EX1A-6 MAT CTRCT
7
f1a1215ex6ii_figpublishing.htm
LICENSE AGREEMENT BETWEEN DOUBLE FINE PRODUCTIONS, INC. AND FIG GRASSLANDS, LLC.
Exhibit
6.2
VIDEO
GAME LICENSE AGREEMENT
This
Video Game License Agreement (this “Agreement”), dated as of December 3, 2015 (“Effective Date”),
is entered into between Double Fine Productions, Inc., a California corporation (“Developer”), with
its principal place of business at 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, and Fig Grasslands LLC,
a Delaware limited liability company (“Licensee”), with its principal place of business at 000 Xxxxxx Xx.,
Xxxxx 000, Xxx Xxxxxxxxx, XX 00000. This Agreement supersedes in its entirety the Video Game License Agreement, dated September
23, 2015, entered into between Developer and a corporate affiliate of Licensee. Developer and Licensee may be referred to individually
as a “Party” and collectively as the “Parties.”
INTRODUCTION
A. Developer
is the owner of all Intellectual Property Rights (as defined below) in and to the Licensed Game (as defined below), which is being
developed by Developer for the Platforms (as defined below).
B. Licensee
is a publisher and distributor of video games.
C. Licensee’s
parent, Fig Publishing, Inc. (“Fig Publishing”), is raising funds through Xxx.xx, an investment crowdfunding
platform affiliated with Fig Publishing, and wishes to provide funding to the Developer to complete development of the Licensed
Game.
D. Licensee
wishes to license the Licensed Game from Developer, and Developer wishes to license the Licensed Game to Licensee, to exploit
the Licensed Game on the Platforms in accordance with the following terms and conditions.
TERMS
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree
to amend and restate the Original Agreement in its entirety as follows:
In
addition to the capitalized terms defined elsewhere in this Agreement, the following terms shall have the meanings set forth below:
| 1.1. | “Adjusted
Gross Revenue” means gross revenues actually received by Licensee from the
exploitation of the Licensed Game by any Co-Publisher less: |
| (a) | any
and all (i) payment processing charges, credit card charges, chargebacks, returns, disputed
charges, fraudulent charges and/or bad debt; (ii) excise, sales, value added or comparable
or similar taxes; and (iii) distributor fees (by way of example, any fees or charges
by Steam or other digital distribution platforms), in each case attributable to Licensee’s
exploitation of the Licensed Game (collectively, the “Selling Expenses”);
and |
| (b) | the
payment of the Service Fee described in Section 4.7. |
| 1.2. | “Co-Publisher”
means the Developer, the Licensee and any other party granted a license to exploit the
Licensed Game on the Platforms. |
| 1.3. | “Crowdfunding
Target” means Three Million Three Hundred Thousand Dollars ($3,300,000) as
an aggregate amount of (i) the amounts raised through the Developer’s rewards crowdfunding
campaign conducted on Xxx.xx and (ii) the amounts raised by Fig Publishing through its
investment crowdfunding campaigns for the Licensed Game conducted on Xxx.xx. Achievement
of the Crowdfunding Target shall be determined by Licensee. |
| 1.4. | “Defect”
means an error, bug, defect malfunction, failure, nonconformity or other deficiency in
the operation of the Licensed Game. |
| 1.5. | “Developer
Brand Features” means the trademarks, trade names, service marks, service names
and logos proprietary to Developer in connection with or related to the Licensed Game. |
| 1.6. | “Developer
Payments” has the meaning given in Section 2.6 below. |
| 1.7. | “DLC”
means downloadable additional content or expansions to a video game which require the
installation and license of such video game to be played by an end user. |
| 1.8. | “Game
Funding Payment” has the definition set forth in Section 4.1 below. |
| 1.9. | “Intellectual
Property Rights” means, with respect to any item, any and all now known or
hereafter known (i) rights associated with works of authorship throughout the universe,
including but not limited to copyrights and moral rights, (ii) trademark and trade
name rights and similar rights, (iii) trade secret rights, (iv) patents, designs, and
other industrial property rights, (v) all other intellectual property and industrial
property rights, and (vi) all registrations, applications, renewals, extensions, continuations,
divisions or reissues hereof now or hereafter in force (including any rights in any of
the foregoing). |
| 1.10. | “Fig
Publishing” means Fig Publishing, Inc., which is the Licensee’s
parent. The Licensee is wholly owned by Fig Publishing. |
| 1.11. | “Fig
Publishing Rev Share” has the meaning set forth in Section 4.1 below. |
| 1.12. | “Licensed
Game” means each version of the video game identified and described on Exhibit
A for use with each of the Platforms, including updates and enhancements but excluding
any DLC thereto. |
| 1.13. | “Licensee
Brand Features” means the trademarks, trade names, service marks, service names
and logos proprietary to Licensee. |
| 1.14. | “Open
Source” means any software that requires as a condition of use, modification
and/or distribution of such software that such software or other software incorporated
into, derived from or distributed with such software: (i) be disclosed or distributed
in source code form; or (ii) be redistributable at no charge. Open Source includes, without
limitation, software licensed or distributed under any of the following licenses or distribution
models, or licenses or distribution models similar to any of the following: (a) GNU’s
General Public License (GPL) or Lesser/Library GPL (LGPL), (b) the Artistic License (e.g.,
PERL), (c) the Mozilla Public License, (d) the Netscape Public License, (e) the Sun Community
Source License (SCSL), (f) the Sun Industry Source License (SISL), and (g) the Apache
Server license. |
| 1.15. | “Platforms”
means any and all personal computer, mobile, tablet, video game console, interactive
television and any other operating system on which video games are played, whether now
known or hereafter devised, including but not limited to Microsoft Windows operating
systems, Microsoft Xbox 360, Xbox One, Sony PlayStation 3, PlayStation 4 and Vita, Nintendo
Wii, Wii-U, DS and 3DS. Apple Macintosh, OS X and iOS operating systems, Google Android
operating system, and Linux operating system, and all future versions of each of the
foregoing. |
| 1.16. | “PC
Platforms” means only those Platforms designed for personal computer operating
systems, including but not limited to: Microsoft Windows, Apple Macintosh, OS X and Linux. |
| 2. | LICENSE
GRANT; OWNERSHIP. |
| 2.1. | Game
License. Developer hereby grants to Licensee a non-exclusive, irrevocable, perpetual
(unless this Agreement is terminated pursuant to Section 7.2 or pursuant to Section
7.3 by Developer), worldwide, fully paid up, sublicensable (across multiple tiers)
right and license throughout the world to use, license, sublicense, sell, advertise,
promote, publicly perform, distribute, display, create derivative works of solely for
the purpose of advertising, promoting and marketing the Licensed Game, and otherwise
utilize the Licensed Game for and in connection with publishing, distributing, advertising,
marketing and promoting the Licensed Game to consumers (the “Publishing License”).
Licensee agrees that unless this Agreement is terminated by Licensee pursuant to Section
7.3 below, Licensee will obtain Developer’s prior written (with email sufficing)
approval, which approval shall not be unreasonably withheld, prior to entering into any
distribution agreements for the Licensed Game with any third party. Licensee shall have
the right to approve any agreements between the Developer and a Co-Publisher, such approval
not to be unreasonably withheld. Notwithstanding the foregoing, Developer may enter
into a distribution agreement with a third party without the Licensee’s consent
if (i) either the Developer is required to do so by the other party to the distribution
agreement or the Developer has a pre-existing distribution agreement in place with such
party and (ii) distributing the Licensed Game under the distribution agreement would
provide a commercial advantage to Licensee, including but not limited to more favorable terms
being obtained than could be obtained by the Licensee directly. |
| 2.2. | Developer
Brand Features License. Developer hereby grants to Licensee an non-exclusive, irrevocable,
perpetual (unless this Agreement is terminated pursuant to Section 7.2 or pursuant
to Section 7.3 by Developer), fully paid up, sublicensable (across multiple tiers)
right and license to use, create derivative works of, display and otherwise utilize the
Developer Brand Features identified on Exhibit B and components of the Licensed Game
(including, without limitation, pictorial, audio and audiovisual elements, characters,
screenshots and icons) in connection with the Licensed Game and the advertising, promotion
and marketing thereof (the “Brand Features License” and collectively
with the Publishing License, the “Licensed Rights”). The Parties hereby
agree that any use of Developer Brand Features by either Party must comply with false
advertising and similar laws. Licensee further agrees that any use of the Developer Brand
Features by Licensee must meet Developer's quality standards. |
| 2.3. | Reservation
of Rights. Developer may not use the Licensed Game or exploit the Licensed Rights
except as solely set forth herein. Except as set forth in Sections 2.1, 2.2 and 2.3 above,
Licensee reserves all other rights in and to the Licensed Game. |
| 2.4. | Domain
Names. Licensee shall have the right to use in conjunction with the Licensed Game,
domain names using Developer Brand Features either alone or in combination with Licensee
Brand Features, subject to Developer's consent, which shall not be unreasonably withheld. |
| 2.5. | Revenue
Payments. Notwithstanding the non-exclusive nature of the Publishing License, all
revenue generated by any Co-Publisher (“Licensed Game Revenue”) shall
be paid directly to the Licensee without deduction of any kind. Notwithstanding the foregoing,
Developer agrees that it shall promptly pay to Licensee any Licensed Game Revenue that
is paid to it rather than Licensee, without deductions of any kind. To the extent that
any Co-Publisher identifies and negotiates agreements with Platforms or otherwise arranges
for the Licensed Game to be sold (collectively, the “Platform Agreements”),
the Co-Publisher shall promptly notify Licensee and use commercially reasonable efforts
to provide that each Platform Agreement direct all Licensed Game Revenue to Licensee
as the beneficiary of any payments earned thereunder. If the Platform refuses to direct
revenues directly to Licensee, the Co-Publisher may receive Licensed Game Revenue directly
and pay all such revenues to Licensee (“Co-Publisher Payments”) without
deductions of any kind to a bank account provided by Licensee within thirty (30) days
from the end of the calendar month in which such revenues are received. The Co-Publisher
shall designate in such agreement that a copy of all statements shall be sent to an email
address of the Licensee and all payments to be made to the Co-Publisher under such agreement
shall be deposited in the bank account designated by the Licensee. |
The
Developer agrees that Platform Agreements shall establish fair, just and equitable market rates, and arms-length prices in such
dealings, which shall be created on a reasonable and empirically justifiable basis. Developer shall provide a statement detailing
Licensed Game Revenues received pursuant to Platform Agreements according to a form provided to Developer by Licensee. Developer
acknowledges and agrees that Developer’s failure to comply with the provisions of this Section 2.6 would be a material
breach of this Agreement and an infringement of Licensee’s Intellectual Property Rights.
Licensed
Game Revenue shall not include revenues received by the Developer pursuant to its rewards crowdfunding campaigns for the Licensed
Game conducted on Xxx.xx.
| 2.6. | Ownership.
The Parties agree that as between the Parties, (i) Developer is the owner of the Licensed
Game, the Developer Brand Features, and all Intellectual Property Rights therein and
thereto (collectively, the “Developer IP”); and (ii) Licensee is the
owner of the Licensee Brand Features and all Intellectual Property Rights therein and
thereto (collectively, the “Licensee IP”). |
| 3. | DEVELOPER
& LICENSEE OBLIGATIONS. |
| 3.1. | Delivery.
Developer shall deliver the Licensed Game in executable format for each PC Platform,
free of all Defects to Licensee at Developer’s sole cost and expense, in a form
and format specified by Licensee no later than July 31, 2018 (the “GM Delivery
Date”), unless otherwise agreed upon by the Parties in writing. The Developer
has no obligation to prepare the Licensed Game in executable format for Platforms other
than PC Platforms at any time or at all. Additionally, Developer shall promptly deliver
any and all bug fixes, updates or upgrades of the Licensed Game that Developer develops
for the PC Platforms and other Platforms, if any. |
| 3.2. | Build
Delivery. Developer shall, at any time prior to the GM Delivery Date at Licensee’s
request, deliver or otherwise make available, through file management systems such as
Perforce, the then-current build of the Licensed Game for the Platform or Platforms specified
by Licensee in both object code and source code formats no later than thirty (30) days
from the date of each such request. |
| 3.3.1. | Licensee’s
affiliate, Loose Tooth Industries, Inc. (“Fig Holdings”), will be
responsible for proposing a rewards crowdfunding campaign for the Licensed Game and coordinating
said campaign with investment crowdfunding campaigns to be conducted by Fig Publishing.
Provided that Developer approves the proposed campaign and has entered into a rewards
crowdfunding campaign agreement with Fig Holdings, Licensee will cause Fig Holdings to
develop a schedule and summary of said campaigns that Fig Holdings and Licensee will
review with Developer. After Developer is in agreement with said schedule and summary
and all the dates involved in running the campaigns, Licensee will cause Fig Holdings
to commence developing advertising assets based upon assets created by Developer for
use by Fig Holdings in the rewards crowdfunding campaign and by Fig Publishing in the
investment crowdfunding campaigns. Developer and Licensee further agree that each shall
cooperate with the other as reasonably requested from time to time with regard to the
marketing, advertising, promotion and distribution of the Licensed Game. Developer acknowledges
and agrees that Licensee may delegate any or all of its responsibilities under this Agreement,
other than any obligation of Licensee to pay any amount to Developer due hereunder, to
Fig Holdings. |
| 3.3.2. | Licensee
agrees to designate staff no less qualified than its current personnel who will at all
reasonable times be available to consult with Developer on business decisions (as contrasted
with creative and software development decisions) being made by Developer during the
development and following the release of the Licensed Game. Such business decisions shall
include the choices of: technology platforms and devices for which the Licensed Game
should be developed, languages in which the Licensed Game should be localized, and distribution
platforms that should be used. In the performance of the tasks authorized under Section
2.3 above, Licensee shall have the right to approve any agreements proposed by Developer,
such approval not to be unreasonably withheld, and if Licensee does not respond to Developer’s
proposal of an agreement (sent pursuant to Section 10.5) within three (3) business days
the agreement is deemed to be approved by Licensee. |
| 3.4. | No
Liens or Encumbrances. Developer will not cause or allow any liens or encumbrances
to be placed against, grant any security interest in, or otherwise sell, transfer, bequeath,
quitclaim or otherwise assign, or allow any of the forgoing to occur to, the Intellectual
Property Rights in and to the Licensed Game without Licensee’s prior written consent. |
| 3.5. | Developer
Books and Records. Developer will maintain books and records that report the usage
of the Game Funding Payment paid to Developer by Licensee hereunder and Developer Payments.
Licensee may examine these books and records as they relate to the usage of the Game
Funding Payment and receipt of Developer Payments, such examination to occur during regular
business hours, upon reasonable notice, and in a manner that is not disruptive to the
Developer’s business. In the event any such inspection reveals that Developer has
allocated or spent ten percent (10%) or more of the Game Funding Payment for purposes
other than the development of the Licensed Game or Developer has underpaid or caused
to be underpaid any Developer Payments, then in addition to any and all other rights
and remedies available to Licensee hereunder, Developer shall immediately return to Licensee
and/or reimburse Licensee for such Game Funding Payment and pay to Licensee such Developer
Payments, upon demand from Licensee, and the Parties shall agree upon a reasonably prompt
payment schedule and/or time frame for such reimbursement. Such payment of the Developer
Payments shall also include interest calculated from the date such payments were originally
due at the lesser of the rate of (i) One and One Half Percent (1.5%) per month or (ii)
the maximum rate permitted by law. Any such repayment of Game Funding Payment shall not
affect the allocation of Fig Publishing Rev Share resulting from the Game Funding Payment
paid to Developer by Licensee. |
| 4.1. | Game
Funding Payment. Provided that the Crowdfunding Target is achieved, Licensee shall,
within thirty (30) days of completion of the Licensee’s investment crowdfunding
campaigns for the Licensed Game conducted on Xxx.xx, pay to Developer the Game Funding
Payment. Developer agrees that Developer shall accept the Game Funding Payment up to
a maximum of $15,000,000, unless the Parties mutually agree to a higher amount in writing.
As used herein, “Game Funding Payment” means the amounts raised in
the Licensee’s investment crowdfunding campaigns subject to the provisions of this
paragraph. As used herein, “Fig Publishing Rev Share” shall mean the
percentage equal to (x) the sum of the Game Funding Payment plus up to $20,000 (or such
greater amount as may be agreed in writing by Developer and Licensee) to the extent Fig
Publishing rewards investors whose purchases meet certain criteria favored by Fig Publishing
with a credit of $1,000 each, (y) divided by $33,333,333. |
| 4.2. | Revenue
Share. Licensee shall pay Developer the following percentage of Adjusted Gross Revenue
(the “Developer Rev Share”) if any, according to the following formula: |
| 4.2.1. | Until
Licensee receives Adjusted Gross Revenue of $13,333,333, the percentage of Adjusted Gross
Revenue paid to Developer shall be a percentage equal to: 100% – (2.5 * Fig
Publishing Rev Share) |
| 4.2.2. | After
Licensee receives Adjusted Gross Revenue of $13,333,333, the percentage of Adjusted Gross
Revenue paid to Developer shall be a percentage equal to: 100% – (Fig Publishing
Rev Share) |
By
way of example, if the Game Funding Payment were $10,000,000, then the Fig Publishing Rev Share would equal approximately 30%,
which is derived from dividing $10,000,000 (up to $10,020,000) by $33,333,333, and under Section 4.2.1 the Licensee would
retain approximately 75% of Adjusted Gross Revenue and under Section 4.2.2 the Licensee would retain approximately 30%
of Adjusted Gross Revenue. Furthermore, for purposes of clarity, in no event will the Game Funding Payment exceed $15,000,000,
and accordingly, in no event will the Fig Publishing Rev Share exceed approximately 45%.
| 4.3. | Reserve.
As security against chargebacks, returns, disputed charges, fraudulent charges and/or
bad debt incurred, Licensee shall be entitled to retain a reserve of not more than ten
percent (10%) of the Developer Rev Share on a rolling 6-month basis. |
| 4.4. | Statements
and Payments. Statements regarding the Developer Rev Share for each calendar quarter
shall be sent by Licensee to Developer, within thirty (30) days of the end of such calendar
quarter, together with payment of the Developer Rev Share for such calendar quarter,
if any. |
| 4.5. | Taxes.
To the extent necessary to comply with the laws, rules and regulations of the United
States, and any treaties between the United States and any countries outside the United
States in the Territory, Licensee shall be entitled to withhold foreign withholding taxes
at the applicable rate set forth in such treaties. Licensee shall use commercially reasonable
efforts to furnish to Developer the original or a copy of a receipt evidencing payment
thereof in a form acceptable to the government of the foreign country or other relevant
local tax authority, certifying the fact that such tax has been duly paid and account
to Developer for its pro-rata share of such tax credit, if any. If for any reason Licensee
does not withhold such taxes, then Developer agrees to pay such taxes within sixty (60)
days from the date of notice from Licensee. If Developer does not pay such taxes and
the relevant tax authority holds Licensee liable, then Developer agrees to indemnify
Licensee for any such liability within sixty (60) days from the date of Licensee's notice
thereof. |
| 4.6. | Audit
Procedure. Co-Publishers will maintain books and records reasonably sufficient to
permit verification of each Co-Publisher’s compliance with its obligations under
this Agreement. Each Party may examine these books and records as they relate to distribution
of the Licensed Game, such examination to occur during regular business hours, upon reasonable
notice, and in a manner that is not disruptive to the examined Co-Publisher’s business.
In the event any such inspection reveals that a Co-Publisher has underpaid or caused
to be underpaid any amount by ten percent (10%) or more of the amount actually owed,
then in addition to any and all other rights and remedies available to a Party hereunder,
such Co-Publisher shall immediately pay the underpaid amounts upon demand of the underpaid
Party. Such payments shall also include interest calculated from the date such payments
were originally due at the rate of (i) One and One Half Percent (1.5%) per month, or
(ii) the maximum rate permitted by law. Any such payments shall not affect the allocation
of Fig Publishing Rev Share resulting from the Game Funding Payment paid to Developer
by Licensee. |
| 4.7. | Fig
Holdings Service Fee. Developer acknowledges and agrees that Licensee shall pay Fig
Holdings one tenth of one percent (0.1%) of the amount equal to gross revenues actually
received by Licensee from Licensee’s exploitation of the Licensed Game after deduction
of the Selling Expenses (the “Service Fee”). The Service Fee shall
be used to compensate Fig Holdings for its services to Fig Publishing and the Licensee,
which shall principally be applied to costs in connection with the marketing and promotion
of the Licensed Game by the Licensee. |
| 5. | CONFIDENTIAL
INFORMATION |
| 5.1. | Confidential
Information. Each Party acknowledges that by reason of its relationship to the other
Party under this Agreement it will have access to and acquire knowledge from, material,
data, systems and other information concerning the operation, business, financial affairs,
products, customers, trade secrets and intellectual property of the other Party that
may not be accessible or known to the general public, including, but not limited to the
terms of this Agreement (referred to as “Confidential Information”). |
| 5.2. | No
Disclosure. Each Party agrees to: (i) maintain and preserve the confidentiality of
all Confidential Information received from the other, both orally and in writing, including,
without limitation, taking such steps to protect and preserve the confidentiality of
the Confidential Information as it takes to preserve and protect the confidentiality
of its own confidential information; (ii) disclose such Confidential Information only
to its own employees and contractors on a “need-to-know” basis, and only
to those employees and contractors who have agreed to maintain the confidentiality thereof;
and (iii) not disclose such Confidential Information to any third party (other than contractors
as set forth in subpart (ii) hereof) without the express written consent of the disclosing
Party, provided, however that each Party may disclose the financial terms of this Agreement
to its legal and business advisors and to potential investors so long as such third parties
agree to maintain the confidentiality of such Confidential Information. Each Party further
agrees to use the Confidential Information only for the purpose of performing this Agreement.
Whenever requested by a disclosing Party and provided the same is not required for the
performance by the receiving Party of its obligations hereunder, a receiving Party shall
immediately return to the disclosing Party all manifestations of the Confidential Information
or, at the disclosing Party’s option, shall destroy all such Confidential Information
as the disclosing Party may designate. |
| 5.3. | Exclusions.
The Parties’ obligations under Section 5.2 above shall not apply to Confidential
Information which: (i) is or becomes a matter of public knowledge through no fault of
or action by the receiving Party; (ii) was rightfully in the receiving Party’s
possession prior to disclosure by the disclosing Party; (iii) subsequent to disclosure,
is rightfully obtained by the receiving Party from a third Party who is lawfully in possession
of such Confidential Information without restriction; or (iv) is independently developed
by the receiving Party without resort to the disclosing Party’s Confidential Information.
Notwithstanding the provisions of Section 5.2, the receiving Party will not be
in breach of its obligations hereunder if it is required by law or judicial order or
stock exchange regulation to disclose any Confidential Information of the disclosing
Party, provided that prior written notice of such required disclosure is furnished to
the disclosing Party as soon as practicable in order to afford the disclosing Party an
opportunity to seek a protective order. |
| 6. | REPRESENTATIONS
AND WARRANTIES. |
| 6.1. | Mutual
Representations and Warranties. Each Party represents and warrants to the other Party
that: it has the power and authority to enter into this Agreement, to grant the licenses
contained herein and to otherwise perform its obligations and covenants hereunder; it
has duly executed and delivered this Agreement pursuant to the due authorization thereof;
and this Agreement represents its valid and binding obligation, duly enforceable against
it according to the terms hereof. |
| 6.2. | Developer
Representations and Warranties. In addition to the representations and warranties
set forth in Section 6.1, Developer hereby represents and warrants to Licensee
that: |
| 6.2.1. | The
Licensed Game is the Developer’s original creation; |
| 6.2.2. | Developer
is the exclusive owner of all rights and interests in the Licensed Game and the Developer
Brand Elements and all component parts thereof do not and shall not violate or infringe
any Intellectual Property Rights or other proprietary rights of any third party or parties; |
| 6.2.3. | Developer
has obtained all of the rights which are needed in order for Developer to satisfy its
obligations hereunder and has the ability, power and permission to grant such rights
to Licensee and to make the promises and covenants as are set forth herein; |
| 6.2.4. | Developer’s
execution, delivery and performance of this Agreement does not and shall not conflict
with or violate any applicable law, rule or regulation or the terms of any agreement
between Developer and any third party; and |
| 6.2.5. | The
Licensed Game contains no Open Source. Provided, however, that all “MIT licenses”
published at any time through the website of the Open Source Initiative, and the UE4
License, are hereby approved by Licensee; and provided, further, that if Developer wishes
to include any other Open Source code in the Licensed Game it shall seek permission from
Licensee, which permission shall not be unreasonably withheld or delayed. |
| 6.3. | Disclaimers.
Notwithstanding anything else to the contrary in this Agreement, Licensee makes no representation,
warranty or guaranty as to the amount of Developer Rev Share that Developer will derive
from the exploitation of the Licensed Game or as to the commercial success thereof. |
| 7.1. | Term.
The term of this Agreement shall commence as of the Effective Date and shall continue
for the duration of the term of copyright protection for the last-to-expire version of
the Licensed Game in each country unless terminated as set forth in this Section 7. |
| 7.2. | Termination
by Licensee; Automatic Termination. Licensee may terminate this Agreement: (i) immediately
upon written notice to Developer in the event that Licensee determines that the Crowdfunding
Target has not been achieved; and (ii) upon thirty (30) days written notice to Developer,
for any reason or no reason at all. Additionally, this Agreement shall immediately terminate
in the event that the Crowdfunding Target has not been achieved within 180 days of the
Effective Date. |
| 7.3. | Termination
for Cause. Either Party may terminate this Agreement: (i) upon a material default
or breach by the other Party of any of its obligations under this Agreement, unless within
thirty (30) calendar days after receipt of written notice of such default, the defaulting
Party remedies such default; or (ii) if the other Party becomes insolvent or seeks protection
under any bankruptcy, receivership, trust, deed, creditor's arrangement, or comparable
proceeding, or if any such proceeding is instituted against such other Party and not
dismissed within ninety (90) days. |
| 7.4. | Effect
of Termination. Except as set forth in Section 7.5, upon termination of this
Agreement pursuant to Section 7.2 or pursuant to Section 7.3 by Developer,
all rights and licenses granted hereunder shall immediately terminate. Upon termination
of this Agreement for any reason, Licensee shall have no further obligation to make any
payments contemplated by Sections 4.1 or 4.2 (other than, with respect
to Section 4.2, any payments attributable to any period(s) ending on or before
the date of termination that have not yet been paid). |
| 7.5. | Survival.
Sections 1, 2 (unless this Agreement is terminated pursuant to Section
7.2 or pursuant to Section 7.3 by Developer), 4 (unless this Agreement
is terminated pursuant to Section 7.3 by Licensee), 5, 6, 7.4
and 8 through 10 shall survive the termination or expiration of this
Agreement. In addition, following expiration or termination of this Agreement, the rights
and licenses granted by Developer to Licensee shall survive, solely to permit the distribution
of the Licensed Game to end users who purchased the Licensed Game or other persons who
have been permissibly distributed the Licensed Game prior to the expiration or termination.
The Parties acknowledge and agree that this Agreement includes a “license of intellectual
property” and is and shall be subject to Sections 365(n) of the United States Bankruptcy
Code, and that each party shall be entitled to all rights and benefits of such sections
in accordance with its terms and conditions. |
| 8.1. | Mutual
Indemnification. Each Party hereby agrees to indemnify, defend, and hold the other,
and its respective subsidiaries, officers, directors, attorneys, affiliates, parents,
agents and employees, harmless from any losses, liabilities, causes of action and costs
(including reasonable attorneys’ fees) from, or on account of, or related to any
claims arising out of the following: (i) any breach by the indemnifying Party of its
obligations, representations and warranties hereunder, (ii) any claims by the indemnifying
Party’s creditors or alleged creditors to the effect that the other is responsible
or liable for its debts, commitments or other obligations; or (iii) the use of the Licensed
Right as contemplated under this Agreement. |
| 8.2. | Securities
Law Indemnification & Insurance. To the maximum extent permitted by law, Licensee
agrees to indemnify, defend, and hold harmless Developer and its officers, directors,
employees and agents (“Indemnitees”) from and against any loss, expense
(including reasonable attorneys’ fees), liability, damage or claim, made or brought
on behalf of any person alleging that an Indemnitee violated securities laws or similar
laws in connection with this Agreement or the crowdfunding campaign(s) conducted pursuant
to this Agreement (“Claim”), unless the Indemnitee’s willful
misconduct was the sole cause of such Claim. Licensee shall use best efforts to obtain,
within ninety (90) days from the date of this Agreement, insurance covering Claims naming
the Indemnitees as third party insureds underwritten by a carrier with an A.M. Best insurance
company rating of no less than “A” and providing coverage in amounts no less
than $1 million per occurrence and $1 million in the aggregate. To the extent such insurance
is obtained, Licensee will produce evidence of such insurance upon the request of any
Indemnitee. |
| 8.3. | Notice;
Participation. The Party claiming indemnification pursuant to this Section 8
(the “Indemnified Party”) shall promptly notify the party with the
indemnification obligation (the “Indemnifying Party”) of any such
claim of which it becomes aware and shall: (i) at the Indemnifying Party’s expense,
provide reasonable cooperation to Indemnifying Party in connection with the defense or
settlement of any such claim, and (ii) at the Indemnified Party’s expense, be entitled
to participate in the defense of any such claim. |
| 8.4. | Settlement.
The Indemnified Party agrees that Indemnifying Party shall have sole and exclusive control
over the defense and settlement of any such third party claim. However, Indemnifying
Party shall not acquiesce to any judgment or enter into any settlement that adversely
affects the Indemnified Party’s rights or interests without prior written consent
of the Indemnified Party. |
| 9. | LIMITATIONS
ON LIABILITY. |
TO
THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT
OR OTHERWISE, SHALL LICENSEE BE LIABLE TO DEVELOPER OR ANY AFFILIATE OF DEVELOPER OR ANY OTHER PERSON FOR (I) ANY INDIRECT, SPECIAL,
INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER EVEN IF LICENSEE SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF
SUCH DAMAGES; OR (II) ANY AMOUNT IN EXCESS OF THE TOTAL AMOUNT PAID BY LICENSEE TO DEVELOPER UNDER THIS AGREEMENT TWELVE (12)
MONTHS PRIOR TO THE DATE ON WHICH A CLAIM GIVING RISE TO LIABILITY IS MADE, EXCEPT WITH RESPECT TO DEVELOPER’S INDEMNIFICATION
OBLIGATION WITH RESPECT TO THIRD PARTY INTELLECTUAL PROPERTY CLAIMS UNDER SECTION 6.2.2, WHICH CLAIMS SHALL NOT BE SUBJECT TO
ANY CAP ON LIABILITY. EACH PARTY ACKNOWLEDGES THAT THIS LIMITATION OF LIABILITY REFLECTS AN INFORMED, VOLUNTARY ALLOCATION BETWEEN
THE PARTIES OF THE RISKS (KNOWN AND UNKNOWN) THAT MAY EXIST IN CONNECTION WITH THIS AGREEMENT.
| 10.1. | Governing
Law and Jurisdiction. This Agreement shall be governed by and interpreted under the
laws of the State of California, without reference to its choice of laws principles.
The Parties expressly understand and agree that any dispute arising under this Agreement
will be brought exclusively in the state or federal courts within the County of San Francisco,
California and the Parties hereby consent to the exclusive personal jurisdiction and
venue therein. The Parties expressly waive the application of the United Nations Convention
on Contracts for the International Sale of Goods to the terms of this Agreement. |
| 10.2. | Injunctive
Relief. Developer acknowledges that monetary damages and remedies at law may be inadequate
to provide full compensation in the event of a material breach relating to Developer’s
obligations, representations, and warranties hereunder, and Licensee shall therefore
be entitled to obtain injunctive relief in the event of any such material breach. Developer
further acknowledges and agrees that if Licensee is in breach of any of the material
provisions of this Agreement, Developer shall be limited to bringing an action at law
to recover damages, and in no event, shall Developer be entitled to enjoin or restrain
or otherwise interfere with Licensee’s production, distribution, licensing or exploitation
of the Licensed Game or Licensee’s use, publication or dissemination of any advertising
issued in connection with the foregoing. |
| 10.3. | Controls.
Both Parties will adhere to all applicable laws, regulations and rules relating to the
export of technical data and will not export or re-export any technical data, any products
received from the other Party or the direct product of such technical data to any proscribed
country listed in such applicable laws, regulations and rules unless properly authorized. |
| 10.4. | Independent
Contractor. The relationship created by this Agreement is one of independent contractors,
and not partners, franchisees or joint ventures. No employees, consultants, contractors
or agents of one Party are employees, consultants, contractors or agents of the other
Party, nor do they have any authority to bind the other Party by contract or otherwise
to any obligation, except as expressly set forth herein. They will not represent to the
contrary, either expressly, implicitly or otherwise. |
| 10.5. | Notices.
All notices and demands under this Agreement will be in writing and will be delivered
by personal service, confirmed fax, confirmed e-mail, express courier, or certified mail,
return receipt requested, to the attention of each of the chief executive officer of
the receiving Party at the address of the receiving Party set forth below, or at such
different address as may be designated by such Party by written notice to the other Party
from time to time. Notice shall be deemed received on the day of personal service; on
the first business day after confirmed e-mail or overnight express courier; and on the
third business day after sending by other express courier or certified mail. |
If
to Developer:
Double
Fine Productions, Inc.,
000
Xxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Email:
If
to Licensee:
Fig
Grasslands LLC
000
Xxxxxx Xx., Xxxxx 000, Xxx Xxxxxxxxx, XX 00000
Email:
xxxxxx@xxx.xx
| 10.6. | No
Assignment. This Agreement may not be assigned by Developer to any other person,
firm, or entity without the express written approval of Licensee (which approval may
be withheld in Licensee’s sole discretion) and any attempt at assignment in violation
of this Section 10.7 shall be null and void. Notwithstanding the foregoing, Licensee
may assign any or all of its rights and obligations under this Agreement to Fig Publishing
as expressly set forth in Section 3.3. |
| 10.7. | Force
Majeure. Neither Party will be deemed in default of this Agreement to the extent
that performance of its obligations or attempts to cure any breach are delayed or prevented
by reason of any act of God, fire, natural disaster, accident, act of government, shortages
of material or supplies or any other cause reasonably beyond the control of such party
(“Force Majeure”), provided that such party gives the other party
written notice thereof promptly and, in any event, within fifteen (15) days of discovery
thereof, and uses its diligent, good faith efforts to cure the breach. In the event of
such a Force Majeure, the time for performance or cure will be extended for a period
equal to the duration of the Force Majeure but not in excess of six (6) months. |
| 10.8. | Entire
Agreement. This Agreement constitutes the complete and exclusive agreement between
the Parties with respect to the subject matter hereof, superseding and replacing any
and all prior or contemporaneous agreements, communications, and understandings (whether
written or oral) regarding such subject matter. This Agreement may only be modified,
or any rights under it waived, by a written document executed by both Parties. |
| 10.9. | Advice
from Independent Counsel. The Parties hereto understand that this Agreement to which
it is a party is a legally binding agreement that may affect such Party’s rights.
Each Party represents to the other that it has received legal advice from counsel of
its choice regarding the meaning and legal significance of this Agreement and that it
is satisfied with its legal counsel and the advice received from it. |
| 10.10. | Judicial
Interpretation. Should any provision of this Agreement require judicial interpretation,
it is agreed that a court interpreting or construing the same shall not apply a presumption
that the terms hereof shall be more strictly construed against any Party by reason of
the rule of construction that a document is to be construed more strictly against the
Party who itself or through its agent prepared the same, it being agreed that all Parties
have participated in the preparation of this Agreement. |
| 10.11. | Waiver.
The failure of either Party to exercise or enforce any of its rights under this Agreement
will not act as a waiver, or continuing waiver, of such rights. |
| 10.12. | Remedies
Cumulative. Any and all remedies herein expressly conferred upon a Party shall be
deemed cumulative and not exclusive of any other remedy conferred hereby or by law, and
the exercise of any one remedy shall not preclude the exercise of any other. |
| 10.13. | Headings.
Headings are for convenience only and shall not be considered in interpreting this Agreement. |
| 10.14. | Counterparts.
This Agreement may be signed by facsimile or digital image format and in counterparts
by Licensee and Developer, each of which counterpart shall be deemed an original and
all of which counterparts when taken together, shall constitute but one and the same
instrument. |
| 10.15. | Severability.
If any provision of this Agreement is, becomes, or is deemed invalid or unenforceable
in any jurisdiction, such provision will be enforced to the maximum extent permissible
in such jurisdiction so as to effect the intent of the Parties, and the validity, legality
and enforceability of such provision shall not in any way be affected or impaired thereby
in any other jurisdiction. If such provision cannot be so amended without materially
altering the intention of the Parties, it shall be stricken in the jurisdiction so deeming,
and the remainder of this Agreement shall remain in full force and effect. |
INTENDING
TO BE LEGALLY BOUND, the Parties have executed this Agreement by their duly authorized representatives, to be effective as of
the date first written above.
| Double Fine Productions, Inc. | | Fig Grasslands, LLC |
| | | | | |
| By: | /s/
Xxx Xxxxxxx | | By: | Fig
Publishing, Inc., in its capacity |
| Name: | Xxx
Xxxxxxx | | | as
sole member of the Licensee |
| Title: | CEO | | | |
| | | | | |
| | | | By: | /s/
Xxxxxx Xxxxxx |
| | | | Name: | Xxxxxx
Xxxxxx |
| | | | Title: | CEO |
Exhibit
A
The
Licensed Game
Psychonauts
2
Grasslands
will be a sequel to one of the Grasslands Developer’s most successful games, Psychonauts. The original game, released in
2005, follows the story of a young psychic named Razputin in his quest to join an elite group of international psychic secret
agents, the Psychonauts. He runs away from the circus and breaks into their secret training facility, Whispering Rock Psychic
Summer Camp. As he begins his training by psychically delving inside the consciousnesses of his tutors and those around him, he
realizes all is not as it seems, and soon embarks upon a psychic odyssey through a variety of levels set inside the minds of misfits,
monsters and madmen.
In
Psychonauts 2, Raz will realize his dream and visit Psychonauts Headquarters. However, when he gets there, he will find that it
is not the perfect place he expected and will quickly realize that the Psychonauts need him more than he needs them. Psychonauts
2 will feature a new hub world inside Psychonauts HQ. The player will access new mental worlds as Raz peeks inside the minds of
a host of new characters who need his help to combat their inner demons and unravel their deep-seated emotional issues. Raz will
hone his secret agent psychic abilities — and learn new ones, too — using them to solve mysteries and uncover evil
plots.
Exhibit
B
Developer
Brand Features
Psychonauts
(registered trademark)
Double Fine
TM (unregistered trademark
Double Fine
Productions TM (unregistered trademark)
Psychonauts
2 TM (unregistered trademark)
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