EXHIBIT 10.12
AMENDMENT #2 TO TECHNOLOGY LICENSE AGREEMENT
This Amendment #2 to the Technology License Agreement ("Amendment #2") dated as
of March 28, 1997 (the "Effective Date"), SegaSoft, Inc. ("SegaSoft"), a
Delaware corporation, with its principal place of business at 000 Xxxxxxxxx
Xxxxx, Xxxxx 000, Xxxxxxx Xxxx, Xxxxxxxxxx 00000 and Mpath Interactive, Inc.
("Mpath"), a Delaware corporation, with its principal place of business at
00000-X Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000 hereby agree to further amend
their April 15, 1996 Technology License Agreement as already amended by their
November 27, 1996 Amendment #1 to the Technology License Agreement.
RECITALS
1. The parties executed a Technology License Agreement dated as of April 15,
1996 (the "Agreement").
2. The parties executed Amendment #1 to Technology License Agreement dated as
of November 27, 1996 ("Amendment #1").
3. The parties have agreed to collaborate on the implementation of an
Internet-based multiplayer game service based upon the Licensed Technology
and wish for Mpath to provide SegaSoft with certain assistance, as
described in Section 4.1.2 of the Agreement, for the set-up, installation
and operation of the Licensed Technology.
4. Mpath and SegaSoft desire to set forth the terms and conditions upon which;
(a) Mpath, from time-to-time, will purchase and cause to be installed
certain computer servers and install such computer servers in certain
Internet communications switching regions, (b) Mpath will sub-rent such
equipment to SegaSoft, and (c) Mpath or Mpath's renter(s) will be
responsible for all hardware maintenance of such equipment.
AGREEMENT
1. DEFINITIONS
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All capitalized terms used in this Amendment #2 which are defined in the
Agreement and Amendment #1 have the respective meanings ascribed to them in the
Agreement and in Amendment #1. In addition, the following terms have the
respective meanings ascribed to them.
1.1 "Acceptance Certificate" means the acceptance form attached as Exhibit A.
1.2 "Acceptance Date" means the date on which installation of a Server pursuant
to Section 2.3 is completed and SegaSoft has accepted such installation.
1.3 "Central Server" means the computer server, located at SegaSoft's facility,
as described in the Installation Plan. Upon reasonable written notice to
Mpath, SegaSoft may from time-to-time, change the location of the Central
Server.
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1.4 "Forecast" means SegaSoft's twelve (12) month rolling for Server
installation. Each such forecast must include:
(a) the location of each Server to be installed in each month,
(b) the number of new Servers to be installed in each location in each
month, and
(c) the model and configuration of each new Server to be installed.
1.5 "Game Servers" mean the computer servers described in the Installation
Plan.
1.6 "Installation Certificate" means the installation completion form attached
as Exhibit B.
1.7 "Installation Plan" means the installation plan attached as Exhibit C.
1.8 "Mpath Internet Service" means the Internet service offered by Mpath to
individuals, currently on the PSINet Internet backbone. Upon written notice
to SegaSoft, Mpath may from time-to-time, change the name of its Internet
service.
1.9 "Mplayer" means Mpath's online game service known by the Mplayer trademark.
1.10 "Network Region" means the Internet communications switching regions
described in Exhibit D.
1.11 "Operations Plan" means the operations plan attached as Exhibit E.
1.12 "PSINet" means PSINet Inc. a New York corporation having a principal place
of business at 000 Xxxxxxx Xxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000-0000.
1.13 "SegaSoft Service" means the online service or services offered by SegaSoft
using the Licensed technology or any component thereof.
1.14 "Server Term" means the time period commencing on the Acceptance Date and
ending [XXXXX] later. The Server Term may not be terminated by SegaSoft
unless otherwise expressly provided in this Amendment #2.
1.15 "Servers" mean both the Central Server(s) and the Game Servers.
2. SERVERS
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2.1 Installation Plan Servers and Installation. Mpath agrees to have
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the PSINet Internet backbone, the Game Servers as outlined in the
Installation Plan. Mpath may install Servers on any backbone or Internet
service provider other than PSINet upon SegaSoft's prior written consent
which may not be unreasonably withheld or delayed.
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2.2 Post Installation Plan Servers. Monthly no later than the tenth (10th)
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each month, SegaSoft agrees to provide Mpath with a Forecast. SegaSoft may
not change its Forecast ninety (90) days prior to the scheduled
installation of a Server. Within such ninety (90) day period both Mpath
and SegaSoft are committed, within the terms and conditions of this
Amendment #2, to execution of the Forecast. Any changes to the Forecast
within such ninety (90) day period are subject to the mutual written
agreement of the parties. Mpath further agrees, in accordance with such
Forecast and the terms and conditions of this Amendment #2, to have
installed Servers subsequent to completion of the Installation Plan. Mpath
agrees to exert all commercially reasonable efforts to improve upon the
ninety (90) day lead time specified in this Section and to accommodate any
changes requested by SegaSoft to the schedule for implementation of the
Servers.
2.3 Installation Acceptance Procedure. Mpath will install the Servers, within
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the Network Region, as requested by SegaSoft in the Installation Plan and
the Forecasts, and shall promptly notify SegaSoft of completion of such
installation by delivery to SegaSoft of an Installation Certificate.
SegaSoft must either accept the installation of such Servers within fifteen
(15) business days of installation, or reject it within such period. If
SegaSoft fails to provide written rejection within such period, then
SegaSoft is deemed to have accepted the installation. If SegaSoft rejects
the installation, Mpath and SegaSoft shall work together, in good faith, to
modify the installation appropriately. However, if Mpath, despite
commercially reasonable efforts to do so, is unable to install a Server,
Mpath will notify SegaSoft thereof and of the reasons therefor, and
thereafter, SegaSoft, in consultation with Mpath, may, at SegaSoft's
option, either have Mpath install a substitute Server, as mutually agreed
upon, until the requested Server is installed or have no substitute Server
installed.
2.4 Server Installation Locations. The Central Server will be installed at
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SegaSoft's facility. Installation of the Game Servers is limited to those
locations where Mpath has servers located for Mplayer. The locations, as
of the Effective Date, are limited to the Network Regions. SegaSoft agrees
that any and all Game Servers requested from Mpath must be installed in a
Network Region.
2.5 Progress Reports. Upon reasonable notice, SegaSoft may, at any time during
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Mpath's performance of the Installation Plan and during normal business
hours, meet with Mpath to discuss and evaluate the status of the
installation of the Servers. In such meetings Mpath agrees to provide
SegaSoft with progress reports, oral or written, as reasonably requested by
SegaSoft, starting [XXXXX] after the Effective Date and ending on the date
of successful completion of the Installation Plan. Each report will
include:
(a) status of progress to current scheduled Installation Plan
milestone(s);
(b) short description of problems in meeting any such Installation Plan
milestone;
(c) proposed recovery method to meet next Installation Plan milestone if
needed;
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(d) probability of meeting next Installation Plan milestone; and
(e) any other information related to the Installation Plan reasonably
requested by SegaSoft.
2.6 Delivery of Acceptance Certificate. On the Acceptance Date, SegaSoft
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agrees to execute and deliver to Mpath an Acceptance Certificate in the
form attached as Exhibit AC.
2.7 Server Upgrades. On mutual written agreement, SegaSoft and Mpath can
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change the configuration, and model of the Servers.
2.8 Server Maintenance. Mpath agrees to maintain the Game Servers, installed
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in accordance with Section 2.3, in good condition and working order and
shall promptly make or cause to be made all necessary adjustments, repairs
and replacements to the hardware components of the Game Servers. Mpath
shall not make any alterations, additions or improvements to the Game
Servers, except as requested by SegaSoft or as may be required pursuant to
the preceding sentence. Mpath will, in accordance with the Operations Plan,
install server software, perform operating system maintenance, and perform
software maintenance for Game Servers. SegaSoft will, in accordance with
the Operations Plan, install server software, perform operating system
maintenance, and perform software maintenance for the Central Server.
2.9 Servers, General Management. SegaSoft and Mpath agree that Mpath will,
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for the Servers, manage all virtual circuits, latency performance, and all
contact with PSINet concerning the Servers.
2.10 Government Compliance. Mpath and SegaSoft agree to comply with all
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applicable governmental laws, rules and regulations in connection with
their respective obligations in regard to the use, operation, maintenance,
installation, service and repair of the Servers.
3. SOFTWARE
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3.1 Game Server Software. SegaSoft accepts all responsibility to provide all
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software necessary for operation of the Game Servers. Such software must be
based on the Licensed Technology but may include other features and
functions. All use of the Licensed Technology is subject to the terms and
conditions of the Agreement, including the royalty provisions.
3.2 Central Server Software. Third party and SegaSoft software may be used on
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the Central Server provided that SegaSoft is also solely responsible for
the integration of third party and SegaSoft software into the software
necessary to run the Central Server.
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3.3 Licensed Technology Upgrades. Mpath agrees, in accordance with the
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Agreement, to provide SegaSoft with upgrades to the Licensed Technology.
SegaSoft is solely responsible for integrating feature and functionality
upgrades to the Licensed Technology into SegaSoft's code for the Game
Servers.
3.4 Mplayer Game Enablers. No license is granted by Mpath to SegaSoft for
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Mpath's proprietary software enablers for games running on Mplayer.
4. ADMINISTRATION AND SUPPORT
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4.1 SegaSoft Service. SegaSoft is solely responsible for billing subscribers
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to the SegaSoft Service, obtaining the merchant account for the SegaSoft
Service, customer support for the SegaSoft Service and all other
operational and administrative functions related to the SegaSoft Service
except as specifically delegated to Mpath under the Agreement, Amendment #1
and Amendment #2.
4.2 Section 4.1.2 Support. In accordance with Section 4.1.2 of the Agreement
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and in addition to the Mpath employee support from the Network Operations
Engineer and Product Manager provided to SegaSoft by Mpath under Section
5.1, Mpath agrees to provide the full-time services of one (1) engineer to
SegaSoft at the rate of [XXXXX]. Reasonable, additional support from other
Mpath personnel is available to SegaSoft on an as-needed basis. Such
additional support may not exceed [XXXXX] in every [XXXXX] period. SegaSoft
agrees that if the full-time time engineer assigned to providing support to
SegaSoft is not fully-occupied, such engineer may perform work for Mpath.
Mpath agrees to invoice SegaSoft monthly for all amounts due under this
Section. SegaSoft agrees to pay such invoice amount, subject correction for
any error in calculation, net thirty (30) days.
4.3 SegaSoft Service Support. SegaSoft agrees to provide, at SegaSoft's
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expense, the telephone, electronic mail and bulletin board support for
inquiries by SegaSoft Service subscribers with respect to the use of the
SegaSoft Service. Customer support includes technical or telephone support
for both game play and issues relating to use of the SegaSoft Service. As
specified in Section 4.1.1 of the Agreement, bug fixes for the Licensed
Technology will be provided by Mpath to SegaSoft [XXXXX]. Bug fixes are
available to SegaSoft from Mpath in accordance with the response time and
schedule prescribed in the Operations Plan. Mpath is under no further
obligation to provide support directly to SegaSoft Service subscribers,
although Mpath agrees to provide, [XXXXX] to SegaSoft, reasonable
escalation support to SegaSoft for technical problems related to the
Licensed Technology, the Servers, and the SegaSoft Service. Any support
performed by Mpath at SegaSoft's request which is primarily attributable
to;
(a) third party software,
(b) SegaSoft's software,
(c) SegaSoft's modifications to the Licensed Technology, or
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is not related to;
(i) Mpath's operation of the Servers as prescribed by this Agreement, or
(ii) bug fixes to the Licensed Technology;
is subject to a charge to SegaSoft of [XXXXX] per Mpath employee assigned
to provide such support.
4.4 SegaSoft Service Customer Database. SegaSoft alone will own the contents
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of the SegaSoft subscriber databases and usage information and Mpath has no
right, title or interest thereto.
5. PAYMENTS
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5.1 Operations and Server Payments. In consideration of Mpath's roles and
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responsibilities under this Amendment #2 SegaSoft agrees to make the
following payments on a monthly basis to Mpath during the term of this
Amendment #2:
(a) [XXXXX] for network administration and Server operations; and
(b) [XXXXX] per Server for the duration of the corresponding Server Term.
The payment under Section 5.1(a) includes the on-demand services, in
accordance with the Operations Plan, of one (1) Mpath Network Operations
Engineer and one (1) Product Manager. If any payment due from Mpath to
SegaSoft is not paid within thirty (30) days after the due date thereof,
SegaSoft agrees to pay, on demand, a late charge on such overdue amount at
a monthly rate equal to [XXXXX]. All rental and other payments due and
payable under this Amendment #2 must be made to Mpath at its address shown
above or at such other address as Mpath may designate from time-to-time and
shall be due and payable whether or not SegaSoft has received any notice
that such payment is due. Mpath agrees to invoice SegaSoft for all amounts
due under this Amendment #2. SegaSoft agrees to pay such invoice amount,
subject correction for any error in calculation, net thirty (30) days.
There is [XXXXX] charge by Mpath to SegaSoft under this Amendment #2 for
text, audio or game packets on the SegaSoft Service.
5.2 Section 5.1(b) Server Rate Adjustment. After the Servers identified in the
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Installation Plan have been installed, the fee charged in Section 5.1(b)
per Server is subject to adjustment, by decrease or increase, depending on
the rates charged to Mpath by Mpath's Internet service provider. The amount
of the decrease or increase charged by Mpath to SegaSoft under this Section
may be no greater than the amount of the decrease or increase charged to
Mpath by Mpath's Internet service provider. Mpath agrees to provide
SegaSoft with prompt notice of any change in the Section 5.1(b) Server rate
effective after completion of the Installation Plan. For any decrease in
the Section 5.1(b) Server rate, such decrease will be credited to SegaSoft
effective as of the date Mpath is subject to the decreased Server rate from
Mpath's Internet service providers whether or not Mpath has provided
SegaSoft with written notice of the decrease. Mpath will provide SegaSoft
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with reasonable documentation substantiating any such change in the Section
5.1(b) Server rate.
5.3 Taxes. SegaSoft agrees to pay when due, and on a net after-tax basis
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shall indemnify and defend Mpath against, all fees, taxes and governmental
charges (including without limitation interest and penalties) of any nature
which may now or hereafter be imposed or levied by any federal, provincial,
state or local authority upon Mpath or the Servers (including, without
limitation, the purchase, ownership, transportation, delivery,
installation, leasing and possession of the Servers), excluding, however,
all taxes on or measured by Mpath's net income.
5.4 Tax Benefits. SegaSoft acknowledges that Mpath and/or its renter(s) are
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entitled to all tax benefits of ownership with respect to the Servers (the
"Tax Benefits"). SegaSoft agrees to take no action inconsistent with the
foregoing or any action which would result in the loss, disallowance or
unavailability to Mpath of all or any part of the Tax Benefits. SegaSoft
hereby indemnifies and holds harmless Mpath and its renters from and
against; (a) the loss, disallowance, unavailability or recapture of all or
any part of the Tax Benefits resulting from any action, statement,
misrepresentation or breach of warranty or covenant by SegaSoft of any
nature whatsoever including but not limited to the breach of any
representations, warranties or covenants contained in this Section, plus
(b) all interest, penalties, fines or additions to tax resulting from such
loss, disallowance, unavailability or recapture, plus (c) all taxes
required to be paid by Mpath upon receipt of the indemnity set forth in
this Section.
5.5 Development and Third Party Licenses. SegaSoft is solely responsible for
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payment of third party development and licenses required for the
development, implementation and operation of the SegaSoft Service.
5.6 Mpath Internet Service Bounty. Mpath agrees to pay SegaSoft for each Mpath
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Internet Service subscriber that:
(a) maintains a Mpath Internet Service subscription for at least [XXXXX];
and
(b) originates his or her subscription to the Mpath Internet Service:
(i) from a SegaSoft CD-ROMs containing Mpath Internet Service
account creation software;
(ii) after April 30, 1997 from a hyperlink from the SegaSoft Service
to the Mpath Internet Service website; or
(iii) after April 30, 1997, from a 1-800 number (to be provided by
Mpath to SegaSoft no later than April 29, 1997) for signing on
to the Mpath Internet Service.
Mpath will pay SegaSoft [XXXXX] for the first [XXXXX] such subscribers and
[XXXXX] for every Mpath Internet Service subscriber thereafter.
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5.7 Bounty Tracking. SegaSoft generated subscribers to the Mpath Internet
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Service will be tracked using:
(a) for Section 5.5(b)(i), promotion codes that will be incorporated into
versions of the CD-ROMs distributed by SegaSoft;
(b) for Section 5.5(b)(ii), after April 30, 1997, a distinct hyperlink
from the SegaSoft Service and traced to its origin when received by
the Mpath Internet Service website; and
(c) for Section 5.5(b)(ii), after April 30, 1997, a distinct 1-800 number
for signing on to the Mpath Internet Service.
These records will be used to determine the appropriate bounty due to
SegaSoft from Mpath. Mpath agrees to pay amounts due to SegaSoft under this
Section within thirty (30) days after the end of each calendar month.
5.8 Audit by SegaSoft. A nationally-recognized independent certified public
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accountant (not hired on a contingent-fee basis) selected and paid for by
SegaSoft and reasonably approved by Mpath may, upon reasonable prior notice
and during normal business hours, inspect the records of Mpath to confirm
compliance with this Agreement no more than [XXXXX] per calendar year,
unless the prior audit revealed an overcharge by Mpath to SegaSoft, and
[XXXXX] within [XXXXX] after termination of this Amendment #2. The results
of such audit are Confidential Information and may only be reported to
SegaSoft to the extent required to substantiate a discrepancy in charges
made by Mpath to SegaSoft. SegaSoft agrees to provide Mpath with a copy of
the audit report letter, no later than twenty (20) days after completion of
the audit. If, upon performing such audit, it is determined that Mpath has
over-invoiced SegaSoft for payments due under this Amendment #2, Mpath will
pay SegaSoft the amount of the over-invoice within thirty (30) days of
completion of the audit. If, upon performing such audit, Mpath has under-
invoiced SegaSoft, Mpath may invoice SegaSoft for such under-invoiced
amount and SegaSoft agrees to pay such invoice within thirty (30) days.
Notwithstanding the first sentence of this Section, if such over-invoice
exceeds [XXXXX] of the amounts due SegaSoft in the period being audited,
Mpath will bear all reasonable expenses and costs of such audit up to the
amount of the underpayment. Any outstanding balances owing under this
Section are subject to an interest payment of [XXXXX].
6. MARKETING
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6.1 SegaSoft Markets the SegaSoft Service. SegaSoft is solely responsible for
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all creative input and branding for the SegaSoft Service and for SegaSoft
Service website design, structure, and content. Mpath is under no
obligation to provide World Wide Web design, games and other content for
the SegaSoft Service. SegaSoft alone is responsible for the design and
control of content for the SegaSoft Service. SegaSoft must obtain and
clear all third party rights necessary to enable SegaSoft to reproduce,
display or perform content on the SegaSoft Service, including but not
limited to: (a) written authorization from the owners of the copyrights in
any copyrighted materials to be reproduced,
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display or perform content on the SegaSoft Service, including but not
limited to: (a) written authorization from the owners of the copyrights in
any copyrighted materials to be reproduced, displayed or performed on the
SegaSoft Service; (b) permission from any persons or entities whose name,
voice, image or likeness, portrayal, impersonation, or performance will
appear on the SegaSoft Service; and (c) written authorization from the
owners of any trademarks or service marks that will appear on the SegaSoft
Service.
6.2 Powered by Mpath. Further to Section 7.2 of the Technology License
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Agreement, SegaSoft agrees to display, no smaller than ten (10) point font,
"Powered by Mpath Interactive" in the following SegaSoft service areas: in
the about box on the SegaSoft Service itself, in the credit area in
SegaSoft Service documentation, and in press releases about the SegaSoft
Service.
7. TERM AND AMENDMENT #2 TERMINATION. This Amendment #2 commences on the
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Effective Date and continues in effect thereafter for [XXXXX] or so long as
any Server Term remains in effect. SegaSoft may terminate this Amendment
#2, without cause, on ninety (90) days prior written notice to Mpath,
however under any such termination for convenience each Server Term
survives and SegaSoft must pay Mpath all amounts associated therewith as
specified in Section 5.1(b). If SegaSoft breaches this Amendment #2, Mpath
may, on thirty (30) days notice to SegaSoft, render the Servers unusable by
SegaSoft. If SegaSoft cures any such breach during the thirty (30) day cure
period, Mpath may not render the Servers unusable by SegaSoft. All monies
due and payable to Mpath from SegaSoft, including the balance of payments
remaining of all Server Terms are due and payable no later than thirty (30)
days after the date of termination. However, until SegaSoft cures the
breach Mpath is under no obligation to perform its responsibilities under
this Amendment #2. Sections 1, 5.1(b), 5.2, 5.3, 7, 8, 9 and 12 survive the
expiration or termination of this Amendment #2.
8. OWNERSHIP. SegaSoft acknowledges that certain or all of the Servers may be
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leased or rented by Mpath. SegaSoft and Mpath confirm their intent that
physical possession of the Game Servers remains exclusively with Mpath
and/or, as appropriate, Mpath's renter(s). SegaSoft hereby acknowledges
and confirms that SegaSoft shall have no right of physical access to the
Game Servers or to the installation site of such Game Servers within any
Network Region, without the express consent of Mpath. Upon the expiration
or earlier termination of each Server Term, SegaSoft shall surrender all
rights of use of the Servers to Mpath and/or, as appropriate, Mpath's
renter(s).
9. DISCLAIMER OF WARRANTIES. THE SERVERS ARE INSTALLED "AS IS", AND NEITHER
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MPATH OR ITS RENTERS MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, CONCERNING
THE SERVERS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A
PARTICULAR PURPOSE OR OF MERCHANTABILITY. SEGASOFT HEREBY WAIVES ANY CLAIM
(INCLUDING ANY CLAIM BASED ON STRICT OR ABSOLUTE LIABILITY IN TORT) THAT IT
MAY HAVE AGAINST MPATH OR ITS RENTERS FOR ANY LOSS, DAMAGE (INCLUDING LOSS
OF PROFITS, LOSS OF DATA OR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGE) OR
EXPENSE CAUSED BY THE SERVERS, EVEN IF MPATH HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES).
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SEGASOFT ACKNOWLEDGES THAT MPATH DID NOT SELECT, MANUFACTURE OR DISTRIBUTE
THE SERVERS AND THAT SEGASOFT HAS MADE THE SELECTION OF THE SERVERS BASED
UPON ITS OWN JUDGMENT AND EXPRESSLY DISCLAIMS ANY RELIANCE ON STATEMENTS
MADE BY MPATH OR ITS AGENTS.
10. RISK OF LOSS. Mpath or its renters shall at all times before, during and
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after the term of each Server Term bear the entire risk of loss, damage,
theft, or destruction of the Game Servers or any part thereof, from any
and every cause whatsoever. In the event of such loss, damage, theft or
destruction SegaSoft shall be relieved of its obligation to pay for the,
to the extent such loss, damage, theft or destruction deprives SegaSoft of
the use of the Game Servers.
11. INSURANCE. Mpath or its renters shall at all times carry and maintain, at
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its expense, physical damage insurance providing "all risks" coverage for
the Game Servers and public liability and property damage insurance in
amounts and with insurance companies consistent with its risk management
practices.
12. GENERAL
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12.1 Force Majeure. An event of force majeure also includes the act of a
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third party, such as PSINet, if reasonably beyond the control of a party
to this Amendment #2.
12.2 Further Assurances. SegaSoft shall, at its expense, promptly execute and
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deliver such further documents and take any and all other action
reasonably requested by Mpath from time-to-time, for the purpose of
protecting the interests of Mpath, and its renter(s). SegaSoft, at the
request of Mpath and at SegaSoft's expense, agrees to execute and deliver
to Mpath any financing statements or other instruments necessary for
perfecting the interests and title of Mpath and its renter(s) the Servers.
12.3 New Internet Service Providers. If Mpath contracts with Internet service
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providers other than PSINet, Mpath agrees to negotiate, in good faith,
with SegaSoft to install servers for the SegaSoft Service with such other
Internet service providers. Based on the terms and conditions of Mpath's
agreement with Internet service providers other than PSINet, the
installation of servers for the SegaSoft Service with Internet service
providers other than PSINet may differ from the terms and conditions of
this Amendment #2.
12.4 Effect on the Agreement. Except as amended by this Amendment #2, the
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Agreement remains in effect pursuant to its terms. If a conflict arises
between the terms of the Agreement, Amendment #1, and this Amendment #2;
the terms of this Amendment #2 prevail and control.
SEGASOFT, INC. MPATH INTERACTIVE, INC.
By: /s/ Xxxx Xxxxxxxxx By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxxx Name: Xxxx Xxxxxxxx
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Title: CEO Title: G.M. Foundation
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Date: 3/25/97 Date: 3/21/97
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Fax: _________________ Fax (000) 000-0000
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EXHIBIT A
ACCEPTANCE CERTIFICATE
(All capitalized terms not otherwise defined herein have the meanings given to
such terms in the April 15, 1996 Technology License Agreement, the November 27,
1996 Amendment #1, and the {date} Amendment #2 between Mpath and SegaSoft.)
SegaSoft acknowledges acceptance of the installation of the Server listed below
and agrees that the Server has been installed and is ready for use under the
terms of the above-mentioned Technology License Agreement, Amendment #1, and
Amendment #2, the terms and conditions of which are incorporated herein,
including, without limitation, the obligation to make rental payments.
Server Quantity Location
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Acceptance Date: ________________________
IN WITNESS WHEREOF, the SegaSoft hereto has caused this Acceptance Certificate
to be duly executed by its authorized representative as of the Acceptance Date
written above.
SEGASOFT, INC.
By:________________________
Name:_______________________
Title:_________________________
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EXHIBIT B
INSTALLATION CERTIFICATE
(All capitalized terms not otherwise defined herein have the meanings given to
such terms in the April 15, 1996 Technology License Agreement, the November 27,
1996 Amendment #1, and the {date} Amendment #2 between Mpath and SegaSoft.)
The following is a formal notification by Mpath to SegaSoft that the Server
listed below has been installed in the Network Region, as requested and selected
by SegaSoft, as of the Install Complete Date, specified below.
1. Server Name: __________________________________
2. Network Region: _________________________________________
3. Install Complete Date: ________________________
IN WITNESS WHEREOF, the Mpath hereto has caused this Installation Certificate to
be duly executed by its authorized representative as of the Install Complete
Date written above.
MPATH INTERACTIVE, INC.
By:__________________________
Name:________________________
Title:_________________________
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EXHIBIT C
INSTALLATION PLAN
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EQUIPMENT NAME DESCRIPTION/CONFIGURATION Fee
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Ultra I (256) Server: UltraSPARC-170 processor (or See Section 5.
equivalent)
Memory (RAM): 256MBytes
Disk Capacity: 2 - 2.1GByte drives
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CENTRAL SERVER
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1 Web server Ultra
1 MCP Ultra
1 Matchmaker Ultra
1 database Sun Enterprise 3000 (used to house third party software (such as
Portal and Oracle) with another Sun Enterprise 3000 as the data warehouse which
is not critical for the service but facilitates the gathering and use of
reporting/marketing information).
Installed on or Before
Location Order Installed Effective Date 4/30/97 5/31/97
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EXHIBIT D
NETWORK REGIONS
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NETWORK REGION UNITED STATES REGION
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EXHIBIT E
OPERATIONS PLAN
This Operations Plan may be amended from time-to-time by written agreement of
the Operation Managers from SegaSoft and Mpath. The intention of the exhibit is
to outline those services specific to this Amendment #2 and are meant to be
additive to those already established in the Agreement.
SegaSoft will maintain a first level customer service organization to field
customer service calls. This will be done through on-line as well as telephone
support. SegaSoft will also maintain a second level support staff for technical
problem resolution for all SegaSoft technologies and systems. Each customer
service shift will have a shift lead. SegaSoft will monitor all network system
for real-time up-time and performance.
Mpath will provide second level support commensurate with those services
outlined in this Amendment #2. This area of responsibility should include the
distributed software systems, the distributed hardware systems, the PSINet
network, and the Mplayer ISP accounts. SegaSoft will request this support from
MPATH through the SegaSoft on-duty customer service shift lead. Mpath will
provide system and network visibility to SegaSoft to help in problem
determination.
Mpath will provide a "Main Contact Person" for resolving all on-going issues and
to manage the relationship between the two companies. In addition, MPATH will
provide contact information for the Mpath "Front Line" support group in the form
of email, telephone, and pager. Also, Mpath will provide the contact
information for the on-call 7x24 system administrator in the form of email,
telephone, and pager. All problem requests will be returned within one hour
to the SegaSoft Shift Lead. Resolution to problems occurring in Mpath area of
responsibility will be on a "reasonable effort" basis and tracked by the "Main
Contact Person".
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