EXHIBIT 10.11
ALL SECTIONS MARKED WITH ASTERISKS REFLECT PORTIONS WHICH HAVE BEEN REDACTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION BY THQ INC. AS PART
OF A REQUEST FOR CONFIDENTIAL TREATMENT.
PLAYSTATION(R) LICENSED PUBLISHER AGREEMENT
THIS AGREEMENT is entered into the 25th day of June 1998 by and between
SONY COMPUTER ENTERTAINMENT EUROPE
(a Division of SONY COMPUTER ENTERTAINMENT UK LIMITED)
of 00 Xxxxxx Xxxxxx, Xxxxxx X0X 0XX
(hereinafter referred to as "SCEE")
- and -
THQ INTERNATIONAL LIMITED
of Xxxxx Xxxxx, Xxxx Xxxxxx, Xxxxxx, Xxxxxx XX00 0XX
(hereinafter referred to as "Publisher")
PUBLISHER AUTHORISATION #: 138
WHEREAS
(A) SCEE, Sony Corporation, and/or certain of their affiliates and companies
within the group of companies of which any of them form part
(hereinafter jointly and severally referred to as "Sony") have developed
a CD-based interactive console for playing video games and for other
entertainment purposes (hereinafter referred to as "the PlayStation",
which is a registered trademark of Sony Computer Entertainment Inc.) and
are the owners of, or have the right to grant licences of, certain
proprietary information and intellectual property rights pertaining to
the PlayStation.
(B) Publisher desires to be granted a non-exclusive licence to market,
distribute and sell Licensed Products (as defined below), and for such
Licensed Products and associated materials to be manufactured by an
authorised manufacturing facility licensed by SCEE, on the terms and
subject to the conditions set forth in this Agreement.
(C) SCEE is willing, on the terms and subject to the conditions of this
Agreement, to grant Publisher the desired non-exclusive licence.
NOW THEREFORE, in consideration of the undertakings, representations and
warranties given herein, and of other good and valuable consideration the
receipt and sufficiency of which is acknowledged, PUBLISHER AND SCEE HEREBY
AGREE AS FOLLOWS:
1. DEFINITIONS
1.1 "Licensed Products" means PlayStation Software product(s) in the form of
proprietary black PlayStation interactive software discs (hereinafter
referred to as "PlayStation Discs").
1.2 "Licensed Territory" means the countries specified in Schedule 1.
1.3 "Sony Intellectual Property Rights" means all current and future patents
worldwide, pending patent applications and other patent rights (under
licence or otherwise), copyrights, trademarks, service marks, trade
names, semi-conductor topography rights, trade secret rights, technical
information and know-how (and the equivalents of each of the foregoing
under the laws of any jurisdiction) of Sony pertaining to Sony Materials
and/or the PlayStation, and all other proprietary or intellectual
property rights worldwide (including, without limitation, all
applications and registrations with respect thereto) of Sony pertaining
to Sony Materials and/or the PlayStation, and all renewals and
extensions thereof.
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1.4 "PlayStation Software" means Publisher's object code software, which
includes Licensed Developer Software and any software (whether in object
code or source code form) which is provided by SCEE and intended to be
combined with Licensed Developer Software for execution on the
PlayStation and has the ability to communicate with the software
resident in the PlayStation.
1.5 "Term" means the period from the date hereof until 31 December 2005 and
continuing thereafter unless and until terminated by not less than 1
(one) month's notice on either side given to expire on such date or any
subsequent 31 December.
1.6 "Affiliate of SCEE" means, as applicable, either Sony Computer
Entertainment Inc in Japan, Sony Computer Entertainment America (a
division of Sony Interactive Entertainment Inc) in the USA or such other
Sony Computer Entertainment entity as may be established by Sony from
time to time.
1.7 "LDA" means the PlayStation Licensed Developer Agreement between
Licensed Developer of the applicable PlayStation Software and SCEE (or
an equivalent such agreement between Licensed Developer and an Affiliate
of SCEE).
1.8 "Licensed Trademarks" means the "PlayStation" trademark and logo and all
other trademarks, service marks and logos designated by Sony. Nothing
contained in this Agreement shall in any way grant Publisher the right
to use the trademark "Sony" in any manner as (or as part of) a
trademark, trade name, service xxxx or logo other than as expressly
permitted by Sony. Sony may amend such Licensed Trademarks upon
reasonable notice to Publisher.
1.9 "Licensed Developer" means Publisher or such other third party as shall
have developed Licensed Developer Software and PlayStation Software
pursuant to a then current LDA.
1.10 "Sony Materials" means any hardware, data, object code, source code,
documentation (or any part(s) of any of the foregoing) provided to the
Licensed Developer of any PlayStation Software pursuant to the LDA
applicable for such PlayStation Software.
1.11 "Licensed Developer Software" means Licensed Developer's application
source code and data (including audio and visual material) developed by
Licensed Developer in accordance with its LDA which, when integrated
with any software (whether in object code or source code form) provided
by SCEE, creates PlayStation Software.
1.12 "Printed Materials" means all artwork and mechanicals to be set forth on
the Licensed Product itself, and on the jewel case (or other container)
and, if applicable, the box (or other) packaging for the Licensed
Product and all instruction manuals, liners and other user information
and/or materials to be inserted in such jewel case and/or packaging.
1.13 "Advertising Materials" means all advertising, merchandising,
promotional and display materials of or concerning the Licensed
Products.
1.14 "Manufactured Materials" means all units of the Licensed Products, of
the Printed Materials to be set forth on the Licensed Products
themselves and of the jewel cases for such Licensed Products (which
expression shall include any alternative form of container for Licensed
Products subsequently introduced by SCEE).
1.15 "Specifications" means such technical specifications relating to the
manufacture of Licensed Products, Printed Materials and/or related
matters or materials as may be issued by Sony, which specifications
(and/or the procedures relating to approvals and/or to the ordering and
manufacture of Licensed Products and associated materials) may be
amended from time to time upon reasonable notice to Publisher.
1.16 "NDA" means the Non-Disclosure Agreement between Publisher and SCEE or
an Affiliate of SCEE relating to the PlayStation and to Sony's
Confidential Information thereunder.
1.17 "Confidential Information of Sony" means the content of this Agreement
(including the Schedules hereto and the Specifications) and any and all
confidential and/or proprietary information and related materials of
whatever nature comprised in Sony Materials or otherwise disclosed by
whatever means (whether direct or indirect) by or on behalf of Sony to
Publisher at any time
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(whether disclosed orally, in writing or in machine-readable or other
form), or otherwise discovered by Publisher as a result of any information
or materials provided (whether direct or indirect) by or on behalf of Sony
to Publisher, concerning Sony's technology, know-how, products and
potential products, services, business models and finances, marketing and
technical plans and other business information, but excluding any such
information and/or related materials expressly intended for use by and
released by Sony to end users or the general public.
1.18 "Confidential Information of Publisher" means the content of this
Agreement (including the Schedules hereto) and any and all confidential
and/or proprietary information and related materials of whatever nature
comprised in Licensed Developer Software and disclosed by whatever means
(whether direct or indirect) by or on behalf of Publisher to SCEE at any
time (whether disclosed orally, in writing or in machine-readable or
other form), or otherwise discovered by SCEE as a result of any
information or materials provided (whether direct or indirect) by or on
behalf of Publisher to SCEE, which information is designated by
Publisher as, or becomes known to SCEE under circumstances indicating
that such information is, confidential or proprietary.
1.19 "Third Party Intellectual Property Rights" means all current and future
patents worldwide, pending patent applications and other patent rights
(under licence or otherwise), copyrights, trademarks, service marks,
trade names, semi-conductor topography rights, trade secret rights,
technical information and know-how (and the equivalents of each of the
foregoing under the laws of any jurisdiction) of any third party other
than Publisher or Sony and all other proprietary or intellectual
property rights worldwide (including, without limitation, all
applications and registrations with respect thereto), and all renewals
and extensions thereof.
2. GRANT OF LICENCE
SCEE hereby grants to Publisher, and Publisher hereby accepts, within the
Licensed Territory only and under the Sony Intellectual Property Rights, a
non-exclusive non-transferable licence, without the right to sub-license (except
as specifically provided herein), to publish PlayStation Software the
development of which shall have been approved prior to or during the Term hereof
by SCEE (or by an Affiliate of SCEE) pursuant to the applicable LDA, and to use
the Licensed Trademarks strictly, only and directly in connection with such
publication. For these purposes, to "publish" shall mean any or all of the
following: (i) produce Advertising Materials and Printed Materials; (ii) to
issue to SCEE purchase orders for Manufactured Materials as prescribed in Clause
6; (iii) to market, distribute and sell Licensed Products (and to authorise
others so to do); and (iv) to sub-license to end users the right to use Licensed
Products for non-commercial purposes only and not for public performance.
3. LIMITATIONS
3.1 Publisher shall publish PlayStation Software only if developed by a
Licensed Developer strictly in accordance with all the terms and
conditions of such Licensed Developer's LDA and shall not publish or
attempt to publish any other software whatsoever intended for or capable
of execution on the PlayStation. The onus of evidencing that PlayStation
Software satisfies the foregoing criteria shall rest on Publisher and
SCEE reserves the right to require Publisher to furnish evidence
satisfactory to SCEE that the foregoing criteria are satisfied.
3.2 Publisher shall not publish outside the Licensed Territory PlayStation
Software unless and until Publisher shall be authorised and licensed so
to do pursuant to a current licence agreement with the applicable
Affiliate of SCEE. Further, Publisher shall not sub-publish such
PlayStation Software through a third party either within or outside the
Licensed Territory unless and until such sub-publisher shall be
authorised and licensed so to do either pursuant to a current
PlayStation Licensed Publisher Agreement with SCEE or a current licence
agreement with the applicable Affiliate of SCEE.
3.3 Publisher and, if applicable, its sub-publishers shall at all times and
in all territories be strictly prohibited from undertaking or
authorising any renting or lending of PlayStation Software except as
specifically authorised in writing by SCEE in each case or from
undertaking or authorising the
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distribution or transmission of PlayStation Software or Licensed
Products through any electronic or other media, whether now known or
hereafter devised, including without limitation via wireless, cable,
fibre optic, telephone lines, microwave and/or radio waves or a network
of interconnected computers or other devices.
3.4 Publisher and, if applicable, its sub-publishers shall, to the extent
permitted by law, at all times be strictly prohibited from disassembling
or decompiling software, peeling semiconductor components or otherwise
reverse engineering or attempting to reverse engineer or derive source
code or create derivative works from PlayStation Software, from
permitting or encouraging any third party so to do, and from acquiring
or using any materials from any third party who does so. The foregoing
notwithstanding, Publisher shall in all cases be primarily liable for
the payment of Purchase Price to SCEE in accordance with Clause 7 hereof
in respect of any product published by Publisher or, if applicable, any
of its sub-publishers which utilises Sony Materials or which is in any
way derived from the disassembly, decompilation or reverse engineering
of, or the use of source code derived from or derivative works created
from, PlayStation Software.
3.5 Publisher shall inform all such sub-publishers of the obligations
imposed by this Agreement and shall obtain their commitment to abide by
the same.
3.6 Any breach of the provisions of this Clause 3 shall be a material breach
of this Agreement not capable of remedy.
4. RESERVATIONS
4.1 This Agreement does not grant any right or licence, under any Sony
Intellectual Property Rights or otherwise, except as expressly provided
herein, and no other right or licence is to be implied by or inferred
from any provision of this Agreement or the conduct of the parties
hereunder. Subject only to the rights of Publisher under this Agreement,
all right, title and interest in and to the Sony Materials and the Sony
Intellectual Property Rights are and shall be the exclusive property of
Sony, and Publisher shall not make use of, or do or cause to be done any
act or thing contesting or in any way impairing or tending to impair any
of Sony's right, title or interest in or to, any of the Sony Materials
and/or the PlayStation or any Sony Intellectual Property Rights except
as authorised by and in compliance with the provisions of this Agreement
or as may otherwise expressly be authorised in writing by Sony. No
right, licence or privilege has been granted to Publisher hereunder
concerning the development of any collateral product or other use or
purpose of any kind whatsoever which displays or depicts any of the
Licensed Trademarks. No promotional or novelty items or premium products
(including, by way of illustration but without limitation, T-shirts,
posters, stickers, etc) displaying or depicting any of the Licensed
Trademarks shall be developed, manufactured, marketed, sold and/or
distributed by, with the authority of or on behalf of, Publisher without
the prior written consent and authorisation of SCEE in each case.
4.2 The Licensed Trademarks and the goodwill associated therewith are and
shall be the exclusive property of Sony. Nothing herein shall give
Publisher any right, title or interest in or to any of the Licensed
Trademarks, other than the non-exclusive licence and privilege to
display and use the Licensed Trademarks solely in accordance with the
provisions of this Agreement. Publisher shall not do or cause to be done
any act or thing contesting or in any way impairing or tending to impair
any of Sony's right, title or interest in or to any of the Licensed
Trademarks, nor shall Publisher register or apply to register any
trademark in its own name or in the name of any other person or entity
which is similar to or is likely to be confused with any of the Licensed
Trademarks.
4.3 Publisher or Licensed Developer (as applicable) retains all right, title
and interest in and to Licensed Developer Software, including Licensed
Developer's intellectual property rights therein and any names or other
designations used as titles therefor, and nothing in this Agreement
shall be construed to restrict the right of Licensed Developer to
develop and/or the right of Publisher to publish products incorporating
Licensed Developer Software (separate and apart from Sony Materials),
and/or under such names or other designations, for any hardware platform
or service other than the PlayStation.
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4.4 Publisher shall, at the expense of SCEE, take all such steps as SCEE may
reasonably require, including the execution of licences and
registrations, to assist SCEE in maintaining the validity and
enforceability of Sony Intellectual Property Rights.
4.5 Without prejudice to Clause 11, Publisher or SCEE (as applicable) shall
promptly and fully notify the other in writing in the event that it
discovers or otherwise becomes aware of any actual, threatened or
suspected infringement of any of the intellectual property or trademark
rights of the other embodied in any of the Licensed Products, and of any
claim of infringement or alleged infringement by the other of any Third
Party Intellectual Property Rights, and shall at the request and expense
of the other do all such things as may reasonably be required to assist
the other in taking or resisting any proceedings in relation to any such
infringement or claim.
5. QUALITY STANDARDS
5.1 Each Licensed Product, including without limitation the title and
content thereof, and/or Publisher's use of any of the Licensed
Trademarks, shall be required to achieve such standards of functionality
and quality as to style, appearance and playability as shall be
determined by Sony from time to time in its sole but reasonable
discretion and shall not, except as specifically authorised in writing
by SCEE in each case, incorporate (in whole or in part) more than 1
(one) game product.
5.2 Publisher shall submit to SCEE for its inspection and evaluation the
following materials relating to the PlayStation Software for each
Licensed Product: (i) a completed PlayStation Disc Master Approval Form,
in such form as shall be prescribed and supplied by SCEE; (ii) a minimum
of [**] CDs containing finished game code and conforming to the
Specifications; (iii) such other information and/or materials as shall
be detailed in the Specifications. Unless all procedures required to
ensure compliance with quality standards in respect of PlayStation
Software intended to be published by Publisher shall have been completed
by the Licensed Developer thereof as specified in such Licensed
Developer's LDA, such procedures shall be completed by Publisher.
5.3 For each Licensed Product, Publisher shall be responsible, at
Publisher's expense, for the origination of all Printed Materials and
for the manufacture and delivery to an authorised manufacturing facility
licensed by SCEE of all Printed Materials other than those to be set
forth on the Licensed Product itself, all of which Printed Materials
shall: (i) conform in all material respects with all standards and
specifications of or relating to the PlayStation, PlayStation Software
and/or Licensed Products as may from time to time be promulgated by SCEE
and communicated to Publisher; (ii) include such other materials
(including by way of illustration but not limitation, consumer health
warnings in relation to epilepsy) and such consumer advisory rating
code(s) as may from time to time be required by any governmental entity
or in compliance with any voluntary code of practice operated by members
of the interactive software development and publishing community. The
standards and specifications referred to in (i) above shall be
comparable with the standards and specifications applied by Sony with
respect to its own PlayStation software products comparable with the
Licensed Products. SCEE acknowledges and agrees that such standards and
specifications shall be of prospective application only and shall not be
applied to any inventory units of the Licensed Products manufactured
prior to, or in the active process of manufacture at the date of, such
promulgation. Simultaneous with the submission to SCEE of the materials
specified in Clause 5.2, Publisher shall also submit to SCEE(i) a
completed PlayStation Printed Materials Approval Form, in such form as
shall be prescribed and supplied by SCEE, (ii) the proposed final
Printed Materials for the applicable Licensed Product for review, and
(iii) a printed copy of the text of a form of limited consumer warranty
for such Licensed Product. Such delivery shall be by such electronic
means and in such form as shall be prescribed by SCEE, or in the form of
final film and colour proofs, in accordance with the Specifications and
at Publisher's sole risk and expense. Publisher undertakes that the
quality of such Printed Materials shall be of the same quality as that
associated with high quality consumer products.
5.4 SCEE will promptly evaluate all materials submitted by Publisher
pursuant to Clause 5.2 and review all materials submitted by Publisher
pursuant to Clause 5.3. SCEE shall advise Publisher of
[*] Confidential portion omitted and filed separately with the Securities and
Exchange Commission.
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the results of such evaluation within 30 (thirty) days following receipt
of materials submitted by Publisher as aforesaid. If any of such
materials (or any element(s) thereof) are disapproved by reason either
of defects or errors in program function or associated materials or of
failure to achieve the standards of quality referred to in Clause 5.1,
SCEE shall specify the reasons for such disapproval and state what
revisions and/or improvements are required. After making the required
revisions and/or improvements, Publisher may resubmit such materials in
such revised and/or improved form for approval or disapproval by SCEE.
The procedures described in this Clause 5.4 shall if necessary be
repeated until all such materials for each Licensed Product shall
expressly have been approved in writing by SCEE, which approval shall be
evidenced solely by the return of the applicable of the Approval Forms
referred to in Clauses 5.2 and 5.3 signed by SCEE's President (or such
other Sony representative as shall from time to time be designated by
SCEE). SCEE shall have no liability to Publisher in respect of costs
incurred or irrevocably committed by Publisher in relation to, or to the
use of, Printed Materials which shall be disapproved by SCEE. No
production units of any Licensed Product shall be manufactured,
marketed, distributed or sold by, with the authority of or on behalf of,
Publisher unless and until such written approval of such Licensed
Product shall first have been granted by SCEE. No approval by SCEE of
any element of the materials so submitted or resubmitted shall be deemed
an approval of any other element of such materials, nor shall any such
approval be deemed to constitute a waiver of any of SCEE's rights under
this Agreement.
5.5 Publisher shall not, without the prior written consent of SCEE in each
case, change in any material respect any of the materials approved by
SCEE pursuant to Clause 5.4 (or, if applicable, pursuant to Clause 5.7).
If any of the Licensed Products and/or related materials published by,
with the authority of or on behalf of, Publisher fail to conform with
the standards and specifications theretofor promulgated by SCEE and the
materials from time to time approved by SCEE, then the provisions of
Clause 13.2 shall apply.
5.6 Publisher undertakes that the opening title screen of the PlayStation
Software and of all inventory units of the Licensed Products
manufactured therefrom shall contain the following items only: (i) the
PlayStation logo in a form prescribed and supplied by SCEE from time to
time; (ii) Publisher's name and the title of the PlayStation Software,
together with Publisher's trademark and copyright notices; and (iii) the
following legend "Licensed by Sony Computer Entertainment Europe", which
shall appear beneath Publisher's name.
5.7 SCEE reserves the right to require that pre-production samples of all
Advertising Materials shall be submitted by Publisher to SCEE, free of
charge and in accordance with such procedure as SCEE shall designate,
for SCEE's evaluation and approval as to quality, style, appearance,
usage of any of the Licensed Trademarks, prior to any actual production,
use or distribution of any such items by, with the authority or on
behalf of, Publisher. No such proposed Advertising Materials shall be
produced, used or distributed directly or indirectly by Publisher
without first obtaining the written approval of SCEE. SCEE shall advise
Publisher of the results of such evaluation within 30 (thirty) days
following receipt of materials submitted by Publisher as aforesaid. If
any Advertising Materials (or any element(s) thereof) are disapproved,
SCEE shall specify the reasons for such disapproval and state what
revisions and/or improvements are required. After making the required
revisions and/or improvements, Publisher may resubmit such Advertising
Materials in such revised and/or improved form for approval or
disapproval by SCEE. The procedures described in this Clause 5.7 shall
if necessary be repeated until all such Advertising Materials for each
Licensed Product shall expressly have been approved in writing by SCEE,
which approval shall be evidenced solely by the return to Publisher of a
form of approval signed by SCEE's President (or such other Sony
representative as shall from time to time be designated by SCEE). SCEE
shall have no liability to Publisher in respect of costs incurred or
irrevocably committed by Publisher in relation to, or to the use of,
Advertising Materials which shall be disapproved by SCEE. Subject in
each instance to the prior written approval of SCEE, Publisher may use
such textual and/or pictorial advertising matter (if any) as may be
created by, with the authority or on behalf of, Sony pertaining to the
Sony Materials and/or to the Licensed Trademarks on such Advertising
Materials as may, in
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' Publisher's judgment, promote the sale of Licensed Products within the
Licensed Territory. Sony shall have the right to use Licensed Products
and/or other materials relating to Publisher's PlayStation Software
titles in any advertising or promotion for the PlayStation at Sony's
expense, subject to giving Publisher reasonable prior notice of such
advertisement or promotion. Sony shall confer with Publisher regarding
the text of any such advertisement. If required by Sony and/or any
governmental entity or in compliance with any voluntary code of practice
operated by members of the interactive software development and
publishing community, Publisher shall, at Publisher's cost and expense,
also include consumer advisory rating code(s) and, if required, other
materials (including by way of illustration but not limitation, consumer
health warnings in relation to epilepsy) on any and all Advertising
Materials used in connection with Licensed Products. Such consumer
advisory rating code(s) shall be procured in accordance with the
provisions of Clause 5.8.
5.8 All Printed Materials for each unit of Licensed Product shall have
conspicuously, legibly and irremovably affixed thereto the notices set
forth in the template detailed in the Specifications. Publisher agrees
that, if required by SCEE or any governmental entity, it shall submit
each Licensed Product to a consumer advisory ratings system designated
by SCEE and/or such governmental entity for the purpose of obtaining
rating code(s) for each Licensed Product. Any and all costs and expenses
incurred in connection with obtaining such rating code(s) shall be borne
solely by Publisher. Any required consumer advisory rating code(s)
thereby procured shall be displayed on Licensed Products and associated
Printed Materials in accordance with the standards and specifications
referred to in Clause 5.3 above, at Publisher's cost and expense.
5.9 In the event Publisher fails to comply with its obligations in relation
thereto as specified in Clauses 5.3 and 5.8, SCEE reserves the right in
its sole discretion, at Publisher's sole cost and expense: (i) to
display, or to require the display, on Licensed Products and/or
associated Printed Materials and/or associated Advertising Materials (as
may be required) materials (including by way of illustration but not
limitation, consumer health warnings in relation to epilepsy) and/or to
procure and to display, or to require the display of, consumer advisory
rating code(s); or (ii) to require non-complying Licensed Products
and/or associated Printed Materials and/or associated Advertising
Materials forthwith to be withdrawn from the market.
6. MANUFACTURE OF LICENSED PRODUCTS & ASSOCIATED MATERIALS
6.1 Publisher acknowledges and agrees that it shall purchase exclusively
from SCEE, or from an authorised manufacturing facility licensed by
SCEE, 100% (one hundred percent) of its requirements for Manufactured
Materials. SCEE shall have the right, but no obligation, to subcontract
the whole or any part or phase of the production of any or all of the
Manufactured Materials or any part(s) thereof.
6.2 Following approval by SCEE of each Licensed Product pursuant to Clause
5.2, SCEE shall create (from one of the CD copies of the finally
approved version of the PlayStation Software as submitted by Publisher
pursuant to Clause 5.2) the original master PlayStation Disc ("Master
PlayStation Disc") from which all other copies of the Licensed Product
are to be replicated in compliance with specifications effective at the
time of replication. Publisher shall be responsible for the costs, as
set forth in Schedule 2, of creating such Master PlayStation Disc.
Publisher will retain duplicates of all such PlayStation Software. SCEE
shall not be liable for loss of or damage to any copies of the
PlayStation Software furnished to SCEE hereunder. There will be no
technology exchange between Sony and Publisher under this Agreement. The
mastering process being of a proprietary and commercially confidential
nature, neither SCEE nor any manufacturing subcontractor of SCEE will
under any circumstances release any Master PlayStation Discs or other
in-process materials to Publisher. All such physical materials shall be
and remain the sole property of Sony.
6.3 Publisher shall be solely responsible for the delivery, direct to an
authorised manufacturing facility licensed by SCEE and in accordance
with Clause 6.4, [**] of the number of units of the Printed Materials
(other than those set forth on the applicable Licensed
[*] Confidential portion omitted and filed separately with the Securities and
Exchange Commission.
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Product itself) required to fulfill Publisher's purchase order for
Manufactured Materials of each PlayStation Software title, which Printed
Materials shall be in strict compliance with the Specifications. SCEE
shall, at Publisher's request, give Publisher all reasonable assistance
in arranging the manufacture of Printed Materials through SCEE's
authorised manufacturing facility (if a Sony company), but SCEE shall
have no responsibility with respect to pricing, delivery or any other
related matter whatsoever in connection with such manufacture.
6.4 Subject to approval of the applicable PlayStation Software and Printed
Materials pursuant to Clause 5, to the delivery to SCEE (or at SCEE's
option to an authorised manufacturing facility licensed by SCEE) of the
materials required to be delivered under Clause 6.2, and to the delivery
to such a manufacturing facility of the materials to be delivered under
Clause 6.3, as so-called "clean components - ready for production" or as
finished units of Printed Materials (as the case may be), SCEE will, at
Publisher's expense and as applicable, manufacture, assemble, package
and deliver the Manufactured Materials and the Printed Materials in
accordance with the terms and conditions set forth in this Clause 6. The
delivery of the materials specified in Clause 6.2 shall not in any event
be made less than [**] prior to Publisher's requested ex-factory
delivery date; and the delivery of the materials specified in Clause 6.3
shall not in any event be made less than [**] nor more than [**] nor
more than [[**] in the case of reorders] prior to Publisher's requested
ex-factory delivery date.
6.5 Not less than [**] [[**] in the case of reorders] prior to Publisher's
requested ex-factory delivery date, Publisher shall issue to SCEE
written purchase order(s) in such form as shall be prescribed and
supplied by SCEE. No such order shall be issued unless and until all
necessary approvals shall have been granted pursuant to Clause 5. Each
such order shall reference this Agreement, give Publisher authorisation
number and purchase order reference number, specify quantities by
PlayStation Software title (in multiples of the minimum box shipment
detailed in the Specifications), state requested ex-factory delivery
date and all packaging information together with such other information
as SCEE shall reasonably require and shall be for a minimum quantity of
[**] units per PlayStation Software title. All purchase orders shall be
subject to acceptance by SCEE, which acceptance (together with
confirmation of anticipated ex-factory delivery date) will be advised to
Publisher not more than [**] following delivery in accordance with
Clause 6.4 of the materials required to be delivered under Clauses 6.2
and 6.3. SCEE shall use all reasonable endeavours, subject to available
manufacturing capacity, to fulfill Publisher's purchase orders by
Publisher's requested ex-factory delivery date but does not in any event
guarantee so to do. For purchase orders issued between 1 August and 30
November each year, adding at least [**] to the minimum number of
working days in advance specified above is strongly recommended by SCEE.
Publisher may order additional units of the Manufactured Materials for
any Licensed Product in the minimum reorder quantity of not less than
[**] per order. Publisher shall have no right to cancel or reschedule
any purchase order or reorder (or any portion thereof) for any Licensed
Product unless the parties shall first have reached mutual agreement as
to Publisher's financial liability with respect to any desired
cancellation or rescheduling of any such purchase order or reorder (or
any portion thereof).
6.6 Subject only to the provisions of Clause 6.5 in relation to Printed
Materials, neither SCEE nor any manufacturing subcontractor of SCEE
shall be under any obligation to store finished units of Manufactured
Materials or of associated Printed Materials beyond the actual
ex-factory delivery date thereof. Delivery of Manufactured Materials
shall be made ex-factory the applicable authorised manufacturing
facility licensed by SCEE in the Licensed Territory. All risk of loss or
damage in transit to any and all Manufactured Materials manufactured by
SCEE pursuant to Publisher's orders shall pass to Publisher [**].
6.7 Publisher may inspect and test any units of Manufactured Materials at
Publisher's receiving destination. Any finished units of Manufactured
Materials which fail to conform to the Specifications and/or any
description(s) contained in this Agreement may be rejected by Publisher
[*] Confidential portion omitted and filed separately with the Securities and
Exchange Commission.
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by providing written notice of rejection to SCEE within 30 (thirty) days
of receipt of such units of Manufactured Materials at Publisher's
receiving destination. In such event, the provisions of Clause 10.2
shall apply with respect to any such rejected units of Manufactured
Materials. Notwithstanding the provisions of Clause 10.2, if Publisher
fails to reject any units of Manufactured Materials in the manner and
within the 30 (thirty) day period prescribed above, such units of
Manufactured Materials shall irrevocably be deemed accepted by Publisher
and shall not subsequently be rejected.
7. PURCHASE PRICE
7.1 The all-in Purchase Price for finished units of Manufactured Materials
in respect of which SCEE accepts Publisher's purchase order in
accordance with Clause 6.5 shall be as specified in Schedule 2 (but
subject to adjustment as therein provided). Such Purchase Price shall be
subject to change by SCEE at any time upon reasonable notice to
Publisher; provided, however, that such Purchase Price shall not be
changed with respect to any units of Manufactured Materials which are
the subject of an effective purchase order or reorder but which have not
yet been delivered by SCEE. Such Purchase Price for finished units of
Manufactured Materials is exclusive of any value-added or similar sales
tax, customs and excise duties and other similar taxes or duties, which
SCEE may be required to collect or pay as a consequence of the sale or
delivery of finished units of Manufactured Materials. Publisher shall be
solely responsible for the payment or reimbursement of any such taxes or
duties, and other such charges or assessments applicable to the sale
and/or purchase of finished units of Manufactured Materials.
7.2 No costs incurred in the development, manufacture, marketing, sale
and/or distribution of Licensed Products and/or associated materials
shall be deducted from any Purchase Price payable to SCEE hereunder.
Similarly, there shall be no deduction from the Purchase Price otherwise
payable to SCEE hereunder as a result of any uncollectable accounts owed
to Publisher, or for any credits, discounts, allowances or returns which
Publisher may credit or otherwise grant to any third party customer in
respect of any units of Licensed Products and/or associated materials,
or for any taxes, fees, assessments, or expenses of any kind which may
be incurred by Publisher in connection with its sale and/or distribution
of any units of Licensed Products and/or associated materials, and/or
arising with respect to the payment of Purchase Price hereunder.
Publisher shall furnish SCEE official tax receipts or other such
documentary evidence issued by the applicable tax authorities sufficient
to substantiate the fact of the deduction of any withholding taxes
and/or other such assessments which may be imposed by any governmental
authority with respect to such payments of Purchase Price hereunder and
the amount of each such deduction.
7.3 Simultaneously with the issuing of each purchase order pursuant to
Clause 6.5, Publisher shall open and deliver to SCEE at Publisher's
expense an irrevocable and unconditional Letter of Credit drawn in
favour of SCEE and payable "at sight" in an amount equal to [**] of the
Purchase Price specified in Clause 7.1 for the finished units of
Manufactured Materials the subject matter of such purchase order. Each
such Letter of Credit shall be issued by a bank acceptable to SCEE and,
if so requested by SCEE in writing, shall be confirmed at Publisher's
expense. The selected bank and the terms and conditions of the agreement
establishing each such Letter of Credit shall be subject to SCEE's prior
written approval (not unreasonably to be withheld). All charges
associated with each such Letter of Credit shall be borne solely by
Publisher. Each delivery of Manufactured Materials to Publisher shall
constitute a separate sale obligating Publisher to pay therefor, whether
said delivery be whole or partial fulfilment of any order. When partial
deliveries are made, payment shall become due upon SCEE's submission of
the documentation required in the applicable Letter of Credit with
respect to such partial delivery. No claim for credit due to shortage of
Manufactured Materials as delivered to carrier will be allowed unless it
is made within [**] from the date of receipt at Publisher's receiving
destination. Title to Manufactured Materials the subject of each such
purchase order shall pass to Publisher [**]. The receipt and deposit by
SCEE of any payment of Purchase Price tendered by or on behalf of
Publisher as aforesaid shall be without prejudice to any
[*] Confidential portion omitted and filed separately with the Securities and
Exchange Commission.
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rights or remedies of SCEE and shall not restrict or prevent SCEE from
thereafter successfully challenging the basis for calculation and/or the
accuracy of such payment. Alternatively, Publisher may pay Purchase
Price by such other payment-with-order method (for example, bankers
draft or telegraphic transfer to SCEE's designated bank account) as
shall be acceptable to SCEE. SCEE reserves the right, upon reasonable
notice to Publisher, to require that such payments of Purchase Price
shall be made to such other Sony entity as SCEE may designate from time
to time.
7.4 [**]
8. MARKETING & DISTRIBUTION
Publisher shall, at no expense to SCEE, diligently market, distribute and sell
Licensed Products throughout (but only in) the Licensed Territory, and shall use
all reasonable efforts consistent with its best business judgment to stimulate
demand therefor in the Licensed Territory and to supply any resulting demand.
Publisher shall not market, distribute or sell Licensed Products outside the
Licensed Territory or to any person, firm, corporation or entity having its
place of business, or to any purchasing agency located, outside the Licensed
Territory. Publisher shall use all reasonable efforts consistent with its best
business judgment to protect Licensed Products from and against illegal
reproduction and/or copying by end users or by any other persons or entities.
Such methods of protection may include, without limitation, markings or insignia
providing identification of authenticity and packaging seals as may be specified
in the Specifications. SCEE shall be entitled, at SCEE's sole cost and expense,
to manufacture up to [**] additional units of Manufactured Materials (or, if
greater, a number of additional units equal to [**] of Publisher's initial
purchase order) for each PlayStation Software title (and to purchase from
Publisher, at a price equal to [**], a corresponding number of units of Printed
Materials for each such PlayStation Software title), for the purposes of or in
connection with the marketing and promotion of the PlayStation; provided however
that SCEE shall not directly or indirectly resell any such units of Manufactured
Materials (and, if applicable, of Printed Materials) within the Licensed
Territory without Publisher's prior written consent. Further, SCEE shall be
entitled to utilise Publisher's name and/or logo and the on-screen content of,
and/or the Printed Materials for, PlayStation Software titles (not to exclude
the likenesses of any recognisable talent) for the purposes of or in connection
with such marketing and promotion.
9. CONFIDENTIALITY
9.1 All the terms and provisions of the NDA shall apply to Confidential
Information of Sony.
9.2 SCEE shall hold all Confidential Information of Publisher in confidence
and shall take all reasonable steps necessary to preserve such
confidentiality. Except as may expressly be authorised by Publisher,
SCEE shall not at any time, directly or indirectly: (i) disclose any
Confidential Information of Publisher to any person other than a Sony
employee who needs to know or have access to such information for the
purposes of this Agreement, and only to the extent necessary for such
purposes; (ii) except for the purposes of this Agreement, duplicate or
use the Confidential Information of Publisher for any other purpose
whatsoever; or (iii) remove any copyright notice, trademark notice
and/or other proprietary legend set forth on or contained within any of
the Confidential Information of Publisher.
9.3 The provisions of Clause 9.2 hereof shall not apply to any Confidential
Information of Publisher which: (i) has become part of information in
the public domain through no fault of SCEE; (ii) was known to SCEE prior
to the disclosure thereof by Publisher; (iii) properly comes into the
possession of SCEE from a third party which is not under any obligation
to maintain the confidentiality of such information. SCEE may disclose
Confidential Information of Publisher pursuant to a judicial or
governmental order provided that SCEE promptly advises Publisher in
writing prior to any such disclosure so that Publisher may seek other
legal remedies to maintain the confidentiality of such Confidential
Information of Publisher, and SCEE shall comply with any applicable
protective order or equivalent.
[*] Confidential portion omitted and filed separately with the Securities and
Exchange Commission.
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9.4 Unless and until a public announcement regarding this Agreement shall
have been made by Sony (or SCEE shall otherwise have agreed in writing),
the fact that the parties have entered into this Agreement shall be
Confidential Information of Sony and shall be treated in all respects
accordingly. The content of, and the timing and method of the making of,
any such public announcement shall be determined by SCEE in its best
business judgment. However, SCEE will give reasonable consideration to
any notice from Publisher requesting that no such public announcement be
made, at or prior to a particular time or at all.
10. WARRANTIES
10.1 SCEE represents and warrants solely for the benefit of Publisher that
SCEE has the right, power and authority to enter into, and fully to
perform its obligations under, this Agreement.
10.2 [**]
10.3 Publisher represents, warrants, covenants and agrees that: (i) Publisher
has the right, power and authority to enter into, and fully to perform
its obligations under, this Agreement; (ii) the making of this Agreement
by Publisher does not violate any separate agreement, rights or
obligations existing between Publisher and any other person, firm,
corporation or entity, and, throughout the Term, Publisher shall not
make any separate agreement with any person or entity which is
inconsistent with any of the provisions hereof; (iii) both Licensed
Developer Software and PlayStation Software, and any name, designation
or title used in conjunction therewith, shall be free from any valid
third party claim of infringement of any Third Party Intellectual
Property Rights; (iv) there is no litigation, proceeding or claim
pending or threatened against Publisher or any subsidiary or affiliate
of Publisher which may materially affect Publisher's rights in and to
Licensed Developer Software, the names, designations or titles used in
conjunction therewith, the works and performances embodied therein
and/or the copyrights pertaining thereto; (v) Publisher shall have made
or shall make any and all payments required to be made to any person,
firm, corporation or other entity, or to any body or group representing
authors or participants in the production of the works or performances
embodied in Licensed Developer Software and PlayStation Software, or to
publishers or other persons having legal or contractual rights of any
kind to participate in any income arising in respect of the exploitation
of such works or performances; (vi) neither Publisher nor any subsidiary
or affiliate of Publisher shall make any representation or give any
warranty to any person or entity
[*] Confidential portion omitted and filed separately with the Securities and
Exchange Commission.
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expressly or impliedly on Sony's behalf, or to the effect that Licensed
Products are connected in any way with Sony (other than that Licensed
Products have been developed, marketed, manufactured, sold and/or
distributed under licence from Sony); (vii) PlayStation Software shall
be distributed by Publisher solely in the form of Licensed Product;
(viii) each Licensed Product shall be marketed, sold and distributed in
an ethical manner and in accordance with all applicable laws and
regulations; and (ix) Publisher's policies and practices with respect to
the marketing, sale and/or distribution of Licensed Products shall in no
manner reflect adversely upon the name, reputation or goodwill of Sony.
10.4 [**]
11. INDEMNITIES
11.1 SCEE shall indemnify and hold Publisher harmless from and against any
and all claims, losses, liabilities, damages, expenses and costs,
including without limitation reasonable fees for lawyers, expert
witnesses and litigation costs, and including costs incurred in the
settlement or avoidance of any such claim, which result from or are in
connection with a breach of any of the warranties provided by SCEE
herein; provided however that Publisher shall give prompt written notice
to SCEE of the assertion of any such claim, and provided further that
SCEE shall have the right to select counsel and control the defence
and/or settlement thereof, subject to the right of Publisher to
participate in any such action or proceeding at its own expense with
counsel of its own choosing. SCEE shall have the exclusive right, at its
discretion, to commence and prosecute at its own expense any lawsuit or
to take such other action with respect to such matters as shall be
deemed appropriate by SCEE. Publisher shall provide SCEE, at no expense
to Publisher, reasonable assistance and cooperation concerning any such
matter. Publisher shall not agree to the compromise, settlement or
abandonment of any such claim, action or proceeding without SCEE's prior
written consent.
11.2 Publisher shall indemnify and hold SCEE harmless from and against any
and all claims, losses, liabilities, damages, expenses and costs,
including without limitation reasonable fees for lawyers, expert
witnesses and litigation costs, and including costs incurred in the
settlement or avoidance of any such claim, which result from or are in
connection with (i) a breach of any of the warranties provided by
Publisher herein or any breach of Publisher's confidentiality
obligations as referred to in Clause 9.1 hereof, or (ii) any claim of
infringement or alleged infringement of any Third Party Intellectual
Property Rights with respect to Licensed Developer Software, or (iii)
any claim of or in connection with any injury (including death) or
property damage, by whomsoever such claim is made, arising (in whole or
in part) out of the manufacture, sale and/or use of any of the
Manufactured Materials unless resulting from the proven negligence of
Sony; provided however that SCEE shall give prompt written notice to
Publisher of the assertion of any such claim, and provided further that
Publisher shall have the right to select counsel and control the defence
and/or settlement thereof, subject to the right of SCEE to participate
in any such action or proceeding at its own expense with counsel of its
own choosing. Publisher shall have the exclusive right, at its
discretion, to commence and/or prosecute at its own expense any lawsuit
or to take such other action
[*] Confidential portion omitted and filed separately with the Securities and
Exchange Commission.
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with respect to such matter as shall be deemed appropriate by Publisher.
SCEE shall provide Publisher, at no expense to SCEE, reasonable
assistance and cooperation concerning any such matter. SCEE shall not
agree to the compromise, settlement or abandonment of any such claim,
action or proceeding without Publisher's prior written consent.
12. LIMITATIONS OF LIABILITY
12.1 IN NO EVENT SHALL SONY OR ITS SUPPLIERS BE LIABLE FOR PROSPECTIVE
PROFITS, OR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF
OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING WITHOUT LIMITATION THE
BREACH OF THIS AGREEMENT BY SCEE), WHETHER UNDER THEORY OF CONTRACT,
TORT (INCLUDING NEGLIGENCE), INDEMNITY, PRODUCT LIABILITY OR OTHERWISE.
IN NO EVENT SHALL SONY'S LIABILITY ARISING UNDER OR IN CONNECTION WITH
THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY LIABILITY FOR DIRECT
DAMAGES, AND INCLUDING WITHOUT LIMITATION ANY LIABILITY UNDER CLAUSE
11.1, EXCEED [**]. EXCEPT AS EXPRESSLY SET FORTH HEREIN, NO SONY ENTITY,
NOR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS,
SHALL BEAR ANY RISK, OR HAVE ANY RESPONSIBILITY OR LIABILITY, OF ANY
KIND TO PUBLISHER OR TO ANY THIRD PARTIES WITH RESPECT TO THE
FUNCTIONALITY AND/OR PERFORMANCE OF LICENSED PRODUCTS.
12.2 IN NO EVENT SHALL PUBLISHER BE LIABLE TO SCEE FOR PROSPECTIVE PROFITS,
OR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT (INCLUDING WITHOUT LIMITATION THE BREACH
OF THIS AGREEMENT BY PUBLISHER), WHETHER UNDER THEORY OF CONTRACT, TORT
(INCLUDING NEGLIGENCE), INDEMNITY, PRODUCT LIABILITY OR OTHERWISE,
PROVIDED THAT PUBLISHER EXPRESSLY AGREES THAT SUCH LIMITATIONS SHALL NOT
APPLY TO DAMAGES RESULTING FROM PUBLISHER'S BREACH OF CLAUSES 2, 3, 4, 9
OR 11.2 OF THIS AGREEMENT.
12.3 [**]
13. TERMINATION BY SCEE
13.1 SCEE shall have the right forthwith to terminate this Agreement by
written notice to Publisher at any time after the occurrence of any of
the following events or circumstances: (i) any material breach of
Publisher's obligations under this Agreement (or, if Publisher shall
also have executed a PlayStation licensed publisher agreement with an
Affiliate of SCEE, and/or a LDA, thereunder) which breach, if capable of
remedy, shall not have been corrected or cured in full within 30
(thirty) days following notice from SCEE (or the applicable Affiliate of
SCEE as the case may be) specifying and requiring the correction or cure
of such breach, or any repetition of a prior material breach of any such
obligation, whether or not capable of remedy; (ii) any refusal or
failure by Publisher to open a Letter of Credit or otherwise to effect
payment of Purchase Price, promptly in accordance with Clauses 7.1 or
7.3 or at all, or a statement that Publisher is or will be unable to
pay, any sum(s) due hereunder, or Publisher being unable to pay its
debts generally as the same fall due; (iii) Publisher's filing of an
application for, or consenting to or directing the appointment of, or
the
[*] Confidential portion omitted and filed separately with the Securities and
Exchange Commission.
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taking of possession by, a receiver, custodian, trustee or liquidator
(or the equivalent of any of the foregoing under the laws of any
jurisdiction) of any of Publisher's property (whether tangible or
intangible and wherever located), assets and/or undertaking; (iv) the
making by Publisher of a general assignment for the benefit of
creditors; (v) an adjudication in any jurisdiction that Publisher is a
bankrupt or insolvent; (vi) the commencing by Publisher of, or
Publisher's intention to commence, a voluntary case under applicable
bankruptcy laws of any jurisdiction; (vii) the filing by Publisher of,
or Publisher's intention to file, a petition seeking to take advantage
of any other law(s) of any jurisdiction providing for the relief of
debtors; (viii) Publisher's acquiescence in, intention to acquiesce in,
or failure to have dismissed within 90 (ninety) days, any petition filed
against it in any involuntary case brought pursuant to the bankruptcy or
other law(s) of any jurisdiction referred to in (vi) and (vii) above;
(ix) a controlling partnership or equity interest [or any such interest
(other than an acquisition of less than an aggregate of 5% (five
percent) of the issued share capital of Publisher, as quoted on a
recognised investments exchange), in the case of a transfer to any party
which (a) shall previously have executed a NDA which shall have been
breached by such party, or a LDA or PlayStation Licensed Publisher
Agreement or an equivalent licensed publisher agreement with an
Affiliate of SCEE which shall have been terminated for breach by such
party, or (b) is, or which directly or indirectly holds or acquires a
partnership or equity interest in, the developer of (or other owner of
intellectual property rights in) any interactive hardware device or
product which is or will be directly or indirectly competitive with the
PlayStation, or (c) is in litigation with Sony concerning any
proprietary technology, trade secrets and/or intellectual property
matter(s)] in Publisher or in all or substantially all of Publisher's
property (whether tangible or intangible), assets and/or undertaking,
being acquired, directly or indirectly, by any person, firm, corporation
or other entity; or (x) Publisher enters into any third party business
relationship pursuant to which Publisher makes a material contribution
to the development of the core components of any interactive hardware
device or product which is or will be directly or indirectly competitive
with the PlayStation, or if Publisher directly or indirectly holds or
acquires a partnership or equity interest (other than a holding or
acquisition of less than an aggregate of 5% (five percent) of the issued
share capital, as quoted on a recognised investments exchange) in, or
otherwise forms a strategic commercial relationship with, any third
party firm, corporation or other entity which has developed or during
the Term develops (or which owns or during the Term acquires ownership
of intellectual property rights in) any such device or product; or (xi)
[**]. As used in this Clause 13.1, "controlling interest" means (i) in
relation to a body corporate, the power of the holder of such interest
to secure - (a) by means of the holding of shares or the possession of
voting power in, or in relation to, that or any other body corporate or
(b) by virtue of any powers conferred by the Articles of Association or
other document regulating that or any other body corporate - that the
affairs of such body corporate be conducted in accordance with the
wishes of the holder of such interest, and (ii) in relation to a
partnership, the right to a share of more than 50% (fifty percent) of
the assets or of the income of the partnership. Forthwith upon such
occurrence, Publisher shall notify SCEE of the occurrence of any of the
events or circumstances specified in (ii) to (x) above; and Publisher's
failure so to do shall be a material breach of this Agreement not
capable of remedy.
13.2 Further, SCEE shall have the right by written notice to Publisher
forthwith to terminate the licences and related rights herein granted to
Publisher in relation to any PlayStation Software at any time after the
occurrence of any of the following events: (i) any failure by Publisher
to submit to SCEE the materials required to be submitted under Clauses
5.2 and 5.3 (or, if applicable, under Clause 5.7) in the form and manner
and in conformity with the standards and specifications therein
prescribed; and (ii) any failure by Publisher promptly to notify SCEE in
writing of any material change to any of the materials approved by SCEE
pursuant to Clause 5.4 (or, if applicable, pursuant to Clause 5.7);
provided however that SCEE shall not be entitled to exercise such right
of termination if Publisher's failure under (i) above is directly caused
by SCEE's failure to comply with any of its material obligations
expressly set forth herein.
[*] Confidential portion omitted and filed separately with the Securities and
Exchange Commission.
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14. EFFECT OF EXPIRATION OR TERMINATION
14.1 Notwithstanding the expiration of the Term, Publisher shall be entitled
to continue to publish PlayStation Software the development of which
shall have been approved prior to or during the Term hereof by SCEE (or
by an Affiliate of SCEE) pursuant to the applicable LDA, and to use the
Licensed Trademarks strictly, only and directly in connection with such
publication, until the expiration of the Term or, if later, until the
[**]. Upon expiration of the Term or, if applicable, such extended
period for publishing PlayStation Software, Publisher may sell off
existing inventories of the applicable PlayStation Software titles, on a
non-exclusive basis, for a period of [**] from the applicable expiration
date; provided always that such inventory thereof shall not have been
manufactured solely or principally for sale within such sell-off period.
14.2 However, upon the exercising by SCEE of its right of termination, either
of this Agreement pursuant to Clause 13.1(i) to (viii) or in relation to
any PlayStation Software pursuant to Clause 13.2, all rights, licences
and privileges licensed or otherwise granted to Publisher hereunder,
either generally or in relation to such PlayStation Software (as
applicable), shall forthwith and without further formality revert
absolutely to SCEE and Publisher shall forthwith cease and desist from
any further use of the Sony Materials, any Sony Intellectual Property
Rights related thereto and the Licensed Trademarks, and, subject to
Clause 14.3, shall have no further right to continue the marketing, sale
and/or distribution of any units of Licensed Product or of any units of
Licensed Product derived from such PlayStation Software (as applicable).
14.3 In the event of termination by SCEE pursuant to Clause 13.1(ix), (x) or
(xi) or by Publisher pursuant to Clause 25, Publisher may sell off then
unsold units of Licensed Product(s), for a period of [**] from the
effective date of termination; provided always that such inventory
thereof shall not have been manufactured solely or principally for sale
within such sell-off period. Subsequent to the expiry of such [**] or
[**] sell-off period, or in the event of termination by SCEE pursuant to
Clause 13.1(i) to (viii) or Clause 13.2, any and all units of Licensed
Products or the applicable Licensed Products (as the case may be)
remaining in Publisher's inventory and/or under its control shall be
destroyed by Publisher within [**] following such expiry or effective
date of termination. Within [**] following such destruction, Publisher
shall furnish SCEE an itemised statement, certified accurate by a duly
authorised officer, partner or other representative (as applicable) of
Publisher, specifying the number of then unsold units of Licensed
Product(s) to which such termination applies, on a PlayStation Software
title-by-title basis, which remain in its inventory and/or under its
control at such date, confirming the number of units of Licensed
Products destroyed, on a PlayStation Software title-by-title basis, and
indicating the location and date of such destruction and the disposition
of the remains of such destroyed materials. SCEE shall be entitled to
conduct a physical inspection of Publisher's inventory during normal
business hours in order to ascertain or verify such inventory and/or
statement.
14.4 Upon termination of the Term by SCEE pursuant to Clause 13.1, Publisher
shall forthwith deliver up to SCEE (or, if so requested by SCEE in
writing, destroy and promptly furnish SCEE a certificate of such
destruction signed by a duly authorised officer, partner or other
representative (as applicable) of Publisher) all Sony Materials, and any
Confidential Information of Sony of which Publisher shall have become
apprised and which has been reduced to tangible or written form, and any
and all copies thereof then in the possession, custody or control of
Publisher.
14.5 SCEE shall be under no obligation to renew or extend this Agreement
notwithstanding any actions taken by either of the parties prior to its
expiration or earlier termination. In the event of termination pursuant
to Clauses 13.1 or 13.2, no part of any payment(s) whatsoever theretofor
made to SCEE hereunder (or, if Publisher shall also have executed a LDA,
thereunder) shall be owed or repayable to Publisher, and nor shall
either party be liable to the other for any damages (whether direct,
consequential or incidental, and including without limitation any
expenditures, loss of profits
[*] Confidential portion omitted and filed separately with the Securities and
Exchange Commission.
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or prospective profits) sustained or arising out of, or alleged to have
been sustained or to have arisen out of, such expiration or earlier
termination. However, the expiration or earlier termination of this
Agreement shall not excuse either party from any prior breach of any of
the terms and provisions of this Agreement or from any obligations
surviving such expiration or earlier termination, and full legal and
equitable remedies shall remain available for any breach or threatened
breach of this Agreement or of any obligations arising therefrom.
14.6 The expiration or earlier termination of this Agreement (whether by SCEE
pursuant to Clause 13 or otherwise howsoever) shall be without prejudice
to any and all rights and remedies which either party may then or
subsequently have against the other party.
15. NOTICES
15.1 All notices under this Agreement shall be in writing and shall be given
by courier or other personal delivery, by registered or certified mail,
by recognised international courier service or by facsimile transmission
(with an immediate confirmation copy by regular mail or any of the
methods specified above) at the appropriate address hereinbefore
specified or at a substitute address designated by notice by the party
concerned (and in the case of notices to SCEE shall be directed to its
Director of Business Affairs (or such other Sony representative as shall
from time to time be designated by notice by SCEE). Notices given other
than by facsimile transmission shall be deemed given and effective when
delivered. Notices given by facsimile transmission shall be deemed given
only upon receipt of confirmation copy as aforesaid but, upon such
receipt, shall be deemed effective as of the date of transmission.
15.2 Whenever Publisher is required to obtain the authorisation, consent or
approval of SCEE, Publisher shall request the same by notice to SCEE as
aforesaid, and with a copy under separate cover to its General Manager
of Product Development or such other Sony representative as shall from
time to time be designated by notice to Publisher. Such authorisation,
consent or approval shall not be deemed to be granted unless and until
SCEE shall have given a written affirmative response to each request
therefor and shall in no event be implied or inferred from any delay or
failure of SCEE to give such or any response.
16. FORCE MAJEURE
Neither SCEE nor Publisher shall be liable for any loss or damage or be deemed
to be in breach of this Agreement if its failure to perform, or failure to cure
any breach of, its obligations under this Agreement results from any events or
circumstances beyond its reasonable control, including without limitation any
natural disaster, fire, flood, earthquake or other act of God, inevitable
accidents, lockout, strike or other labour dispute, riot or civil commotion, act
of public enemy, enactment, rule, order or act of any government or governmental
authority, failure of technical facilities, or failure or delay of
transportation facilities.
17. RELATIONSHIP OF THE PARTIES
The relationship hereunder between SCEE and Publisher respectively is that of
licensor and licensee. Publisher is an independent contractor and shall not in
any respect act as or be deemed to be the legal representative, agent, joint
venturer, partner or employee of SCEE for any purpose whatsoever. Neither party
shall have any right or authority to assume or create any obligations of any
kind or to make any representation or warranty (express or implied) on behalf of
the other party or to bind the other party in any respect whatsoever.
18. ASSIGNABILITY
SCEE has entered into this Agreement based on the particular reputation,
capabilities and experience of Publisher and of its officers, directors and
employees. Accordingly, Publisher may not assign, pledge or otherwise dispose of
this Agreement or of any of its rights hereunder, nor delegate or otherwise
transfer any of its obligations hereunder, to any third party unless the prior
written consent of SCEE shall first
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have been obtained in each case. Any attempted or purported assignment, pledge,
delegation or other disposition in contravention of this Clause 18 shall be null
and void and a material breach of this Agreement not capable of remedy. SCEE
shall be entitled, without the consent of Publisher, to assign its rights and
obligations hereunder to any corporation or other entity in which Sony
Corporation (or any successor in interest thereto) holds a controlling interest,
whether directly or indirectly. Subject to the foregoing, this Agreement shall
enure to the benefit of the parties and their respective successors and
permitted assigns.
19. COMPLIANCE WITH APPLICABLE LAWS
The parties shall at all times comply with all applicable regulations and orders
of their respective countries and all conventions and treaties to which their
countries are party or relating to or in any way affecting this Agreement and
the performance by the parties of this Agreement. Each party, at its own
expense, shall negotiate and obtain any approval, licence or permit required for
the performance of its obligations hereunder, and shall declare, record or take
such steps as may be necessary to render this Agreement binding, including
without limitation any required filing of this Agreement with any appropriate
governmental authorities.
20. GOVERNING LAW
This Agreement shall be governed by, construed and interpreted in accordance
with English Law, without giving effect to the conflict of laws principles
thereof. The parties irrevocably agree for the exclusive benefit of SCEE that
the English Courts shall have jurisdiction to adjudicate any proceeding, suit or
action arising out of or in connection with this Agreement. However, nothing
contained in this Clause 20 shall limit the right of SCEE to take any such
proceeding, suit or action against Publisher in any other court of competent
jurisdiction, nor shall the taking of any such proceeding, suit or action in one
or more jurisdictions preclude the taking of any other such proceeding, suit or
action in any other jurisdiction, whether concurrently or not, to the extent
permitted by the law of such other jurisdiction. Publisher shall have the right
to take any such proceeding, suit or action against SCEE only in the English
Courts.
21. REMEDIES
Publisher acknowledges and agrees that any breach by Publisher of this Agreement
may cause Sony irreparable harm and damage which may not be capable of remedy by
damages alone and therefore that in the event of any such breach SCEE may seek
equitable (including injunctive) relief against Publisher in addition to damages
and/or any other remedy available to SCEE at law or in equity. Either party's
election to avail itself of any of the remedies provided for in this Agreement
shall not be exclusive of any other remedies available hereunder or otherwise at
law or in equity, and all such remedies shall be cumulative. Publisher shall
indemnify SCEE for all losses, liabilities, damages, expenses and costs,
including without limitation reasonable fees for lawyers, expert witnesses and
litigation costs, which SCEE may sustain or incur as a result of any breach or
threatened breach by Publisher of this Agreement.
22. SEVERABILITY
In the event that any provision of this Agreement (or any part(s) thereof),
other than a provision in respect of which SCEE gives a notice of amendment
pursuant to Clause 25, is determined by a court of competent jurisdiction to be
invalid or otherwise unenforceable, such provision (or part(s) thereof) shall be
enforced to the extent possible consistent with the stated intention of the
parties or, if incapable of such enforcement, shall be deemed to be deleted from
this Agreement, but not in any way so as to affect the validity or
enforceability of any other provisions of this Agreement which shall continue in
full force and effect.
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23. PROVISIONS SURVIVING EXPIRATION OR TERMINATION
The following provisions of this Agreement shall survive and continue in full
force and effect notwithstanding its expiration or earlier termination (whether
by SCEE pursuant to Clause 13 hereof or otherwise howsoever):
Clause 3 Sub-Publishers
Clause 4 Reservations
Clause 5.8 + 5.9 Notices & Consumer Advisory Ratings
Clause 6 Manufacture of Licensed Products
Clause 7 Purchase Price
Clause 9 Confidentiality
Clause 10.2 to 10.4 Warranties
Clause 11 Indemnities
Clause 12 Limitations of Liability
Clause 14 Effect of Expiration or Termination
Clause 18 Assignability
Clause 20 Governing Law
Clause 21 Remedies
Clause 22 Severability
24. WAIVER
No failure or delay by either party in exercising any right, power or remedy
under this Agreement shall operate as a waiver of any such right, power or
remedy. No waiver of any provision of this Agreement shall be effective unless
in writing and signed by the party against whom it is sought to enforce such
waiver. Any waiver by either party of any provision of this Agreement shall not
be construed as a waiver of any other provision of this Agreement, nor shall
such waiver operate or be construed as a waiver of such provision in relation to
any future event or circumstance.
25. AMENDMENTS
[**] Subject to the foregoing and except as otherwise provided herein, this
Agreement shall not be subject to amendment, change or modification other than
by another written instrument duly executed by both of the parties hereto.
26. HEADINGS
The clause and other headings contained in this Agreement are intended primarily
for reference purposes only and shall not alone determine the construction or
interpretation of this Agreement or any provision(s) hereof.
[*] Confidential portion omitted and filed separately with the Securities and
Exchange Commission.
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27. INTEGRATION
This document (including the Schedules hereto) constitutes the entire agreement
between the parties with respect to the subject matter contained herein, and
supersedes all prior or contemporaneous agreements, proposals, understandings
and communications between Sony and Publisher, whether oral or written, with
respect to the subject matter hereof. However, the generality of the foregoing
notwithstanding, the NDA and, if applicable, the LDA executed by Publisher shall
continue in full force and effect.
28. COUNTERPARTS
This Agreement may be executed in 2 (two) counterparts, each of which shall be
deemed an original, and both of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed
as of the date first above written.
SONY COMPUTER ENTERTAINMENT EUROPE THQ INTERNATIONAL LIMITED
(a Division of SONY COMPUTER
ENTERTAINMENT UK LIMITED)
/s/ XXXXXXXXXXX XXXXXXX /s/ XXX XXXXX
---------------------------------- ------------------------------------
Signature Signature
XXXXXXXXXXX XXXXXXX XXX XXXXX
---------------------------------- ------------------------------------
Name Signatory's Name (please print)
President V.P. International
---------------------------------- ------------------------------------
Title Title
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SCHEDULE 1
to the PlayStation Licensed Publisher Agreement dated the 25th day
of June 1998 between Sony Computer Entertainment Europe (a Division of
Sony Computer Entertainment UK Limited) and THQ International Limited
LICENSED TERRITORY (CLAUSE 1.2)
(1)
Australia Iceland Poland
Austria Ireland Portugal
Azerbaijan Israel Qatar
Bahrain Italy Russian Federation
Belgium Kazakhstan Saudi Arabia
Botswana Kenya Slovakia
Bulgaria Kuwait Slovenia
Croatia Latvia South Africa & Namibia
Cyprus Lebanon Spain
Czech Republic Xxxxxxxxxxxx Sweden
Denmark Lithuania Switzerland
Djibouti Luxembourg Syria
Egypt Madagascar Tanzania
Estonia Malta Tunisia
Ethiopia Mauritius Turkey
Finland Morocco Ukraine
France Netherlands United Arab Emirates
Germany New Zealand United Kingdom
Gibraltar Nigeria Uzbekhistan
Greece Norway Yemen
Hungary Oman Zimbabwe
and all other countries which from time to time are members of the
European Union or have otherwise implemented the Treaty on a European
Economic Area or where Articles 85 & 86 of the Treaty of Rome (or
provisions similar thereto) have been implemented or are otherwise
directly effective.
(2) Such countries in addition to those specified in (1) above in which the
PAL television standard obtains and which SCEE, in its sole discretion
as representative of Sony Computer Entertainment worldwide, determines
from time to time to include within the Licensed Territory by notice to
Publisher. Without limiting the generality of the foregoing, SCEE shall
have the right not to include within the Licensed Territory or, having
included, subsequently to exclude from the Licensed Territory by
reasonable notice to Publisher (and intends so to exclude) any such
country or countries in which, in SCEE's best business judgment, the
laws or enforcement of such laws do not protect Sony Intellectual
Property Rights. By not later than the expiry of any such notice of
exclusion, Publisher shall cease and desist, in the country or countries
concerned, from any further use of the Sony Materials, any Sony
Intellectual Property Rights related thereto and the Licensed Trademarks
and shall have no further right to continue or authorise the marketing,
sale and/or distribution of any units of PlayStation Software.
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SCHEDULE 2
to the PlayStation Licensed Publisher Agreement dated the 25th day
of June 1998 between Sony Computer Entertainment Europe (a Division
of Sony Computer Entertainment UK Limited) and THQ International Limited
PURCHASE PRICE (CLAUSE 7.1)
for "standard" 1-Disc PlayStation Software product unit comprising:
- 1 (one) black PlayStation interactive software Disc
- 2-colour standard Disc Label
- single-tray PlayStation jewelcase, including assembly
[**] per unit
for "standard" Multi-Disc PlayStation Software product unit (up to 6 Discs)
comprising:
- applicable number of black PlayStation interactive software Discs
- applicable number of 2-colour standard Disc Labels
- applicable multi-tray PlayStation jewelcase
[**] (+ [**] per additional Disc) per unit
For more than 6-Disc PlayStation Software product units -
[**]
PlayStation Disc mastering NO CHARGE
The Purchase Price and minimum order and reorder quantities for "non-standard"
Manufactured Materials shall be as detailed in the Specifications or, where not
so detailed, and subject to availability, [**].
--------------
[ ** ]
Initialed by Initialed by
[CD] [TW]
Sony Computer Entertainment Europe THQ International Ltd
[*] Confidential portion omitted and filed separately with the Securities and
Exchange Commission.
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