LICENSE AGREEMENT FOR THE NINTENDO DS SYSTEM (EEA, AUSTRALIA AND NEW ZEALAND)
| April 4, 2005 |
CONFIDENTIAL
|
LICENSE
AGREEMENT FOR THE NINTENDO DS SYSTEM
(EEA,
AUSTRALIA AND NEW ZEALAND)
THIS
LICENSE AGREEMENT ("Agreement") is entered Into between NINTENDO CO., LTD.
("NINTENDO") at 00-0 Xxxxxxxx Xxxxxxxx-xxx, Xxxxxx-xx, Xxxxx, Xxxxx 601-8501,
Attn: General Manager.
International Business Administration Departure (facsimile: 00.00.000.0000),
and
DESTINATION
SOFTWARE INC., at 000 Xxxxxxxxxx -Xxxxx Xxxx Xxxx, Xxxxxx, XX 00000, XXX
(facsimile;
856.262.0066); Attn: Xx. Xxxxxxx X. Xxxxx, and DESTINATION SOFTWARE, at Manor
Barn,
Manor Lane, Great Xxxxxxxx, Xxxxx Xxxxxxxxxxxx, XX00 0XX, U.K. (facsimile
44.
1767
677 425 ); Attn:
Xxxx Xxxxxxx, Vice President of Development (DESTINATION SOFTWARE
INC. and DESTINATION SOFTWARE together and separately: "LICENSEE"). NINTENDO
and LICENSEE agree as follows:
1. RECITALS
1.1
NINTENDO
designs, develops, manufactures, markets and sells advanced design, high-quality
video game systems, including the Nintendo DS system.
1.2
LICENSEE desires a license to use 'highly proprietary programming
specifications, development
tools, trademarks and other valuable intellectual property rights of NINTENDO
to
develop,
have manufactured, advertise, market and sell video game software for play
on
the Nintendo DS
system.
1.3
NINTENDO
is willing to grant a license to LICENSEE on the terms and conditions set
forth
in
this Agreement.
2. DEFINITIONS
2.1
"Artwork"
means the design specifications for the Game Card label and Printed Materials
in the format specified by NINTENDO in the Guidelines.
2.2 "Bulk
Goods" means the Game Cards with Game Card labels affixed.
2.3
"Development
Tools" means the development kits, programming tools, emulators and other
materials that may be used in
the
development of Games under this Agreement.
2.4
"Effective Date"
means
the
last date on which all parties shall have signed this Agreement.
2.5
"Finished
Product(s)" means the fully assembled Game Card with a Game Card label
and
packaged in a plastic case or other form of protective packaging, together
with
Printed Materials.
2.6
"Game
Card(s)" means custom card media specifically manufactured under the terms
of
this
Agreement for play on the Nintendo DS system, incorporating semiconductor
components in which a Game has been stored.
2.7
"Game(s)" means the Nintendo DS version of an interactive video game program,
or
other
applications approved by NINTENDO (including source and object/binary code)
developed for the Nintendo DS system.
2.8
"Guidelines" means the current version or any future revision of
the
"Nintendo
DS Guidelines",
pertaining to layout, trademark usage and other requirements for the Game Card
label, instruction manual and Game Card packaging; "Marketing Materials";
"Nintendo DS Development Manual";
"Guidelines on Ethical Content"; "Nintendo DS Software Submission Requirements"
together with
related guidelines that NINTENDO may provide to LICENSEE from time to time.
The
Guidelines on
Ethical Content are attached as Annex A, and the remainder of the Guidelines
have been provided to
LICENSEE independent of this Agreement. The Guidelines may be changed or updated
from time to time without notice, and the versions current from time to time
will be available on request from NINTENDO.
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2.9
"Independent
Contractor" means any individual or entity that is not an employee of LICENSEE,
including any independent programmer, consultant, contractor, board member
or
advisor.
2.10
"Intellectual Property Rights" means Individually, collectively or in any
combination, Proprietary Rights owned, licensed or otherwise held by NINTENDO
that are associated with the
development,
manufacturing, advertising, marketing or sale of the Licensed Products,
including, without
limitation, (a) registered and unregistered trademarks and trademark
applications used in connection with Games for the Nintendo D5 system including
"Nintendo™,
"Nintendo
DS™,
end the
"Official
Nintendo Seal of Quality™",
(b)
select trade dress associated with the Nintendo DS system and
licensed Games for play thereon. (c) Proprietary Rights in the Security
Technology incorporated into the Game Cards, (d) rights in the Development
Tools
for use in developing the Games. (e)
patents,
patent applications. utility models or design registrations associated with
the
Game Cards, (f)
copyrights
in the Guidelines, and (g)
other
Proprietary
Rights of NINTENDO in the Confidential Information.
2.11
"Licensed Products" means (a) Finished Products, or (b) Bulk Goods when fully
assembled and packaged in a plastic case or other form of protective packaging
with the Printed Materials.
2.12
"Marketing Materials" means marketing, advertising or promotional materials
developed
by or for LICENSEE (or subject to LICENSEE'S approval) to promote
the
sale
of the Licensed
Products, including,
but
not
limited to, television, radio and on-line advertising, point-of-sale materials
(e.g. posters, counter-cards), package advertising, print media or materials
and
all audio or video media Other than
the
Game
that is to be included on the Game Card.
2.13
"NDA" means the non-disclosure agreement providing for the protection of
Confidential
Information related to the Nintendo DS System previously entered into between
NINTENDO
and/or Nintendo of America Inc.. NINTENDO's subsidiary of Redmond.
Washington,
USA
("NOA")
and LICENSEE.
2.14
"Notice" means any notice permitted or required under this Agreement. All
Notices shall
be
sufficiently given when (a) personally Served or delivered. (b) transmitted
by
facsimile, with an original
sent concurrently by mail, or (c) deposited, postage prepaid, with a guaranteed
air courier service,
in
each
case
addressed as stated herein, or addressed to such other person or address
either
party mey designate In a Notice. Notice shall be deemed effective upon the
earlier of actual receipt or two (2) business days after
transmittal.
2.15
"Price Schedule" means the current version or any future revision of NINTENDO's
schedule of purchase prices and minimum order quantities
for Finished Products and Bulk Goods. The Price Schedule has been Provided
to
LICENSEE independent of this Agreement and may be changed or updated from time
to time without notice, and the version current from time to time will be
available on request from NINTENDO.
2.16
"Printed Materials" means the Game Card label and title sheet, user Instruction
booklet, poster, warranty Card and LICENSEE inserts incorporating the Artwork,
together with a Health and Safety Precautions Booklet as specified
byNINTENDO.
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2.17
"Proprietary Rights" means any rights or applications for rights to the extent
recognized anywhere in the Territory relating to the Nintendo DS System,
end
owned, licensed or otherwise held in patents. trademarks, service marks,
copyrights and neighboring rights, semiconductor chip layouts or masks, trade
secrets. utility models, registered design rights, unregistered design rights.
database rights, get up, trade dress, moral rights and publicity rights,
together with all inventions, discoveries, ideas, know-how, data, information.
processes, methods, procedures, formulas, drawings and designs, computer
programs, software source code and object code, and all amendments,
modifications, and improvements thereto for which such patent, trademark,
service xxxx, copyright and neighboring rights. semiconductor chip layouts
or
mask, trade secrets, Utility models, registered design rights, unregistered
design rights. database rights, get up, trade dress, moral rights or publicity
rights may exist or may be sought and obtained In the future.
2.18 "NOA"
means
NCL's subsidiary, Nintendo of
America
Inc. of Redmond, Washington, USA.
2.19
"Reverse Engineer(ing)" means,
without
limitation, (a) the x-ray. electronic scanning or
physical or chemical Stripping of semiconductor components, (b) the disassembly,
decompilation, decryption or simulation of object code or executable code,
or
(c) any other technique designed to extract source code
or
facilitate
the duplication of a program or product.
2.20
"Security Technology" means, without limitation, any security signature,
Wm,
data scrambling, password, hardware security apparatus, watermark, hologram,
encryption, Digital Rights Management system, copyright management information
system or any feature that facilitates or limits compatibility with other
hardware, software, or accessories or other peripherals outside of the Territory
or on a different video
game system.
2.21 "Sole
License" shall mean a license under which only the licensor and a single
licensee can utilize the subject matter of the license.
2.22
"Term" means three (3) years from the Effective
Date.
2.23
'Territory" means any and all countries within the European Economic
Area:
namely Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia,
Finland, France, Germany. Greece, Hungary. Iceland, Ireland, Italy, Latvia,
Liechtenstein, Lithuania, Luxembourg, Malta, the Netherlands,
Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, and the
United Kingdom.
The Territory shall also
include
Australia, New Zealand, Switzerland and Turkey. NINTENDO
may
add
additional
countries to the Territory upon written -notice to LICENSEE,
2.24
"TM"
means trade xxxx of NINTENDO, whether registered or not.
3.
GRANT OF
LICENSE;
LICENSEE RESTRICTIONS
3.1
Limited
License Grant. For
the
Term and
for
the
Territory, NINTENDO grants to LICENSEE
a
nonexclusive,
nontransferable, limited license to use the Intellectual
Property
Rights for the
purpose of and to
the
extent necessary, to develop Games for manufacture, advertising, marketing
and sale as
Licensed
Products,
subject
to the terms and
conditions of
this
Agreement. This license
is royalty-free.
3.2
LICENSEE LICENSEE's
use of the Intellectual Property Rights shall
not
create any right, title or interest of LICENSEE therein. In the event Mat
LICENSEE challenges
NINTENDO's ownership or the validity of the Intellectual Property Rights,
NINTENDO may terminate
this Agreement without any notice or procedure.
3.3
Restrictions
on License Grant.
NINTENDO
does
not
guarantee that the hardware for the
Nintendo DS system
is
distributed throughout the Territory.
Moreover,
the
present
limited license to LICENSEE does not extend to the use of the intellectual
Property Rights for the following purposes:
(a) grant
access to, distribute, transmit or broadcast a Game by electronic means or
by
any other means known or hereafter devised, including, without limitation,
by
wireless, cable, fiber optic, telephone lines, microwave, radiowave. computer
or
other device network. except (a) as a pert of wireless game play on and among
Nintendo DS systems, (b) for the purpose of facilitating game
development under the terms of this Agreement, or (c) as otherwise approved
in
writing by NINTENDO. LICENSEE shall use reasonable security measures, customary
within the high technology industry, to reduce the risk of unauthorized
interception or retransmission of any Game transmission. No right of
retransmission shall attach to any authorized transmission of a
Game.
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(b) modify,
install or operate a Game on any server or other device for the purpose
of or resulting in the rental. lease, loan or sale of rights of access to the
Game,
(c) emulate.
interoperate, interface or link a Game for operation or use with any
hardware
platform, software program, accessory,
computer
language, computer environment, chip instruction set, consumer electronics
device, telephone, cellphone, PDA, or other device. including for purposes
of
data interchange, password usage or interactive video game play, other than
a
Nintendo DS system, an application approved by NINTENDO, or the Development
Tools.
(d) emulate
any past, current
or future
NINTENDO brand
video game
system, or any
portion thereof, In software or hardware or any combination
thereof,
(e) embed,
incorporate, or store a Game in any media or format except the Game
Card
format utilized by the Nintendo DS system, except as may be necessary as a
part
of the Game development process under this Agreement,
(f) design,
implement or undertake any process, procedure, program or act designed to
circumvent the Security Technology.
(g) utilize
the Intellectual Property Rights to design or develop eny interactive video
game
program, except as authorized
under
this Agreement,
(h) manufacture
or reproduce a Game developed under this Agreement, except through NINTENDO,
or
(1) Reverse Engineer or assist in the Reverse Engineering of all or any
part of the Nintendo DS system,
including the hardware or software (whether embedded or otherwise), the
Development Tools or the Security Technology, except as specifically permitted
under the laws and regulations applicable in the Territory.
3.4
Development
Tools. NINTENDO
may lease, loan or sell Development Tools, including
any improvements made by NINTENDO or NOA from
time
to
time, to LICENSEE to assist in the
development of Games under
this
Agreement on such terms as may
be
agreed
between the parties. Ownership and use of any Development Tools, whether
provided by NINTENDO or NOA, prior
to
or during the
Term
hereof. shall be subject to the terms Of this Agreement and any separate
license
or purchase agreement required by NINTENDO. LICENSEE acknowledges the exclusive
interest
of NINTENDO in and to the Proprietary Rights associated with the Development
Tools. LICENSEES use
of
the
Development Tools shall not create any right, title or interest of LICENSEE
therein. Any license to LICENSEE to use the Development Tools does not extend
to: (a) use of the Development
Tools for any purpose except the design and development of Games under thiS
Agreement.
(b) reproduction or creation of derivatives of the Development Tools. except
in
association
with the development of Games under this Agreement, (c) Reverse Engineering
of
the Development Tools (except as specifically permitted under the
laws
and/or regulations applicable in the
Territory), or (d) selling, leasing, assigning, lending, licensing. encumbering
or otherwise transferring
the Development Tools. Any tools developed or derived by LICENSEE as
a
result
of
a study
of
the performance, design or
operation of the Development Tools Shall be considered derivative works of
the
Intellectual Property Rights, but may be retained and utilized by LICENSEE
In
connection
with this Agreement. Unless LICENSEE can demonstrate that such derivative work
has one
or
more applications that are independent of and Separate from the Intellectual
Property Rights ("Independent Applications"), it shall be deemed to have granted
NOA and NINTENDO an indefinite, worldwide, royalty-free, transferable
and Sole
License (including the right to sub-license) to such derivative
work. To
the
extent that LICENSEE can demonstrate one or more Independent Applications,
LICENSEE shell be deemed to have granted to NOA and NINTENDO a royalty-free
and
transferable non-exclusive License (including the right to sub-license)
in
relation
to such Independent Applications for the Term.
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4. SUBMISSION
OF
GAME AND ARTWORK FOR APPROVAL
4.1
Development
and Sale or the Games. LICENSEE
may develop Games and have manufactured, advertise, market and sell Licensed
Products for play on the Nintendo DS system only in accordance with this
Agreement.
4.2 Delivery
of Completed Game.Upon completion of a Game, LICENSEE shall deliver a
prototype of the Game to NINTENDO in a format specified in the Guidelines,
together with written user instructions, a complete description of any security
holes, backdoors, time bombs. cheats, "Easter eggs" or other hidden features
or
characters In the Game and a complete screen text script. NINTENDO snail
promptly evaluate the Game with regard to its technical compatibility with
and
error-free operation on the Nintendo DS system. LICENSEE must establish that
the
Game and any other content included on the Game Card complies with the
guidelines Of the Pan European Game Information System (PEG), the
Unterhaltungssoftware Selbstkontrolle (USK), the Office of Film and Literature
Classification (OFLC), or any other national or regional game rating system
that
NINTENDO may accept, as applicable. LICENSEE shall be responsible for the
submission of the Game to the appropriate national or regional game rating
organization and shall provide NINTENDO with a statement or certificate in
writing from the relevant organization, confirming the rating for the Game.
Where any such game has been rated as being suitable only for players aged
18
and over (or an equivalent rating), LICENSEE must submit a certificate in
writing that confirms the game is rated as no higher than "M" (mature)
by the Entertainment Software Rating Board (ESRB) of the U.S. In addition,
NINTENDO reserves the right to require LICENSEE to provide NINTENDO with
such
additional written indemnification for damages, claims, loss, liability,
fine or
penalty resulting from the marketing, distribution or sale of a Game with
such
an age rating, as NINTENDO, in its sole discretion, may request. If any such
age
rating is subsequently changed by the relevant organization, LICENSEE shall
inform NINTENDO forthwith in writing of that fact and LICENSEE shall then
comply
with the above provisions in relation to such new age rating.
4.3
Approval of Completed Game. NINTENDO shall, within a reasonable
period of time after receipt, approve or disapprove each submitted Game. If
a
Game is disapproved, NINTENDO shall specify in writing the reasons for such
disapproval and state what corrections or Improvements are necessary. After
making the necessary corrections or improvements, LICENSEE shall submit a
revised Game to NINTENDO far approval. NINTENDO shall not unreasonably withhold
or delay its approval of any Game. The approval of a Game by NINTENDO shall
not
relieve LICENSEE of Its sole responsibility for the development. quality and
operation of the Game or in any way create any warranty for a Game or a Licensed
Product by NINTENDO.
4.4
Submission
of Artwork. Upon
submission of a completed Game to NINTENDO, LICENSEE
shall prepare and submit to NINTENDO the Artwork for the proposed Licensed
Product. Within ten (10) business days of receipt, NINTENDO shall approve or
disapprove the Artwork, If any Artwork is disapproved, NINTENDO shall specify
in
writing the reasons for such disapproval aria state
what
corrections or Improvements are necessary. After making the necessary
corrections or improvements,
LICENSEE shall submit revised Artwork to NINTENDO for approval. NINTENDO shall
not unreasonably withhold or. delay its approval of any Artwork. The approval
of
the Artwork by NINTENDO
shall not relieve LICENSEE of its sole responsibility for the development and
quality of the
Artwork or in any way create any
warranty
for the Artwork or any Licensed Product by NINTENDO.
4.5
Artwork
for
Bulk
Goods, If
LICENSEE submits an order for Bulk Goods, all Artwork shall
be
submitted to NINTENDO in advance of NINTENDO's acceptance of the order and
no
production
of Printed Materials
Shall
occur until such Artwork has been approved by NINTENDO under
Section 4.4 herein.
5. ORDER
PROCESS PURCHASE
PRICE. PAYMENT AND
DELIVERY
5.1
Submission
of Orders by LICENSEE. LICENSEE
may at any time submit written purchase
orders to NINTENDO for any approved Licensed Product title. The purchase order
shall specify
whether it IS for Finished Products or Bulk Goods. The terms and conditions
of
this Agreement
shall take precedence over any contrary terms of such purchase order or any
other written documents submitted by LICENSEE. Ali orders are subject to
acceptance by NINTENDO or its designee.
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5.2
Purchase
Price
order
Quantities.
The
purchase price and minimum order
quantities for Finished Products and Bulk Goods shall be set forth in NINTENDO's
then current Price
Schedule. The purchase price includes the cost of manufacturing the Licensed
Products. No taxes,
duties, import fees or other tariffs related to the development, manufacture,
import, marketing or
sale
of the Licensed Products are included in the purchase price and all such taxes
are the responsibility
of LICENSEE (except for taxes imposed on NINTENDO's income). The Price Schedule
is
subject to change by NINTENDO at any time, provided, however, that any price
increase shall be applicable
only to purchase orders submitted, paid for, and accepted by NINTENDO after
the
effective date
of
the price increase.
5.3
Payment.
Upon
placement of an order with NINTENDO, LICENSEE shall pay the full purchase price
to NINTENDO either (a) by placement of an irrevocable letter
of
credit
in favor of NINTENDO and payable at sight, issued by a bank acceptable to
NINTENDO and confirmed, if requested by NINTENDO, at LICENSEE's expense, or
(b)
In cash, by wire transfer to NINTENDO's designated account. 411 associated
banking charges are the responsibility of the LICENSEE.
5.4
Shipment
and Delivery.
NINTENDO shall deliver the Finished Products and Bulk Goods
ordered by LICENSEE to LICENSEE FOB Japan. CIP European Destination or
ex-warehouse Grossostheim, es per the terms in the Price Schedule. Also per
the
Price Schedule, the minimum snipping quantity is 360 units for Finished Products
and 1200 units for Bulk Goods. Upon mutual consent
of NINTENDO and LICENSEE, orders may be delivered in partial shipments with
a
minimum shipment
quantity as specified in the Price Schedule. Such orders shall be delivered
only
to countries within
the Territory. Title to the Licensed Products shall vest in accordance with
the
terms of the applicable letter of credit or, In the absence thereof, per
incoterms 2000.
6. MANUFACTURE
OF THE LICENSED PRODUCT
6.1
Manufacturing.
Given
NINTENDO's ownership of the valuable Intellectual Property Rights,
NINTENDO shall be the exclusive source for the manufacture of the Game Cards,
and shall control
all aspects of the manufacturing process, including the selection of the
locations end specifications
for any manufacturing facilities, determination of materials and processes,
appointment of
suppliers and subcontractors, and management of all
work-in-progress.
6.2
Manufacture
of the Licensed Products.
Upon
acceptance by NINTENDO of a purchase
order for en approved Licensed Product title and payment as provIded for under
Section 6.3 herein,
NINTENDO will arrange for the manufacture of Finished Product or Bulk Goods,
as
specified in
LICENSEE's purchase order. In this regard, LICENSEE shall submit to NINTENDO
certain technical
information as set forth in a questionnaire entitled "Software Submission
Requirements" which has been provided to LICENSEE by
NINTENDO.
6.3
Security
Features.
The
final release version of the Game, Game Cards and Printed Materials
shall include such Security Technology as NINTENDO, in Its sole discretion
and
at its sole expense.
may deem necessary or appropriate.
6.4
Production
of Bulk Goods Printed Materials.
For
Bulk Goods, LICENSEE shall arrange
and pay for the production of the Printed Materials using the Artwork. Upon
receipt of an order of Bulk Goods, LICENSEE shall assemble the Game Cards and
Printed Materials into the Licensed
Products. Licensed Products may be sold or otherwise distributed by LICENSEE
only in fully
assembled condition and placed in a plastic case or other protective
packaging.
6.5
Sample
Printed Materials.
Within
a reasonable period of time after LICENSEE'S
assembly of the initial order for a Bulk Goods title, LICENSEE shall provide
NINTENDO with
(a)
one (1) sample of the fully assembled. Licensed Product, and (b) five (5)
samples of LICENSEE produced Printed Materials for such Licensed
Product.
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6.6
Retention of Sample Licensed Products by NINTENDO. NINTENDO may.
at its own expense, manufacture reasonable quantities of the Game Cards or
the
Licensed Products, not to exceed fifty (50) units, to be used for archival
purposes, legal proceedings against infringers of the Intellectual Property
Rights or for other lawful purposes (but not for resale).
7. MARKETING
AND ADVERTISING
7,1
Approval of Marketing Materials. LICENSEE represents and warrants that
the Marketing Materials shall (a) be of high quality and comply with the
Guidelines as well as the guidelines of the PEGI, and (b) comply with all
applicable laws. regulations and official codes of practice in those
jurisdictions in the Territory where they will be used or distributed. All
LICENSEE controlled websites featuring the Games shall adopt a privacy policy
that complies with all applicable local laws, regulations and official
guidelines. To protect NINTENDO's valuable Intellectual Property Rights, to
prevent tree dilution of NINTENDO's trade marks, and to ovoid use of the
licensed Intellectual Property Rights giving rise to any implication of
NINTENDO's sponsorship, association, approval
or endorsement where this is not the case, prior
to actual use or distribution, LICENSEE shall
submit to
NINTENDO for review samples of all proposed Marketing Materials. NINTENDO shall.
within ten (10) business days of receipt, approve or disapprove the quality
of
such samples. If any of the samples are disapproved, NINTENDO shall specify
the
reasons for such disapproval and state what corrections and/or improvements
are
necessary. After making the necessary corrections and/or improvements, LICENSEE
shall submit revised samples for approval by NINTENDO. No Marketing Materials
shall be used or distributed by LICENSEE without NINTENDO's prior written
approval. NINTENDO shall not unreasonably withhold Or delay its approval of
any
proposed Marketing Materials.
7.2
No
Bundling.
To
protect NINTENDO's valuable Intellectual Property Rights, to prevent
the dilution of NINTENDO's trademarks, and to avoid use of the licensed
Intellectual Property Rights
giving rise to any implication of NINTENDO'S sponsorship, association, approval
or endorsement
where this is not the case. LICENSEE shall not, without NINTENDO's prior written
approval, market or distribute any Licensed Products that are bundled with
(a)
any peripheral designed
for use with the Nintendo DS system that has not been licensed or approved
in
writing by NINTENDO.
or (b) any other product or Service where NINTENDO's sponsorship, association,
approval or endorsement might be suggested by the bundling of me products or
services.
7.3
Warranty
and Repair.
LICENSEE
shall provide the original consumer wIth a minimum
one hundred eighty (180) day (or such longer minimum period as may be required
by applicable
law) limited warranty on all Licensed Products. LICENSEE shalt also provide
reasonable product
service, includIng out-of-warranty service, for all Licensed
Products.
7.4 Business
Facilities.
LICENSEE agrees to develop and maintain sufficient customer service, either
directly or through a third party, to adequately support the Licensed
Products".
7.5
No
Sales Outside the Territory.
LICENSEE represents and warrants that it shall not market,
sell, offer to sell, import or distribute the Licensed Products outside the
Territory. or within the Territory
when LICENSEE has actual or constructive Knowledge that a subsequent destination
of the Licensed
Product is outside the Territory.
7.6 Defects
and Recall.
In the
event of a material programming defect in a Licensed Product
that would, in NINTENDO's reasonable judgment, significantly impair the ability
of consumer to play the Game, NINTENDO may, after consultation with LICENSEE,
require the LICENSEE to recall the Licensed Product and undertake suitable
repairs or replacements.
7.7
Nintendo
motional Materials, Publications and Events.
With
a
view to improving the
competitiveness of the video game products consisting of Nintendo video game
systems and services
and compatible software published by LICENSEE and others, at its option,
NINTENDO may (a)
insert in the Printed Materials for the Licensed Products promotional materials
concerning publications and promotions for such video game products, (b) utilize
screen shots, Artwork and information regarding the Licensed Products in all
NINTENDO published or officially licensed magazines,
official NINTENDO-sponsored web sites, or other advertising, promotional or
marketing media
that promotes such video game products, services or programs, and (c) exercise
public performance
rights in the Games and use related trademarks and Artwork in connection with
NINTENDO
sponsored contests, tours, conventions, trade shows, press briefings and similar
events that promote such video game products.
7.8
Nintendo Gateway System. To promote end increase demand for
games on Nintendo video game systems. NINTENDO licenses a system (the "Nintendo
Gateway System") in various non-coin activated commercial settings such as
commercial airlines. cruise ships, rail systems and hotels, where customers
play
games on specialty adapted Nintendo video game systems. If NINTENDO identifies
a
Game for possible license on the Nintendo Gateway System, the parties agree
to
conduct good faith negotiations toward including the Game in the Nintendo
Gateway System.
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8. CONFIDENTIAL
INFORMATION
8.1
Definition.
"Confidential Information" means Information provided to LICENSEE by
NINTENDO
or any third party working with NINTENDO or NOA relating to the hardware and
software for the Nintendo OS system or the Development Tools, Including, but
not
limited
to, (a) all current or future information, know-how, techniques. methods, tools,
emulator hardware or software, software development
specifications and/or trade secrets, (b) any inventions, patents or patent
applications, (c)
any
business, marketing or sales
data
or
information, and (d) any other information or data relating to
development, design, operation, manufacturing, marketing or sales.
Confidential
information shall include
all confidential Information disclosed, whether In writing, orally, visually,
or
in the form of drawings,
technical specifications, software, samples, pictures, models, recordings,
or
other tangible items
which contain or manifest, in any form, the above listed information.
Confidential Information shall
not
include (i) data and information that were in the public domain prior to
LICENSEE's receipt of the
same
hereunder, or that subsequently becomes part of the public domain by publication
or
otherwise,
except by the wrongful act or omission of LICENSEE or any third party, (ii)
data
and information
that LICENSEE can demonstrate, through written records kept in the ordinary
course of business,
were In Its possession without restriction on use or disclosure, prior to its
receipt of the same
hereunder and were not acquired directly or indirectly from NINTENDO or NOA
under an obligation
of confidentiality that is
still
in
force,
arid (iii) data and information that LICENSEE can show were
received by it from a third party who did not acquire the same directly or
indirectly from NINTENDO
or NOA and to whom LICENSEE has no obligation of confidentiality.
8.2
Disclosures.
LICENSEE shall be permitted to disclose Confidential Information
if such disclosure is required by an authorized governmental or judicial
entity,
provided that
NINTENDO is given Notice thereof at least thirty (30) clays prior to such
disclosure, or such lesser period
as
may be needed to comply with such requirement. LICENSEE shall use its best
efforts to limit
the
disclosure to the greatest extent passible, consistent with LICENSEE's legal
obligations and if
required by NINTENDO, shall cooperate in the preparation and entry of
appropriate court orders limiting
the persons to whom Confidential Information may be disclosed and the extent
of
disclosure of such
Confidential Information.
8.3
Disclosure
and Use.
NINTENDO
may provide LICENSEE with highly confidential development
information, Guidelines, Development Tools, systems. specifications and related
resources and information constituting and Incorporating the Confidential
Information to assist LICENSEE
in the development of Games. LICENSEE agrees to maintain all Confidential
Information as
strictly confidential and to use such Confidential Information only in
accordance with this Agreement.
LICENSEE shall limit access to the Confidential Information to LICENSEE's
employees having a
strict
need
to
know and shall advise such employees of their obligation of confidentiality
as
provided
herein. LICENSEE shall require each such employee to retain in confidence the
Confidential Information
pursuant to a written non-disclosure agreement between LICENSEE and such
employee. LICENSEE shall use its beat efforts to ensure that its employees
working with or otherwise having access
to
Confidential Information shall not disclose or make any unauthorized use of
the
Confidential Information.
8.4 No
Disclosure to Independent Contractors.
LICENSEE
shalt not disclose the Confidential
Information, including without limitation the Guidelines end Intellectual
Property Rights, to any
Independent Contractor, nor permit any Independent Contractor to perform or
assist in development work for a Game, without the
prior
written consent of NINTENDO. Any Independent Contractor seeking access to
Confidential Information shall be required to enter into o written
non-disclosure agreement with NINTENDO or NOA prior to receiving any access
to
or disclosure of the Confidential Information from either LICENSEE or
NINTENDO.
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16
At
LICENSEE's option, the written non-disclosure agreement may be with LICENSEE
rather than
NINTENDO or NOA, in which case the form and substance of the non-disclosure
agreement must
be
acceptable to NINTENDO. Also, in such case LICENSEE
shall
provide to NINTENDO on a continuing
basis
a
listing
of ail Independent Contractors who have received or been granted access
to
Confidential
Information along with copies of the applicable written non-disclosure
agreements. In
addition,
LICENSEE shall take all reasonable measures to ensure that its Independent
Contractors fulfill the requirements of the applicable written non-disclosure
agreements.
LICENSEE
shall
use
its best effort° to ensure that its employees and Independent Contractors
working with or otherwise having access to Confidential Information shall not
disclose or make
unauthorised use of the Confidential Information. LICENSEE agrees to indemnify
NINTENDO against
all loss or damage, includIng consequential economic loss, for breach of these
obligations by the
LICENSEE, its employees and Independent Contractors.
8.5
Agreement
Confidentiality. LICENSEE
agrees that tie terms, conditions end contents
of this Agreement shall be treated as Confidential Information. Any public
announcement or press
release regarding this Agreement or the release dates for Games developed by
LICENSEE under
thIs Agreement shall be subject to NINTENDO's prior written approval. The
parties may disclose
this Agreement (a) to accountants, banks, financing sources, lawyers, parent
companies and related
parties under substantially equivalent confidentiality obligations, (b) in
connection with any formal
legal proceeding for the enforcement of this Agreement. (c) as required by
the
regulations of the
government agencies in the Territory that regulate publicly-traded securities,
provided that all Confidential
Information regarding NINTENDO shall be edited from such disclosures to the
maximum extent allowed by such government agencies, (d)
in
response to lawful process, subject to court order limiting
the persons to whom Confidential Information may be disclosed and the extent
of
disclosure of such
Confidential Information, approved in advance by NINTENDO, and (9) to
a
third
party
proposing to
enter
into a business transaction with LICENSEE or with NINTENDO, but only to the
extent reasonably necessary for carrying out the proposed transaction and only
under terms of mutual
confidentiality.
8.6
Notification
Obligations. LICENSEE
shall promptly notify NINTENDO of the unauthorized
use or disclosure
of
any
Confidential Information by LICENSEE or any of its employees, or
any
Independent Contractor or its employees, and shall promptly act to recover
any
such information
arid prevent further breach of the obligations herein. The obligations of
LICENSEE set forth herein are in addition to and not In lieu of any other legal
remedy that may be available to NINTENDO under this Agreement or applicable
law.
8.7
Continuing
Effect of the NDA.
The
terms of this. Section 8 supplement the terms of the
NDA,
which Shall remain in effect. In the event of a conflict between the terms
of
the NDA and this Agreement, the terms of this Agreement shall
control.
9. REPRESENTATIONS
AND WARRANTIES
9.1 LICENSEE's
Representations
end Warranties. LICENSEE represents end warrants that:
(a) it
Is a
duly organized and validly existing corporation and has full authority
to enter into
this
Agreement and to carry out the provisions hereof,
(b) the
execution, delivery and performance of this Agreement by LICENSEE does not
conflict with any agreement
or understanding
to which LICENSEE may be bound, and
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(c) excluding
the Intellectual Property Rights, LICENSEE is either (i) the sole owner of
all
right, title and interest in and to the trademarks, copyrights and other
intellectual property rights used on or in association with the
development, advertising, marketing and sale of the Licensed Products and the
Marketing Materials, or (ii) the holder of such rights to the trademarks,
copyrights and other intellectual property rights that have been licensed from
a
third party as are necessary for the development, advertising, marketing and
sale of the Licensed Products and the Marketing Materials under this
Agreement.
9.2 NINTENDO’S
representations and warranties.
NINTENDO
represents and warrants that:
(a)
it is
duly organized and validly existing corporation and has full authority to enter
into
this
Agreement and to carry out the provisions hereof, and
(b)
the
execution, delivery and performance
of
this
Agreement by NINTENDO does not conflict with any agreement or understanding
to
which NINTENDO may be bound.
9.3
INTELLECTUAL
PROPERTY RIGHTS DISCLAIMER BY NINTENDO.
NINTENDO MAKES
NO
REPRESENTATION OR WARRANTY CONCERNING THE SCOPE OR VALIDITY OF THE
INTELLECTUAL PROPERTY RIGHTS. NINTENDO DOES NOT WARRANT THAT THE DESIGN,
DEVELOPMENT, ADVERTISING, MARKETING OR SALE OF THE LICENSED PRODUCTS
OR THE USE OF THE INTELLECTUAL PROPERTY RIGHTS BY LICENSEE WILL NOT
INFRINGE UPON PATENT, COPYRIGHT, TRADEMARK OR OTHER PROPRIETARY RIGHTS
OF
A
THIRD PARTY. TO THE MAXIMUM EXTENT LEGALLY PERMISSIBLE, ANY WARRANTY,
CONDITION
OR TERM THAT MAY BE PROVIDED IN ANY APPLICABLE PROVISION OF ANY LAW OR
REGULATION IN THE TERRITORY GOVERNING COMMERCIAL ACTIVITY, OR
ANY OTHER COMPARABLE
LAW OR STATUTE IS EXPRESSLY DISCLAIMED. LICENSEE HERESY ASSUMES
THE RISK OF INFRINGEMENT.
9.4
GENERAL
DISCLAIMER
BY NINTENDO. NINTENDO
DISCLAIMS ANY AND
ALL
WARRANTIES
WITH RESPECT TO THE LICENSED PRODUCTS, INCLUDING, WITHOUT LIMITATION,
THE SECURITY TECHNOLOGY. LICENSEE PURCHASES AND ACCEPTS ALL LICENSED
PRODUCTS ON AN "AS IS" AND 'WHERE IS" BASIS. NINTENDO DISCLAIMS ALL WARRANTIES
UNDER THE APPLICABLE LAWS OF ANY COUNTRY, EXPRESS OR IMPLIED, INCLUDING
IMPLIED WARRANTIES CONDITIONS OR OTHER TERMS OF ANY KIND OF MERCHANTABILITY
OR FITNESS FOR A GENERAL OR PARTICULAR PURPOSE.
9.5
LIMITATION
OF LIABILITY.
TO THE
MAXIMUM EXTENT PERMITTED BY LAW, NEITHER
NINTENDO NOR ITS SUBSIDIARIES, AFFILIATES, LICENSORS OR SUPPLIERS SHALL
BE
LIABLE
FOR LOSS OF PROFITS, OR FOR ANY SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL
DAMAGES OF LICENSEE OR ITS CUSTOMERS ARISING OUT OF OR RELATED
TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE BREACH OF THIS
AGREEMENT
BY NINTENDO, THE MANUFACTURE OF THE LICENSED PRODUCTS OR THE USE
OF
THE LICENSED PRODUCTS ON ANY NINTENDO VIDEO GAME SYSTEM BY LICENSEE OR
ANY END
USER.
10. INDEMNIFICATION
10.1
LICENSEE's
Indemnification. LICENSEE
shall indemnify and hold harmless NINTENDO
(and any of its affiliates, subsidiaries, licensors, suppliers. officers,
directors, employees or
agents) from any clans.
losses,
liabilities, damages, expenses and costs, including, without limitation,
reasonable attorneys' fees and costs and any expenses incurred in the settlement
or avoidance of any Such claim, that result from or are in connection
with:
(a)
a
breach of any of the provisions, representations or warranties undertaken
by
LICENSEE in this Agreement.
(b)
any
infringement of a third party's Proprietary Rights as a result of the design,
development,
advertising, marketing, sale or use of the Licensed Products or the Marketing
Materials,
(c)
any
claims alleging
a defect, failure to warn, bodily injury (including death) or other personal
or
property damage arising out of, or in connection with, the design,
development, advertising,
marketing, sale or use of any of the Licensed Products, and
(d)
any
applicable civil or criminal actions relating to the design, development,
advertising, marketing, sale or use of the Licensed Products or the Marketing
Materials.
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NINTENDO
and LICENSEE shall give prompt Notice to the other of any indemnified claim
under this Section 10.1, With respect to any third party claim subject to this
indemnity clause, LICENSEE, as
indemnifying
party, shall have the right to select counsel and to control the defense
and/or
settlement thereof. NINTENDO may, at its own expense, participate in such action
or proceeding
with counsel of its own choice, LICENSEE shall not enter into any settlement
of
any such claim
in
which (i) NINTENDO has been named as a party, or (ii) claims relating to the
Intellectual Property Rights have been asserted, without NINTENDO's prior
written consent. NINTENDO shall provide reasonable assistance to LICENSEE in
its
defense of any such claim.
10.2
LICENSEE's
Insurance. LICENSEE
shall,
at
its own expense, obtain a commercial general
liability insurance policy (including coverage for advertising injury and
product liability claims) from
an
insurance company. Such policy of insurance shall be in an amount of not less
than the equivalent
of Five Million Dollars ($5,000,000 USD) on a per occurrence basis (not claims
made) and shall
provide
for adequate protection
against any suits, claims, loss or damage arising out of or relating
to the Licensed Products. Such policy shall name NINTENDO as an additional
insured and shall
specify that it may not be canceled without thirty (30) days' prior written
Notice to NINTENDO. A Certificate
of Insurance shall be provided to NINTENDO not later than the date of the
initial order of Licensed
Products under this Agreement or within 60 days of the Effective Date of this
Agreement, whatever
date occurs later. If LICENSEE fails to provide NINTENDO with such Certificate
of Insurance
or fails to maintain such insurance at any time during the Term and for
a
period
of
two (2) years
thereafter, NINTENDO, in its sole discretion may: (a) terminate this Agreement
in accordance with
Section 13.2 herein; or (b) secure comparable insurance for the benefit of
NINTENDO only, and not
for
LICENSEE, at LICENSEES expense.
10.3
Suspension
of Production. In
the
event NINTENDO deems itself at risk with respect to
any
claim, action or proceeding under this Section 10, NINTENDO may, at its
sole
option, suspend production,
delivery or order acceptance for any Licensed Products, in whole or in part,
pending resolution of such claim, action or proceeding.
11. PROTECTION
OF PROPRIETARY RIGHTS
11.1
Joint
Actions Against
Infringers, LICENSEE
and NINTENDO may agree to jointly pursue
cases of infringement involving the Licensed Products, as such Licensed Products
will contain Proprietary
Rights owned by each of them
Unless the parties otherwise
agree, or unless the recovery
is expressly allocated between them by the court, in the event of such an
action, any recovery shall be
used
first to
reimburse LICENSEE and NINTENDO for their respective reasonable attorneys'
fees and costs incurred in bringing such action, pro rata, and any remaining
recovery shall be
distributed to LICENSEE
and
NINTENDO, pro rata, based upon the fees and costs incurred in
bringing
such action.
11.2
Actions
by
LICENSEE.
LICENSEE,
without the consent of NINTENDO, may bring any action or proceeding relating
to
an infringement or potential infringement of LICENSEE's Proprietary
Rights in the Licensed Products. LICENSEE shall make reasonable efforts to
inform NINTENDO
of such actions in a timely manner. LICENSEE will have the right to retain
all
proceeds it may
derive from any recovery in connection with such actions.
11.3
Actions
by NINTENDO. NINTENDO,
without the consent of LICENSEE, may bring any
action
or proceeding relating to
an
infringement
o r
portential infringement of LICENSEE’s Property
Rights. NINTENDO shall make reasonable efforts to inform LICENSEE of such
actions in a timely
manner. NINTENDO will have the right to retain all proceeds it may derive from
any recovery in connection with such actions.
12. ASSIGNMENT
12.1
Definition. "Assignment" means every type and form of assignment, transfer,
sale, sublicense,
delegation, encumbrance, pledge and/or hypothecation of LICENSEE's rights
or
obligations
under this Agreement, including, but not limited to, (a) a voluntary assignment,
transfer, sale, sublicense, delegation, encumbrance, pledge and/or hypothecation
by LICENSEE of all or any portion
of its rights or obligations under this Agreement, (b) the assignment, transfer,
sale, sublicense, delegation,
encumbrance, pledge andlor hypothecation of all or any portion of LICENSEE's
rights or obligations
under this Agreement to or
by
LICENSEE'S trustee in bankruptcy, receiver, or other individual
or entity appointed to control or direct the business and affairs of LICENSEE,
(c) an involuntary
assignment, transfer, sale, sublicense, delegation, encumbrance, pledge or
hypothecation of
all or
a portion of LICENSEE's rights or obligations under this Agreement, including
but not limited to
a
foreclosure by a third 'party
upon assets of LICENSEE, (d) the merger or consolidation of LICENSEE
if LICENSEE is a corporation, and (e) any other means or method whereby rights
or obligations
of LICENSEE under this Agreement are sold, assigned or transferred to another
individual or
entity
for any reason. Assignment also includes the sale, assignment, transfer or
other
event affecting
a change in the controlling interest of LICENSEE, whether by sale, transfer
or
assignment of shares
in
LICENSEE, or by sale, transfer or assignment of partnership interests in
LICENSEE, or otherwise.
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12.2
No
Assignment
by LICENSEE. This
Agreement and the subject matter hereof are personal
to LICENSEE. No Assignment of LICENSEE's rights or obligations hereunder shall
be valid or
effective without NINTENDO's prior written consent, which consent may be
withheld by NINTENDO for
any
reason whatsoever in its sole discretion. In the event of an attempted
Assignment in violation of
this
provision, NINTENDO shall have the right at any time, at its sole option, to
immediately terminate
this Agreement. Upon such termination, NINTENDO shall have no further obligation
under this
Agreement to LICENSEE or to LICENSEE's intended or purported
assignee.
12.3
Proposed
Assignment. Prior
to
any proposed Assignment of this Agreement, LICENSEE
shall give NINTENDO not less than thirty (30) days prior written Notice thereof,
which Notice
shall disclose the name of the proposed assignee, the proposed effective date
of
the Assignment
and the nature and extent of the rights and obligations that LICENSEE proposes
to assign.
NINTENDO may, in its sole discretion, approve or disapprove such proposed
Assignment. Unless
written consent is given by NINTENDO to a proposed Assignment, any attempted
or
purported Assignment
shall be deemed disapproved and NINTENDO shall have the unqualified right,
in
its sole discretion,
to terminate this Agreement at any time. Upon termination, NINTENDO shall have
no further
obligation under this Agreement to LICENSEE or to LICENSEE's intended or
purported assignee.
12.4
LICENSEE's
Obligation of Non-Disclosure, LICENSEE
shall not (a) disclose NINTENDO's
Confidential Information to any proposed assignee of LICENSEE, or (b) permit
access to
NINTENDO's Confidential Information by any proposed assignee or other third
party, without the prior written consent of NINTENDO to such
disclosure.
13. TERM
AND TERMINATION
13.1
Term.
This
Agreement shall commence on the Effective Date and shall continue for
the
Term,
unless earlier terminated as provided herein, or extended by a written amendment
to this Agreement.
13.2
Default
or Breach. In
the
event that either party is in default or commits a breach of this
Agreement that is not cured within thirty (30) days after Notice thereof, then
this Agreement shall, except
as
otherwise provided, automatically terminate on the date specified in such
Notice.
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13.3
Bankruptcy. At NINTENDO's option, this Agreement may be
terminated immediately and without Notice in the event that LICENSEE (a) makes
an assignment for the benefit of creditors, (b) becomes insolvent, (c) files
a
voluntary petition for bankruptcy, (d) acquiesces to any involuntary bankruptcy
petition, (e) is adjudicated as a bankrupt, or (f) ceases to do
business.
13.4
Termination
Other Than by Breach.
Upon
(a)
the expiration of this Agreement, (b) its termination other than by
LICENSEE's
breach, or (c) termination of this Agreement by NINTENDO after
one
hundred twenty days (120) Notice to LICENSEE in the event NINTENDO reasonably
believes
that LICENSEE has developed, marketed, or sold a product that infringes any
intellectual property rights of NINTENDO anywhere in the world (provided that
if
the parties are able to resolve such alleged infringement within such 120 day
period, such termination shall not take effect), LICENSEE
shall have a period of one hundred eighty (180) days
to
sell
any
unsold Licensed Products. All
Licensed Products in LICENSEE's control following the expiration of such
sell-off period shall be destroyed by LICENSEE within ten (10) days and proof
of
such destruction (certified by an officer of LICENSEE) shall be provided to
NINTENDO.
13.5
Termination
by licensee’s breach.
If this
Agreement is terminated by NINTENDO
as
a
result of a breach of its terms and conditions by LICENSEE, LICENSEE shall
immediately cease all distribution, advertising, marketing or sale of any
Licensed Products. All Licensed Products in LICENSEE's
control as of the date of such termination shall be destroyed by LICENSEE within
ten (10)
days
and proof of such destruction (certified by an officer of LICENSEE) shall be
provided to NINTENDO,
13.6
Breach
of NDA or
Other NINTENDO License Aoreements. At
NINTENDO's option, any
breach by LICENSEE of (a) the NDA, or (b) any other license agreement between
NINTENDO and
LICENSEE relating to the development of games for any Nintendo video game system
that is not cured
within the time period for cure allowed under the applicable agreement, shall
be
considered a material
breach of this Agreement (and which shall give NINTENDO reasonable cause to
believe that it
needs
to terminate this Agreement so as to protect its legitimate business interests)
entitling NINTENDO to terminate this Agreement in accordance with Section 13.5
herein.
13.7
No
Further Use of
the Intellectual
Property Rights. Upon
expiration and/or termination
of this Agreement, LICENSEE shall cease all use of the intellectual Property
Rights for any
purpose,
except as
may be
required in connection with the sale of Licensed Products authorized
under
Section 13.4 herein. LICENSEE shall, within thirty (30) days thereafter, return
or destroy all Guidelines, writings, drawings, models, data, tools and other
materials and things in LICENSEE's possession or in the possession of any past
or
present
employee, agent or contractor receiving the information
through LICENSEE, that constitute or relate
to
or
disclose any Confidential Information, without making copies or otherwise
retaining any such information. Proof of any destruction shall be certified
by an officer
of LICENSEE and promptly provided to NINTENDO,
13.8
Termination
by NINTENDO's Breach. If
this
Agreement is terminated by LICENSEE as
a
result of a breach of its terms or conditions by NINTENDO, LICENSEE
may continue to
sell
the
Licensed
Products
in the Territory until the expiration of
the
Term,
at
which time the provisions of Section 13.4 shall apply.
14.
General
Provisions.
14.1
Compliance with Applicable Laws and Regulations. LICENSEE
shall at all times comply with applicable laws, regulations and orders in the
countries of the Territory relating to or in any way affecting this Agreement
and LICENSEE's performance under this Agreement, including, without limitation,
the export laws and regulations of any country with jurisdiction over the
Licensed Products and/or either party. LICENSEE shall not market, distribute,
or
sell the Game and/or Game Cards in any country in the Territory in which such
marketing, distribution or sale would violate any applicable laws, regulations
or orders of such country.
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14.2 Force
Majeure. Neither
party shall be liable for any breach of this Agreement occasioned
by any cause beyond the reasonable control of such party including war,
terrorism, riot or civil commotion, fire, natural disaster, labor disputes,
restraints affecting shipping
or credit, delay of carriers, inadequate supply of suitable materials or any
other cause that could
not
with reasonable diligence be controlled or prevented by the parties. In the
event of material shortages,
including shortages of materials or production facilities necessary for
production of the Licensed Products, NINTENDO reserves the right to allocate
such resources among itself and its licensees.
14.3
Records
and Audit.
During
the Term and for a period of two (2) years thereafter, LICENSEE
agrees to keep accurate, complete and detailed records related to the
development and sale of the Licensed Products and the Marketing Materials.
Upon
reasonable Notice to LICENSEE, NINTENDO may, at its expense, arrange for a
third
party audit of LICENSEE'S records, reports and other information related to
LICENSEE's compliance with this Agreement.
14.4
Waiver,
Severability, Integration and
Amendment. The
failure of a party to enforce any
provision of this Agreement shall not be construed to be a waiver of such
provision or of the right of
such
party to thereafter enforce such provision. In the event that any term, clause
or provision of this
Agreement shall be construed to be or adjudged invalid, void or unenforceable,
such term, clause or
provision shall be construed as severed from this Agreement, and the remaining
terms, clauses and
provisions shall remain in effect. Together with the NDA, this Agreement
constitutes the entire agreement
between the parties relating to the subject matter hereof. All prior
negotiations, representations,
agreements and understandings are merged into, extinguished by and completely
expressed by this Agreement and the NDA. Any amendment to this Agreement shall
be in writing, signed by both parties.
14.5
Survival.
In
addition to those rights specified elsewhere in this Agreement that may
reasonably
be interpreted or construed as surviving, the rights and obligations set forth
in Sections 3, 8,
9, 10,
13 and 14 shall survive any expiration or termination of this Agreement to
the
degree necessary
to permit their complete fulfillment or discharge.
14.6
Governing
Law and
Venue.
This
Agreement shall be governed by the laws of Japan, without regard to its conflict
of laws principles. Any legal action (including judicial and administrative
proceedings)
with respect to any matter arising under or growing out of this Agreement,
shall
be brought
only in the Kyoto District Court. Each party hereby consents to the jurisdiction
and venue of such courts for such purposes.
14.7
Injunctive
Relief. LICENSEE
acknowledges that in the event of its breach of this Agreement,
no adequate remedy at law may be available to NINTENDO and that NINTENDO shall
be entitled to seek injunctive or other similar available relief in addition
to
any additional relief available to NINTENDO.
14.8
Attorneys'
Fees. In
the
event it is necessary for either party to this Agreement to undertake
legal action to enforce or defend any action arising out of or relating to
this
Agreement, the prevailing
party in such action shall be entitled to recover from the other party all
reasonable attorneys'
fees, costs and expenses relating to such legal action or any appeal
therefrom.
14.9
Expansion
of Rights. NINTENDO
may expand the rights granted to LICENSEE under
this Agreement by providing written notice of such expansion of rights to
LICENSEE and without
having to enter into a written addendum to the present Agreement with
LICENSEE
14.10
Delegation
of Duties.
NINTENDO, at its option, may delegate its duties under the present
Agreement to a wholly owned subsidiary, To the extent necessary for the parties
to carry out their
duties under this Agreement, NINTENDO shall provide notice to LICENSEE of any
such delegation, including to whom at NINTENDO's wholly owned subsidiary
communications from LICENSEE
under this Agreement may be directed. Also in the event of a delegation by
NINTENDO, the provisions of this Agreement shall continue to govern the
relationship between NINTENDO and LICENSEE
and shall govern the relationship between NINTENDO's subsidiary and LICENSEE,
subject
to any amendments or modifications to this Agreement which such subsidiary
and
LICENSEE may
agree
to in their relationship. NINTENDO shall remain obligated under the present
Agreement for
the
performance of NINTENDO's duties by NINTENDO's subsidiary.
14.11
Counterparts
and Signature Facsimile. This
Agreement may be signed in counterparts,
that shall together constitute a complete Agreement. A signature transmitted
by
facsimile
shall be considered an original for purposes of this Agreement.
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IN
WITNESS WHEREOF, the parties have entered into this Agreement on the dates
set
forth below.
| NINTENDO: | LICENSEE: | ||
| NINTENDO CO., LTD. | DESTINATION SOFTWARE INC. | ||
| By:/s/ Xxxxxx Xxxxx | By: /s/ Xxxxx Xxxx | ||
|
Xxxxxx
Xxxxx
CEO
|
Xxxxx
Xxxx
President
|
Date:
JULY
1
3
,
2006
Title: President
Date:
AILLL8,4
Page
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Annex
A
Guidelines
on Ethical Content
The
following Guidelines on Ethical Content are presented for assistance in the
development of Games
by
defining the types of the theme inconsistent with NINTENDO's corporate
philosophy. Exceptions
may be made when necessary to maintain the integrity of the Game or the Game's
theme. Games
shall not:
| (a) |
contain
sexually explicit content including but not limited to nudity, rape,
sexual intercourse and sexual touching; for instance, NINTENDO does
not
allow bare-breasted
women in Games, however, mild displays of
affection such
as kissing or hugging
are acceptable;
|
| (b) |
contain
language or depictions which specifically denigrate members of any
race,
gender,
ethnicity, religion or political
group;
|
| (c) |
depict
gratuitous or excessive blood or violence. NINTENDO does not permit
depictions of animal cruelty or
torture;
|
| (d) |
depict
verbal or physical spousal or child
abuse;
|
| (e) |
permit
racial, gender, ethnic, religious or, political stereotypes; for
example,
religious symbols such as
crosses
will be
acceptable
when fitting into the theme of the Game and not promoting a specific
religious denomination;
|
| (f) |
use
profanity, obscenity or incorporate language or gestures that are
offensive by prevailing
public standards and tastes; and
|
| (g) |
promote
the use
of illegal
drugs, smoking materials, tobacco and/or alcohol; for example NINTENDO
does not allow gratuitous beer or cigarette advertisement anywhere
in a
Game; however, Sherlock Xxxxxx smoking a pipe would be acceptable
as it
fits the theme of the Game.
|
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