LICENSING AND PUBLISHING AGREEMENT
This LICENSING AND PUBLISHING AGREEMENT (this "Agreement") is entered
into as of November 1, 2004 (the "Effective Date"), by and between BUENA VISTA
GAMES, INC., a California corporation ("BVG"), and TIGER TELEMATICS, INC., a
Delaware corporation ("Tiger").
RECITALS
A. Tiger owns and controls a proprietary interactive platform known as
"Gizmondo" and desires to license the right to develop and exploit one (1)
software product incorporating certain BVG Properties for the Gizmondo platform.
B. Within the territories and during the term defined herein, BVG is
willing to grant to Tiger certain limited rights to develop, manufacture,
distribute and sell, and/or cause the development, manufacture, distribution and
sale of, one (1) software product incorporating certain BVG Properties, to be
operable on the Gizmondo platform as more particularly set forth in this
Agreement.
C. Capitalized terms used herein shall be defined in Exhibit A.
AGREEMENT
THEREFORE, in consideration of the premises, agreements, covenants,
representations and warranties herein contained, and for good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, BVG and
Tiger agree as follows:
1. TERM/INITIAL RELEASE DATES.
1.1. Term. The term of this Agreement shall be three (3) years.
Accordingly, the rights granted to Tiger in this Agreement shall commence on the
November 1, 2004 and shall terminate on October 31, 2007 (the "Term").
1.2. Sell-Off Period. In the event that the Term of this Agreement
expires solely due to the passage of time and Tiger has fully complied with the
terms and conditions hereunder, if Tiger has any remaining Units in inventory,
Tiger shall thereupon have the non-exclusive right for a limited period of three
(3) months From such expiration date to sell-off any such existing Units,
subject to the terms of this Agreement.
2. DEVELOPMENT.
2.1. Design Consultation. BVG and Tiger shall meet and mutually approve
the creative strategy for the Title prior to development and release. Approved
concepts for the Title shall be incorporated into the Design Specifications for
the Title, and the Design Specifications shall be incorporated into this
Agreement and attached hereto as Exhibit B.
2.2. Development by Tiger. Tiger shall be solely responsible for the
programming and development of each Title. Such development shall be completed
and delivered in accordance with the Milestone Schedule to he mutually agreed
upon by the parties and attached hereto as Exhibit C and the Design
Specifications for each Title. In the event that Tiger desires to engage a third
party developer to develop the Title, BVG shall have the right to approve the
developer in advance in writing and to approve the terms and conditions of
Tiger's agreement with the developer in its sole discretion. Tiger shall be
responsible for all development costs associated with the Title and all
documentation therefor, including without limitation, the costs of any fees
payable for licensing rights or acquiring services or materials in connection
with the Title. At
BVG's option, BVG may, but shall not be required to, deliver certain assets
related to the BVG Properties to be used for reference.
2.3. Employees/Independent Contractors. Tiger shall not engage any
individual (other than any of its regular full-time employees) or entity to
perform any obligations of Tiger hereunder, nor shall Tiger acquire any rights
that pertain to the Title from any third party, without the prior written
consent of BVG. In the event that BVG does consent to any such engagement, Tiger
must enter into an agreement with such third party in a form that has been
approved in advance by BVG in writing.
2.4. Quality Assurance Testing. Tiger shall be responsible for all
quality assurance, functionality and compatibility testing required prior to the
release of any Title to ensure that all Units of the Title developed by or on
behalf of Tiger hereunder and/or manufactured by or on behalf of Tiger shall
conform with all Documentation, the Design Specifications and shall be
compatible with the Target Platform. BVG may, but shall have no obligation to,
perform its own quality assurance, functionality and compatibility testing. To
the extent that BVG shares the results of its testing with Tiger, such results
shall be provided as a courtesy only, and Tiger shall not rely upon such results
in lieu of Tiger's own testing. Tiger agrees to provide Target Platform hardware
and periodic builds of the Title to enable BVG to perform such testing.
2.5. Time of the Essence. Time is of the essence with respect to
development and release of the Title in accordance with the Milestone Schedule.
2.6. In-Game Sponsorship. In no event shall the Title incorporate
in-game sponsorship without the express written approval of BVG.
3. PUBLISHING AND DISTRIBUTION BY TIGER.
3.1. Right to Use BVG Properties. In the Territory during the Term, BVG
hereby grants to Tiger a limited, non-exclusive, non-transferable license to use
and reproduce the BVG Properties identified in the approved Design
Specifications in connection with each Title in accordance with the terms and
conditions of this Agreement. Except as otherwise expressly set forth herein,
nothing in this Agreement, nor the exercise of any rights granted Tiger
hereunder, conveys to Tiger, and Tiger shall not have or acquire, and shall not
purport to have or acquire, any right to use the BVG Properties in any manner
except as expressly set forth in this Agreement. BVG hereby reserves all rights
not specifically and expressly granted by BVG to Tiger hereunder. Tiger shall be
responsible for all costs and expenses in connection with the distribution by or
on behalf of Tiger of Units of the Title hereunder.
3.2. Tiger's Publishing and Distribution Rights. BVG hereby grants to
Tiger, and Tiger hereby accepts and agrees to exercise, the right to distribute
Units of the Title for the Target Platform throughout the Territory during the
Term. Such right includes Tiger's right to distribute physical Units of the
Title directly to End Users, and Tiger's right to sell through Distributors who
sell physical Units of the Title to retailers and End Users. The right to
distribute includes the right to market, sell, display, advertise and otherwise
promote the Title in accordance with and subject to the terms and conditions of
this Agreement.
3.3. Retail Distribution Only. The rights granted to Tiger hereunder,
include only the right to distribute individually packaged retail Units of the
Title to traditional retailers and to retailers who solicit retail sales on the
Internet. Without BVG's prior written consent in each instance. Tiger shall not
have the right to distribute Units of the Title or any new or existing elements
of the Title, (a) as part of a "bundle" (i.e.. distributed as part of a package
with any other thing of value): (b) via electronic distribution, whereby End
Users obtain a copy of a Title by downloading the same from the Internet,
thereby supplanting the purchase of a packaged or tangible Unit: or (c) via
broadband service providers whereby End Users are permitted to access a Title
without first having purchased a retail Unit of the Title. Notwithstanding
subsection (a) of the foregoing clause, in the event that Tiger desires to
bundle the Title with the Target Platform hardware or with any other thing of
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value, Tiger shall present a proposal to BVG in regards thereto, and Tiger and
BVG shall meet to discuss the proposal in good faith, provided that BVG shall
have no obligation to consent to any bundling arrangement.
3.4. No Sale Outside of Territory. Tiger shall not, directly or
indirectly, export, or cause or permit the export of, Units of the Title outside
the Territory during the Term. Tiger is expressly prohibited from soliciting
sales for Units of the Title outside the Territory. Tiger agrees that it will
not distribute any Unit of the Title to any party under circumstances where
Tiger knows, or in the exercise of prudent business judgment should know, that
such activity ultimately will result in the exporting of such Unit outside of
the Territory.
3.5. Third Party Distributors. Tiger shall not use any Distributor that
has not been approved in advance by BVG.
3.6. No Merchandising Rights. Nothing in this Agreement nor the exercise
of any rights granted to Tiger hereunder conveys to Tiger any rights to exploit
any merchandise in connection with, or based on, any BVG Property or any Title.
3.7. No Music Rights. The license granted to Tiger herein does not
include any rights to use music owned or licensed by BVG, its music publishing
affiliate, or any third party in the Title or in any marketing, advertising or
promotional efforts, which rights are specifically not contemplated by this
Agreement. BVG makes no representations and provides no assurances that such
rights, if sought for any BVG affiliate or third party, will be granted.
4. REVIEW AND APPROVAL PROCESS.
4.1. Title Approval. BVG shall have final approval over all content and
elements of the Title developed by Tiger hereunder (including, but not limited
to, all creative aspects thereof and all text, graphics, artwork, designs,
gameplay, music, banners, screens and characters) and Tiger shall consult with
BVG upon BVG's request throughout the development of the Title. BVG shall review
from time to time Tiger's implementation of the Design Specifications for the
Title (including, without limitation, at the delivery of each Milestone) and BVG
shall have the right of final approval thereof, which approval may be granted or
withheld in BVG's sole discretion. Tiger recognizes that BVG will exercise its
discretion hereunder in all instances to maintain BVG's high standards and good
image and reputation. Tiger shall submit to BVG a copy of each build of each
Title after the approved Alpha Milestone to permit BVG to conduct its own it
tests to ensure that such build conforms to the Design Specifications therefor.
BVG shall use good faith efforts to provide Tiger in a timely fashion with
either: (a) written approval (i.e., acceptance) of the Milestone; or (b) a
written list of changes that must be made before BVG will approve Such
Milestone. BVG's failure to provide any such written approval or written list of
changes will be deemed BVG's disapproval.
4.2. Disapproved Milestone. If BVG, in its sole discretion at any time
during the development process, determines that any Milestone is unsuitable for
the purposes intended, upon BVG's request, Tiger shall redesign the affected
Milestone to BVG's satisfaction. If Tiger is unwilling or unable to redesign
such Milestone in accordance with the deadlines set forth in the Milestone
Schedule or as otherwise mutually agreed upon by the parties, BVG may, in its
discretion, terminate this Agreement with respect to either the particular
Version of the Title or all Versions of the Title.
4.3. On-Site Review/Work Product Review. BVG shall have the right, at
its expense, to send BVG personnel to Tiger's place of business upon reasonable
notice during normal business hours for review and consultation with respect to
the development of the Title.
5. DEVELOPMENT LIAISONS. All discussions involving the Design
Specifications for the Title shall be conducted by the development liaison
appointed by each party, or their designees, and any agreement on changes to the
Design Specifications shall be documented in writing, with such development
liaisons, or their
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designees, as Joint signatories. In addition Tiger and BVG shall designate one
(1) employee each who shall act as primary points of contact between Tiger and
BVG with respect to the administration of the Agreement. Such employees shall be
generally available to each other on a priority basis.
6. CONSIDERATION.
6.1. Royalties Payable by Tiger for Sale of Units of the Title. In
consideration for the rights granted by BVG hereunder, Tiger shall pay BVG the
royalties set forth below with respect to sales of Units of each Title
distributed by or on behalf of Tiger ("Royalties").
(a) Royalties. With respect to the Title, Tiger shall pay Disney
the following Royalties as a percentage of Tiger's Net Receipts derived from
such sales:
------------------------------ ------------------------------------------------
Number of Units Sold Royalty Rate
------------------------------ ------------------------------------------------
0-250,000 Units Ten percent (10%) of Tiger's Net Receipts
------------------------------ ------------------------------------------------
250,000 Units and Over Twelve Percent of (12%) of Tiger's Net Receipts
------------------------------ ------------------------------------------------
(b) Net Receipts. For purposes of this Agreement, "Net Receipts"
shall be defined as one hundred percent (100%) of wholesale receipts received by
or credited to Tiger from the exploitation of the Title, less only actual,
reasonable returns, customary price protection allowances, and customary
discounts and credits, provided that such discounts and credits collectively for
any Unit shall not exceed five percent (5%) of the wholesale receipts
attributable to such Unit.
6.2. Guarantees Payable by Tiger for Units. As a nonrefundable advance
guarantee against the Royalties due pursuant to Section 6.1, Tiger shall pay to
BVG the amount of One Hundred Thousand Dollars ($100,000.00) (the "Guarantee")
as follows: Twenty-Five Thousand Dollars ($25,000.00) shall be paid immediately
following of the execution of this Agreement (in no event later than thirty (30)
calendar days thereafter), Twenty-Five Thousand Dollars ($25,000.00) shall he
paid on or before December 31, 2004: Twenty-Five Thousand Dollars ($25,000.00)
shall he paid on or before December 31, 2005; and Twenty-Five Thousand Dollars
($25,000.00) shall be paid on or before December 31, 2006. Tiger's obligation to
pay the Guarantee shall be deemed accrued upon the execution of this Agreement,
shall he irrevocable and absolute, and no termination of this Agreement shall
discharge or release Tiger from such obligation, which shall survive any such
termination until indefeasibly paid in full.
6.3 Accrual/Quarterly Reports. Royalties payable to BVG by Tiger shall
be deemed to accrue upon the shipment of each Unit to a Distributor or an End
User. Royalty payments shall be due and payable to BVG within thirty (30) days
after the end of each calendar quarter of the Term in which any Unit is shipped.
Each payment shall be accompanied by a report detailing the manufacture, sales
and shipments of Units of each Title during the immediately preceding calendar
quarter and cumulative for the Term to date. Such report shall set out all
figures by Title, Platform and by country of the Territory. Such reports from
Tiger shall also indicate the amount (if any) of Royalties due and payable to
BVG.
6.4 POS Reports. Tiger hereby grants permission to BVG to receive,
review and use Retailers' point-of-sale ("POS") information concerning Tiger's
sales of Units to such Retailers. Such POS information may include retail sales,
inventory and order information regarding Tiger's sales of Units to Retailers.
6.5 Audits. Tiger agrees to keep and preserve, for at least three (3)
years after the Termination Date, accurate records of its transactions relating
to this Agreement, in order to substantiate any royalty payments due to BVG.
BVG's internal auditing department or its designated representative shall have
the right
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to examine and make extracts of all such records, including all build and ship
records, invoices and other records that relate to the manufacture and shipment
of Units of the Title concerned, at any time during Tiger's normal business
hours and upon reasonable prior notice to Tiger. In addition, if in an audit of
Tiger's records it is determined that there is a shortfall of five percent (5%)
or more in Royalty payments, Tiger shall reimburse BVG for its reasonable
out-of-pocket costs of the audit, including, without limitation, the costs of
BVG's own employee auditors, for actual working time and for travel time during
normal working hours.
6.6 Interest. If Tiger fails to pay BVG all Royalties due to BVG as set
forth in a respective quarterly report, Tiger shall pay interest to BVG at the
rate of fifteen percent (15%) per annum (or the maximum rate permitted by law)
from the date due on any unpaid amount.
6.7 Reserve for Returns. Tiger shall be entitled to retain a reserve
against anticipated returns not to exceed ten percent (10%) of the Royalties due
in any particular payment period, as such Royalties are reflected in the
quarterly Royalty statement for the applicable payment period, provided that
such reserve shall be reconciled and liquidated every three (3) months,
concurrently with each quarterly Royalty statement, and provided further that,
Tiger may not retain a reserve for returns during the Sell-0ff Period.
7. PAYMENT FORMS/PRICES.
7.1. Payment Forms. All payments due hereunder may he made by company
check or wire transfer only. All payments shall be made in U.S. Dollars only,
less any required withholding tax.
7.2. Tiger to Determine Its Own Prices. Tiger is free to determine its
own prices for Units unilaterally. Although BVG may suggest wholesale or retail
prices for the Title, such prices are suggestions only and Tiger shall be
entirely free to determine the actual prices at which Units are to be sold to
its customers. Each party understands that neither BVG nor any employee or
representative of may give any special treatment (favorable or unfavorable) to
Tiger as a result of its selection of prices. No employee or representative of
BVG nor anyone else associated or affiliated with BVG has any authority to tell
Tiger what its prices for Units must be or to inhibit in any way Tiger's pricing
discretion with respect to Units.
7.3. Taxes. Tiger shall be responsible for the payment of all taxes
including, but not limited to, sales and consumption taxes, arising from the
creation and exploitation of the Title during the Term.
8. MANUFACTURING AND PACKAGING
8.1. Tiger's Manufacturing Rights. BVG grants to Tiger the right to
manufacture and package (or to cause the manufacture and/or packaging of) Units
for the Target Platform, and all related Title Materials, Promotional Materials
and Documentation solely for distribution in the Territory during the Term, in
accordance with the terms and conditions of this Agreement. Each copy of a Unit
shall be packaged individually. All costs in connection with such manufacturing
and packaging shall be borne by Tiger. Tiger shall not engage any
"Manufacturers" (i.e., any of Tiger's third party manufacturers and suppliers
and their sub-manufacturers and suppliers which reproduce, use and/or assemble
Units, Documentation, Title Materials, Promotional Materials and/or any other
materials licensed by to Tiger under this Agreement) without BVG's prior written
consent, which shall be granted or withheld in BVG's sole discretion. Tiger
agrees to require each Manufacturer to execute BVG's Subcontractor's Agreement
attached hereto as Exhibit F prior to manufacturing any Units. Furthermore,
Tiger's engagement of any such Manufacturer(s) shall be subject to the terms and
conditions of Section I2 hereof. Tiger shall provide BVG the accurate name and
complete address of any engaged Manufacturers and identify the Title, Title
Materials, Promotional Materials, components, or related items, using the
Facility and Merchandise Authorization (FAMA) form, attached hereto as Exhibit
E.
8.2. No Right to Reproduce or Modify. Nothing in this Agreement shall be
construed as giving Tiger any right to, and Tiger agrees that shall not, and
shall not permit or assit any affiliate of Tiger, or any
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other third party to, manufacture, modify or adapt all or any part of any Title
for any Platform other than the Target Platform or otherwise make copies of all
or any part of any Title onto any media, except as may be expressly and clearly
permitted by this Agreement.
8.3. Unit/Title Materials/Packaging, Approvals. Before packaging Units,
Tiger shall submit all Title Materials for such Units to BVG for its written
approval prior to any use thereof. Artistic control over all aspects of Title
Materials and of BVG Properties shall at all times reside exclusively with BVG
and BVG's approval or disapproval thereof shall lie in BVG's sole discretion.
BVG's failure to provide any such written approval or written list of changes
will be deemed BVG's disapproval. Any Title Materials or Units not so approved
by BVG in writing shall be deemed unlicensed, shall not be distributed and
shall, unless otherwise agreed by BVG in writing, be destroyed by Tiger. No
modification of approved Title Materials or Units shall be made without BVG's
further prior written approval in accordance with the provisions of this
Section.
9. MARKETING EFFORTS.
9.1. Marketing Plan/Marketing Commitment. Tiger shall use its best
efforts to aggressively doing so, shall ensure that its marketing and
advertising efforts are in good taste and will be no less extensive in scope,
depth, and quality as any of Tiger's other "top-tier" titles for the Target
Platform . In connection with such marketing effort, Tiger shall propose for
BVG's review and approval a marketing plan for the Title. Such marketing plan
shall be completed and delivered to BVG on or before December 1, 2004. Such
marketing plan shall include a target marketing spend of at least Two Hundred
Fifty Thousand Dollars ($250,000.00) during the Term to be used exclusively by
Tiger in the promotion of the Title (the "Marketing Commitment"). Unless
otherwise agreed by the parties in the marketing plan, Tiger's marketing and
advertising efforts shall include, without limitation, public relations,
point-of-sale advertising and demonstrations, in-box promotions and print media
and television advertising in the Territory during the Term. Tiger shall consult
regularly during the Term with BVG's marketing department to coordinate all
marketing objectives and strategy. BVG shall have the right (exercisable in
BVG's sole discretion) to prohibit Tiger from advertising the Title in
particular media for reasons of overexposure of the BVG Properties.
9.2. Marketing Practices. Tiger shall (a) conduct business in a manner
that reflects favorably at all times on the Title and the good name, goodwill
and reputation of BVG; (b) avoid deceptive, misleading or unethical practices
that are or might be detrimental to BVG, the Title or the public, including, but
not limited to, disparagement of BVG or the Title; (c) make no false or
misleading representations with regard to BVG or the Title; (d) not publish or
employ or cooperate in the publication or employment of any misleading or
deceptive advertising material; (e) make no representations, warranties or
guaranties to anyone with respect to the specifications, features or
capabilities of the Title that are inconsistent with any literature distributed
by BVG, including all warranties and disclaimers contained therein; (f) not
engage in illegal or deceptive trade practices such as bait and switch
technique, or any other practices proscribed hereunder; and (g) ensure that
online and direct mail marketing is consistent with Tiger's and BVG's current
privacy policies and with applicable laws regarding online content and access,
including but not limited to the Children's Online Privacy Protection Act.
9.3. Publicity. BVG shall have the right, but not the obligation, to
use, publish and permit others to use and publish, the name, likeness, voice,
biographical material, or any reproduction thereof of Tiger and any personnel
supplied by Tiger in connection with the Title.
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10. PROMOTIONAL RIGHTS.
10.1. Promotional Materials. BVG hereby grants to Tiger a non-exclusive
license to reproduce the BVG Properties appearing in the Title solely for use
within the Territory during the Term in or on catalogues, advertising and
promotional materials (all such catalogues, advertising and promotional
materials incorporating BVG Properties shall be referred to collectively herein
as the "Promotional Materials") for the Units; provided however, that Tiger
shall submit the Promotional Materials to BVG for its written approval prior to
any use thereof. Tiger shall provide BVG with copies of Promotional Materials in
the language in which Tiger proposes to use such promotional Materials. BVG's
approval or disapproval shall lie in BVG's sole discretion, and the use of
unapproved Promotional Materials is strictly prohibited and shall constitute a
material breach of this Agreement. BVG shall endeavor to provide its approvals
or disapprovals hereunder reasonably promptly, provided that all Promotional
Materials not approved in writing by BVG shall be deemed disapproved. During the
Term, Tiger shall provide BVG with such reasonable quantities of samples of the
Promotional Materials in final form as BVG may from time to time request. Tiger
shall not utilize the Promotional Materials or any part thereof in connection
with any products or services other than the Units within the Territory during
the Term or solely to promote Tiger and, without limiting the materiality of any
other term of this Agreement, such use shall be considered a material breach of
this Agreement.
10.2. Promotional Activities. Without limiting the foregoing Tiger shall
obtain the prior written approval of BVG regarding any promotional activity
relating to the Units and shall not, without BVG's prior written consent (which
consent shall not be unreasonably withheld), sell or otherwise provide any Unit
for use in fund-raisers, sweepstakes or similar activities or provide any Units
for use as prizes, premiums or give-aways.
10.3. No Animations. Tiger hereby acknowledges and agrees that BVG is
not granting Tiger any rights to use, and Tiger shall not use, the BVG
Properties in animated form in connection with any marketing, advertising or
promotional efforts without the prior written consent of BVG in each instance.
11. CONTINUING OBLIGATIONS OF TIGER.
11.1. Revisions, Maintenance and Corrections. Tiger shall not have the
right to revise any Version of any Title without BVG's prior written consent. At
any time during the Term, in the event that BVG notifies Tiger that certain
elements, symbols, words or characterizations appearing in any Title have the
unintended effect of causing substantial public objection from any sizeable
group of people or which brings the name and goodwill of Tiger and/or BVG into
public disrepute or disfavor. Tiger shall make all Revisions or Maintenance
requested by BVG to eliminate such objection. Further, notwithstanding BVG's
approval of the Title and Documentation for any Version developed by Tiger,
Tiger shall make all Corrections at its own expense.
11.2. Packaging. Tiger shall distribute the Units with all packaging,
labels and Documentation intact and in the form provided or approved by BVG.
Further, each Unit shall include a Title warranty and End User license
agreement, each in a form approved by BVG (collectively. the "XXXX").
11.3. Return of BVG Materials. Within thirty (30) days after BVG's
written approval of the Gold Master for each Version of a Title developed by
Tiger hereunder, Tiger shall return to BVG all originals and all copies of any
source code, art, animation, music. Sound and other elements provided by and/or
for BVG with respect to the particular Version of the Title.
11.4. Supply of Units to BVG. Tiger agrees to provide BVG, free of
charge, with fifteen (15) Target Platform hardware units and fifty (50) Units of
each Title from Tiger's first shipment of Units that Tiger is entitled hereunder
to distribute. BVG shall have the right to purchase all unlimited number of
additional Units for any purpose in BVG's sole discretion (other than for
resale) at Tiger's cost of manufacture plus five percent (5%).
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11.5. No Confusingly Similar Titles. Tiger recognizes and acknowledges
the vital importance to BVG of the characters and other proprietary material
owned and/or created by BVG or any affiliate of BVG, and the association of the
name "Disney" with them. In order to prevent the denigration of BVG's or BVG's
affiliates' products and the value of their association with the name "Disney",
and in order to ensure the dedication of Tiger's best efforts to preserve and
maintain that value, Tiger agrees that, during the Term, Tiger will not
manufacture or distribute any software embodying or displaying any artwork,
storyline or other representation that is confusingly similar to any BVG
Properties, characters or products.
11.6. Notification of Claimed or Suspected Defects. Tiger shall promptly
notify BVG in writing of any claimed or suspected defect in any Version of any
Title distributed by or on behalf of Tiger no later than ten (10) days after
Tiger learns of the same, whether directly or through a Distributor or an End
User.
12. COMPLIANCE WITH LAWS.
12.1 Responsibility for Compliance. Tiger shall be solely responsible
for ensuring that the Title and all elements thereof, Units, Documentation,
Title Materials, and Promotional Materials and all of Tiger's activities with
respect thereto, all materials utilized in connection therewith and all its
duties undertaken hereunder comply with all applicable national, federal,
regional, provincial, state or local laws and regulations (including, without
limitation, all relevant professional or trade registration requirements,
advertising approval requirements, trademark protection and clearance
requirements) of the countries within the Territory (collectively, "Laws").
Tiger covenants on behalf of Tiger's own manufacturing facilities (if any) to
comply with the Code of Conduct for Manufacturers attached hereto as Exhibit G
and incorporated herein by this reference, in the manufacturing, packaging, and
distribution of the Title, Units, Documentation, Title Materials, and/or
Promotional Materials, or components thereof. The Code of Conduct for
Manufacturers shall not be interpreted to require you or any Manufacturers to
violate any applicable laws.
12.2 Disclaimer. BVG's authorization of any activity, or of the use or
manner of use of any material, Title or any elements thereof, Promotional
Materials and/or Title Materials hereunder shall not constitute an opinion as to
the legal appropriateness or adequacy of such activity, use or manner of use and
Tiger's use of the same shall be its sole responsibility. Tiger understands and
agrees that BVG has made no independent examination of the Laws that may be
applicable to any such Title, or any elements thereof, including without
limitation, all Promotional Materials and Title Materials, or the manufacture or
distribution thereof. All artwork or other materials in connection with the
Title are provided by BVG "AS IS" with respect to all Laws. Any and all charges
or expenses incurred by Tiger in connection with the foregoing shall be borne
(as between Tiger and BVG) solely by Tiger.
12.3 Compliance Evaluation. Both before and after Tiger puts each Unit,
Documentation, Title Materials, and/or promotional Materials therefor on the
market, Tiger shall follow reasonable and proper procedures for testing that
such Units, Documentation, Title Materials, and Promotional Materials comply
with all Laws, and shall permit BVG's designees to inspect testing,
manufacturing and quality control records and procedures and to test such Units,
Documentation, Title Materials, and Promotional Materials for compliance. Tiger
shall also give due consideration to any recommendations by BVG that any such
Units, Documentation, Title Materials, and/or Promotional Materials exceed the
requirements of any Laws. Such Units, Documentation, Title Materials, and/or
promotional Materials not manufactured, packaged or distributed or caused to be
manufactured, packaged or distributed by Tiger in accordance with Laws shall be
deemed unapproved, even if previously approved by BVG, and shall not be shipped
unless and until they have been brought into full compliance therewith.
12.4 Manufacturer Compliance. Tiger shall be responsible for the
ensuring that all Manufacturers are in compliance with all Laws. Tiger agrees to
require all Manufacturers to comply with the Code of Conduct for Manufacturers
attached hereto as Exhibit G in the manufacturing, packaging, and distribution
of the Title, Units, Documentation, Title Materials, and/or Promotional
Materials, or components thereof by signing BVG's
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Subcontractor Agreement attached hereto as Exhibit F. Tiger agrees to take
appropriate steps, in consultation with BVG, to develop, implement and maintain
procedures to evaluate and monitor the Manufacturers which Tiger uses to
manufacture the Title, Units, Documentation, Title Materials, and/or Promotional
Materials, or components thereof, and to ensure compliance with this Section.
Tiger acknowledges and agrees that BVG may require a compliance inspection prior
to the engagement of any Manufacturers that Tiger wishes to engage in the
manufacturing, packaging, and distribution of the Title, Units, Documentation,
Title Materials, and/or Promotional Materials, or components thereof.
12.5 Monitoring. Tiger agrees that BVG and its designated agents
(including third parties) may engage in monitoring activities to confirm
compliance with this Section, including unannounced on-site inspections of
manufacturing, packaging and distribution facilities, and employer-provided
housing, such inspections to include reviews of books and records relating to
employment matters and private interviews with employees. Tiger agrees to
maintain on site all documentation necessary to demonstrate compliance with this
Section. Tiger agrees to promptly reimburse BVG for the actual costs of
inspections performed pursuant to this Section when any of Tiger's manufacturing
facilities or any Manufacturer does not pass the inspection(s).
12.6 Notification of Violation of Laws. Tiger shall immediately notify
BVG in writing in the event that Tiger knows or has reason to believe that any
act or omission required by or contemplated under this Agreement violates any
Law (whether criminal or non-criminal).
13. CUSTOMER SERVICE.
13.1. Responsibility Generally. Tiger shall be solely responsible for,
and shall use its best efforts to provide and maintain Customer Service and
technical Support in the Territory to Distributors and End Users with respect to
the Title. Such Customer Service and technical support shall be of a quality
that is comparable to such customer service and technical support as Tiger
provides for its other "top-tier" titles. For the purposes of this Section,
"Customer Service" means the resolution of issues pertaining to the Units in the
following general categories: inventory processing, payment processing order
inquiries, product returns and replacements and technical support. Tiger agrees
to provide an escalation procedure and pre-defined levels of Customer Service to
BVG in the event that End Users contact BVG directly provided that nothing
herein shall be deemed to obligate BVG to provide Customer Service or to relieve
Tiger of' its sole responsibility to provide Customer Service.
13.2. Unit Returns. Tiger agrees to honor any refund requests received
from End Users pursuant to the terms of the applicable XXXX. Tiger may return
any such returned Unit to its inventory if the Unit is in saleable condition.
Tiger shall instruct End Users to make all refund requests with respect to Units
distributed by or on behalf of Tiger directly to Tiger and not to BVG.
13.3. Termination-No Effect on End User. The End User rights set forth
in the XXXX are independent of this Agreement and will survive the expiration or
termination of this Agreement for any reason. In addition, provided any Unit
shall have been distributed by or on behalf of Tiger in the Territory to any End
User, all of Tiger's obligations under this Section 13 with respect to End User
support shall specifically survive for a period of two (2) years from the
Termination Date.
14. PROPRIETARY RIGHTS.
14.1. Commissioned Work for Hire. The Title Content developed by Tiger
hereunder and all Work Product is written, produced, specially ordered and
commissioned at BVG's request and direction, and shall be considered
works-made-for-hire for BVG. BVG, its successors, privies and assigns, shall
exclusively own all Intellectual Property Rights, in perpetuity and in all
languages, embodied in or pertaining to the Title Content (including, without
limitation, all characters, themes, sounds, artwork, text, story lines, Title
name(s) and other creative elements related to the Title), all Work Product and
all Derivative Works, and Tiger hereby makes a full,
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irrevocable assignment, in perpetuity, to BVG of (a) all such Intellectual
Property Rights, (b) all contracts, agreements, assignments, documents and/or
instruments pursuant to which Tiger may have heretofore acquired or may
hereafter acquire such Intellectual Property Rights, and (c) all releases,
warranties, indemnities arid undertakings acquired by Tiger in connection with
Tiger's services with respect to the Title Content and any Work Product. Tiger
acknowledges that there are, and may be, future rights that Tiber may otherwise
become entitled to with respect to the Title Content, any Work Product or any
Derivative Work that do not yet exist, as well as new uses, media, means and
forms of exploitation throughout the universe employing current and/or future
technology yet to be developed: the parties specifically intend the foregoing
full, irrevocable and perpetual assignment of rights to BVG to include all such
now known and unknown uses, media and forms of exploitation, throughout the
universe.
14.2. No Intellectual Property Rights. Except as specifically and
clearly set forth in this Agreement, nothing herein, nor the exercise of any
rights granted to Tiger hereunder, conveys to Tiger, and Tiger shall not have or
acquire, and shall not purport to have or acquire, whether for any Platform or
in any computer or other format or otherwise, any Intellectual Property Rights
or airy other right, interest or title to the Title Content, any Work Product or
any Derivative Work. Further, it is understood that BVG is not granting to
Tiger, and Tiger does not acquire, by the operation of this Agreement or
otherwise, any right to, or interest in, the name "Disney" or any derivation of
the name "Disney." Tiger agrees that it shall not at any time assert or claim
any interest in, or do anything that may adversely affect the validity or
enforceability of, any Intellectual Property Right belonging to or licensed by
BVG (including any act, or assistance to ally act, which may infringe or lead to
the infringement of any such right in any Work Product). In the event Tiger has
any Intellectual Property Rights in and to any Title Content, any Work Product
or any Derivative Work that cannot he assigned to BVG as provided above, Tiger
hereby unconditionally waives such rights and the enforcement thereof. In the
event Tiger has any Intellectual Property Rights in and to any Title Content,
any Work Product or any Derivative Work that cannot be assigned to as provided
above and cannot be so waived, Tiger hereby grants to an irrevocable, exclusive,
worldwide, royalty-free license in Perpetuity to exercise all Intellectual
Property Rights in and to the foregoing.
14.3. BVG Authorship. BVG shall be deemed the creator, author and owner
of the Title Content and all Work Product and all Intellectual Property Rights
and every other right, interest and title therein, including, without
limitation, the copyrights (and all renewals and extension thereof) in and to
each of the foregoing. BVG shall be entitled to full ownership of the original
and all copies of all Work Product. Tiger acknowledges that BVG may register the
copyright for each version of any Title Content (and each of its elements) and
any Work Product or any Derivative Work thereof now existing or hereafter
developed in any and all media, or delivered through any and all means of
delivery, now known or hereafter conceived or created, in its own name or that
of any of its designees for the full term of copyright and all renewals and
extensions thereof. BVG may utilize, market, sell, distribute, promote and
otherwise exploit in any manner any version of the Title Content, any Work
Product and any Derivative Work thereof now existing or hereafter developed
Without ally royalty or other obligation to Tiger or any third party except as
expressly otherwise set forth in this Agreement.
14.4. Possession and Custody. BVG shall at all times have the sole and
exclusive right to possession and custody of all Work Product. Possession by
Tiger or any third party of any Work Product is solely for the purpose of
fulfilling Tiger's obligations Wider this Agreement and in no way shall be
deemed or construed to grant, license or otherwise convey any rights to Tiger or
any other party in the same, by any means, including without limitation, any
insolvency, creditor or other laws of any jurisdiction. Tiger retains no rights
to use any Work Product and agrees not to challenge the validity of the
ownership by BVG of rights in any Work Product except as expressly otherwise set
forth in this Agreement.
14.5. Further Assurances. Tiger shall, and shall cause every party
acting under it in relation to this Agreement to, execute any and all documents
and do such other acts requested at any time by BVG as may be required to
evidence, perfect, confirm and/or further effect the rights granted BVG under
this Agreement, including, without limitation, the rights under this Section 14.
In the event Tiger fails to execute and deliver any
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such documents and instruments promptly upon request therefor by BVG. BVG is
hereby authorized and appointed attorney-in- fact of and for Tiger to make,
execute and deliver any and all such documents and instruments, it being
understood that such power is coupled with an interest and is therefore
irrevocable.
14.6. Ownership of Source Code and Utilities. As between BVG and Tiger,
subject to BVG's ownership of the Title Content embodied therein, Tiger shall
own all right, title and interest in and to the Source Code of the Title and of
all Versions thereof. Notwithstanding any other provision of this Agreement,
Tiger does not convey, transfer or assign to BVG, and BVG shall in no event
obtain, ownership of the Source Code or Utilities, or any Intellectual Property
Rights therein, but Tiger hereby grants to BVG an irrevocable, royaltyfree,
worldwide license in Perpetuity to use the Source Code and Utilities in
connection with the Title and ally Revisions, Maintenance or Corrections.
Notwithstanding the foregoing, Tiger shall not use the Source Code or Utilities,
or any portion of either of the foregoing, to create or exploit an interactive
entertainment product which has a confusingly similar look or feel to any Title
or any Version thereof. The parties hereby agree that in acknowledgement of
BVG's ownership of the Title Content embodied in the Title and Tiger's ownership
of the Source Code of the Title, neither party shall have the right to exploit
the Title after the Term unless and until tile parties have agreed in writing
upon the terms and conditions for such exploitation.
14.7. Copyright Notice. BVG shall provide Tiger with appropriate notices
of copyright in BVG's name, and Tiger shall place, in such a manner as BVG shall
direct, such copyright notices on all copies of the Title and all Derivative
Works thereof which are developed by Tiger with the approval of BVG. In no event
shall Tiger alter, remove, obscure, erase or deface or otherwise hide from view,
any copyright, trademark or other proprietary rights notice of BVG contained on
or incorporated in any Version of any Title, any Unit, any Promotional Material,
any Packaging Material or any material provided by BVG.
14.8. Goodwill. Tiger acknowledges that the rights and powers retained
by or granted to BVG under this Agreement are necessary to protect BVG's
Intellectual Property Rights and, specifically, to conserve tile goodwill and
good name of its products and the name "Disney," and therefore Tiger agrees that
it will not, and it will not allow or assist any affiliate of Tiger or other
third party to, perform any act or omit from performing any act, that would
result in any of BVG's products or the name "Disney" to become involved in
matters that will or could detract from, or impugn their public acceptance and
popularity, or impair their legal status.
15. NON-ORIGINAL MATERIAL. Except as set forth on Exhibit D, no Title shall
contain any nonoriginal material, including music, which is not supplied by
without BVG's prior written consent. Notwithstanding the foregoing, all
non-original material identified on Exhibit D shall be deemed approved for use
in the Title. Tiger shall, at its own expense and in form acceptable to BVG,
obtain written authorization from the owner or copyright holder of such
non-original material for to use the material, free of cost to BVG, in
perpetuity and without restriction, in connection with the exploitation of the
Title, the Title Content and any Derivative Works thereof.
16. CREDIT. BVG shall control all aspects of the "look and feel," layout and
implementation of the credits granted in connection with the Title, in the Title
itself and in all related Documentation, any packaging of Units and/or any
Promotional Materials, shall provide Tiger with the form of BVG's logo and
appropriate notices of copyright in BVG's name, and Tiger shall place, in such
manner and form as BVG shall direct, such logo and copyright notices in the
Title, in all Units manufactured and/or distributed by or on behalf of Tiger, in
all Title Materials and Promotional Materials developed and/or manufactured by
or on behalf of Tiger, its manufacturers and/or distributors.
17. REPRESENTATIONS, COVENANTS, WARRANTIES AND INDEMNIFICATION.
17.1. Representations, Covenants and Warranties by Tiger. Tiger
represents, covenants and warrants that (a) Tiger has the right, power and
authority to enter into this Agreement and to fully peform its obligations under
this Agreement and to grant the rights granted or agreed to be granted
hereunder, (b) the
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making of this Agreement by Tiger does not violate any agreement existing
between Tiger and any other person or entity, and throughout the Term, Tiger
shall not make any agreement with any person or entity that is inconsistent with
any of the provisions of this Agreement; (c) unless expressly permitted
hereunder with respect to any approved third-party rights, Tiger shall have
acquired all rights necessary for the production, distribution, exhibition and
exploitation of the Target Platform and all Work Product and all Utilities in
perpetuity in all media by all manner and means throughout the Territory for the
purposes set forth in this Agreement; (d) Tiger complies, and at all times
during the Term shall comply, with all Laws in effect at the time services are
performed pursuant to this Agreement; (e) except as agreed between the parties
as provided in Section 14.6 hereof, the Title and each Version thereof, and all
elements thereof, including, without limitation, all Work Product and any music
contained therein that is not supplied by BVG, is original, has not been
previously published in any form and is not in the public domain; (f) except as
contemplated in Section 15, the Title and the Documentation therefor are
delivered free and clear of any liens, charges, encumbrances or restrictions;
(2) the Title and Documentation therefor, including any music contained therein
which is not supplied by BVG, as delivered by Tiger does not violate or infringe
any right of privacy or publicity or any intellectual Property Right, or contain
any libelous, defamatory, obscene or unlawful material, or otherwise violate or
infringe any other right of any person, corporation, partnership or other
entity, (h) neither the Target Platform hardware nor any element thereof
infringes any Intellectual Property Right of any person, corporation,
partnership or other entity; and (i) the Title shall be free of any computer
virus or any other similar harmful, malicious or hidden program or data.
17.2. Indemnification by Tiger. Tiger agrees to, and shall, indemnify,
defend and hold BVG and the Affiliates and their respective directors
shareholders, officers, agents, employees, successors and assigns harmless from
and against any and all claims, demands, suits, actions, judgments, damages,
costs, losses, expenses (including attorneys' fees and expenses) and other
liabilities (each, a "Claim") arising from, in connection with or related in any
way to, directly or indirectly, (a) any breach or alleged breach of any of the
representations, warranties, undertakings or agreements made by Tiger under this
Agreement, (b) any third party claims alleging that any Title, or any Work
Product, the Documentation and/or Promotional Material violates or infringes any
right of any person, corporation, partnership or other entity, or (c) any
violation by Tiger, or any party engaged by Tiger, of any Law in connection with
this Agreement. Tiger shall bear full responsibility for the defense (including
any settlements) of any such Claim; provided however, that (i) Tiger shall keep
BVG informed of and consult with BVG in connection with the progress of such
litigation or settlement; and (ii) Tiger shall not have the right, without BVG's
written consent, to settle any such Claim (provided that BVG's consent to such
settlement shall not be unreasonably withheld).
17.3. Representations and Warranties of BVG. BVG represents and warrants
that (a) BVG has the right, power and authority to enter into this Agreement and
to fully perform its obligations under this Agreement, and (b) the making of
this Agreement by BVG does not violate any agreement existing between BVG and
any other person or entity.
17.4. Indemnification by BVG. BVG agrees to, and shall, indemnify,
defend and hold Tiger and its respective directors, shareholders, officers,
agents, employees, successors and assigns harmless from and against any and all
Claims arising from, in connection with or related in any way to any breach or
alleged breach of any of the representations, warranties, undertakings or
agreements made by BVG under this Agreement. Tiger shall promptly notify BVG of
any such Claim. BVG shall bear full responsibility for the defense (including
any settlements) of any such Claim; provided however, that BVG shall keep Tiger
informed of, and consult with Tiger in connection with the progress of such
litigation or settlement.
17.5. No Warranty of Materials. BVG DOES NOT MAKE BY VIRTUE OF THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREIN, AND BVG HEREBY EXPRESSLY
DISCLAIMS ANY REPRESENTATION OR WARRANTY TO TIGER, ANY END USER, DISTRIBUTOR OR
OTHER THIRD PARTY (INCLUDING, WITHOUT LIMITATION, CUSTOMERS OF TIGER), WITH
RESPECT TO ANY MATERIALS THAT MAY BE PROVIDED TO TIGER BY BVG OR ON BVG'S BEHALF
12
(INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF OWNERSHIP OF OR RIGHT TO USE
SUCH MATERIALS OR ANY WARRANTY THAT SUCH MATERIALS DO NOT VIOLATE OR INFRINGE
ANY RIGHT OF ANY THIRD PARTY). TIGER SHALL NOT HAVE THE RIGHT TO MAKE OR PASS
ON, AND SHALL TAKE ALL MEASURES NECESSARY TO INSURE THAT NEITHER IT NOR ANY OF
ITS EMPLOYEES OR AGENTS MAKES OR PASSES ON, OR ATTEMPTS TO MAKE OR PASS ON, ANY
SUCH REPRESENTATION OR WARRANTY ON BEHALF OF BVG TO ANY END USER, DISTRIBUTOR OR
OTHER THIRD PARTY (INCLUDING, WITHOUT LIMITATION, CUSTOMERS OF TIGER).
17.6. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE
TO THE OTHER UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR ANY LOSS OF PROFIT
OR ANY OTHER COMMERCIAL DAMAGE INCLUDING, WITHOUT LIMITATION, INCIDENTAL,
CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER INDIRECT DAMAGES OF ANY
NATURE, FOR ANY REASON WHATSOEVER INCLUDING, WITHOUT LIMITATION. SUCH PARTY'S
BREACH OF THIS AGREEMENT, THE EXPIRATION OR ANY TERMINATION OF THIS AGREEMENT,
WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING
NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN WARNED
OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, IN NO EVENT SHALL BVG BE LIABLE FOR
CLAIMS ALLEGING THAT ANY PRODUCT OR ANY PART OR ASPECT THEREOF INFRINGES UPON OR
VIOLATES ANY INTELLECTUAL PROPERTY RIGHT OF ANY PARTY OR CLAIMS ARISING FROM THE
MALFUNCTION OF OR DEFECTS IN ANY PRODUCT. WHETHER SUCH LIABILITY IS ASSERTED ON
THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR
OTHERWISE. EVEN IF BVG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
18. TERMINATION.
18.1 Termination for Cause. Without prejudice to any other rights or
remedies available to BVG, BVG shall have the right, in its sole discretion, to
immediately terminate this Agreement upon written notice to Tiger in the event
of the occurrence of any one or more of the following: (a) Tiger has released or
otherwise exploited any Title or any element thereof without obtaining BVG's
written approval of the Gold Master and such approval has not been obtained with
fifteen (15) days from Tiger's receipt a notice describing the failure to obtain
such approval; (b) Tiger is prevented from manufacturing, publishing,
distributing, marketing, selling licensing or providing any Title or Units
thereof (or causing the performance of any such activities by Tiger or any third
party) by law or as a result of a suit, claim or proceeding (including
settlement thereof) brought by a third party; (c) Tiger fails to make any
payment or furnish any statement as herein provided and such failure continues
for a period of thirty (30) days following receipt of notice of such failure;
(d) Tiger asserts, any right of ownership or any other interest in and to any
Title Content, Documentation or any Work product or any Intellectual Property
Rights in and to any of the foregoing other than the Source Code and Utilities
(except as expressly permitted herein); (e) Tiger discontinues the development
or exploitation of any Title; (f) Tiger fails to deliver a Milestone in
accordance with the Milestone Schedule and such failure is not cured within
fifteen (15) days; (g) Tiger makes any assignment for the benefit of creditors
or files a petition in bankruptcy or is adjudged bankrupt or becomes insolvent
or is placed in the hands of a receiver or if the equivalent of any of the
proceedings or acts referred to in this clause, though known and/or designated
by some other name or term in any country comprising the Territory shall occur;
or (h) Tiger fails to perform any material obligation, warranty, duty or
responsibility, or breaches any other material term or provision of this
Agreement and fails to cure such breach within thirty (30) days after BVG
delivers written notice thereof to Tiger.
18.2 Actions of Independent Contractors. For purposes of this Agreement,
any act or failure to act by any independent contractor of Tiger or any employee
of Tiger shall be deemed n act or failure to act by Tiger.
13
18.3 Reversion of Rights. Except as otherwise expressly provided in this
Agreement, on the Termination Date, all rights granted to Tiger under or
pursuant to this Agreement shall revert to BVG and Tiger shall thereafter
neither manufacture or distribute nor have manufactured or distributed for Tiger
any Unit of any Title. Further, on the Termination Date, Tiger shall furnish BVG
with reports with respect to such sales consistent with the requirements of
Section 6 hereof and shall pay to BVG any Royalties and any amount of the
Guarantee pertaining to such Units not previously paid. Except as otherwise
agreed, any inventory in Tiger's possession or control after the Termination
Date, or after the sell-off period if applicable, shall be destroyed or, at
BVG's election, delivered to BVG or its designee, at BVG's direction and
expense. BVG may sell any such inventory delivered to BVG. There shall be no
build-up of inventory prior to the scheduled expiration of the Term that cannot
reasonably be expected to sell during the remainder of the Term. In the event
BVG directs the destruction of any inventory as provided in this Section, such
destruction shall be attested to ill a sworn affidavit signed by an officer duly
authorized to bind Tiger.
18.4 Ownership After Termination. In the event of the expiration or
termination of this Agreement for any reason, BVG shall continue to own tile
Title Content and all Work Product, and Tiger shall immediately deliver to all
originals and copies of any Work product in Tiger's possession or control
together with any material provided by BVG including all copies thereof),
including, without limitation, hard copies of all art and animation that Tiger
may have on electronic files, all music in all formats, all film and video and
any and all copies of any other material that Tiger received from or on behalf
of BVG. In no event shall Tiger have any right to (a) recover or obtain any
rights in or to any Title Content or any Work Product or any Intellectual
Property Rights in and to any of file foregoing, or (b) enjoin or otherwise
interfere with BVG's development, licensing, publishing, marketing, distribution
or provision of any Title hereunder, except as otherwise expressly provided for
herein. Furthermore, neither party shall have the right to exploit the Title or
any Version thereof without the other party's written consent, provided that
nothing contained herein shall prohibit BVG, either alone or in conjunction with
third parties, from proceeding with the development, publishing, distribution
and other exploitation of interactive soft are products based upon or
incorporating the BVG Properties or the Title Content.
18.5 Action for Damages Sole Remedy. No breach of this Agreement by BVG
shall entitle Tiger to terminate or rescind this Agreement or to injunctive or
other equitable relief, it being agreed that Tiger's sole remedy, if any, in the
event of such a breach shall be an action for monetary damages.
18.6 Survival. The obligations in this Agreement that are intended by
their terms to survive the expiration or termination of this Agreement shall so
survive. In addition, and without limiting the generality of the preceding
sentence. Sections 14, 17, 18, 20, 22 and 24 hereof shall survive the expiration
or termination of this Agreement for any reason.
19. LITIGATION.
Should Tiger become aware of any infringing use or unauthorized
distribution of any Version of any Title, or any element thereof, developed by
Tiger or distributed by or on behalf of Tiger, or the Documentation therefor, or
any music contained therein. Tiger shall notify BVG and BVG may, within its sole
discretion, undertake to prosecute necessary actions to prevent such unlicensed
or unauthorized use and/or distribution. Tiger shall cooperate with BVG's
reasonable requests for information in connection with any such action. In the
event that Tiger or BVG is awarded any financial recovery to compensate for the
unlicensed or unauthorized use of the BVG Properties during the Term, such
recovery shall be the sole property of BVG.
20. CONFIDENTIAL INFORMATION.
20.1. Confidential Information Defined. The parties have disclosed to
and received from each other, and may disclose to and receive from each other,
from time to time during the Term, certain information. regardless of form,
concerning the operation, business, financial affairs, products, customers and
Intellectual
14
Property Rights or other aspects of each other and their respective affiliates
that may not be accessible or known to the general public (referred to herein as
"Confidential Information"). "Confidential Information" shall also include (a)
the terms of this Agreement and the fact of its existence and (b) any
information or materials that either party obtains from any third party that the
obtaining party treats as proprietary or designates as Confidential Information,
whether or not owned by the obtaining party. "Confidential Information" does not
include information that: (i) is or becomes publicly known through no act or
failure to act on the part of the recipient; (ii) was rightfully in the
recipient's possession prior to disclosure by the disclosing party; (iii) became
rightfully known to the recipient, without confidential or proprietary
restrictions, from a source other than the disclosing party; (iv) is approved by
the disclosing party for disclosure without restriction, in a written document
that is signed by a duly authorized officer of that party; or (v) is or was
developed independently by the recipient without use of or reference to any of
the Confidential Information and without violation of any confidentiality
restriction.
20.2. No Disclosure. The Confidential Information acquired by either
party shall not be used, published or divulged by such party to ally other
person or entity in any manner whatsoever without the prior clear and express
written approval of the other party, which approval such other party may
withhold in its sole discretion. The existence of this Agreement and such
details regarding its subject matter as are reasonably necessary to Permit
Performance of either party's obligations hereunder may be disclosed by such
party to persons and entities to be engaged by such party in connection with its
services under this Agreement; provided however, prior to any such engagement
such party shall cause each such person and entity to sign an employment or
nondisclosure agreement that contains provisions in substance similar to those
included in this Section 20 prohibiting the further disclosure and use by such
person or entity of any Confidential Information. Each party shall, and shall
cause its employees, agents and every other person and entity it employs in
connection with its services under this Agreement to, protect and safeguard the
Confidential Information by using the same degree of care, but 110 less than a
reasonable degree of care to Prevent file unauthorized use, dissemination or
publication of the Confidential Information as such Party uses to Protect its
own confidential or proprietary information of a like nature. In the event that
either party receives any request from any third party for any Confidential
Information, or is directed to disclose any portion of any Confidential
Information received from the other party in conjunction with a judicial or
governmental proceeding or arbitration, the party requested or directed to make
such disclosure shall immediately notify the other party both orally and in
writing. Each party agrees to provide the other party with reasonable
cooperation and assistance in obtaining a suitable protective order and in
taking any other steps to preserve the confidentiality of such Confidential
Information.
20.3. Published Reports. Without limiting the generality of any of the
foregoing each party specifically agrees that any reports concerning
Confidential Information of the other party that are not made or authorized by
the other party and that appear publicly prior to the other party's official
disclosure of such Confidential Information shall not release it from its
obligations hereunder with respect to such Confidential Information.
20.4. No Confidential Information of Other Parties. Each party
represents and warrants that it shall not use in the course of its performance
hereunder, and shall not disclose to the other party, any confidential
information of any third party (including competitors of either party) unless
the party proposing to make such disclosure is expressly authorized ill writing
by such third party to do so.
20.5. Title Confidential. Except as contemplated in the marketing plan
agreed upon between the parties, Tiger shall not, and shall have no right to,
release, distribute or disclose to any third party any information concerning
the Title or any Work product or any portion thereof or any of the materials
provided by BVG hereunder. Unless otherwise contemplated in the marketing plan
agreed upon between the parties. Tiger will not pre-release the Title or any
Portion thereof to any Person or entity without the prior written consent of
BVG, which consent may be granted or withheld by BVG in its sole discretion.
15
20.6. Publicity. Tiger agrees that any press release issued with regard
to this Agreement by Tiger shall be subject to the prior written consent of BVG,
which consent may be granted or withheld in writing BVG's sole discretion. Tiger
shall not otherwise directly or indirectly issue or permit the issuance of any
publicity regarding, or grant any interview, or make any public statements
whatsoever concerning, this Agreement, BVG, the Title or Tiger's services
hereunder without prior coordination with and approval by BVG, which approval
may be granted or withheld in writing BVG's sole discretion. Tiger shall not
state or Imply that BVG endorses Tiger's services; provided however, if a
Version developed by Tiger hereunder is published in writing the form delivered
to BVG by Tiger, Tiger shall have the right to identify itself as developer of
such Version.
20.7. Survival of Nondisclosure Obligations. The nondisclosure
obligations imposed by this Section 20 shall survive the expiration or
termination of this Agreement for any reason and shall terminate two (2) years
from the termination of this Agreement.
21. INSURANCE.
21.1. Insurance. Tiger and every third party contractor of Tiger
performing services in writing connection with the Title, shall, at its sole
cost and expense, obtain and maintain throughout the performance of its services
pursuant to this Agreement:
(a) Commercial General Liability Insurance (including
contractual) and Automobile Liability coverage, with minimum limits of Two
Million Dollars ($2,000,000.00) per occurrence, protecting Tiger and BVG from
claims for personal injury (including bodily injury and death) and property
damage which may arise from or in writing connection with the performance of
Tiger's Services hereunder or from or out of any negligent act or omission of
Tiger, its officers, directors, agents, or employees; such insurance shall name
BVG and all BVG Affiliates as additional named insureds, and shall contain a
waiver of subrogation with respect to the additional insureds; and
(b) Employer's Liability coverage with minimum limits of One
Hundred Thousand Dollars ($100,000.00) per occurrence and Workers' Compensation
Insurance as required by applicable law: and
(c) Professional Liability Insurance (including contractual
coverage) with a minimum limit of One Million Dollars ($1,000,000.00),
protecting Tiger and BVG from errors and omissions of Tiger in writing
connection with the performance of Tiger's services during and for a period of
at least three (3) years after the completion of said services (including an
endorsement covering the indemnification provisions of Section 17 herein).
21.2. Insurance Providers. All insurance required hereunder shall be
with companies and on forms acceptable to BVG and shall provide that the
coverage thereunder may not be reduced or canceled unless thirty (30) days
unrestricted Prior Written notice thereof is furnished to BVG. All insurance
required hereunder shall be primary and not contributory. All insurance required
hereunder shall be written by reputable insurers accorded a rating by A.M. Best
Company, Inc. (or any other ratings agency of comparable international repute)
of B+:Vll or higher (or the equivalent rating issued by such other agency) at
the time of issuance of any policy pertaining to such insurance. Certificates of
insurance (or copies of policies, if required by BVG) evidencing satisfactory
coverage as required hereunder shall be furnished to BVG at its request.
21.3. No Limit of Indemnity. Compliance with the provisions of this
Section in writing no way limits Tiger's indemnity obligations under this
Agreement, except to the extent that Tiger's insurance company actually pays BVG
amounts which Tiger would otherwise pay BVG.
22. INDEPENDENT CONTRACTOR; NO AGENCY. Tiger is, and shall remain, an
independent contractor with respect to services performed pursuant to this
Agreement. Nothing contained herein shall be construed to constitute the parties
as principal and agent, employer and employee, partners or joint venturers,
16
nor shall any similar relationship be deemed to exist between the parties.
Neither party shall have any power to obligate or bind the other party, except
as specifically provided herein. Further, personnel supplied by Tiger shall work
exclusively for Tiger and shall not, for any purpose, be considered employees or
agents of BVG. Tiger assumes full responsibility for the actions of such
personnel while performing services pursuant to this Agreement. BVG shall have
no obligation whatsoever to compensate Tiger on account of any damages or
injuries which Tiber or any person or entity employed by Tiger may sustain as a
result or in writing the course of tile performance of Tiger's services under
this Agreement.
23. ASSIGNMENT.
23.1 Assignment. This Agreement and Tiger's rights, duties and
obligations hereunder are personal to Tiger (and Tiger was specifically chosen
by BVG to be licensed hereunder because of Tiger's particular expertise and
ability to perform this Agreement) and Tiger shall not assign, delegate or
otherwise transfer all or any part of Tiger's interest in writing this
Agreement, either voluntarily or by operation of law, without the prior written
consent of BVG, which consent may be granted or withheld by BVG in writing its
sole discretion. Without limiting the materiality of any other term of this
Agreement any attempted assignment, delegation or other transfer (including,
without limitation, any license or sublicense, mortgage, pledge or other
encumbrance) without such consent shall be null and void and shall constitute a
material breach of this Agreement. Any transfer of twenty five percent (25%,) or
more of the ownership interest in writing, outstanding voting stock of, or
control of, Tiger, or the merger of Tiger into or with any third party or
entity, shall be deemed an assignment for purposes of this Section. Tiger agrees
to provide to at least thirty (30) days prior written notice of any desired
transfer of all or any part of Tiger's interest in writing this Agreement (other
than Tiger's right to cause third parties to distribute the Title hereunder
subject to the provisions hereof). At the time Tiger gives such notice to BVG,
Tiger shall also provide BVG with the information and documentation necessary to
evaluate the contemplated transaction. BVG's consent (if given) to any transfer
of all or any part of this Agreement shall be subject to such terms and
conditions as BVG deems appropriate including, but not limited to, payment of a
transfer fee (the "Transfer Fee"). In no event shall the Transfer Fee be in
writing an amount less than One Hundred Thousand Dollars ($100,000.00). The
payment of any such Transfer Fee shall be made without reduction for any
required withholding taxes. The Transfer Fee shall not apply if all of Tiger's
interest in writing this Agreement is transferred to a corporation or other
entity which directly or indirectly controls, is controlled by, or is under
common control with. Tiger (an "Affiliated Entity") as part of a corporate
reorganization exclusively between or among Tiger and one or more Affiliated
Entity existing in writing Tiger's corporate structure on the date of this
Agreement (and Tiger shall provide BVG with written notice of such transfer, an
accurate description of the reorganization and any other evidence which BVG
shall request in writing order to satisfy itself that the Transfer Fee does not
apply to such reorganization). As used in this Section, "control" of an entity
means possession, directly or indirectly, of power to direct or cause the
direction of management or policies of such entity, whether through ownership of
voting securities, by contract or otherwise. Tiger's failure to obtain BVG's
prior written consent to any assignment or other transfer in writing accordance
with the provisions of this Section, or failure to pay within the designated
time the full amount of the Transfer Fee charged by as a condition of BVG's
grant of consent to any assignment or other transfer in writing accordance with
the provisions of this Section and Exhibit H attached hereto, shall be deemed a
material breach of this Agreement.
23.2 Transfer Fee Policy. Tiger acknowledges that it has read and
understands the Transfer Fee Policy attached as Exhibit H hereto and hereby
incorporated by this reference into this Agreement, which governs Transfer Fee
procedures under this Agreement.
24. GENERAL PROVISIONS.
24.1. Reserved Rights. All rights not specifically and expressly granted
by BVG to Tiger hereunder are hereby reserved by BVG.
17
24.2 Notices. All notices which either party is required or may desire
to serve upon the other party shall be in writing writing, addressed to the
party to be served as follows:
(i) if to BVG:
Buena Vista Games, Inc.
000 Xxxxx Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Vice President, Business & Legal Affairs
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and
(ii) if to Tiger:
Tiger Telematics, Inc.
00000 Xxxxxxxxx Xxxxxxx Xxxxx Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxxx, CEO
Telephone: 000-000-0000
Facsimile: 000-000-0000
Any such notice may be served personally or by mail (postage prepaid),
commercially recognized overnight delivery service (such as Federal Express or
DHL), or by hand delivery. Notice shall be deemed served upon personal delivery
or upon the date sent; provided however, that BVG shall be deemed to have been
served with a notice of a request for approval of materials under this Agreement
only upon BVG's actual receipt of the request and of any required accompanying
materials.
24.3 Entire Agreement. This Agreement, together with the Exhibits
attached hereto, constitutes the entire understanding and agreement between BVG
and Tiger with respect to the transactions contemplated herein, and supersedes
any and all prior or contemporaneous oral or written representation,
understanding, agreement or communication between and Tiger concerning the
subject matter hereof. Neither party is relying upon any warranties,
representations assurances or inducements not expressly set forth herein.
24.4 Amendments. All amendments or modifications of this Agreement shall
be binding upon the parties despite any lack of consideration so long as the
same shall be in writing writing and executed by each of the parties hereto. It
is expressly understood and agreed that no usage of trade or other regular
practice or method of dealing between the parties hereto shall be used to
modify, interpret, supplement or alter in writing any manner the express terms
of this Agreement or any part hereof.
24.5 Waiver. No waiver of any provision of this Agreement or any rights
or obligations of either party hereunder shall be effective. except pursuant to
a written instrument signed by the party waiving compliance, and any such waiver
shall be effective only in writing the specific instance and for the Specific
purpose stated in such writing.
24.6 Cumulative Remedies. The rights and remedies of either party as set
forth in writing this Agreement are not exclusive and are in writing addition to
any other rights and remedies provided under this Agreement or now or hereafter
provided by law.
24.7 Force Majeure. Neither party shall be deemed in default hereunder,
nor shall it hold the other party responsible for, any cessation, interruption
or delay in the performance of its obligations hereunder due to causes beyond
its reasonable control including, but not limited to: earthquake, flood, fire,
storm or other natural disaster, epidemic, accident, explosion, casualty, act of
God, lockout, strike, riot, insurrection, civil disturbance or disruption of the
public markets, war or armed conflict (whether or not officially declared),
sabotage, act of a
18
public enemy, embargo, delay of a common carrier, the inability to obtain
sufficient material, supplies, labor, transportation, power or other essential
commodity or service required in the conduct of its business, or any change in
or the adoption of any law, ordinance, rule, regulation, order, Judgment or
decree; provided that the party relying upon this Section shall (a) have given
the other party written notice thereof promptly and, in any event, within five
(5) days of discovery thereof and (b) take all steps reasonably necessary under
the circumstances to mitigate the effects of the force majeure upon which such
notice is based.
24.8 No Third Party Beneficiaries. Nothing in this Agreement is intended
or shall be construed to give any person, other than the parties hereto, any
legal or equitable right. remedy or claim under or in respect of this Agreement
or any provision contained herein.
24.9 Further Assurances. Each party agrees to do and perform all such
further acts and things and shall execute and deliver such other agreements,
certificates, instruments and documents that may be necessary or appropriate to
carry out the intent and accomplish the purposes of this Agreement and to
evidence, perfect or otherwise confirm the rights of the other party hereunder.
24.10 Construction. This Agreement has been negotiated by the parties
hereto and by their respective counsel. This Agreement shall be fairly
interpreted and construed in accordance with its terms and without strict
interpretation or construction in favor of or against either party.
24.11 Headings. The section and paragraph headings appearing in this
Agreement are inserted only as a matter of convenience and in no way define,
govern, limit, modify or construe the scope or extent of the provisions of this
Agreement to which they may relate. Such headings are not part of this Agreement
and shall not be given any legal effect.
24.12 Severability. While the restrictions and covenants set forth in,
and the other provisions of this Agreement are considered by the parties to be
reasonable under the circumstances hereof, it is recognized that restrictions
and covenants of such nature may he unenforceable for reasons unforeseen.
Accordingly, if any of such restrictions, covenants or provisions shall be
adjudged by a court of competent jurisdiction to be void as going beyond what is
reasonable in all the circumstances for the protection of the interests of the
party seeking to enforce such restriction, covenant or provision, but would be
valid if part of the wording thereof were deleted or the time periods (if any)
thereof were reduced or the range of activities or area dealt with thereby
reduced in scope, such restriction, covenant or provision shall apply with such
modifications as may be necessary to make it valid and effective. In the event
that any provision of this Agreement should be found by a court of competent
jurisdiction to be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
24.13 Governing Law, Forum and Jurisdiction. The validity, construction,
interpretation and legal effect of this Agreement shall be governed by the laws
and judicial decisions of the State of California and the U.S. without giving
effect to principles of conflicts of law. BVG and Tiger expressly agree that any
action at law or in equity arising out of or relating to this Agreement shall be
filed only in the courts of the State of California for the County of Los
Angeles, or the United States District Court for the Central District of
California. The parties hereby consent and submit to the exclusive jurisdiction
and venue of such courts for the purposes of litigating any such action. Both
parties irrevocably waive any objection to such jurisdiction and irrevocably
waive the right to seek dismissal or transfer on the grounds of lack of in
personam jurisdiction, improper venue, forum non conveniens or similar grounds.
The prevailing party in any action shall be entitled to recover from the
non-prevailing party the prevailing party's reasonable costs and expenses
including, without limitation, attorney's fees.
24.14 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original and all of which together shall constitute
one and the same instrument.
19
IN WITNESS WHEREOF, the duly authorized representatives of each of the parties
hereto have executed this Agreement as of the day and year first written above.
BUENA VISTA GAMES, INC. TIGER TELEMATICS, INC.
By:_________________________________ By:_________________________________
Name:_______________________________ Name:_______________________________
Title:______________________________ Title:______________________________
20
EXHIBIT A
CERTAIN DEFINITIONS.
1.1 "Alpha Milestone" means, with respect to each Version, the Milestone
at which (a) such Version is substantially complete in conformity with the
Design Specifications, with no coding risks remaining; (b) Tiger shall have
attempted to achieve 100% of such Version's intended functionality and
performance (i.e., Tiger has completed coding of all functions and features
(including, without limitation, all artwork, graphics, animation, images,
photographs, video and other audio-visual material, sound, music and text and
all essential and non-essential data and device files); (c) such Version
operates on all hardware required for the full use of the Title; (d) all
functions and features are readily accessible through existing navigational
channels; and (e) Tiger's sole remaining development task is the detection and
correction of any remaining programming errors or "bugs" and anomalies and
hardware compatibility revisions. If notwithstanding Tiger's best efforts to
eliminate all programming errors prior to its submission of the Alpha Milestone,
programming errors remain, Tiger shall fully document the errors and submit the
documentation of the errors to BVG along with its Alpha Milestone submission.
1.2. "Beta Milestone" means, with respect to the Title developed by or
on behalf of Tiger hereunder, the Milestone following the Alpha Milestone at
which such Title operates as contemplated by the Design Specifications on the
Target Platform, fully stabilized (i.e., contains no programming errors and is
capable of operation without fault and/or termination of operation) with all
features (including, without limitation, fully completed artwork, music and
sound effects and all non-essential data and device files) completed, fully
tested by Tiger and Submitted to Nintendo of America and Nintendo of Europe for
its final approval.
1.3. "BVG Affiliates" shall be defined as Disney Enterprises, Inc. and
The Xxxx Disney Company or any of their related, affiliated or subsidiary
companies, including, without limitation, Buena Vista Games, Inc.
1.4. "BVG Properties" means collectively, all scenes and characters,
(together with their likenesses and names) and designs (including, without
limitation, marks and logos), and all art, animation, video and other
audiovisual material, sound, music and text (including, without limitation,
fonts) owned or licensed by BVG or a BVG Affiliate which are depicted or used in
writing the Title or any Version thereof'.
1.5. "Claim" shall be defined as set forth in writing Section 17.2.
1.6. "Confidential Information" shall be defined as set forth in writing
Section 20.1.
1.7. "Correction" means, with respect to any Version, the "debugging" or
elimination of programming errors in a computer software program that cause such
Version to fail to work as contemplated by the Design Specifications therefor or
in accordance with the Documentation therefor or that introduce results that the
typical user would believe are unintended and/or undesirable.
1.8. "Customer Service" shall be defined as set forth in writing Section
13.1.
1.9. "Derivative Work" means: (a) without limitation, any computer
program, work, product, service, improvement, supplement, modification,
alteration, addition, revision, enhancement, new Version, new edition, remake,
sequel, translation, adaptation, design, plot theme, character, story line,
concept, scene, audiovisual display, interface element, aspect, material and
documentation, in any medium, format, use or form whatsoever, whether now known
or unknown (including, but not limited to, sound recordings, phonorecords,
computer-assisted media, games, books, magazines, periodicals, merchandise,
animation, home videos, radio, motion pictures, cable and television), that is
derived in any manner, directly or indirectly, from the Title Content or any
part or aspect thereof (including, without limitation, any Work Product) or that
uses or
1
Exhibit A
incorporates the Title Content or any part or aspect thereof (including, without
limitation, any Work Product); (b) any "derivative work" of the Title Content or
any Work Product as defined in the Copyright Law of the U.S., Title 17 U.S.C.
ss. 101 et.seq. (the "Copyright Law"); and (c) any material or documentation
related to any of the foregoing.
1.10. "Design Specifications" means the general design specifications of
the Title which shall be mutually approved by BVG and Tiger, incorporated herein
by this reference, and attached hereto as part of Exhibit B.
1.11. "Distributor" means any third party that acquires a Unit directly
from Tiger for resale purposes.
1.12. "Documentation" means any and all instructions, regardless of form
(including, without limitation, all written materials developed in connection
with the Title, such as specifications and programmers' notes), that normally
accompany the Title, and any and all instructions, regardless of form, that
normally accompany the Title in order to assist the End User in executing and
operating such Title.
1.13. "Dollars" means U.S. Dollars.
1.14. "End User" means any third party that acquires from a Distributor,
Tiger or BVG a Unit for personal use without a view to resell such Unit or any
component thereof.
1.15. "XXXX" shall he defined as set forth in Section 11.2.
1.16. "Gold Master" means the Milestone following the Beta Milestone at
which a Title has been approved by BVG and is stored on the Gold Master Disk.
"Gold Master Disk" means a magnetic or optical disk, cartridge, tape or other
storage medium specified by the Design Specifications containing the Title that
has reached the Gold Master stage.
1.17. "Guarantee" shall be defined as set forth in Section 6.2.
1.18. "Intellectual Property Rights" means any and all tangible and
intangible and now known or hereafter existing (a) rights associated with works
of authorship throughout the universe, including but not limited to copyrights
(including without limitation the sole and exclusive right to prepare
"derivative works" (as defined in the Copyright Law) of the copyrighted work and
to copy, manufacture, reproduce, distribute copies of, modify, publicly perform
and publicly display the copyrighted work and all derivative works thereof),
moral rights, author's rights and mask-works, (b) rights in and relating to the
protection of trademarks, service marks, trade names, goodwill, rights in
packaging, rights of publicity, merchandising rights, advertising rights and
similar rights, (c) rights in and relating to the protection of trade secrets
and confidential information, (d) patents, designs, algorithms and other
industrial property rights and rights associated therewith, (c) other
intellectual and industrial property and proprietary rights (of every kind and
nature throughout the universe and however designated) relating to intangible
property that are analogous to any of the foregoing rights (including), without
limitation, logos, character rights, "rental" rights and rights to
remuneration), whether arising by operation of law, contract, license or
otherwise, (f) registrations, applications, renewals, extensions, continuations,
divisions or reissues thereof now or hereafter in force in the U.S. and
throughout the universe (including, without limitation, rights in any of the
foregoing), and (g) rights in and relating to the sole and exclusive possession,
ownership and use of any of the foregoing throughout the universe, including,
without limitation, the right to license and sublicense, franchise, assign,
pledge, mortgage, sell, transfer, convey, grant, gift over, divide, partition
and use (or not use) in any way any of the foregoing) now or hereafter
(including, without limitation, any claims and causes of action of any kind with
respect to, and any other rights relating to the enforcement of, any of the
foregoing).
2
Exhibit A
1.19. "Laws" shall be defined as set forth in Section 12.1.
1.20. "Maintenance" means the making of changes to a Title necessary to
allow the Title to run on the Target Platform to the extent that the Target
Platform may have been modified after the date hereof and is then being sold by
the manufacturer thereof.
1.21. "Manufacturers" shall be defined as set forth in Section 8.1.
1.22. "Marketing Commitment" shall be defined as set forth in Section
9.1.
1.23. "Milestone" means the Work Product and/or other items to be
delivered by Tiger to BVG in a specified form and degree of completeness by a
specified date as set forth in the Milestone Schedule.
1.24. "Milestone Schedule" means a description of the Milestones
developed by or on behalf of Tiger hereunder and the dates by which each such
Milestone is to be delivered. as such schedule is attached hereto as Exhibit C.
1.25. "Object Code" means the executable computer code after compilation
or assembly, in a form capable of execution on the applicable Target Platform.
1.26. "Platform" means any of the following categories of
microprocessor-based devices or technologies that utilize cartridges, memory
chips, magnetic disks, optical disks, tapes or other media for the storage,
delivery or transmission of computer programs: (a) home video game systems,
whether CD ROM based (such as the Sega Dreamcast System and the Sony PlayStation
2) or cartridge based (such as the Nintendo 64 system); (b) personal computer
systems (such IBM compatible and Apple Macintosh computers); (c) arcade-based,
coin-operated video game systems; (d) hand-held video game systems (such as
Nintendo Game Boy); (c) television set-top boxes; and (f) on-line services,
computer networks, cable and telecommunications services and other interactive
systems accessible by any number of users serially or simultaneously (such as
the World Wide Web, America Online, and by Broadband).
1.27. "Promotional Materials" shall be defined as set forth in Section
10.1 .
1.28. "Revisions" means any changes or additions to any Title, including
without limitation any changes or additions which give the Title additional
features or capabilities.
1.29. "Royalties" shall be defined as set forth in Section 6. 1 .
1.30. "Source Code" means the human-readable code of a Title, including
programmers' comments, data files and structures, header and include files,
macros, object libraries, programming tools not commercially available,
technical specifications, flowcharts and logic diagrams, schematics, annotations
and documentation reasonably required or necessary to enable an independent
third party programmer with a high level of programming skills to create the
Object Code and to modify the Object Code without the help of any other person.
Data files containing computer code must be in standard ASCII format and be
readable by a text editor.
1.31. "Target Platform" means Tiger's proprietary interactive platform
known as "Gizmondo" which, inter alia, contains functionality to play
interactive software games embodied in MMC/SD cards or downloaded into its
internal memory.
3
Exhibit A
1.32. "Termination Date" means the date upon which any termination of
this Agreement, for any reason whatsoever (including expiration in accordance
with the terms hereof due solely to the passage of time), becomes effective.
1.33. "Territory" means worldwide, excluding Afghanistan, Cambodia,
Haiti, Laos, Libya, Saipan (Northern Mariana Islands) and any other country, or
governmental or political subdivision of any country, in which U.S. companies
are forbidden at any time during the Term of this Agreement, either by U.S. law
or by the law of the applicable country or governmental or political subdivision
of such country, to conduct business, including, without limitation, Burma
(Myanmar), Cuba, Iran, Iraq, North Korea, Sudan, and Syria.
1.34. "Title" means the interactive software product to be developed
hereunder embodying Title Content based upon the BVG Property. "Tron 2.0," for
the Target Platform. Unless the context requires a contrary interpretation, as
used in this Agreement, "Title" includes all computer software which constitutes
the programs, data files, modules, routines and objects stored on the Gold
Master Disk and which has the features and capabilities contemplated by the
Design Specifications, together with all Revisions and Corrections thereof and
Maintenance thereto.
1.35. "Title Content" means the interactive audiovisual work to be
created hereunder based upon the BVG Property. "Tron 2.0," and embodied in the
Title, including, without limitation, all related audiovisual elements, art,
pictorial works, characters, animation, sound recordings, musical works, text,
graphics, dialogue, literary works, themes, storylines, and other creative
elements, collectively in the form in which it is distributed to the End User.
1.36. "Title Materials" means the Documentation for the Title,together
with all packaging designs and related technical and creative materials,
artwork, logos, slogans, components or aspects that incorporate BVG Properties,
and all inserts, game discs, containers and packaging materials used in the
Title.
1.37. "U.S." means the United States of America.
1.38. "Unit(s)" means, in the singular and as the context may require, a
single retail package of a Version of a Title, and in the plural and as the
context may require, multiple retail packages of the Title.
1.39. "Utilities" means all source code, object code or other software
development tools, patents, algorithms, know-how and other technological
proprietary information or technology owned, used or developed by Tiger in
connection with and or contained in the Title developed by or on behalf of Tiger
hereunder, which are not Title-specific in application and which are written,
licensed or otherwise legally acquired by Tiger, either prior to or after the
date of this Agreement, to maintain and enhance Tiger's general capabilities as
a computer software developer.
1.40. "Version" means a version of a Title implemented in a particular
language on a particular Platform and capable of running in a satisfactory
manner in accordance with the Title Specifications relating thereto.
1.41. "Work Product" means any and all existing or to-be-developed
parts, components, elements, portions or aspects of the Title Content, and any
and all other results or proceeds of the services of Tiger hereunder with
respect thereto, and of all persons and entities rendering services, in
connection with the Title Content from the Inception of Tiger's and/or such
persons' and entities' efforts with respect thereto, in each case including all
physical embodiments thereof, whether or not incorporated in a Milestone and
including, without limitation, any Documentation, Title Materials and
Promotional Material and each and every Milestone, constituent portion and
element of the foregoing (including, without limitation, any and all movie
sequences and any and all original music, whether in the Form of a score or
incidental music, composed, arranged or prepared
4
Exhibit A
for the Title and all original artwork produced for the Title), but specifically
excluding the Source Code and the Utilities.
5
Exhibit A
EXHIBIT B
Design Specifications
1
Exhibit B
EXHIBIT C
Milestone Schedule
-------------------------- ----------------------------
Milestone Completion Date
-------------------------- ----------------------------
Design Specifications
-------------------------- ----------------------------
Mutual Approval of 3rd
Party Developers
-------------------------- ----------------------------
Alpha
-------------------------- ----------------------------
Beta
-------------------------- ----------------------------
Gold/Release
-------------------------- ----------------------------
1
Exhibit C
EXHIBIT D
Non-original Materials
[To be added upon determination thereof.]
1
Exhibit D
EXHIBIT E
FACILITY AND MERCHANDISE AUTHORIZATION FORM
Attached is the Facility and Merchandise Authorization Form ("Form") that
must be completed for each Facility that will produce Disney Merchandise.
o Please make as many copies of the attached Form as necessary so that you
complete a Form for each Facility
o Once the Form is completed for each Facility, please send to:
---------------------------------- ----------------------------------
Sera Hovasapian Phone : 000-000-0000
Operation Analyst Fax: 000-000-0000
000 Xxxxx Xxxxx Xxxxx Xxxxxx E-mail: xxxxxxxxxxxxxx@xxxxxx.xxx
Xxxxxxx, XX 00000-0000
XXX
---------------------------------- ----------------------------------
o Disney will verify the information and determine whether each Facility will
be allowed to produce Disney Merchandise
o For those Facilities that are allowed to produce Disney Merchandise, and
have not yet executed a Manufacturer's Agreement on behalf of Disney, you
will be sent a Manufacturer's Agreement that must be signed by each
Facility
o Once it is determined that a Manufacturer's Agreement is in place for each
Facility, the Form will be signed by Disney and returned to you
o You may begin production of Disney Merchandise as authorized under your
applicable agreement with Disney, once you receive the signed Form from
Disney o You also may present the Form to Customs officials to facilitate
the importation of goods if the Facility is outside the territory where the
Merchandise is to be sold. Emergency Customs letters will no longer be
issued.
--------------------------------------------------------------------------------
Definition of "Facility": any manufacturer, factory, supplier, facility or any
other entity which produces or manufactures Merchandise, or components of
Merchandise, labels, hang-tags, packaging, or any other item which bears any
Disney Property, Brand or Logo. Do NOT list facilities that only produce generic
items such as cardboard boxes, plastic wrap, or plain buttons, UNLESS these
components contain any Disney proprietary material. Unless they are involved in
the actual production or manufacture of Merchandise, do NOT list agents,
business offices or showrooms as a Facility. The Shipper and/or Importer of
Record is strictly the party who transports the goods; if the name is different
from that of the Licensee/Vendor or Facility, please so indicate on the Facility
and Merchandise Authorization.
--------------------------------------------------------------------------------
Incomplete or illegible forms will be returned to you for resubmission.
Please make copies of these forms and use the copies to submit your
information. Maintain the original in your files for future use.
1
Exhibit E
FACILITY AND MERCHANDISE AUTHORIZATION
(Please Type)
DISNEY LICENSEE/VENDOR NAME: TELEPHONE NUMBER:
STREET ADDRESS: FAX NUMBER:
CONTACT NAME, TITLE AND, IF AVAILABLE,
E-MAIL ADDRESS
-------------------------------------------------------------------------------
Manufacturing Facility} Name (Place le. List All Other Names by Which the
Where Merchandise is Produced): Manufacturing Facility is Known:
la. Manufacturing Facility Address: 1f. Is this Manufacturing Facility
Owned by the Licensee or Vendor?
1b. Telephone Number:
[ ] Yes [ ] No
lc. Fax Number:
1g. List All Authorized Merchandise
1d. Contact Name and Title: Produced in this Facility (as listed
on the License Agreement): Attach a
separate sheet if necessary
-------------------------------------------------------------------------------
2. Disney Property, Brand or Logo 4. [ ] Shipper [ ] Importer of Record
(List all Produced in this Facility) check one). Provide Name and Address:
Only List if the Transporter of the
Merchandise is other than Production
Facility or Disney Licensee/Vendor.
----------------------------------------
3. Territory Where Merchandise May Be
Sold:
-------------------------------------------------------------------------------
Once signed on behalf of Disney Enterprises, Inc., this document may
he presented to the Customs authority, in the country specified above as the
territory where the Merchandise may be sold, at the port of entry, to
confirm Disney's authorization of shipments of the Merchandise identified
above. This Authorization shall expire on the first to occur of the
following: (l) the passage of 3 years from the date set forth below, (2) the
expiration or termination of the applicable agreement between
Licensee/Vendor and Disney, or, (3) the termination of the Authorization by
Disney.
Very truly yours,
DISNEY ENTERPRISES, INC.
Contract Administration Date:_____________________
2
Exhibit E
EXHIBIT F
Form of Subcontractor Agreement
Name and Address of Subcontractor:
Territory of Subcontractor:
Services:
Licensee: Tiger Telematics. Inc. ("Tiger")
Expiration Date of Agreement:
(unless earlier terminated or extended)
Authorized Product(s):
BVG properties: All scenes and characters (together with their likenesses
and names) and designs (including without limitation marks
and logos), and all art, animation, video and other
audiovisual material, sound, music and text (including
without limitation fonts), owned or licensed by BVG which
are depicted or used in the Authorized Product(s).
Ladies and Gentlemen:
In order to induce Buena Vista Games. Inc. ("BVG") to consent to the engagement
by Tiger of the undersigned subcontractor ("Subcontractor") to provide the
Services in connection with the manufacture, packaging or distribution of the
Authorized Product, the Subcontractor signing below covenants and agrees that
(except as may be authorized under a separate BVG Manufacturer's Agreement or
license):
1. The Subcontractor will not manufacture the Authorized Product to the order of
anyone but Tiger, will invoice only Tiger, will not ship to anyone other than
Tiger or Tiger's designees and will not ship after the expiration date of the
Agreement. In addition to any other remedies at law, which shall be cumulative,
the Subcontractor agrees to pay BVG its gross revenues from any sales of
Merchandise not authorized by or on behalf of BVG
2. The Subcontractor will not subcontract production of the Authorized product
or components thereof without BVG's written consent and the subcontractor's
execution of a Subcontractor's Agreement.
3. The Subcontractor will not (without BVG's written consent) manufacture
merchandise utilizing any of the BVG properties listed above or any other
properties the copyright or trademark to which is owned or licensed by BVG,
other than the Authorized Product in accordance with this Agreement.
4. The Subcontractor will not publish or cause the publication of pictures of
the Authorized Product in any publication or promotional material, nor advertise
the fact that it is permitted to manufacture Authorized Product, nor use the
name "Disney" or any variant thereof without BVG's prior written consent.
5. In manufacturing the Authorized Product, the Subcontractor will comply with
all applicable local and national laws and regulations, treaties, voluntary
industry standards, codes or other obligations (collectively, "Laws"), including
but not limited to, applicable health and safety standards and labor laws for
manufacturing operations. Specifically, the Subcontractor covenants that it will
honor the terms of the Code of Conduct for Manufacturers as follows:
1
Exhibit F
(a) The Subcontractor shall not use child labor in the manufacturing,
packaging or distribution of BVG merchandise. The term "child" refers to a
person younger than the local legal minimum age for employment or the age for
completing compulsory education, but in no case shall any child younger than
fifteen (15) years of age (or fourteen (14) years of age where local law allows)
be employed in the manufacturing, packaging or distribution of BVG merchandise.
The Subcontractor employing young persons who do not fall within the definition
of "children" also shall comply with any Laws applicable to such persons.
(b) The Subcontractor shall only employ persons whose presence is
voluntary. The Subcontractor shall not use any forced or involuntary labor,
whether prison, bonded, indentured or otherwise.
(c) The Subcontractor shall treat each employee with dignity and
respect, and shall not use corporal punishment, threats of violence, or other
forms of physical, sexual, psychological or verbal harassment or abuse.
(d) The Subcontractor shall not discriminate in hiring and employment
practices, including salary, benefits, advancement, discipline, termination, or
retirement, on the basis of race, religion, age, nationality, social or ethnic
origin, sexual orientation, gender, political opinion or disability.
(e) The Subcontractor recognizes that wages are essential to meeting
employees' basic needs. The Subcontractor shall comply, at a minimum, with all
applicable wage and hour Laws, including minimum wage, overtime, maximum hours,
piece rates and other elements of compensation, and shall provide legally
mandated benefits. If local Laws do not provide for overtime pay, the
Subcontractor shall pay at least regular wages for overtime work. Except in
extraordinary business circumstances, the Subcontractor shall not require
employees to work more than the lesser of(1) 48 hours per week and 12 hours
overtime or (2) the limits on regular and overtime hours allowed by local law,
or, where local law does not limit the hours of work, the regular work week in
such country plus 12 hours overtime. In addition, except in extraordinary
business circumstances, employees will be entitled to at least one day off in
every seven-day period. The Subcontractor agrees that, where local industry
standards are higher than applicable legal requirements, it will meet the higher
standards.
(f) The Subcontractor shall provide employees with a safe and healthy
workplace in compliance with all applicable Laws, ensuring, at a minimum,
reasonable access to potable water and sanitary facilities, fire safety, and
adequate lighting and ventilation. The Subcontractor also shall ensure that the
same standards of health and safety are applied in any housing it provides for
employees. The Subcontractor shall provide BVG with all information BVG may
request about manufacturing, packaging and distribution facilities for the
Products.
(g) The Subcontractor shall respect the rights of employees to
associate, organize and bargain collectively in a lawful and peaceful manner,
without penalty or interference, in accordance with applicable Laws.
(h) The Subcontractor shall comply with all applicable Laws, including
those pertaining to the manufacture, pricing, sale and distribution of the
Products.
(i) The Subcontractor shall comply with all applicable environmental
Laws.
(j) The Subcontractor agrees that BVG and its designated agents
(including third parties) may engage in monitoring activities to confirm
compliance with this Agreement, including unannounced on-site inspections of
manufacturing, packaging and distribution facilities, and employer-provided
housing, such inspections to include reviews of books and records relating to
employment matters and private interviews with employees. The Subcontractor
shall maintain on site all documentation necessary to demonstrate compliance
with the Agreement.
2
Exhibit F
(k) The Subcontractor shall take appropriate steps to ensure that the
provisions of this Paragraph 5 are communicated to employees, including the
prominent posting of a copy of BVG's Code of Conduct for Manufacturers in the
local language and in a place readily accessible to employees at all times.
6. The term "Laws" as used in this Subcontractor Agreement means any and all
applicable laws, rules, regulations, ordinances, voluntary industry standards,
association laws, codes or other obligations pertaining to any of
Subcontractor's activities in connection with the Agreement, including but not
limited to, those applicable to the Authorized Product and the BVG Properties
and the performance of the Services.
7. The Subcontractor shall not, and shall not permit or assist any other party
to, manufacture, modify or adapt all or any part of the Authorized Product or
otherwise make copies of all or part of the Authorized Product onto any media
(whether for error correction or other purposes), except as may be expressly and
clearly required in connection with the Services. The Subcontractor also agrees
that it shall not and shall not permit or assist any other party to disassemble,
decompile or reverse engineer all or any part of the Authorized product.
8. During the performance of the Services in connection with the Authorized
Product Subcontractor shall not introduce any computer virus or any other
similar harmful, malicious, or hidden program or data to the Authorized Product.
9. The Subcontractor will not, without BVG's prior written consent, provide the
Services, or contract for the provision of services comparable to the Services,
in connection with video games or other computer software utilizing any BVG
Properties, any artwork based thereon and/or any trademark, trade name or logo
owned or used by BVG, other than the Authorized Product.
10. The Subcontractor will neither cause nor allow any use not authorized by BVG
or Tiger under the direction of BVG of any material containing or capable of
displaying any BVG Properties.
11. The Subcontractor understands that it does not have or acquire, and shall
not purport to have or acquire, any right to, interest in or title to the
Authorized Product nor any BVG Properties nor any other copyright, trademark,
trade name or logo or the names applied thereto embodied in the Authorized
Product.
12. The Subcontractor acknowledges that the provisions of this agreement are
necessary to protect BVG's intellectual property rights and, specifically, to
conserve the goodwill and good name of its Products and the name "Disney", and
therefore Subcontractor agrees that it will not and it will not allow or assist
any other third party to, perform any act or omit from performing any act, that
would result in the Authorized Product, any BVG Properties or the name "Disney"
to become involved in matters that will or could detract from, or impugn, its
public acceptance and popularity, or impair its legal status.
13. From time to time, the Subcontractor will permit BVG's authorized
representative to inspect its activities and premises, accounting books and
invoices relevant to its manufacture and supply of Authorized Product.
14. Except and only to the extent specifically required in connection with its
performance of the Services in connection with the Authorized Product,
Subcontractor shall not acquire any right under this Agreement to use, and
Subcontractor shall not use, and shall not, directly or indirectly, allow or
assist any other party to use, (a) the name "Disney" (either alone, in
conjunction with or as a part of any other word, name or phrase) or (b) any BVG
Properties or any other fanciful character or design, any music or any
intellectual property right of Disney Enterprises. Inc. (formerly known as The
Xxxx Disney Company) or any of its related, affiliated or subsidiary companies
(i) in any advertising, publicity or promotion or other disclosure. (ii) in any
in-house publication, (iii) to express or imply any endorsement of any product
or service, or (iv) in any other manner or for any purpose whatsoever (whether
or not similar to any of the foregoing).
3
Exhibit F
15. Subcontractor understands that it may, during the performance of the
Services in connection with the Authorized Product, have access to and acquire
knowledge from, material, data, systems and other information concerning the
operation, business. Financial affairs, products, customers and intellectual
property rights or other aspects of BVG or any of BVG's affiliated or related
companies that may not be accessible or known to the general public (referred to
herein as "Confidential Information"). Any Confidential Information acquired by
Subcontractor shall not be used, published or divulged by Subcontractor to any
other party in any manner whatsoever without the prior clear and express written
approval of BVG, which approval BVG may withhold in its sole discretion.
Subcontractor shall, and shall cause its employees, agents and every other party
it employs in connection with the Services to, protect and safeguard the
Confidential Information by using the same degree of care, but no less than a
reasonable degree of care, to prevent the unauthorized use, dissemination or
publication of the Confidential Information as Subcontractor uses to protect its
own confidential or proprietary information of a like nature. In the event that
Subcontractor is directed to disclose any portion of any Confidential
Information of BVG or any other materials proprietary to BVG, Subcontractor
shall immediately notify BVG both orally and in writing. Subcontractor shall
provide BVG with reasonable cooperation and assistance in obtaining a suitable
protective order and in taking any other steps to preserve the confidentiality
of the Confidential Information.
16. Upon expiration or termination of the Agreement, or upon notification by BVG
or Tiger, the Subcontractor will (a) Immediately cease manufacturing the
Authorized Product and deliver to BVG or its authorized representative that
portion of any and all molds, plates, engravings or other devices used to
reproduce the BVG Properties, or (b) provide BVG with satisfactory evidence that
the BVG properties have been erased or eradicated and are no longer
reproducible.
17. Nothing herein shall he constued as to require Subcontractor to Initiate any
legal action against any unauthorized use of any materials containing or capable
of displaying ally BVG Properties.
18. This agreement shall he deemed to he entered into in California and shall he
governed and interpreted according to the laws of the State of California
applicable to contracts made and to be fully performed in California. Any legal
actions pertaining to this Agreement shall be commenced within the State of
California and within either Los Angeles or Orange Counties and the
Subcontractor hereby consents to the jurisdiction of the appropriate court
within the State of California. BVG may rely for any and all purposes on the
Subcontractor's faxed signature on this MA, but faxing the MA does not excuse
the Subcontractor from its obligation to return the original executed MA so that
BVG may maintain the original executed MA in its files.
IN WITNESS WHEREOF, the duly authorized representatives of each of the parties
hereto have executed this Subcontractor's Agreement as of the ______ day of
____________,_____.
TIGER TELEMATICS, INC. SUBCONTRACTOR:
By:___________________________________ By:____________________________________
Name:_________________________________ Name:__________________________________
Title:________________________________ Title:_________________________________
* SUBCONTRACTOR -- PLEASE ANSWER THESE TWO QUESTIONS:
1. Is your address correct on the first page of this Agreement? ____________
If not, please write the correct address next to the address section.
2. What percentage of your facility capacity is dedicated to Disney Merchandise?
_____________%
4
Exhibit F
EXHIBIT G
Code of Conduct for Licensees and Manufacturers
At The Xxxx Disney Company. we are committed to:
o a standard of excellance in every aspect of our business and in every
corner of the world;
o ethical and responsible conduct in all of our operations;
o respect for the rights of all individuals; and
o respect for the environment.
We expect these same commitments to be shared by all Disney licensees and the
manufacturers with which they work in the production of Disney merchandise. At a
minimum, we require that all Disney licensees meet the following standards:
Conduct of
Manufacturing Licensees that that engage directly in the manufacturing of
Disney merchandise will comply with all of the standards
set forth in Disney's Code of Conduct for Manufacturers, a
copy of which is attached.
Licensees will ensure that each manufacturer other than the
licensee also enters into a written commitment with Disney
to comply with the standards set forth in Disney's Code of
Conduct for Mail Manufacturers.
Licensees will prohibit manufacturers from subcontracting
the manufacturer of Disney merchandise or components
thereof without Disney's express written consent, and only
after the subcontractor has entered into a written
commitment with Disney to comply with Disney's Code of
Conduct for Manufacturers.
Monitoring and
Compliance Licensees will take appropriate steps, in consultation with
Disney, to develop, implement and maintain procedures to
evaluate and monitor manufacturers of Disney merchandise
and ensure compliance with Disney's Code of Conduct for
Manufacturers, including unannounced on-site inspections of
manufacturing facilities and employer-provided housing;
review of books and records relating to employment matters;
and private interviews with employees.
Licensees will authorize Disney and its designated agents
(including third parties) to engage in similar monitoring
activities to confirm Licensees' compliance with this Code
of Conduct Licensees will maintain on site all
documentation that may be needed to demonstrate such
compliance.
1
Exhibit G
Code of Conduct for Manufacturers
At The Xxxx Disney Company, we are committed to:
o a standard of excellence in every aspect of our business and in every
corner of the world:
o ethical and responsible conduct in all of our operations;
o respect for the rights of all individuals; and
o respect for the environment.
We expect these same commitments to be shared by all manufacturers of Disney
merchandise. At a minimum, we require that all manufacturers of Disney
merchandise meet the following standards:
Child Labor Manufacturers will not use child labor.
The term "child" refers to a person younger than 15 (or 14
where local law allows) or, if higher, the local legal
minimum age for employment or the age for completing
compulsory education.
Manufacturers employing young persons who do not fall
within the definition of "children" will also comply with
any laws and regulations applicable to such persons.
Involuntary Labor Manufacturers will not use any forced or involuntary labor,
whether prison, bonded, indentured or otherwise.
Coercion and
Harassment Manufacturers will treat each employee with dignity and
respect, and will not use corporal punishment, threats of
violence or other forms of physical, sexual, psychological
or verbal harassment or abuse.
Nondiscrimination Manufacturers will not discriminate in hiring and
employment practices including salary, benefits,
advancement, discipline, termination or retirement, on the
basis of race, religion, age, nationality, social or ethnic
origin, sexual orientation, gender, political opinion or
disability.
Association Manufacturers will respect the rights of employees to
associate, oganize, and bargain collectively in a lawful
and peaceful manner, without penalty or interference.
Health and Safety Manufacturers will provide employees with a safe and
healthy workplace in compliance with all applicable laws
and regulations, ensuring at a minimum, reasonable access
to potable water and sanitary facilities, fire safety, and
adequate lighting and ventilation.
Manufacturers will also ensure that the same standards of
health and safety are applied in any housing that they
provide for employees.
Compensation We expect manufacturers to recognize that wages are
essential to meeting employees' basic needs. Manufacturers
will, at a minimum, comply with all applicable wage and
hour laws and regulations, including those relating to
minimum wages, overtime, maximum hours, piece rates and
other elements of compensation, and provide legally
mandated benefits. If local laws do not provide for
overtime pay, manufacturers will pay at least regular wages
for overtime work Except in extraordinary business
circumstances, manufacturers will not
2
Exhibit G
require employees to work more than the lesser of (a) 48
hours per week and 12 hours overtime or (b) the limits on
regular and overtime hours allowed by local law or, where
local law does not limit the hours of work, the regular
work week in such country plus 12 hours overtime. In
addition, except in extraordinary business circumstances,
employees will be entitled to at least one day off in every
seven-day period.
Where local industry standards are higher than applicable
legal requirements, we expect manufacturers to meet the
higher standards.
Protection of the
Environment Manufacturers will comply with all applicable environmental
laws and regulations.
Other Laws Manufacturers will comply with all applicable laws and
regulations, including those pertaining to the manufacture,
pricing, sale and distribution of merchandise.
All references to "applicable laws and regulations" in this
Code of Conduct include local and national codes, rules and
regulations as well as applicable treaties and voluntary
industry standards.
Subcontracting Manufacturers will not use subcontractors for the
manufacture of Disney merchandise or components thereof
without Disney's express written consent, and only after
the subcontractor has entered into a written commitment
with Disney to comply with this Code of Conduct.
Monitoring and
Compliance Manufacturers will authorize Disney and its designated
agents (including third parties) to engage in monitoring
activities to confirm compliance with this Code of Conduct,
including unannounced on-site inspections of manufacturing
facilities and employer-provided housing; reviews of books
and records relating to employment matters; and private
interviews with employees. Manufacturers will maintain on
site all documentation that may be needed to demonstrate
compliance with this Code of Conduct.
Publication Manufacturers will take appropriate steps to ensure that
the provisions of this Code of Conduct are communicated to
employees, including the prominent posting of a copy of
this Code of Conduct, in the local language and in a place
readily accessible to employees, at all times.
3
Exhibit G
EXHIBIT H
TRANSFER FEE POLICY
As provided in Section 23 of the Agreement, it is BVG's policy to charge a
transfer fee in connection with any permitted assignment of all or any portion
of the Agreement or other "transfer," as that term is defined in such Section
23. The amount of the transfer fee is based on the circumstances of the
particular assignment or transfer, taking into account such factors as:
o the estimated value of the license being assigned or involved in the
transfer
o the risk of business interruption
o the risk of loss of quality, production or control
o the identity, reputation, creditworthiness, financial condition and
business capabilities of the proposed assignee or entity involved in
the transfer
o BVG's internal costs related to the assignment or
At a minimum, the transfer fee will be One Hundred Thousand Dollars
($100.000.00) and it could be higher, depending on the circumstances of the
particular case. Neither Tiger nor any company involved with Tiger in an
assignment or transfer situation should rely upon any express or implied verbal
representations that are purported to be made on BVG's behalf as to the amount
of any given transfer fee to be assessed. BVG's Finance Department will
communicate the actual amount of the transfer fee calculated in each approved
transaction.
In any prospective assignment or transfer situations, Tiger must inform the
persons and/or companies with which they are dealing that no assignment or
transfer may occur without BVG's prior written consent, to be granted or
withheld in BVG's absolute discretion, and that any approved transaction will
also entail a transfer fee. Tiger must give BVG at least 30 days prior written
notice of any desired assignment or other transfer, together with any
information and documentation necessary to evaluate the contemplated
transaction. Tiger should not endanger the closing of its desired transaction(s)
by failing to comply with these provisions of the Agreement.
If BVG consents to a proposed transaction subject to the payment of a transfer
fee, and the transaction is concluded but Tiger fails to pay to BVG the full
amount of the transfer fee within the designated time, or Tiger fails to obtain
BVG's prior written consent to a proposed assignment or transfer and Tiger
nevertheless closes the transaction, this Agreement shall automatically
terminate and any Royalty shortfall(s) under the Agreement shall be immediately
due and payable to BVG (in addition to any other rights or remedies which BVG
may have under the Agreement, at law and/or in equity arising out of Tiger's
such failure).
BVG's consent to any assignment or other transfer should in no way be understood
to be a guarantee or promise by BVG of a grant of any future license(s), as
those determinations will continue to be made on a contract by contract basis.
1
Exhibit H
