, subject to Council Directive 91/250/EEC, Confidential Information
of Sony,
but
manufactured in reliance on Article 6, shall be the otherwise applicable
Platform Charge
less only such sum as represents from time to time the costs of raw materials
and for production services (including for utilisation of Sony’s proprietary
Disc Mastering technology) for
the
products concerned which would otherwise have been deducted from SCEE’s receipts
from
its
authorised manufacturing facility (“the Article 6 Platform Charge”). If
Publisher has products so manufactured in reliance on Article 6, then Publisher
shall furnish SCEE, within 28 (twenty
eight) days following the close of each calendar month: (i) a written reporting
of the number
of
inventory units (by product title) of products so manufactured during such
calendar month;
(ii) an external auditor’s certificate (or similar independent certificate
reasonably acceptable
to SCEE) confirming the completeness and accuracy of such reporting;
(iii)
Publisher’s remittance for the Article 6 Platform Charge multiplied by the
number of inventory
units reflected in such reporting. Any failure fully and promptly to comply
with
the foregoing
reporting and payment obligations shall constitute a breach of this Agreement
not capable
of remedy, entitling SCEE forthwith to terminate the Term pursuant to Clause
13.1(i); and
upon
termination by SCEE for such cause, the provisions of Clause 14.2 shall come
into effect.
SCEE
shall upon reasonable written request provide Publisher with details of the
aforementioned costs of raw materials and production services if Publisher
has
legitimately exercised its rights under
Article 6 or genuinely intends to exercise and rely upon such rights. However,
SCEE reserves
the right to require Publisher to execute a separate Non-Disclosure Agreement
before making such information available.
|
7.2
|
No
costs incurred in the development, manufacture, marketing, sale and/or
distribution of Licensed
Products and/or associated materials shall be deducted from any Platform
Charge payable
to the applicable authorised manufacturing facility licensed by SCEE
hereunder. Similarly, there shall be no deduction from the Platform
Charge
otherwise payable to the applicable
authorised manufacturing facility licensed by SCEE hereunder as a
result
of any uncollectable accounts owed to Publisher, or for any credits,
discounts, allowances or returns which Publisher may credit or otherwise
grant to any third party customer in respect of any units of Licensed
Products and/or associated materials, or for any taxes, fees, assessments,
or expenses of any kind which may be incurred by Publisher in connection
with its sale and/or distribution of any units of Licensed Products
and/or
associated materials, and/or arising with respect to the payment
of
Platform Charge hereunder. Publisher shall furnish to the applicable
authorised manufacturing
facility licensed by SCEE official tax receipts or other such documentary
evidence
issued by the applicable tax authorities sufficient to substantiate
the
fact of the deduction
of any withholding taxes and/or other such assessments which may
be
imposed by any governmental authority with respect to such payments
of
Platform Charge hereunder and the amount of each such
deduction.
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Page
12
|
7.3
|
Publisher
shall effect payment for the Platform Charge specified in Clause
7.1 for
the finished units
of Manufactured Materials the subject matter of each purchase order
issued
pursuant to Clause
6.5 in accordance with the Specifications. SCEE hereby confirms that
in
respect of each purchase order, the applicable authorised manufacturing
facility licensed by SCEE is entitled to collect on behalf of SCEE
the
proportion of the Platform Charge due to SCEE after deduction of
the cost
of raw materials and production services in respect of Manufactured
Materials. Each delivery
of Manufactured Materials to Publisher shall constitute a separate
sale
obligating Publisher
to pay therefor, whether said delivery be whole or partial fulfillment
of
any order. No claim for credit due to shortage of Manufactured Materials
as delivered to carrier will be allowed unless it is made within
4 (four)
working days from the date of receipt at Publisher's receiving
destination.
Title to Manufactured Materials the subject of each such purchase
order
shall pass to
Publisher only upon payment in full of the Platform Charge due in
respect
thereof. The receipt
and deposit by SCEE of monies in accordance with this Agreement shall
be
without prejudice
to any rights or remedies of SCEE and shall not restrict or prevent
SCEE
from thereafter
successfully challenging the basis for calculation and/or the accuracy
of
such payment.
|
SCEE
reserves the right, upon reasonable notice to Publisher, to require that such
payments due to SCEE shall be made to such other Sony entity as SCEE may
designate from time to time.
|
7.4
|
SCEE
may, subject to reasonable prior notice to Publisher vary the payment
process set out in this
Clause 7, including but not limited to changing the recipient of
the
Platform Charge in respect
of Manufactured Materials.
|
|
8.
|
Marketing
& Distribution
|
Publisher
shall, at no expense to SCEE, diligently market, distribute and sell Licensed
Products throughout
(but only in) the Licensed Territory, and shall use all reasonable efforts
consistent with its best business judgment to stimulate demand therefore in
the
Licensed Territory and to supply any resulting demand. Publisher shall not
market, distribute or sell Licensed Products outside the Licensed Territory
or
to any person, firm, corporation or entity having its place of business, or
to
any purchasing agency
located, outside the Licensed Territory. Publisher shall use all reasonable
efforts consistent with
its
best business judgment to protect Licensed Products from and against illegal
reproduction and/or
copying by end users or by any other persons or entities. Such methods of
protection may include,
without limitation, markings or insignia providing identification of
authenticity and packaging seals
as
may be specified in the Specifications. SCEE shall be entitled, at SCEE's sole
cost and expense,
to manufacture or have manufactured up to 200 (two hundred) additional units
of
Manufactured
Materials (or such greater number of additional units as shall be agreed by
Publisher, such
agreement not unreasonably to be withheld or delayed) for each PSP format
Software game (and to
purchase from Publisher, at a price equal to the actual cost thereof to
Publisher, a corresponding number
of
units of Printed Materials for each such PSP format Software game), for the
purposes of or in
connection with the marketing and promotion of PSP; provided however that SCEE
shall not directly or indirectly resell any such units of Manufactured Materials
(and, if applicable, of Printed Materials) within the Licensed Territory without
Publisher's prior written consent. Further, SCEE shall be entitled to utilize
Publisher's name and/or logo and the audio-visual content of, and/or the Printed
Materials for, PSP
format Software games (not to exclude the likenesses of any recognizable talent)
for the purposes of
or in
connection with such marketing and promotion.
Page
13
|
9.
|
Confidentiality
|
|
9.1
|
All
the terms and provisions of the CNDA(PSP) shall apply to Confidential
Information of Sony and,
if and to the extent applicable, Confidential Information of
Publisher.
|
|
9.2
|
Where
Confidential Information of Publisher is not protected by the CNDA(PSP),
SCEE shall hold
the same in confidence and shall take all reasonable steps necessary
to
preserve such confidentiality. Except as may expressly be authorised
by
Publisher, SCEE shall not at any time, directly or indirectly: (i)
disclose any Confidential Information of Publisher to any person
other
than a Sony employee who needs to know or have access to such information
for the purposes of this Agreement, and only to the extent necessary
for
such purposes; (ii) except for the purposes of this Agreement, duplicate
or use the Confidential Information of Publisher for any other purpose
whatsoever;
or (iii) remove any copyright notice, trademark notice and/or other
proprietary legend
set forth on or contained within any of the Confidential Information
of
Publisher.
|
|
9.3
|
The
provisions of Clause 9.2 hereof shall not apply to any Confidential
Information of Publisher which: (i) has become part of information
in the
public domain through no fault of SCEE; (ii) was known
to SCEE prior to the disclosure thereof by Publisher; (iii) properly
comes
into the possession
of SCEE from a third party which is not under any obligation to maintain
the confidentiality
of such information. SCEE may disclose Confidential Information of
Publisher pursuant to a judicial or governmental order provided that
SCEE
promptly advises Publisher in writing prior to any such disclosure
so that
Publisher may seek other legal remedies to maintain the
confidentiality of such Confidential Information of Publisher, and
SCEE
shall comply with any
applicable protective order or
equivalent.
|
|
9.4
|
Unless
and until a public announcement regarding this Agreement shall have
been
made by Sony (or
SCEE shall otherwise have agreed in writing), the fact that the parties
have entered into this Agreement
shall be Confidential Information of Sony and shall be treated in
all
respects accordingly.
The content of, and the timing and method of the making of, any such
public announcement shall be determined by SCEE in its best business
judgment. However, SCEE will give reasonable consideration to any
notice
from Publisher requesting that no such public announcement be made
at or
prior to a particular time or at
all.
|
|
10.
|
Warranties
|
|
10.1
|
SCEE
represents and warrants solely for the benefit of Publisher that
SCEE has
the right, power and authority to enter into, and fully to perform
its
obligations under, this Agreement.
|
| 10.2 |
SCEE
warrants that units of the UMDs comprising Licensed Products manufactured
by the authorised
manufacturing facility licensed by SCEE for Publisher pursuant to
Clause 6
hereof shall
be free from defects in materials and workmanship under normal use
and
service at time of delivery
in accordance with Clause 6.6. The sole obligation of SCEE under
this
warranty shall be,
for a period of 90 (ninety) days from the date of delivery of such
UMDs in
accordance with Clause
6.6, at SCEE's election, either (i) to replace such defective UMDs
or (ii)
to issue credit for, or
to refund to Publisher the Platform Charge of such defective UMDs
and to
reimburse Publisher its reasonable return shipping costs. Such warranty
is
the only warranty applicable to Licensed Products manufactured by
the
authorised manufacturing facility licensed by SCEE for Publisher
pursuant
to Clause 6. This warranty shall not apply to damage resulting from
accident, fair wear and tear, willful damage, alteration, negligence,
abnormal conditions of use, failure to follow directions for use
(whether
given in instruction manuals or otherwise howsoever) or misuse of
Licensed
Products, or to UMDs comprising less than 1% (one percent) [or, if
greater, 100 (one hundred) units] in the aggregate of the total number
of
Licensed Products manufactured by the authorised manufacturing facility
licensed by SCEE for Publisher per purchase order of any PSP format
Software game. If, during such 90 (ninety) day period, defects appear
as
aforesaid, Publisher
shall notify SCEE and, upon request by SCEE (but not otherwise),
return
such defective UMDs,
with a written description of the defect claimed, to such location
as SCEE
shall designate. SCEE
shall not accept for replacement, credit or refund as aforesaid any
Licensed Products except factory
defective UMDs (i.e. UMDS that are not free from defects in materials
and
workmanship under normal use and service). All returns of defective
UMDs
shall be subject to prior written authorization
by SCEE, not unreasonably to be withheld. If no defect exists or
the
defect is not such
as to be covered under the above warranty, Publisher shall reimburse
SCEE
for expenses incurred in processing and analyzing the
UMDs.
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Page
14
|
10.3
|
Publisher
represents, warrants, covenants and agrees that: (i) Publisher has
the
right, power and authority to enter into, and fully to perform its
obligations under, this Agreement; (ii) the making of this Agreement
by
Publisher does not violate any separate agreement, rights or obligations
existing between Publisher and any other person, firm, corporation
or
entity, and, throughout the Term,
Publisher shall not make any separate agreement with any person or
entity
which is inconsistent
with any of the provisions hereof; (iii) both Licensed Developer
Software
and, to the extent not comprised of any software provided by SCEE,
PSP
format Software, and any name, designation or title used in conjunction
therewith, shall be free from any valid third party claim of infringement
of any Third Party Intellectual Property Rights; (iv) there is no
litigation, proceeding or
claim pending or threatened against Publisher or any subsidiary or
affiliate of Publisher which may materially affect Publisher's rights
in
and to Licensed Developer Software, the names, designations
or titles used in conjunction therewith, the works and performances
embodied therein
and/or the copyrights pertaining thereto; (v) Publisher shall have
made or
shall make any and all payments required to be made to any person,
firm,
corporation or other entity, or to any body or group representing
authors
or participants in the production of the works or performances embodied
in
Licensed Developer Software and PSP format Software, or to publishers
or
other persons
having legal or contractual rights of any kind to participate in
any
income arising in respect
of the exploitation of such works or performances; (vi) neither Publisher
nor any subsidiary
or affiliate of Publisher shall make any representation or give any
warranty to any person
or entity expressly or impliedly on Sony's behalf, or to the effect
that
Licensed Products are
connected in any way with Sony (other than that Licensed Products
have
been developed, marketed, manufactured, sold and/or distributed under
licence from Sony); (vii) each Licensed Product shall be marketed,
sold
and distributed in an ethical manner and in accordance with all applicable
laws and regulations; and (viii) Publisher's policies and practices
with
respect to the marketing, sale and/or distribution of Licensed Products
shall in no manner reflect adversely upon the name, reputation or
goodwill
of Sony.
|
| 10.4 |
Further,
Publisher represents, warrants, covenants and agrees that neither
Publisher nor any parent
company, subsidiary or affiliate of Publisher shall during the Term,
whether for itself or for
the benefit of any other person, firm, corporation or entity, whether
by
itself or by its officers, employees or agents, directly or indirectly,
induce or seek to induce, on an individually targeted basis,
the employment of, or the engagement of the services of, any Relevant
Employee. For these
purposes "Relevant Employee" shall mean and include any employee
of SCEE
or of any subsidiary of SCEE (or any of their subsidiaries or branch
offices outside the United Kingdom), the services of which employee
are
(a) specifically engaged in product development (or directly related)
functions or (b) otherwise reasonably deemed by his/her employer
to be of
material importance
to the protection of its legitimate business interests, and with
which
employee Publisher
(or any parent company, subsidiary or affiliate of Publisher) shall
have
had contact or dealings
during the Term. The foregoing provisions shall continue to apply
for a
period of 12
(twelve) months following expiry or earlier termination of the Term
and
are hereby deemed substituted for any corresponding provisions in
any
agreement(s) previously entered into between the parties hereto in
relation to PSP and/or to Sony’s "PlayStation 2" predecessor computer
entertainment system.
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Page
15
|
11.
|
Indemnities
|
|
11.1
|
SCEE
shall indemnify and hold Publisher harmless from and against any
and all
claims, losses, liabilities, damages, expenses and costs, including
without limitation reasonable fees for lawyers, expert
witnesses and litigation costs, and including costs incurred in the
settlement or avoidance of
any such claim, which result from or are in connection with a breach
of
any of the warranties provided by SCEE herein; provided however that
Publisher shall give prompt written notice to SCEE of the assertion
of any
such claim, and provided further that SCEE shall have the right to
select
counsel and control the defense and/or settlement thereof, subject
to the
right of Publisher to
participate in any such action or proceeding at its own expense with
counsel of its own choosing.
SCEE shall have the exclusive right, at its discretion, to commence
and
prosecute at its own
expense any lawsuit or to take such other action with respect to
such
matters as shall be deemed
appropriate by SCEE. Publisher shall provide SCEE, at no expense
to
Publisher, reasonable
assistance and co-operation concerning any such matter. Publisher
shall
not agree to the
compromise, settlement or abandonment of any such claim, action or
proceeding without SCEE's
prior written consent.
|
|
11.2
|
Publisher
shall indemnify and hold SCEE harmless from and against any and all
claims, losses, liabilities, damages, expenses and costs, including
without limitation reasonable fees for lawyers, expert
witnesses and litigation costs, and including costs incurred in the
settlement or avoidance of
any such claim, which result from or are in connection with (i) a
breach
of any of the warranties
provided by Publisher herein or any breach of Publisher's confidentiality
obligations as referred to in Clause 9.1 hereof, or (ii) any claim
of
infringement or alleged infringement of any Third Party Intellectual
Property Rights with respect to Licensed Developer Software, or (iii)
any
claim of or in connection with any injury (including death) or property
damage, by whomsoever such claim is made, arising (in whole or in
part)
out of the manufacture, sale and/or use of any of the
Manufactured Materials unless resulting from the proven negligence
of
Sony; provided however
that SCEE shall give prompt written notice to Publisher of the assertion
of any such claim,
and provided further that Publisher shall have the right to select
counsel
and control the defense and/or settlement thereof, subject to the
right of
SCEE to participate in any such action or proceeding
at its own expense with counsel of its own choosing. Publisher shall
have
the exclusive
right, at its discretion, to commence and/or prosecute at its own
expense
any lawsuit or to take such other action with respect to such matter
as
shall be deemed appropriate by Publisher. SCEE shall provide Publisher,
at
no expense to SCEE, reasonable assistance and co-operation concerning
any
such matter. SCEE shall not agree to the compromise, settlement or
abandonment of any such claim, action or proceeding without Publisher's
prior written consent.
|
|
12.
|
Limitations
of Liability
|
| 12.1 |
In
no event shall Sony or its suppliers be liable for loss of revenue,
loss
of actual or prospective profits, loss of contracts, loss of anticipated
savings, loss of business opportunity, reputation or goodwill
or loss of, damage to or corruption of data (whether such loss or
damage
is direct, indirect
special, incidental or consequential) arising out of or in connection
with
this Agreement or
any collateral contract (including without limitation the breach
of this
Agreement by SCEE), whether known, foreseen or foreseeable and whether
under theory of contract, tort (including negligence), indemnity,
product
liability or otherwise.
|
Page
16
|
12.2
|
In
no event shall Sony or its suppliers be liable for any indirect,
special,
incidental or consequential
loss or damage of any kind arising out of or in connection with this
Agreement or any collateral contract (including without limitation
the
breach of this Agreement by SCEE), whether known, foreseen or foreseeable
and whether under theory of contract, tort (including negligence),
indemnity, product liability or
otherwise.
|
|
12.3
|
Publisher
acknowledges and agrees that no representations were made prior to
the
entering into of this Agreement and that, in entering into this Agreement,
it does not rely on any statement, representation, warranty or
understanding (whether negligently or innocently made) of any person
(whether
party to this Agreement or not) other than as expressly set out in
this
Agreement. Publisher
shall have no remedy in respect of any representation (whether written
or
oral) made to it
upon which it relied in entering into this Agreement and Sony shall
have
no liability to Publisher
other than pursuant to the express terms of this
Agreement.
|
|
12.4
|
Except
as expressly set forth herein, no Sony entity, nor any of their respective
directors, officers, employees or agents, shall bear any risk, or
have any
responsibility or liability, of any kind to Publisher or to any third
parties with respect to the functionality and/or performance of Licensed
Products.
|
|
12.5
|
In
no event shall Sony's liability arising under or in connection with
this
Agreement, or any collateral
contract, exceed the Platform Charge paid by Publisher under Clause
7
within the 2
(two) years prior to the date of the first occurrence of the event
or
circumstances giving rise to such
liability.
|
|
12.6
|
In
no event shall Publisher be liable to SCEE for loss of revenue, loss
of
actual or prospective profits, loss of contracts, loss of anticipated
savings, loss of business opportunity, reputation or goodwill
or loss of, damage to or corruption of data (whether such loss or
damage
is direct, indirect,
special, incidental or consequential) arising out of or in connection
with
this Agreement or
any collateral contract (including without limitation the breach
of this
Agreement by Publisher),
whether known, foreseen or foreseeable and whether under theory of
contract, tort (including
negligence), indemnity, product liability or otherwise, provided
that
Publisher expressly
agrees that such limitations shall not apply to damages resulting
from
Publisher's breach of
Clauses 2, 3, 4, 7, 9 or 11.2 of this
Agreement.
|
|
12.7
|
Subject
as expressly provided in Clauses 10.1 and 10. 2, no Sony entity nor
its
suppliers make, nor does
Publisher receive, any warranties (express, implied or statutory)
regarding the Sony Materials
and/or units of Manufactured Materials manufactured hereunder. Sony
shall
not be liable
for any injury, loss or damage, direct or consequential, arising
out of
the use of, or inability to
use, such units of Manufactured Materials. Without limiting the generality
of the foregoing, any
warranties, conditions or other terms implied by statute or common
law
(including as to merchantability, satisfactory quality and/or fitness
for
a particular purpose and the equivalents thereof
under the laws of any jurisdiction) are excluded to the fullest extent
permitted by applicable
law.
|
|
12.8
|
Nothing
in this Agreement shall exclude or limit Sony's liability in relation
to
claims arising from deceit,
the injury or death of any person resulting from the proven negligence
of
Sony or any other
liability which may not be excluded or limited by applicable
law.
|
Page
17
| 13. |
Termination
by SCEE
|
| 13.1 |
SCEE
shall have the right forthwith to terminate this Agreement by written
notice to Publisher at any time after the occurrence of any of the
following events or circumstances: (i) any material breach of Publisher's
obligations under this Agreement or the CNDA(PSP) (or, if Publisher
shall
also
have executed a PlayStation Non-Disclosure Agreement and/or PlayStation
2
Confidentiality
& Non-Disclosure Agreement which shall have been breached by
Publisher, or a PlayStation Licensed Developer Agreement, a PlayStation
Licensed Publisher Agreement, a PlayStation
2 Tools & Materials Loan Agreement, a PlayStation 2 Licensed Developer
Agreement,
a PlayStation 2 Licensed Publisher Agreement, a PSP Tools & Materials
Loan Agreement,
and/or a PSP Licensed Developer Agreement with SCEE, or a PlayStation,
PlayStation
2 or PSP non-disclosure, licensed developer, development system or
licensed publisher
agreement (or equivalent) with an Affiliate of SCEE, which shall
have been
terminated for breach by SCEE or by such party) which breach, if
capable
of remedy, shall not have been corrected or cured in full within
30
(thirty) days following notice from SCEE specifying and requiring
the
correction or cure of such breach, or any repetition of a prior material
breach of any such
obligation, whether or not capable of remedy; (ii) any refusal or
failure
by Publisher to effect
payment of Platform Charge, promptly in accordance with Clauses 7.1
or 7.3
or at all, or a statement that Publisher is or will be unable to
pay, any
sum(s) due hereunder, or Publisher being unable to pay its debts
generally
as the same fall due; (iii) Publisher's filing of an application
for, or
consenting to or directing the appointment of, or the taking of possession
by, a receiver, administrator, custodian, trustee or liquidator (or
the
equivalent of any of the foregoing under the laws
of any jurisdiction) of any of Publisher's property (whether tangible
or
intangible and wherever
located), assets and/or undertaking; (iv) the making by Publisher
of a
general assignment
for the benefit of creditors; (v) an adjudication in any jurisdiction
that
Publisher is a bankrupt
or insolvent; (vi) the commencing by Publisher of, or Publisher's
intention to commence,
a voluntary case under applicable bankruptcy laws of any jurisdiction;
(vii) the filing by Publisher of, or Publisher's intention to file,
a
petition seeking to take advantage of any other law(s) of any jurisdiction
providing for the relief of debtors; (viii) Publisher's acquiescence
in,
intention to acquiesce in, or failure to have dismissed within 90
(ninety)
days, any petition filed against it in any involuntary case brought
pursuant to the bankruptcy or other law(s) of any jurisdiction referred
to
in (vi) and (vii) above; (ix) a controlling partnership or equity
interest
[or any such interest (other than an acquisition of less than an
aggregate
of 5% (five percent) of the issued share capital of Publisher, as
quoted
on a recognized investments exchange), in the case of a transfer
to any
party which (a) shall previously have executed a PlayStation
Non-Disclosure Agreement,
a PlayStation 2 Confidentiality & Non-Disclosure Agreement or a PSP
Confidentiality
& Non-Disclosure Agreement which shall have been breached by such
party, or a PlayStation Licensed Developer Agreement, a PlayStation
Licensed Publisher Agreement, a PlayStation
2 Tools and Materials Loan Agreement, a PlayStation 2 Licensed Developer
Agreement,
a PlayStation 2 Licensed Publisher Agreement, a PSP Tools & Materials
Loan Agreement, a PSP Licensed Developer Agreement or a PSP Licensed
Publisher Agreement, or a PlayStation, PlayStation 2 or PSP
non-disclosure, licensed developer, development system or licensed
publisher agreement (or equivalent) with an Affiliate of SCEE, which
shall
have been terminated for breach by SCEE or by such party, or (b)
is, or
which directly or indirectly holds or acquires
a partnership or equity interest in, the developer of (or other owner
of
intellectual property
rights in) any interactive hardware device or product which is or
will be
directly or indirectly competitive with PSP, or (c) is in litigation
with
Sony concerning any proprietary technology, trade secrets and/or
intellectual property matter(s) and/or has challenged the validity
of any
Sony Intellectual Property Rights] in Publisher or in all or substantially
all of Publisher's property (whether tangible or intangible), assets
and/or undertaking, being acquired, directly or indirectly,
by any person, firm, corporation or other entity; (x) Publisher enters
into any third party
business relationship pursuant to which Publisher makes a material
contribution to the development
of the core components of any interactive hardware device or product
which
is or will
be directly or indirectly competitive with PlayStation 2 and/or PSP,
or if
Publisher directly or
indirectly holds or acquires a partnership or equity interest (other
than
a holding or acquisition of
less than an aggregate of 5% (five percent) of the issued share capital,
as quoted on a recognized
investments exchange) in, or otherwise forms a strategic commercial
relationship with,
any third party firm, corporation or other entity which has developed
or
during the Term develops
(or which owns or during the Term acquires ownership of intellectual
property rights in)
any such device or product; (xi) Publisher failing to submit materials
relating to any new PSP format Software in accordance with Clause
5.2,
and/or failing to issue any purchase orders for Manufactured
Materials in accordance with Clause 6.5, during any period of 12
(twelve)
consecutive
calendar months; (xii) Publisher (or any parent company, subsidiary
or
affiliate of Publisher)
being in litigation with Sony concerning any proprietary technology,
trade
secrets and/or
intellectual property matter(s) and/or challenging the validity of
any
Sony Intellectual Property Rights; or (xiii) Publisher or any of
its
officers or employees engaging in so-called “hacking”
of any PSP format software (or of any software for any future PlayStation
format) or in
activities which facilitate the same by any third party. As used
in this
Clause 13. 1, "controlling interest"
means (i) in relation to a body corporate, the power of the holder
of such
interest to secure
- (a) by means of the holding of shares or the possession of voting
power
in, or in relation to, that or any other body corporate or (b) by
virtue
of any powers conferred by the Articles of Association
or other document regulating that or any other body corporate - that
the
affairs of such
body corporate be conducted in accordance with the wishes of the
holder of
such interest, and
(ii) in relation to a partnership, the right to a share of more than
50%
(fifty percent) of the assets
or of the income of the partnership. Forthwith upon such occurrence,
Publisher shall notify
SCEE of the occurrence of any of the events or circumstances specified
in
(ii) to (x) or (xiii)
above; and Publisher's failure so to do shall be a material breach
of this
Agreement not capable of remedy. In the event of termination by SCEE
pursuant to Clause 13.1(xiii), SCEE shall
have the right also to terminate any prior PlayStation agreements
between
SCEE and Publisher.
|
Page
18
|
13.2
|
Further,
SCEE shall have the right by written notice to Publisher forthwith
to
terminate the licences
and related rights herein granted to Publisher in relation to any
PSP
format Software at any
time after the occurrence of any of the following events: (i) any
failure
by Publisher to submit to SCEE the materials required to be submitted
under Clauses 5.2 and 5.3 (or, if applicable, under Clause
5.6) in the form and manner and in conformity with the standards
and
specifications therein
prescribed; and (ii) any failure by Publisher promptly to notify
SCEE in
writing of any material
change to any of the materials approved by SCEE pursuant to Clause
5.4
(or, if applicable,
pursuant to Clause 5.6); provided however that SCEE shall not be
entitled
to exercise such right of termination if Publisher's failure under
(i)
above is directly caused by SCEE's failure to comply with any of
its
material obligations expressly set forth
herein.
|
|
14.
|
Effect
of Expiration or Termination
|
|
14.1
|
Notwithstanding
the giving of notice to terminate the Term pursuant to Clause 1.19,
Publisher shall
be entitled to continue to publish Licensed Products comprising PSP
format
Software games the
development of which shall have been approved prior to or during
the Term
hereof by SCEE (or
by an Affiliate of SCEE) pursuant to the applicable LDAP, and to
use the
Licensed Trademarks
strictly, only and directly in connection with such publication,
until the
expiration of the Term or, if later, until the second anniversary
of the
31 March next following such approval. Upon expiration of the Term
or, if
applicable, such extended period for publishing Licensed Products,
Publisher may sell off existing inventories of Licensed Products
relating
to the applicable
PSP format Software games, on a non-exclusive basis, for a period
of 180
(one hundred
and eighty) days from the applicable expiration date; provided always
that
such inventory
thereof shall not have been manufactured solely or principally for
sale
within such selloff period.
|
Page
19
|
14.2
|
However,
upon the exercising by SCEE of its right of termination, either of
this
Agreement pursuant to Clauses 13.1(i) to (viii), (xii) or (xiii)
or in
relation to any PSP format Software pursuant
to Clause 13.2, all rights, licences and privileges licensed or otherwise
granted to Publisher
hereunder, either generally or in relation to such PSP format Software
(as
applicable), shall
forthwith and without further formality revert absolutely to SCEE
and
Publisher shall forthwith
cease and desist from any further use of the Sony Materials, any
Sony
Intellectual Property
Rights related thereto and the Licensed Trademarks, and, subject
to Clause
14.3, shall have no further right to continue the marketing, sale
and/or
distribution of any units of Licensed Product
or of any units of Licensed Product derived from such PSP format
Software
(as applicable).
|
|
14.3
|
In
the event of termination by SCEE pursuant to Clause 13.1(ix), (x)
or (xi)
or by Publisher pursuant
to Clause 25, Publisher may sell off then unsold units of Licensed
Product(s), for a period
of 90 (ninety) days from the effective date of termination; provided
always that such inventory
thereof shall not have been manufactured solely or principally for
sale
within such selloff period. Subsequent to the expiry of such 180
(one
hundred and eighty) day or 90 (ninety) day sell-off
period, or in the event of termination by SCEE pursuant to Clauses
13.1(i)
to (viii), (xii) or
(xiii) or Clause 13.2, any and all units of Licensed Products or
the
applicable Licensed Products
(as the case may be) remaining in Publisher's inventory and/or under
its
control shall be destroyed by Publisher within 5 (five) working days
following such expiry or effective date of termination.
Within 5 (five) working days following such destruction, Publisher
shall
furnish SCEE
an itemized statement, certified accurate by a duly authorised officer,
partner or other representative
(as applicable) of Publisher, specifying the number of then unsold
units
of Licensed
Product(s) to which such termination applies, on a PSP format Software
game-by-game basis, which remain in its inventory and/or under its
control
at such date, confirming the number of units of Licensed Products
destroyed, on a PSP format Software game-by-game basis, and indicating
the
location and date of such destruction and the disposition of the
remains
of such destroyed
materials. SCEE shall be entitled to conduct a physical inspection
of
Publisher's inventory
during normal business hours in order to ascertain or verify such
inventory and/or statement.
|
|
14.4
|
Upon
termination of the Term by SCEE pursuant to Clause 13. 1, Publisher
shall
forthwith deliver up
to SCEE (or, if so requested by SCEE in writing, destroy and promptly
furnish SCEE a certificate
of such destruction signed by a duly authorised officer, partner
or other
representative (as
applicable) of Publisher) all Sony Materials, and any Confidential
Information of Sony of which
Publisher shall have become apprised and which has been reduced to
tangible or written form, and any and all copies thereof then in
the
possession, custody or control of
Publisher.
|
|
14.5
|
SCEE
shall be under no obligation to renew or extend this Agreement
notwithstanding any actions
taken by either of the parties prior to its expiration or earlier
termination. In the event of termination pursuant to Clauses 13.1
or 13.2,
no part of any payment(s) whatsoever theretofore made to SCEE hereunder
(or, if Publisher shall also have executed a LDAP, thereunder) shall
be
owed or repayable to Publisher, and nor shall either party be liable
to
the other for any damages (whether
direct, consequential or incidental, and including without limitation
any
expenditures, loss
of profits or prospective profits) sustained or arising out of, or
alleged
to have been sustained or to have arisen out of, such expiration
or
earlier termination. However, the expiration or earlier termination
of
this Agreement shall not excuse either party from any prior breach
of any
of the terms
and provisions of this Agreement or from any obligations surviving
such
expiration or earlier
termination, and full legal and equitable remedies shall remain available
for any breach or threatened breach of this Agreement or of any
obligations arising therefrom.
|
Page
20
|
14.6
|
The
expiration or earlier termination of this Agreement (whether by SCEE
pursuant to Clause 13 or
otherwise howsoever) shall be without prejudice to any and all rights
and
remedies which either
party may then or subsequently have against the other
party.
|
|
15.
|
Notices
|
|
15.1
|
All
notices under this Agreement shall be in writing and shall be given
by
courier or other personal
delivery, by registered or certified mail, by recognized international
courier service or by facsimile
transmission (with an immediate confirmation copy by regular mail
or any
of the methods
specified above) at the appropriate address hereinbefore specified
or at a
substitute address
designated by notice by the party concerned (and in the case of notices
to
SCEE shall be directed
to its Senior Vice President, Third Party & Business Affairs or such
other Sony representative
as shall from time to time be designated by notice by SCEE). Notices
given
other than
by facsimile transmission shall be deemed given and effective when
delivered. Notices given
by facsimile transmission shall be deemed given only upon receipt
of
confirmation copy as aforesaid but, upon such receipt, shall be deemed
effective as of the date of
transmission.
|
|
15.2
|
Whenever
Publisher is required to obtain the authorization, consent or approval
of
SCEE, Publisher
shall request the same by notice to SCEE as aforesaid, and with a
copy
under separate cover to its Director of Third Party Relations or
such
other Sony representative as shall from time to time be designated
by
notice to Publisher. Such authorization, consent or approval shall
not be
deemed
to be granted unless and until SCEE shall have given a written affirmative
response to each
request therefor and shall in no event be implied or inferred from
any
delay or failure of SCEE
to give such or any response.
|
|
16.
|
Force
Majeure
|
Neither
SCEE nor Publisher shall be liable for any loss or damage or be deemed to be
in
breach of this Agreement
if its failure to perform, or failure to cure any breach of, its obligations
under this Agreement
results from any events or circumstances beyond its reasonable control,
including without limitation any natural disaster, fire, flood, earthquake
or
other act of God, inevitable accidents, lockout, strike or other labor dispute,
riot or civil commotion, act of public enemy, enactment, rule, order or act
of
any government or governmental authority, failure of technical facilities,
or
failure or delay of transportation facilities.
|
17.
|
Relationship
of the Parties
|
The
relationship hereunder between SCEE and Publisher respectively is that of
licensor and licensee. Publisher is an independent contractor and shall not
in
any respect act as or be deemed to be the legal representative,
agent, joint venturer, partner or employee of SCEE for any purpose whatsoever.
Neither
party shall have any right or authority to assume or create any obligations
of
any kind or to make any representation or warranty (express or implied) on
behalf of the other party or to bind the other
party in any respect whatsoever.
Page
21
|
18.
|
Assignability
|
SCEE
has
entered into this Agreement based on the particular reputation, capabilities
and
experience of Publisher
and of its officers, directors and employees. Accordingly, Publisher may not
assign, pledge or
otherwise dispose of this Agreement or of any of its rights hereunder, nor
delegate or otherwise transfer
any of its obligations hereunder, to any third party unless the prior written
consent of SCEE shall
first have been obtained in each case. Any attempted or purported assignment,
pledge, delegation or
other
disposition in contravention of this Clause 18 shall be null and void and a
material breach of this
Agreement not capable of remedy. SCEE shall be entitled, without the consent
of
Publisher, to assign
its rights and obligations hereunder to any corporation or other entity in
which
Sony Corporation (or any successor in interest thereto) holds a controlling
interest (as defined in Clause 13.1), whether directly or indirectly. Subject
to
the foregoing, this Agreement shall inure to the benefit of the parties and
their respective successors and permitted assigns.
Save
as
expressly provided in this Agreement and save that Sony may enforce the terms
of
Clauses 2, 3, 4, 5.6, 6.2, 7, 9, 10, 11, 12, 14, 18, 20, 21, 22, 23, 24, 25
and
27 of this Agreement, a person who is not party to this Agreement shall have
no
right under the Contracts (Rights of Third Parties) Xxx 0000 to
enforce any term of this Agreement. This provision does not affect any right
or
remedy of any person which exists or is available otherwise than pursuant to
such Act.
|
19.
|
Compliance
with Applicable Laws
|
The
parties shall at all times comply with all applicable regulations and orders
of
their respective countries
and all conventions and treaties to which their countries are party or relating
to or in any way affecting this Agreement and the performance by the parties
of
this Agreement. Each party, at its own expense, shall negotiate and obtain
any
approval, licence or permit required for the performance of its obligations
hereunder, and shall declare, record or take such steps as may be necessary
to
render this Agreement
binding, including without limitation any required filing of this Agreement
with
any appropriate
governmental authorities.
|
20.
|
Governing
Law
|
|
This
Agreement shall be governed by, construed and interpreted in accordance
with English Law, without
giving effect to the conflict of laws principles thereof. The parties
irrevocably agree for the exclusive benefit of SCEE that the English
Courts shall have jurisdiction to adjudicate any proceeding, suit
or
action arising out of or in connection with this Agreement. However,
nothing contained in this Clause 20 shall limit the right of SCEE
to take
any such proceeding, suit or action against Publisher in any other
court
of competent jurisdiction, nor shall the taking of any such proceeding,
suit or action in one or more jurisdictions preclude the taking of
any
other such proceeding, suit or action in any other jurisdiction,
whether
concurrently or not, to the extent permitted by the law of such other
jurisdiction. Publisher
shall have the right to take any such proceeding, suit or action
against
SCEE only in the English
Courts.
|
| 21. |
Remedies
|
Publisher
acknowledges and agrees that any breach by Publisher of this Agreement may
cause
Sony irreparable harm and damage which may not be capable of remedy by damages
alone and therefore that in the event of any such breach SCEE may seek equitable
(including injunctive) relief against Publisher in addition to damages and/or
any other remedy available to SCEE at law or in equity. Either party's
election
to avail itself of any of the remedies provided for in this Agreement shall
not
be exclusive of any
other
remedies available hereunder or otherwise at law or in equity, and all such
remedies shall be cumulative. Publisher shall indemnify SCEE for all losses,
liabilities, damages, expenses and costs, including without limitation
reasonable fees for lawyers, expert witnesses and litigation costs, which
SCEE
may
sustain or incur as a result of any breach or threatened breach by Publisher
of
this Agreement.
Page
22
|
22.
|
Severability
|
In
the
event that any provision of this Agreement (or any part(s) thereof), other
than
a provision in respect
of which SCEE gives a notice of amendment pursuant to Clause 25, is determined
by a court of competent
jurisdiction to be invalid or otherwise unenforceable, such provision (or
part(s) thereof) shall be
enforced to the extent possible consistent with the stated intention of the
parties or, if incapable of such
enforcement, shall be deemed to be deleted from this Agreement, but not in
any
way so as to affect
the validity or enforceability of any other provisions of this Agreement which
shall continue in full
force and effect.
|
23.
|
Provisions
Surviving Expiration or Termination
|
|
The
following provisions of this Agreement shall survive and continue
in full
force and effect notwithstanding
its expiration or earlier termination (whether by SCEE pursuant to
Clause
13 hereof or otherwise
howsoever):
|
|
Clause
3
|
Sub-Publishers
|
|
Clause
4
|
Reservations
|
|
Clause
5.7
|
Consumer
Advisory Age Ratings
|
|
Clause
6
|
Manufacture
of Licensed Products
|
|
Clause
7
|
Platform
Charge
|
|
Clause
9
|
Confidentiality
|
|
Clause
10.2 to 10.4
|
Warranties
|
|
Clause
11
|
Indemnities
|
|
Clause
12
|
Limitations
of Liability
|
|
Clause
14
|
Effect
of Expiration or Termination
|
|
Clause
18
|
Assignability
|
|
Clause
20
|
Governing
Law
|
|
Clause
21
|
Remedies
|
|
Clause
22
|
Severability
|
|
24.
|
Waiver
|
No
failure or delay by either party in exercising any right, power or remedy under
this Agreement shall operate as a waiver of any such right, power or remedy.
No
waiver of any provision of this Agreement shall be effective unless in writing
and signed by the party against whom it is sought to enforce such waiver.
Any waiver by either party of any provision of this Agreement shall not be
construed as a waiver
of
any other provision of this Agreement, nor shall such waiver operate or be
construed as a waiver
of
such provision in relation to any future event or circumstance.
|
25.
|
Amendments
|
SCEE
reserves the right, at any time upon reasonable notice to Publisher, to amend
the relevant provisions
of this Agreement, the Schedules hereto and/or the specifications herein
referred to, to take account of or in response to any decision or order of,
or
objection raised by, any court or governmental or
other
competition authority of competent jurisdiction and/or any statutory or similar
measures which
might be implemented to give effect to any such decision, which apply to this
Agreement, the Schedules hereto and/or the Specifications herein referred to
(and from which this
Agreement, the Schedules
hereto and/or the Specifications herein referred to are not exempt) or to
reflect any undertaking
given by Sony to any such authority in relation to any and all such matters
aforesaid. Any such
amendment shall be of prospective application only and shall not be applied
to
any Licensed Product
materials which shall have been submitted to SCEE by Publisher pursuant to
Clause 5.2 and/or
5.3 prior to the date of SCEE's notice of amendment. In the event that Publisher
is unwilling to accept any such amendment, then Publisher shall have the right
forthwith to terminate this Agreement by written notice to SCEE given not more
than 90 (ninety) days following the date of SCEE's notice of amendment.
The provisions of Clause 14.3 shall come into effect upon any such termination
by Publisher.
Page
23
Subject
to the foregoing and except as otherwise provided herein, this Agreement shall
not be subject to amendment,
change or modification other than by another written instrument duly executed
by
both of the parties hereto.
|
26.
|
Headings
|
|
The
clause and other headings contained in this Agreement are intended
primarily for reference purposes
only and shall not alone determine the construction or interpretation
of
this Agreement or any provision(s)
hereof.
|
|
27.
|
Integration
|
|
This
document (including the Schedules hereto) constitutes the entire
agreement
between the parties with
respect to the subject matter contained herein, and supersedes all
prior
or contemporaneous agreements,
proposals, understandings and communications between Sony and Publisher,
whether oral or
written, with respect to the subject matter hereof. However, the
generality of the foregoing notwithstanding,
the CNDA (PSP) and, if applicable, the LDAP executed by Publisher
shall
continue in full force and effect.
|
|
28.
|
Counterparts
|
|
This
Agreement may be executed in 2 (two) counterparts, each of which
shall be
deemed an original, and
both of which together shall constitute one and the same
instrument.
|
Page
24
IN
WITNESS WHEREOF the parties hereto have caused this Agreement to be executed
as
of the date first above written.
|
SONY
COMPUTER ENTERTAINMENT
|
ZOO
DIGITAL PUBLISHING LIMITED EUROPE
LIMITED
|
|
Signature
|
Signature
|
|
|
Xxx
Xxxx
|
||
|
Name
|
Signatory’s
Name (please print)
|
|
|
EVP
& Co-COO
|
||
|
Title
|
Title
|
Page
25
