EXHIBIT 10.52
MICROSOFT CONTRACT NUMBER _____
FORM OF XBOX(TM) DEVELOPMENT KIT LICENSE
This Xbox(TM) Development Kit License is made and entered into as of the
later of the two signature dates below (the "Effective Date"), by and between
MICROSOFT IRELAND OPERATIONS LIMITED ("MIOL"), an Irish Company, with its
principal business address at Xxxxxxxxxx Xxxx, Xxxxxxxxx Xxxxxxxxxx Xxxxxx,
Xxxxxx 00, Xxxxxxx, and /s/ Awesome Dev. Ltd. ("Licensee"), & /s/ Games
Developer, with its principal business address at /2/ 00X Xxxxx Xxx, Xxxxxxx,
with reference to the following facts:
A. MIOL is directly owned by Microsoft Corporation ("Microsoft") and
forms part of the Microsoft multinational group of companies.
B. Microsoft has granted MIOL the right to distribute and sublicense the
XDK in Europe.
C. Licensee desires to develop one or more software products, which shall
be subject to Microsoft's approval prior to commercial release, to run on
Microsoft's Xbox game system.
D. Licensee desires MIOL to license to Licensee the rights to use certain
hardware and software in connection with Licensee's Software Title development
activities, or the terms and conditions contained herein.
E. MIOL desires to license to Licensee, on the terms and conditions
contained herein, one or more XDKs.
Accordingly, for and in consideration of the mutual covenants and
conditions contained herein, and for other good and valuable consideration
receipt of which each party hereby acknowledges, MIOL and Licensee agree as
follows:
1. DEFINITIONS. For the purposes of this Agreement, the following terms
will have the respective indicated meanings.
1.1. "Hardware" shall mean the hardware components included in the XDK.
1.2 "Redistributable Code" shall mean the software components included in
a "lib" directory in the XDK. Early pre-release versions of the XDK may not
include any Redistributable Code.
1.3 "Sample Code" shall mean the software components included in the
"sample" directory in the XDK. Early pre-release versions of the XDK may not
include any Sample Code.
1.4 "Software Title" shall mean the software product intended to run on
Microsoft's Xbox, the concept for which has been approved by Microsoft (which
approval Microsoft may grant or withhold on terms as set forth in a separate
Xbox Publisher License Agreement).
1.5 "Third Party Software" shall mean any software component included in
the XDK which is supplied by a third party and licensed to Licensee pursuant to
a separate license (instead of this Agreement) included in the XDK. Third Party
Software will be in one or more directories in the XDK separate from the
Redistributable Code, Sample Code and Tools.
1.6 "Tools" shall mean all software components included in the XDK which
are neither Redistributable Code nor Sample Code nor Third Party Software.
1.7 "Xbox" shall mean the first commercially released version (excluding
all preliminary versions, such as so-called alpha and beta versions) of
Microsoft's' Xbox game system, including operating system software and hardware
specifications.
1.8 "XDK" shall mean the hardware, software and documentation licensed and
provided by MIOL to Licensee pursuant to this Agreement as part of an Xbox
development Kit, including without limitation the hardware, software and
documentation generally described in Attachment A hereto (which is incorporated
herein by this reference), as well as supplements and updates thereto and/or
subsequent versions thereof.
2. GRANT OF LICENSE.
2.1 Subject to the terms and conditions contained in this Agreement and
conditioned on Licensee's continuing compliance with this Agreement, MIOL hereby
grants to Licensee a nonexclusive, personal, nontransferable, and terminable
license to:
(a) use the XDK internally only, and only to create and maintain one or
more Software Title(s);
(b) modify and make derivative works based on the Sample Code and
reproduce and distribute (subject to Section 2.2 below) such derivative works in
object code form only;
(c) reproduce and incorporate the Redistributable Code in object code form
only in the Software Title(s); and
(d) distribute (subject to Section 2.2 below) the Redistributable Code,
only in object code form, only as part of the Software Title(s), and only (i) to
an entity ("Licensed Publisher") which Microsoft or MIOL confirms in writing to
Licensee has executed an Xbox Publisher License Agreement, and (ii) to end users
if and only if Licensee and Microsoft shall have executed an Xbox Publisher
License Agreement.
Licensee acknowledges and agrees that Licensee will have no right to
reproduce, distribute, modify the Tools, nor to make derivative works based on
the Tools, without MIOL's prior written consent (which MIOL may grant or
withhold in its absolute discretion), and that Licensee will have no right to
modify or make derivative works based on the Redistributable Code, and that
Licensee will have no other rights in and to the XDK other than those expressly
licensed to Licensee hereunder. Licensee hereby grants to Microsoft and MIOL a
non-exclusive, fully-paid, royalty-free, worldwide, irrevocable, sublicensable,
non-terminable license to reproduce, distribute, publicly perform, publicly
display, make, sell, import, modify and make derivative works based on, and
otherwise use and exploit any and all feedback (e.g., suggestions, comments,
ideas, information, etc.), including, without limitation, source code based on
Sample Code, given or communicated by Licensee to Microsoft or MIOL, relating to
the XDK and/or Xbox. All rights granted to Licensee pursuant to this Agreement
are by license, and no title shall pas to Licensee in any of the components of
the XDK (including without limitation hardware components), notwithstanding
anything contained herein to the contrary.
2.2 Licensee's rights with respect to the Sample Code Licensee-prepared
derivative works based thereon, and the Redistributable Code (collectively,
"Redistributable Components") under Section 2.1 above are conditioned on
Licensee's continuing compliance with this Agreement, including without
limitation the following: (i) the Redistributable Code is not further
distributable by end user customers separately from the applicable Software
Title(s) and the Software Title(s) are distributed with an end user license
agreement (or "XXXX") (which may be "break-the-seal", "click-wrap", or signed)
with terms no less protective than those contained herein and/or otherwise
specified in writing from time to time by Microsoft or MIOL: (ii) Licensee
includes the intellectual property notices contained in the Redistributable
Components and/or otherwise specified in writing from time to time by Microsoft
or MIOL: and (iii) Licensee will indemnify, hold harmless, and defend Microsoft,
MIOL, their affiliates, licensors and suppliers form and against any claims or
lawsuits, including attorneys' fees, that arise or result form the user or
distribution of the applicable Software Title(s), provided that Licensee's
obligations under this clause (iii) will not apply to claims or lawsuits for
infringement of intellectual property due solely to the Sample Code or
Redistributable Code as provided by Microsoft or MIOL.
2.3 Licensee will limit access to the XDK to those of its full-time
employees directly involved in and necessary to Software Title development.
Licensee will have executed appropriate written agreements with its employees
sufficient to enable it to comply with the terms of this Agreement. Licensee
agrees to restrict and prohibit access to the XDK by others; provided that if
Licensee desires to engage any subcontractor in connection with the development
of a Software Title, then MIOL will offer to enter into an Xbox Development Kit
License with such subcontractor in a form substantially similar to this
Agreement if MIOL approves such proposed subcontractor (which approval MIOL
agrees not to unreasonably withhold). Licensee agrees that, until six (6) months
after the termination of this Agreement, it will maintain, and make available to
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MIOL upon request, a list of all employees and subcontractors who have had
access hereunder to the XDK or related information.
2.4 Licensee agrees that it will not make, or allow anyone else to make, a
copy of the Tools or documentation included in the XDK: provided, however, that
Licensee may make one (1) copy of the Tools and documentation for backup
purposes only. IN addition, if MIOL chooses to provide, or permits Licensee to
obtain, any updates via electronic transmission, Licensee may only make one (1)
copy of such transmitted update for backup purposes only. Any copies made by
Licensee will be subject to and used in accordance with the terms and conditions
of this Agreement.
2.5 Licensee undertakes, at all times until the XDK is returned to MIOL,
to: (i) take all reasonable and proper care of the XDK and (ii) ensure the full
compliance with all instructions relating to the use, security or operation of
the XDK, at its expense, in accordance with any written instructions given by
MIOL.
2.6 Notwithstanding anything contained herein t the contrary, the terms of
the respective separate license will govern the use of the Third Party Software
to which it refers, and will supersede the terms contained in this Section 2 as
to the Third Party Software if such terms are inconsistent with the separate
license.
2.7 MIOL is not obligated to provide maintenance, technical support or
updates to Licensee for the XDK. However, MIOL may, in its sole discretion,
provide further versions, technical support, updates and/or supplements of or
related to the XDK ("Updates") to Licensee hereunder, in which case such Updates
shall also be deemed to be included in the XDK, and therefore governed by this
Agreement, unless other terms of use are provided by MIOL with such Updates.
2.8 Licensee may utilize and study the design, performance and operation
of the XDK and/or Xbox solely for the purposes of developing the Software Title.
Notwithstanding the foregoing, Licensee shall not, directly or indirectly,
reverse engineer or aid or assist in the reverse engineering of all or any part
or component of the XDK or Xbox except and only to the extent that such activity
is expressly permitted by applicable law notwithstanding this limitation.
Reverse engineering includes, without limitation, sniffing, decompiling,
disassembly, peeling semiconductor components, or otherwise deriving source
code.
2.9 The XDK(s) provided to Licensee hereunder may include preliminary
versions (including, for example, "alpha" and "beta" versions of hardware and/or
software) of certain XDK components. Upon request by MIOL, Licensee will return
to MIOL any and all XDK components theretofore delivered to Licensee hereunder.
3. LICENSE FEE. Licensee hereby agrees to pay to MIOL a use and licensee
fee in the sum of Ten Thousand U.S. Dollars (US$10,000.00) per copy of the XDK,
plus shipping and handling. Licensee may pay the license fee and costs in the
equivalent Euro amounts as identified in the Microsoft invoice. Licensee
acknowledges and agrees that payment must be received by MIOL prior to MIOL
delivering the respective XDK. Upon delivery of each XDK to Licensee, MIOL will
furnish to Licensee a list of the unique Identification Numbers or such XDKs,
which list Licensee will initial in the space provided; such initialed list will
be attached to this Agreement as Attachment C.
4. TERM OF LICENSE.
4.1 The term of the license granted pursuant to Section 2 shall commence
on the Effective Date and shall continue until the termination of this
Agreement. Such termination may occur as follows:
(a) either party may terminate this Agreement without cause at any time
upon ten (10) business days' prior written notice to that effect from either
party to the other.
(b) in the event Licensee shall materially fail to perform or comply with
this Agreement or any provision thereof, then MIOL shall have the right, at its
sole option and upon written notice to Licensee, to terminate this Agreement
upon written notice. The rights and remedies provided in this clause shall not
be exclusive and are in addition to any other rights and remedies provided by
law or this Agreement. If the default is related to a particular Software Title,
then MIOL will have the right, in its discretion, to terminate this Agreement in
its entirety or with respect to the applicable Software Title.
4.2 Upon the termination of this Agreement, Licensee shall promptly return
to MIOL all copies of the XDK provided to Licensee by MIOL. If MIOL exercises
its right to terminate this Agreement without cause pursuant to clause (a) of
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Section 4.1 at any time within three (3) months after the Effective Date, then
MIOL will refund to Licensee an amount equal to the sums theretofore paid by
Licensee to MIOL pursuant to Section 3 above.
4.3 The last sentence of Section 2.1, clause (iii) of Section 2.2, and
Sections 5 through 18 shall survive any termination of this Agreement.
5. CONFIDENTIALITY. The XDK and related information are proprietary and
confidential information of Microsoft, MIOL, their affiliates, licensors and
suppliers, and are subject to that certain Non-Disclosure Agreement between
Microsoft or MIOL and Licensee attached hereto as Attachment B, which is
incorporated herein by this reference (provided that if and to the extent that
any provision of said Non-Disclosure Agreement is inconsistent with this
Agreement, then the terms of this Agreement will be deemed to control). This
provision shall survive the termination or expiration of this Agreement.
Notwithstanding anything to the contrary contained herein or in said
Non-Disclosure Agreement, Licensee shall not make any public announcement
relating to this Agreement or any Software Title being developed by Licensee
without MIOL or Microsoft prior written approval (which may be granted or
withheld in their absolute discretion).
6. INTELLECTUAL PROPERTY RIGHTS. All title and intellectual property
rights in and to the XDK (including all tangible and intangible components
thereof) and any copies Licensee is permitted to make herein are and will be
owned by Microsoft, MIOL, their affiliates, licensors or suppliers. All rights
not expressly granted are reserved by Microsoft and MIOL.
7. DISCLAIMER OF WARRANTIES. THE XDK IS DEEMED ACCEPTED BY LICENSEE, TO
THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MICROSOFT, MIOL, THEIR
AFFILIATES, LICENSORS AND SUPPLIERS PROVIDE THE XDK AND ANY (IF ANY) SUPPORT
SERVICES RELATED TO THE XDK ("SUPPORT SERVICES") AS IS AND WITH ALL FAULTS, AND
HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED OR
STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY (IF ANY) IMPLIED WARRANTIES OR
CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF LACK OF
VIRUSES, AND OF LACK OF NEGLIGENCE OR WORKMANLIKE EFFORT, ALL WITH REGARD TO THE
XDK, AND THE PROVISION OR FAILURE TO PROVIDE SUPPORT SERVICES. ALSO, THERE IS NO
WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION,
CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT, WITH REGARD TO THE XDK. THE
ENTIRE RISK AS TO EH QUALITY OF OR ARISING OUT OF USE OR PERFORMANCE OF THE XDK
REMAINS WITH LICENSEE.
8. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. To
the maximum extent permitted by applicable law, in no event shall Microsoft,
MIOL, their affiliates, licensors or suppliers be liable for any special,
incidental, indirect, or consequential damages whatsoever (including, but not
limited to, damages for loss of profits or confidential or other information,
for business interruption, for personal injury, for loss of privacy, for failure
to meet any duty including of good faith or of reasonable care, for negligence,
and for any other pecuniary or other loss whatsoever) arising out of or in any
way related to the use of or inability to use the XDK, the provision of or
failure to provide Support Services, or otherwise under or in connection with
any provision of this Agreement, even in the event of the fault, tort (including
negligence), strict liability, breach of contract or breach of warrant of
Microsoft, MIOL, their affiliates, licensors or any supplier, and even if they,
or any one of them have been advised of the possibility of such damages. Because
some states/jurisdictions do not allow the exclusion or limitation of liability
for consequential or incidental damages, the above limitation may not apply to
Licensee.
9. LIMITATION OF LIABILITY AND REMEDIES. Notwithstanding any damages that
Licensee might incur for any reason whatsoever (including, without limitation,
all damages referenced above and all direct or general damages), the entire
liability of Microsoft, MIOL, their affiliates, licensors and any suppliers
under any provision of this Agreement and Licensee's exclusive remedy for all of
the foregoing shall be limited to the amount actually paid by Licensee for the
XDK. The foregoing limitations, exclusions and disclaimers (including Sections 7
and 8 above) shall apply to the maximum extent permitted by applicable law, even
if any remedy fails its essential purpose.
10. INDEMNIFICATION. Licensee hereby agrees to indemnify, defend, and hold
harmless Microsoft, MIOL, their affiliates, licensors and suppliers against and
from any and all claims, demands, costs, liabilities, losses, expense and
damages (including reasonable attorneys' fees, costs, and expert witnesses'
fees) relating to any personal injury and/or property damage arising from any
use of the XDK(s) provided to Licensee hereunder.
11. TAXES.
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11.1 The fees to be paid by Licensee to MIOL herein do not include any
foreign, U.S. federal, state, local, municipal or other governmental taxes,
customs and other dues, levies, fees, excises or tariffs, arising as a result of
or in connection with the transactions contemplated under this Agreement
including, without limitation, any state or local sales or use taxes or any
consumption or valued added tax or business transfer tax now or hereafter
imposed on the provision of goods and services to Licensee by MIOL under this
Agreement, regardless of whether the same are separately stated by MIOL (all
such taxes and other charges being referred to herein as "Taxes"). All Taxes
(and any penalties, interest, or other additions to any Taxes), with the
exception of taxes imposed on MIOL's net income or with respect to MIOL's
property ownership, shall be the financial responsibility of Licensee. Licensee
agrees to indemnify, defend and hold MIOL harmless from any such Taxes or
claims, causes of action, costs (including, without limitation, reasonable
attorneys' fees) and any other liabilities of any nature whatsoever related to
such Taxes.
11.2 Licensee will pay all applicable value added, sales and use taxes and
other taxes levied on it by a duly constituted and authorized taxing authority
on the SDKs or any transaction related thereto in each country in which the
services and/or property are being provided or in which the transactions
contemplated hereunder are otherwise subject to tax, regardless of the method of
delivery. Any taxes that are owned by Licensee, (i) as a result of entering into
this Agreement and the payment of the fees hereunder, (ii) are required or
permitted to be collected from Licensee by MIOL under applicable law, and (iii)
are based upon the amounts payable under this Agreement (such taxes described in
(i), (ii), and (iii) above the "Collected Taxes"), shall be remitted by Licensee
to MIOL, whereupon, upon request, MIOL shall provide to Licensee tax receipts or
other evidence indicating that such Collected Taxes have been collected by MIOL,
and remitted to the appropriate taxing authority. Licensee may provide to MIOL
an exemption certificate acceptable to MIOL and to the relevant taxing authority
(including without limitation a resale certificate) in which case, after the
date upon which such certificate is received in proper from, MIOL shall not
collect the taxes covered by such certificate.
11.3 If, after a determination by foreign tax authorities, any taxes are
required to be withheld on payments made by Licensee to MIOL, Licensee may
deduct such taxes from the amount owed by MIOL and pay them to the appropriate
taxing authority; provided however, that Licensee shall promptly secure and
deliver to MIOL an official receipt Licensee will make certain that any taxes
withheld are minimized to the extent possible under applicable law.
11.4 This tax section shall govern the treatment of all taxes arising as a
result of or in connection with this Agreement notwithstanding any other section
of this Agreement.
12. GOVERNING LAW; ATTORNEYS FEES. This Agreement shall b construed and
controlled by the laws of the State of Washington, U.S.A. and Licensee consents
to exclusive jurisdiction and venue in the federal courts sitting in King
County, Washington, U.S.A., unless no federal jurisdiction exists, in which case
Licensee consents to exclusive jurisdiction and venue in the Superior Court of
King County, Washington, U.S.A. Licensee waives all defenses of lack of personal
jurisdiction and forum non conveniens. Process may be served on either party in
the manner authorized by applicable law or court rule. If either party employs
attorneys to enforce any rights arising out of or relating to this Agreement,
the prevailing party shall be entitled to recover its reasonable attorneys'
fees, costs and other expenses. This choice of jurisdiction provision does not
prevent MIOL from seeking injunctive relief with respect to a violation of
intellectual property rights or confidentiality obligations in any appropriate
jurisdiction.
13. EXPORT RESTRICTIONS. Licensee acknowledges that the XDK is of
U.S.-origin. Licensee agrees to comply with all applicable international and
national laws that apply to these products, including the U.S. Export
Administration Regulations, as well as end-user, end-use and destination
restrictions issued by U.S. and other governments. For additional information on
exporting Microsoft products, see xxxx://xxx.xxxxxxxxx.xxx/xxxxxxxxx/.
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14. ENTIRE AGREEMENT. This Agreement constitutes the complete and
exclusive agreement between MIOL and Licensee with respect to the subject matter
hereof, and supersedes all prior oral or written understandings, communications
or agreements not specifically incorporated herein. This Agreement may not be
modified except in a writing duly signed by an authorized representative of MIOL
and Licensee; without limiting the generality of the foregoing, this Agreement
shall exclusively govern all orders of XDKs, and any additional terms on any
purchase order, acceptance, confirmation or other unilateral form shall be of no
effect and shall be disregarded.
15. AUTHORITY. The individual signing this Agreement on behalf of Licensee
represents that he/she has authority to execute this agreement on behalf of
Licensee. Licensee agrees that the XDK (and any and all copies thereof) shall
remain on Licensee's premises, unless otherwise agreed by MIOL. The individual
signing this Agreement on behalf of MIOL represents that he/she has authority to
execute this agreement on behalf of MIOL.
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16. ASSIGNMENT. Licensee may not assign this Agreement or any portion
thereof, to any third party unless MIOL expressly consents to such assignment in
writing. MIOL will have the right to assign this Agreement and/or any portion
thereof as MIOL may deem appropriate. For the purposes of this Agreement, a
merger, consolidation, or other corporate reorganization, or a transfer or sale
of a controlling interest in a party's stock, or of all or substantially all of
its assets shall be deemed to be an assignment. This Agreement will insure to
the benefit of and be binding upon the parties their successors, administrators,
eirs, and permitted assigns.
17. THIRD PARTY BENEFICIARY. The parties agree that Microsoft shall be a
third party beneficiary to this Agreement and shall have the right to enforce
the terms of the Agreement.
18. INJUNCTIVE RELIEF. The parties agree that Licensee's threatened or
actual unauthorized use of the XDK, whether in whole or in part, may result in
immediate and irreparable damage to Microsoft or MIOL for which there is no
adequate remedy at law, and in such event Microsoft or MIOL shall be entitled to
appropriate injunctive relief, without eh necessity of posting bond or other
security.
LICENSEE ACKNOWLEDGES, UNDERSTANDS AND AGREES THAT THE XDK MAY NOT BE USED
IN ANY MANNER NOT EXPRESSLY LICENSED UNDER THIS AGREEMENT, AND THAT NO SOFTWARE
TITLE MAY BE PUBLISHED, OR DISTRIBUTED TO END USERS, EXCEPT BY A LICENSED
PUBLISHER PURSUANT TO AN XBOX PUBLISHER LICENSE AGREEMENT EXECUTED BY MICROSOFT
(WHICH XBOX PUBLISHER LICENSE AGREEMENT CONTAINS OR WILL CONTAIN REQUIREMENTS
AND SPECIFICATIONS FOR PUBLISHED SOFTWARE TITLES BEYOND THOSE CONTAINED IN THIS
AGREEMENT).
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective duly authorized representatives.
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Licensee Name
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Print Name
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Address
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City, State, Zip
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OR
--
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Phone Number
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Date
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Email Address
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By (sign) By (sign)
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Name (print) Name (print)
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Title Title
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Date Date
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