CONFIDENTIAL LICENSE AGREEMENT FOR THE Wii CONSOLE (Western Hemisphere)
AGREEMENT
FOR
THE Wii CONSOLE
(Western
Hemisphere)
THIS
LICENSE AGREEMENT ("Agreement") is entered into between NINTENDO OF AMERICA
INC.
("NOA") at 0000 000xx Xxxxxx X.X., Xxxxxxx, XX 00000 Attn: General Counsel
(Fax:
000-000-0000)
and
ZOO GAMES INC. (flk/a Destination Software, Inc.) ("LICENSEE") at 000 Xxxxxxx
Xxxxx, Xxxxxxxxxxxx,
XX 00000 Attn: General Counsel (Fax: 000-000-00(6). NOA and LICENSEE agree
as
follows:
1.
RECITALS
1.1
NOA
markets and sells advanced design, high-quality video game systems, including
the Wii video game console ('Wii").
1.2
LICENSEE desires use of the highly proprietary programming specifications,
unique and valuable security technology, trademarks, copyrights and other
valuable intellectual property rights of NOA and its parent company, Nintendo
Co., Ltd., which rights are only available for use under the terms of a license
agreement, to develop, have manufactured, advertise, market and sell video
game
software for play on Wii.
1.3
NOA
is willing to grant a license to LICENSEE on the terms and conditions set forth
in this Agreement.
2.
DEFINITIONS
2.1
"Artwork" means the text and design specifications for the Game Disc label
and
the Printed Materials in the format specified by NOA in the Guidelines.
2.2
"Bulk
Goods" means Game Discs that have been printed with the Game Disc label Artwork
for delivery to LICENSEE without Printed Materials or other packaging.
2.3
"Check Disc(s)" means the pre-production Game Discs to be produced by Nintendo.
2.4
"Confidential Information" means the information described in Section 8.1.
2.5
"Development Tools" means the development kits, programming tools, emulators
and
other materials of Nintendo, or third parties authorized by Nintendo, that
may
be used in the development of Games under this Agreement.
2.6
"Effective Date" means December 12, 2006.
2.7
"Game
Discs(s)" means custom optical discs for play on Wii on which a Game has been
stored.
2.8
"Game(s)" means any interactive programs (including source and objecUbinary
code) developed to be compatible with Wii.
2.9
"Guidelines" means the then current version of 'Wii Programming Guidelines,"
"Licensee Packaging Guidelines," and "Nintendo Trademark Guidelines," together
with other guidelines provided by NOA to LICENSEE from time to time.
2.10
"Independent Contractor" means any individual or entity that is not an employee
of LICENSEE, including any independent programmer, consultant, contractor,
board
member or advisor.
2.11
"Intellectual Property Rights" means individually, collectively or in any
combination, Proprietary Rights owned, licensed or otherwise held by Nintendo
that are associated with the development, manufacturing, advertising, marketing
or sale of the Licensed Products, including, without limitation, (a) registered
and unregistered trademarks and trademark applications used in connection with
Wii including Nintendo®, Wii™, Official Nintendo Seal of Quality®, and Mii™ ,
(b) select trade dress associated with Wii and licensed video games for play
thereon, (c) Proprietary Rights in the Security Technology employed in the
Games
or Game Discs by Nintendo, (d) rights in the Development Tools for use in
developing the Games, excluding, however, rights to use, incorporate or
duplicate select libraries, protocols and/or sound or graphic files associated
with the Development Tools which belong to any third party and for which no
additional licenses or consents are required, (e) patents, design registrations
or copyrights which may be associated with the Game Discs or Printed Materials,
(f) copyrights in the Guidelines, and (g) other Proprietary Rights of Nintendo
in the Confidential Information.
2.12
"Licensed Products" means Bulk Goods after being assembled by orfor LICENSEE
with the Printed Materials in accordance with the Guidelines.
2.13
"Marketing Materials" means marketing, advertising or promotional materials
developed by or for LICENSEE (or subject to LICENSEE's approval) that promote
the sale of the Licensed Products, including but not limited to, television,
radio and on-line advertising, point-of-sale materials (e.g., posters,
counter-cards), package advertising, print media and all audio or video content
other than the Game that is to be included on the Game Disc.
2.14
"NDA" means the non-disclosure agreement related to Wii previously entered
into
between NOA and LICENSEE.
2.15
"Nintendo" means NOA's parent company, Nintendo Co., Ltd., of Kyoto, Japan,
individually or collectively with NOA.
2.16
"Notice" means any notice permitted or required under this Agreement. All
notices shall be sufficiently given when (a) personally served or delivered,
or
(b) transmitted by facsimile, with an original sent concurrently by first class
U.S. mail, or (c) deposited, postage prepaid, with a guaranteed air courier
service, in each case addressed as stated herein, or addressed to such other
person or address either party may designate in a Notice. Notice shall be deemed
effective upon the earlier of actual receipt or two (2) business days after
transmittal, provided, however, any Notice received after the recipient's normal
business hours will be deemed received on the next business day.
2.17
"Price Schedule" means the then current version of NOA's schedule of purchase
prices and minimum order quantities for the Bulk Goods.
2.18
"Printed Materials" means a plastic disc storage case, title page, instruction
booklet, warranty card and poster incorporating the Artwork.
2.19
"Promotional Disc(s)" means custom optical discs compatible with Wii that
incorporate select game promotional or supplemental materials, as may be
specified or permitted in the Guidelines.
2.20
"Proprietary Rights" means any rights or applications for rights owned, licensed
or otherwise held in patents, trademarks, service marks, copyrights, mask works,
trade secrets, trade dress, moral rights and publicity rights, together with
all
inventions, discoveries, ideas, technology, know-how, data, information,
processes, formulas, drawings and designs, licenses, computer programs, software
source code and object code, and all amendments, modifications, and improvements
thereto for which such patent, trademark, service xxxx, copyright mask work,
trade secrets, trade dress, moral rights or publicity rights may exist or may
be
sought and obtained in the future.
2.21
"Rebate Program" means any then current version of NOA's optional rebate
program, establishing select terms for price rebates under this Agreement.
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2.22
"Reverse Engineer(ing)" means, without limitation, (a) the x-ray, electronic
scanning or physical or chemical stripping of semiconductor components, (b)
the
disassembly, decompilation, decryption or simulation of object code or
executable code, or (c) any other technique designed to extract source code
or
facilitate the duplication of a program or product.
2.23
"Security Technology" means the highly proprietary security features of the
Wii
and the Licensed Products to minimize the risk of unlawful copying and other
unauthorized or unsafe usage, including, without limitation, any security
signature, bios, data scrambling, password, hardware security apparatus,
watermark, hologram, encryption, digital rights management system, copyright
management information system, proprietary manufacturing process or any feature
which obstructs piracy, limits unlawful, unsafe or unauthorized use, or
facilitates or limits compatibility with other hardware, software, accessories
or peripherals, or with respect to a video game system other than the Wii,
or
limits distribution outside of the Territory.
2.24
"Term" means three (3) years from the date of the last signature below.
2.25
"Territory" means all countries within the Western Hemisphere and their
respective territories and possessions.
2.26
'Wii
Network Services" means and includes the Wii Shop Channel Services,
WiiConnect24, and any related services and material delivered to a consumer's
Wii console over the Internet.
3.
GRANT
OF LICENSE: LICENSEE RESTRICTIONS
3.1
Limited License Grant. For the Term and for the Territory, NOA grants to
LICENSEE a nonexclusive, nontransferable, limited license to use the
Intellectual Property Rights to develop (or have developed on LICENSEE's behalf)
Games for manufacture, advertising, marketing and sale by LICENSEE as Licensed
Products, subject to the terms and conditions of this Agreement. Except as
permitted under a separate written authorization from Nintendo, LICENSEE shall
not use the Intellectual Property Rights for any other purpose.
3.2
LICENSEE Acknowledgement. LICENSEE acknowledges (a) the valuable nature of
the
Intellectual Property Rights, (b) the right, title and interest of Nintendo
in
and to the Intellectual Property Rights, and (c) the right, title, and interest
of Nintendo in and to the Proprietary Rights associated with all aspects of
Wii.
LICENSEE recognizes that the Development Tools, Games, Game Discs and Licensed
Products will embody valuable rights of Nintendo and Nintendo's licensors.
LICENSEE represents and warrants that it will not undertake any act or thing
which in any way impairs or is intended to impair any part of the right, title,
interest or goodwill of Nintendo in the Intellectual Property Rights. LICENSEE's
use of the Intellectual Property Rights shall not create any right, title or
interest of LICENSEE therein. Licensee is authorized and permitted to develop
Games, and have manufactured, advertise, market, and sell Licensed Products,
only for play on Wii and only in accordance with this Agreement.
3.3
LICENSEE Restrictions and Prohibitions. LICENSEE is not licensed to and
covenants that, without the express, written consent of NOA, it will not at
any
time, directly or indirectly, do or cause to be done any of the following:
(a)
grant
access to, distribute, transmit or broadcast a Game by electronic means or
by
any other means known or hereafter devised, inclUding, without limitation,
by
wireless, cable, fiber optic, telephone lines, microwave, radiowave, computer
or
other device network, except (a) as a part of wireless Game play on and among
Wii systems, or between Wii and Nintendo OS systems (b) for the purpose of
facilitating Game development under the terms of this Agreement, or (c) as
otherwise approved in writing by Nintendo. LICENSEE shall use reasonable
security measures, customary within the high technology industry, to reduce
the
risk of unauthorized interception or retransmission of any Game transmission.
No
right of retransmission shall attach to any authorized transmission of a Game;
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(b)
authorize or permit any online activities involving a Game, including, without
limitation, multiplayer, peer-to-peer or online play, except as expressly
permitted by Nintendo in writing;
(c)
modify, install or operate a Game on any server or computing device for the
purpose of or resulting in the rental, lease, loan or other grant of remote
access to the Game;
(d)
emulate, interoperate, interface or link a Game for operation or use with any
hardware or software platform, accessory, computer language, computer
environment, chip instruction set, consumer electronics device or device other
than Wii, the Nintendo DS system, the Development Tools or such other Nintendo
system as NOA may authorize in the Guidelines;
(e)
embed, incorporate, or store a Game in any media or format except the optical
disc format utilized by Wii, except as may be necessary as a part of the Game
development process under this Agreement;
(f)
design, implement or undertake any process, procedure, program or act designed
to disable, obstruct, circumvent or otherwise diminish the effectiveness or
operation of the Security Technology;
(g)
utilize the Intellectual Property Rights to design or develop any interactive
video game program, except as authorized under this Agreement;
(h) manufacture
or reproduce a Game developed under this Agreement, except through Nintendo;
or
(i) Reverse
Engineer or assist in Reverse Engineering all or any part of Wii, including
the hardware, software (embedded or not) or the Security Technology.
3.4
No
Free-Riding; No Co-Publishing Arrangements. To protect Nintendo's valuable
Intellectual Property Rights, to prevent the dilution of Nintendo's trademarks
and to preclude free-riding by third parties on the goodwill associated with
Nintendo's trademarks, LICENSEE desires use of the highly proprietary
programming specifications, unique and valuable security technology, trademarks,
copyrights and other valuable intellectual property rights of NOA and its parent
company, Nintendo Co., Ltd., which rights are only available for use under
the
terms of a license agreement, to develop, have manufactured, advertise, market
and sell video game software for play on Wii. This Agreement, together with
all
submissions, representations, undertakings and approvals contemplated of
LICENSEE by this Agreement, is and shall remain the right and obligation only
of
LICENSEE. All Printed Materials and Marketing Materials for a Game shall
prominently and accurately identify LICENSEE as NOA's licensee. NOA does not
permit the designation or identification of any third party co-publisher for
a
Game on any Game Disc or Game Disc label Artwork, however, LICENSEE may identify
a third party as a co-publisher, licensor, developer or other partner of
LICENSEE in those Printed Materials (other than the Game Disc label), Marketing
Materials or Game credits, as authorized under the Guidelines. For purposes
of
clarification, LICENSEE's name, or logo, will appear on the Licensed Product
Game Disc case and Game Disc label as it appears in the preamble of this
Agreement.
3.5
Development Tools. NOA and Nintendo Co., Ltd. may lease, loan or sell
Development Tools to LICENSEE to assist in the development of Games under this
Agreement. Ownership and use of any Development Tools shall be subject to the
terms of this Agreement and any separate license or purchase agreement required
by Nintendo or any third party licensing the Development Tools. LICENSEE
acknowledges the respective interests of Nintendo, and in the case of
third-party Development Tools, such third parties, in and to the Proprietary
Rights associated with the Development Tools. LICENSEE's use of the Development
Tools shall not create any right, title or interest of LICENSEE therein.
LICENSEE shall not, directly or indirectly, (a) use the Development Tools for
any purpose except the design and development of Games under this Agreement,
(b)
reproduce or create derivatives of the Development Tools, except in association
with the development of Games under this Agreement, (c) Reverse Engineer the
Development Tools, or (d) sell, lease, assign, lend, license, encumber
or otherwise transfer the Development Tools. Anything developed or derived
by
LICENSEE as a result of a study of the performance, design or operation of
any
Nintendo Development Tools shall be considered a derivative work of the
Intellectual Property Rights and shall belong to Nintendo, but may be retained
and utilized by LICENSEE in connection with this Agreement. In no event shall
LICENSEE (i) seek, claim or file for any patent, copyright or other Proprietary
Right with regard to any such derivative work, (ii) make available any such
derivative work to any third party, or (iii) use any such derivative work except
in connection with the design and development of Games under this Agreement.
Anything developed or derived by LICENSEE as a result of a study of the
performance, design or operation of any third-party Development Tools shall
be
governed by the terms of the license agreement applicable to such Development
Tools. Notwithstanding any referral or information provided or posted regarding
third- party Development Tools, NOA and Nintendo Co., Ltd. make no
representations or warranties with regard to any such third-party Development
Tools. LICENSEE acquires and utilizes third-party Development Tools at its
own
risk.
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3.6
Third
Party Developers. LICENSEE shall not disclose the Confidential Information,
the
Guidelines or the Intellectual Property Rights to any Independent Contractor,
nor permit any Independent Contractor to perform or assist in development work
for a Game, unless and until such Independent Contractor has signed a
confidentiality agreement with LICENSEE that is no less restrictive than the
terms of Section 8 below, and that expressly includes the following language:
"Independent
Contractor may have access to
highly- confidential and proprietary information, intellectual property,
and trade secrets of Nintendo Co.,
Ltd.
and/or Nintendo of America Inc. (collectively, "Nintendo"). Independent
Contractor expressly acknowledges (i) the valuable nature of such
materials; and (ii)
Nintendo's right, title and interest in such materials. All such
materials
constitute confidential information under this agreement and shall
be
treated by Independent Contractor as such. Independent Contractor
shall
not undertake any act or thing which in any way impairs or is intended
to
impair any part of the right, title, interest or goodwill of Nintendo
in
such materials. Independent Contractor's use of such materials shall
not
create any right, title or interest of Independent Contractor therein.
Nintendo Co.,
Ltd.
and Nintendo of America Inc. are intended third -party beneficiaries
of
this agreement."
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LICENSEE
shall, upon request by NOA, provide NOA with copies of the confidentiality
agreements required by this Section. Notwithstanding any such confidentiality
agreement, LICENSEE shall remain fully responsible for, and shall hold NOA
and
Nintendo Co., Ltd. harmless against, any breach of the confidentiality agreement
by any Independent Contractor involving any Confidential Information,
Guidelines, or Intellectual Property Rights.
3.7
Games
Developed for Linked Play on Two Systems. In the event the Guidelines permit
LICENSEE to develop a Game for simultaneous or linked play on Wii and on another
Nintendo video game system, LICENSEE shall be required to acquire and maintain
with NOA such additional licenses as are necessary for the use of the
Proprietary Rights associated with such other Nintendo video game system.
3.8
In
Game Advertising. LICENSEE shall not include advertising or product placements
for products or services of third parties, whether in the Game, as separate
content on a Game Disc (e.g., a trailer), or in the Printed Materials without
Nintendo's prior written consent.
3.9
Use
of Mii Characters. LICENSEE shall not develop any Game that permits Nintendo's
Mii characters to appear in the Game without NOA's prior written consent.
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3.10
Sending Data to Consumers. LICENSEE shall not, without the prior, written
consent of NOA, send any data, content, messages, advertising, or other
communications of any kind to any consumer's Wii console through the Wii Network
Services or otherwise.
3.11
Downloadable Content. If LICENSEE desires to develop Games, or updates/additions
of any kind for any Licensed Product, to be downloaded to consumers through
the
Wii Network Services, the terms and conditions of such development shall be
separately agreed in writing between the parties. LICENSEE acknowledges that
the
rights granted herein do not include the right to use the Intellectual Property
Rights to develop downloadable content.
4.
SUBMISSION
AND APPROVAL OF GAME AND ARTWORK
4.1
Submission of a Completed Game to NOA. Upon completion of a Game, LICENSEE
shall
deliver a prototype of the Game to NOA in a format specified in the Guidelines.
Delivery shall be made in accordance with the methods set forth in the
Guidelines. Each Submission shall include such other information or
documentation deemed necessary by NOA, including, without limitation, a complete
set of written user instructions, a complete description of any security holes,
backdoors, time bombs, cheats, "easter eggs" or other hidden features or
characters in the Game and a complete screen text script. LICENSEE must
establish that the Game and any other content included on the Game Disc complies
with the Advertising Code of Conduct of the Entertainment Software Ratings
Board
("ESRB") and that the Game has been rated EC, E, E10+, Tor M (or another
non-Adult Only category added by the ESRB) by the ESRB. LICENSEE shall provide
NOA with a certificate of rating for the Game issued by the ESRB.
4.2
Testing of a Completed Game. Upon submission of a completed Game, NOA and
Nintendo Co., Ltd. shall promptly test the Game with regard to its technical
compatibility with and error--free operation on Wii, utilizing the lot check
process. Within a reasonable period of time after receipt, NOA shall approve
or
disapprove such Game. If a Game is disapproved, NOA shall specify in writing
the
reasons for such disapproval and state what corrections are necessary. After
making the necessary corrections, LICENSEE shall submit a revised Game to NOA
for testing. NOA shall not unreasonably withhold or delay its approval of any
Game. Neither the testing nor approval of a Game by NOA or Nintendo Co., Ltd.
shall relieve LICENSEE of its sole responsibility for the development, quality
and operation of the Game or in any way create any warranty by NOA or Nintendo
Co., Ltd. relating to any Licensed Product.
4.3
Production of Check Discs. By submission of a completed Game to NOA in
accordance with section 4.1, LICENSEE authorizes Nintendo to proceed with
production of Check Discs for such Game. If NOA approves a Game, it shall
promptly, and without further notification to or instruction from LICENSEE,
submit such Game for the production of Check Discs. Unless otherwise advised
by
LICENSEE, following production of the Check Discs, NOA shall deliver to LICENSEE
approximately ten (10) Check Discs for content verification, testing and final
approval by LICENSEE.
4.4
Approval or Disapproval of Check Discs by LICENSEE. If, after review and
testing, LICENSEE approves the Check Discs, it shall promptly transmit to NOA
a
signed authorization for production in the form specified in the Guidelines.
If
LICENSEE does not approve the sample Check Discs for any reason, LICENSEE shall
advise NOA in writing and may, after undertaking any necessary changes or
corrections, resubmit the Game to NOA for approval in accordance with the
procedures set forth in this Section 4. The absence of a signed authorization
form from LICENSEE within five (5) days after delivery of the Check Discs to
LICENSEE shall be deemed disapproval of such Check Discs. Production of any
order for Bulk Goods shall not proceed without LICENSEE's signed authorization.
4.5
Cost
of Check Discs and Disc Xxxxxxx. If LICENSEE: (a) disapproves the Check Discs
for any reason; (b) fails to order the minimum order quantity of any Game
approved by NOA within six (6) months after the date the Game was first approved
by NOA; or (c) submits a revised version of the Game to NOA after production
of
such Game has commenced, LICENSEE shall reimburse NOA (or its designee) for
the
reasonable estimated cost of the production of the Check Discs, including the
cost of the disc xxxxxxx. The payment will be due
(i)
thirty (30) days after NOA's written notification to LICENSEE of the Check
Disc
fee due NOA because of LICENSEE's failure to approve such Check Disc; (ii)
six
(6) months after the date the Game was first approved by
NOA;
or (iii) upon the subsequent submission by LICENSEE of a revised version of
the
Game to NOA, as the case may be.
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4.6
Submission and Approval of Artwork. Prior to submitting a completed Game to
NOA
under Section 4.1, LICENSEE shall submit to NOA all Artwork for the proposed
Licensed Product. Within ten (10) business days of receipt, NOA shall approve
or
disapprove the Artwork. If any Artwork is disapproved, NOA shall specify in
writing the reasons for such disapproval and state what corrections or
improvements are necessary. After making the necessary corrections or
improvements, LICENSEE shall submit revised Artwork to NOA for approval. NOA
shall not unreasonably withhold or delay its approval of any Artwork. The
approval of the Artwork by NOA shall not relieve LICENSEE of its sole
responsibility for the development and quality of the Artwork or in any way
create any warranty for the Artwork or the Licensed Product by NOA. All Artwork
must be approved prior to submitting an order for the Bulk Goods, and LICENSEE
shall not produce any Printed Materials for commercial distribution until such
Artwork has been approved by NOA.
4.7
Promotional Discs. In the event NOA issues Guidelines in the future that permit
LICENSEE to develop and distribute Promotional Discs, either separately or
as a
part of the Licensed Product, the content and specifications of such Promotional
Disc shall be subject to all of the terms and conditions of this Agreement,
including, without limitation, the Guidelines, the Price Schedule and the
submission and approval procedures provided for in this Section 4.
5.
ORDER
PROCESS, PURCHASE PRICE, PAYMENT AND DELIVERY
5.1
Submission of Orders by LICENSEE. After receipt of NOA's approval for a Game
and
Artwork, LICENSEE may at any time submit a written purchase order to NOA for
Bulk Goods for such Game. The terms and conditions of this Agreement shall
control over any contrary or additional terms of such purchase order or any
other written documentation or verbal instruction from LICENSEE. All orders
shall be subject to acceptance by NOA in Redmond, WA.
5.2
Purchase Price and Minimum Order Quantities. The purchase price and minimum
order quantities for the Bulk Goods shall be set forth in NOA's then current
Price Schedule. Unless otherwise specifically provided for, the purchase price
includes the cost of manufacturing a single Game Disc, together with a royalty
for the use of the Intellectual Property Rights. No taxes, duties, import fees
or other tariffs related to the development, manufacture, import, marketing
or
sale of the Licensed Products (except for taxes imposed on NOA's income) are
included in the purchase price and all such taxes are the responsibility of
LICENSEE. The Price Schedule is subject to change by NOA at any time without
Notice, provided however, that any price increase shall be applicable only
to
purchase orders submitted, paid for, and accepted by NOA after the effective
date of the price increase.
5.3
Payment. Upon placement of an order with NOA, LICENSEE shall pay the full
purchase price either (a) by tender of an irrevocable letter of credit in favor
of NOA (or its designee) and payable at sight, issued by a bank acceptable
to
NOA and confirmed, if requested by NOA, at LICENSEE's expense, or (b) in cash,
by wire transfer to an account designated by NOA. All letters of credit shall
comply with NOA's written instructions and all associated banking charges shall
be for LICENSEE's account.
5.4
Delivery of Bulk Goods. Bulk Goods shall be delivered to LICENSEE FCA Torrance,
California, USA, or such other delivery point within the continental United
States as may be specified by NOA. Orders may be delivered in partial shipments,
at NOA's option. Title to Bulk Goods shall vest in LICENSEE in accordance with
the terms of the applicable letter of credit, or in the absence thereof, upon
delivery to LICENSEE and receipt by NOA of full payment for the shipment at
issue. The term "FCA" shall have the same meaning for purposes of this Section
as given by INCOTERMS 2000.
5.5
Rebate Program. NOA, at its sole option, may elect to offer LICENSEE a Rebate
Program. The terms and conditions of any Rebate Program shall be subject to
NOA's sole discretion.
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LICENSEE
shall not be entitled to offset any claimed rebate amount against other amounts
owing NOA. No interest shall be payable by NOA to LICENSEE on any claimed
rebate. The Rebate Program is subject to change or cancellation by NOA at any
time without Notice.
6.
MANUFACTURE
OF THE LICENSED PRODUCT
6.1
Manufacturing. Nintendo Co., Ltd. shall be the exclusive source for the
manufacture of the Game Discs, Check Discs and Promotional Discs, with
responsibility for all aspects of the manufacturing process, including the
selection of the locations and specifications for any manufacturing facilities,
determination of materials and processes, appointment of suppliers and
subcontractors and management of all work-in-progress. Upon acceptance by NOA
of
a purchase order from LICENSEE and receipt of payment as provided for at Section
5.3 herein, NOA shall place the order with Nintendo Co., Ltd. who shall (through
its suppliers and subcontractors) arrange for manufacturing.
6.2
Security Features. The final release version of the Game, the Game Disc and
the
Printed Materials shall include such Security Technology as Nintendo, in its
sole discretion, deems necessary or appropriate to (a) reduce the risk of
unlawful copying or other unlawful, unsafe or unauthorized uses,
(b)
protect the Proprietary Rights of Nintendo and of the LICENSEE, (c) promote
consumer confidence, and (d) increase the quality, reliability or operation
of
Wii.
6.3
Printed Materials for Bulk Goods. Upon delivery to LICENSEE of Bulk Goods,
LICENSEE shall assemble the Printed Materials and Bulk Goods into the Licensed
Products in accordance with the Guidelines. No other materials, items, products
or packaging may be included or assembled with the Bulk Goods without NOA's
prior written consent. Bulk Goods may be sold or distributed by LICENSEE only
when fully assembled in accordance with the Guidelines.
6.4
Prior
Approval of LICENSEE's Independent Contractors. Prior to the placement of a
purchase order for Bulk Goods, LICENSEE shall obtain NOA's approval of any
Independent Contractors selected to perform the production and assembly
operations. LICENSEE shall provide NOA with the names, addresses and all
business documentation reasonably requested by NOA for such Independent
Contractors. NOA may, prior to approval and at reasonable intervals thereafter,
(a) require submission of additional business or financial information regarding
the Independent Contractors, (b) inspect applicable facilities of the
Independent Contractors, and (c) be present to supervise any work on the
Licensed Products to be done by the Independent Contractors. If at any time
NOA
deems the Independent Contractor to be unable to meet quality, security or
performance standards reasonably established by NOA, NOA may refuse to grant
its
approval or withdraw its approval upon Notice to LICENSEE. LICENSEE may not
proceed with the production of the Printed Materials or assembly of the Licensed
Product by such Independent Contractor until NOA's concerns have been resolved
to its satisfaction or until LICENSEE has selected and received NOA's approval
of another Independent Contractor. NOA may establish preferred or required
supply sources for select components of the Printed Materials, or for assembly
of Printed Materials and Bulk Goods into Licensed Products, which sources shall
be deemed preapproved in accordance with this Section 6.4. LICENSEE shall comply
with all sourcing requirements established by NOA.
6.5
Sample Printed Materials. Within a reasonable period of time after LICENSEE's
assembly of an initial order for Bulk Goods for a Game title, LICENSEE shall
provide NOA with (a) six (6) samples of the fully assembled Licensed Product,
and (b) seventy-five (75) samples of the LICENSEE produced Printed Materials
(excluding the plastic disc storage case, warranty card, and poster) for such
Game title.
6.6
Retention of Sample Licensed Products by NOA. NOA or Nintendo may, at their
own
expense, manufacture reasonable quantities of the Bulk Goods, and make a
reasonable number of copies of the Printed Materials to be used for archival
purposes, legal proceedings against infringers of the Intellectual Property
Rights and for other lawful purposes.
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7.
MARKETING
AND ADVERTISING
7.1
Approval
of Marketing Materials. LICENSEE represents and warrants that the Printed
Materials and the Marketing Materials shall be of high quality and comply with
(a) the Guidelines, (b) the ESRB's Advertising Code of Conduct and Principles
and Guidelines for Responsible Advertising, and (c) all applicable laws and
regulations in those jurisdictions in the Territory where they will be used
or
distributed, including without limitation all applicable privacy laws such
as
the Children's Online Privacy Protection Act. Prior to actual use or
distribution, LICENSEE shall submit to NOA for review samples of all proposed
Marketing Materials. NOA shall, within ten (10) business days of receipt,
approve or disapprove of the quality of such samples. If any of the samples
are
disapproved, NOA shall specify the reasons for such disapproval and state what
corrections and/or improvements are necessary. After making the necessary
corrections and/or improvements, LICENSEE shall submit revised samples for
approval by NOA. No Marketing Materials shall be used or distributed by LICENSEE
without NOA's prior written approval. NOA shall not unreasonably withhold or
delay its approval of any proposed Marketing Materials.
7.2
No
Bundling. To protect Nintendo's valuable Intellectual Property Rights, to
prevent the dilution of Nintendo's trademarks and to preclude free-riding by
non-licensed products on the goodwill associated with Nintendo's trademarks,
LICENSEE shall not market or distribute any Games or Game Discs that have been
bundled with (a) any peripheral designed for use with Wii that has not been
licensed or approved in writing by NOA, or (b) any other product or service
where NOA's association, approval or endorsement might be suggested by bundling
the products or services.
7.3
Warranty
and Repair. LICENSEE shall provide the original consumer with a minimum ninety
(90) day limited warranty on all Licensed Products. LICENSEE shall also provide
reasonable product service, including out-of-warranty service, for all Licensed
Products. LICENSEE shall make such warranty and repair information available
to
consumers as required by applicable federal and state law.
7.4
Business Facilities. LICENSEE agrees to develop and maintain (a) suitable office
facilities within the United States, adequately staffed to enable LICENSEE
to
fulfill all responsibilities under this Agreement, (b) necessary warehouse,
distribution, marketing, sales, collection and credit operations to facilitate
proper handling of the Licensed Product, and (c) customer service and game
counseling, including telephone service, to adequately support the Licensed
Products.
7.5
No
Sales
Outside the Territory. LICENSEE covenants that it shall not market, sell, offer
to sell, import or distribute the Licensed Products outside the Territory,
or
within the Territory when LICENSEE has actual or constructive knowledge that
a
subsequent destination of the Licensed Product is outside the Territory.
7.6
Defects
and Recall. In the event of a material programming defect in a Licensed Product
that would, in NOA's reasonable judgment, significantly impair the ability
of a
consumer to play the Game, NOA may, after consultation with LICENSEE, require
the LICENSEE to recall the Licensed Product and undertake suitable repairs
or
replacements.
7.7
NOA
Promotional Materials, Publications and Events. At its option and expense,
NOA
may (a) utilize screen shots, Artwork and information regarding the Licensed
Products in Nintendo Power, Nintendo Power Source, official Nintendo sponsored
web sites or other advertising, promotional or marketing media, which promote
Nintendo products, services or programs, and (b) exercise public performance
rights in the Games and use related trademarks and Artwork in connection with
NOA sponsored contests, tours, conventions, trade shows, press briefings and
similar events which promote Wii.
7.8
Nintendo Gateway System. To promote and increase demand for games on Nintendo
video game systems, NOA licenses select games in various non-coin activated
commercial settings such as commercial airlines, cruise ships, rail systems
and
hotels, where customers play games on specially adapted Nintendo video
game
hardware referred to as the "Nintendo Gateway System". If NOA identifies a
Game
for possible license on the Nintendo Gateway System, the parties agree to
conduct good faith negotiations to determine commercially reasonable terms
for
such participation.
9
8.
CONFIDENTIAL
INFORMATION
8.1
Definition. Confidential Information means information provided to LICENSEE
by
Nintendo or any third party working with Nintendo relating to the hardware
and
software for Wii or the Development Tools, including, but not limited to, (a)
all current or future information, know-how, techniques, methods, information,
tools, emulator hardware or software, software development specifications,
proprietary manufacturing processes and/or trade secrets, (b) any information
on
patents or patent applications, (c) any business, legal, marketing, pricing
or
sales data or information, and (d) any other information or data relating to
development, design, operation, manufacturing, marketing or sales. Confidential
Information shall include all confidential information disclosed, whether in
writing, orally, visually, or in the form of drawings, technical specifications,
software, samples, pictures, models, recordings, or other tangible items which
contain or manifest, in any form, the above listed information. Confidential
Information shall not include (i) data and information which was in the public
domain prior to LICENSEE's receipt of the same hereunder, or which subsequently
becomes part of the public domain by publication or otherwise, except by
LICENSEE's wrongful act or omission, (ii) data and information which LICENSEE
can demonstrate, through written records kept in the ordinary course of
business, was in its possession without restriction on use or disclosure, prior
to its receipt of the same hereunder and was not acquired directly or indirectly
from Nintendo under an obligation of confidentiality which is still in force,
and (iii) data and information which LICENSEE can show was received by it from
a
third party who did not acquire
the same directly or indirectly from Nintendo and to whom LICENSEE has no
obligation of confidentiality.
8.2
Disclosures Required by Law. LICENSEE shall be permitted to disclose
Confidential Information if such disclosure is required by an authorized
governmental or judicial entity, provided that LICENSEE shall notify NOA at
least thirty (30) days prior to such disclosure. LICENSEE shall use its best
efforts to limit the disclosure to the greatest extent possible consistent
with
LICENSEE's legal obligations, and if required by NOA, shall cooperate in the
preparation and entry of appropriate protective orders.
8.3
Disclosure and Use. NOA may provide LICENSEE with highly confidential
development information, Guidelines, Development Tools, systems, specifications
and related resources and information constituting and incorporating the
Confidential Information to assist LICENSEE in the development of Games.
LICENSEE agrees to maintain all Confidential Information as strictly
confidential and to use such Confidential Information only in accordance with
this Agreement. LICENSEE shall limit access to the Confidential Information
to
LICENSEE's employees, and Independent Contractors that are in compliance with
the requirements of Section 3.6 above, having a strict need to know and shall
advise such individuals of their obligation of confidentiality as provided
herein. LICENSEE shall require each such individual retain in confidence the
Confidential Information pursuant to a written non-disclosure agreement with
LICENSEE. LICENSEE shall use its best efforts to ensure that individuals who
are
permitted hereunder to work with or otherwise having access to Confidential
Information shall not disclose or make any unauthorized use of the Confidential
Information.
8.4
Agreement Confidentiality. LICENSEE agrees that the terms, conditions and
contents of this Agreement shall be treated as Confidential Information. Any
public announcement or press release regarding this Agreement or the release
dates for Games developed by LICENSEE under this Agreement shall be subject
to
NOA's prior written approval. The parties may disclose this Agreement (a) to
accountants, banks, financing sources, lawyers, parent companies and related
parties under substantially equivalent confidentiality obligations, (b) in
connection with any formal legal proceeding for the enforcement of this
Agreement, (c) as required by the regulations of the Securities and Exchange
Commission ("SEC"), provided that all Confidential Information shall be redacted
from such disclosures to the maximum extent allowed by the SEC, and (d) in
response to lawful process, subject to a written protective order approved
in
advance by NOA.
10
8.5
Notification Obligations. LICENSEE shall promptly notify NOA of the unauthorized
use or disclosure of any Confidential Information by LICENSEE or any of its
employees, or any Independent Contractor or its employees, and shall promptly
act to recover any such information and prevent further breach of the
obligations herein. The obligations of LICENSEE set forth herein are in addition
to and not in lieu of any other legal remedy that may be available to NOA under
this Agreement or applicable law.
8.6
Continuing Effect of the NDA. The terms of this Section 8 supplement the terms
of the NDA, which shall remain in effect. In the event of a conflict between
the
terms of the NDA and this Agreement, the provisions of this Agreement shall
control.
9.
REPRESENTATIONS
AND WARRANTIES
9.1
LICENSEE's Representations and Warranties. LICENSEE represents and warrants
that:
(a)
it is
a duly organized and validly existing corporation and has full authority to
enter into this Agreement and to carry out the provisions hereof,
(b)
the
execution, delivery and performance of this Agreement by LICENSEE does not
conflict with any agreement or understanding to which LICENSEE may be bound,
and
(c)
excluding the Intellectual Property Rights, LICENSEE is either (i) the sole
owner of all right, title and interest in and to the trademarks, copyrights
and
all other Proprietary Rights incorporated into the Game or the Artwork or used
in the development, advertising, marketing and sale of the Licensed Products
or
the Marketing Materials, or (ii) the holder of such rights, including
trademarks, copyrights and all other Proprietary Rights which belong to any
third party but have been licensed from such third party by LICENSEE, as are
necessary for incorporation into the Game or the Artwork or as are used in
the
development, advertising, marketing and sale of the Licensed Products or the
Marketing Materials under this Agreement.
9.2
NOA's
Representations and Warranties. NOA represents and warrants that:
(a)
it is
a duly organized and validly existing corporation and has full authority to
enter into this Agreement and to carry out the provisions hereof, and
(b)
the
execution, delivery and performance of this Agreement by NOA does not conflict
with any agreement or understanding to which NOA may be bound.
9.3
INTELLECTUAL PROPERTY RIGHTS DISCLAIMER. NOA (ON ITS OWN BEHALF AND ON BEHALF
OF
NINTENDO CO., LTD. AND ITS AFFILIATES, LICENSORS, SUPPLIERS AND SUBCONTRACTORS)
EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES CONCERNING THE SCOPE
OR
VALIDITY OF THE INTELLECTUAL PROPERTY RIGHTS. NOA (ON ITS OWN BEHALF AND ON
BEHALF OF NINTENDO CO., LTD. AND ITS AFFILIATES, LICENSORS, SUPPLIERS AND
SUBCONTRACTORS) EXPRESSLY DISCLAIMS ANY WARRANTY THAT THE DESIGN, DEVELOPMENT,
ADVERTISING, MARKETING OR SALE OF THE LICENSED PRODUCTS OR THE USE OF THE
INTELLECTUAL PROPERTY RIGHTS BY LICENSEE WILL NOT INFRINGE UPON ANY PATENT,
COPYRIGHT, TRADEMARK OR OTHER PROPRIETARY RIGHTS OF A THIRD PARTY. ANY WARRANTY
THAT MAY BE PROVIDED IN ANY APPLICABLE PROVISION OF THE UNIFORM COMMERCIAL
CODE
OR ANY OTHER COMPARABLE LAW OR STATUTE IS EXPRESSLY DISCLAIMED. LICENSEE HEREBY
ASSUMES THE RISK OF INFRINGEMENT.
9.4
GENERAL DISCLAIMER. NOA (ON ITS OWN BEHALF AND ON BEHALF OF NINTENDO CO., LTD.
AND ITS AFFILIATES, LICENSORS, SUPPLIERS AND SUBCONTRACTORS) EXPRESSLY DISCLAIMS
ANY AND ALL WARRANTIES WITH RESPECT TO THE BULK GOODS AND THE LICENSED PRODUCTS,
INCLUDING, WITHOUT LIMITATION, THE SECURITY TECHNOLOGY. LICENSEE PURCHASES
AND
ACCEPTS ALL BULK GOODS AND LICENSED PRODUCTS ON AN "AS IS" AND 'WHERE IS" BASIS.
NOA (ON ITS OWN BEHALF AND ON BEHALF OF NINTENDO CO., LTD. AND ITS AFFILIATES,
LICENSORS, SUPPLIERS
AND SUBCONTRACTOR) EXPRESSLY DISCLAIMS ALL WARRANTIES UNDER THE APPLICABLE
LAWS
OF ANY COUNTRY, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A GENERAL OR PARTICULAR PURPOSE.
11
9.5
LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITIED BY LAW, NEITHER NOA
NOR
NINTENDO CO., LTD. (NOR THEIR AFFILIATES, LICENSORS, SUPPLIERS OR
SUBCONTRACTORS) SHALL BE LIABLE FOR LOSS OF PROFITS, OR FOR ANY SPECIAL,
PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF LICENSEE OR ITS CUSTOMERS
ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION,
THE
BREACH OF THIS AGREEMENT BY NOA, THE MANUFACTURE OF THE BULK GOODS OR THE USE
OF
THE BULK GOODS ON ANY NINTENDO VIDEO GAME SYSTEM BY LICENSEE OR BY ANY END
USER.
10.
INDEMNIFICATION
10.1
Claim. "Claim" means any and all third party claims, demands, actions, suits,
proceedings, losses, liabilities, damages, expenses and costs, including,
without limitation, reasonable attorneys' fees and costs and any expenses
incurred in the settlement or avoidance of any such claim. "Claim" shall
specifically include civil, criminal, and regulatory matters, and those brought
by any third party (including governmental authorities or agencies) under any
federal, state, or foreign law or regulation, or the rules of any
self-regulatory body (e.g., ESRB).
10.2
LICENSEE's Indemnification. LICENSEE shall indemnify and hold harmless NOA
and
Nintendo Co., Ltd. (and any of their respective affiliates, subsidiaries,
licensors, suppliers, officers, directors, employees or agents) from any Claims
which are alleged to result from or be in connection with:
(a)
a
breach by LICENSEE of any of the provisions in this Agreement,
(b)
any
infringement of a third party's Proprietary Rights as a result of the design,
development, advertising, marketing, sale or use of any aspect of the Licensed
Products, Promotional Materials or the Marketing Materials,
(c)
a
defect, failure to warn, bodily injury (inclUding death) or other personal
or
property damage arising out of, or in connection with, the design, development,
advertising, marketing, sale or use of any aspect of the Licensed Products,
and
(d)
the
design, development, advertising, marketing, sale or use of any aspect of the
Licensed Products, Promotional Materials or the Marketing Materials.
NOA
and
LICENSEE shall give prompt Notice to the other of any Claim which is or which
may be subject to indemnification under this Section 10. With respect to any
such Claim, LICENSEE, as indemnitor, shall have the right to select counsel
and
to control the defense and/or settlement thereof. NOA may, at its own expense,
participate in such action or proceeding with counsel of its own choice.
LICENSEE shall not enter into any settlement of any Claim in which (i)
NOA
or
Nintendo Co., Ltd. has been named as a party, or (ii) Intellectual Property
Rights have been asserted, without NOA's prior written consent. NOA shall
provide reasonable assistance to LICENSEE in its defense of any Claim.
10.3
LICENSEE's Insurance. LICENSEE shall, at its own expense, obtain a comprehensive
policy of general liability insurance (including coverage for advertising injury
and product liability Claims) from an insurance company rated at least B+ by
A.M. Best. Such policy of insurance shall be in an amount of not less than
Five
Million Dollars ($5,000,000 US) on a per occurrence basis and shall provide
for
adequate protection against any Claims. Such policy shall name NOA and Nintendo
Co., Ltd. as additional insureds and shall specify it may not be canceled
without thirty (30) days' prior written Notice to NOA. A Certificate of
Insurance shall be provided to NOA's Licensing Department not later than the
date of the initial order of Bulk Goods under this Agreement. If LICENSEE fails
to provide NOA's Licensing Department with such Certificate of Insurance or
fails to
maintain such insurance at any time during the Term and for a period of two
(2)
years thereafter, NOA, in its sole discretion may 1) terminate this Agreement
in
accordance with Section 13.2 herein; and/or 2) secure comparable insurance,
at
LICENSEE's expense, for the sole benefit and protection of NOA and Nintendo
Co.,
Ltd.
12
10.4
Suspension of Production. In the event NOA deems itself at risk with respect
to
any Claim under this Section 10, NOA may, at its sole option, suspend
production, delivery or order acceptance for any Bulk Goods, in whole or in
part, pending resolution of such Claim.
11.
PROTECTION
OF PROPRIETARY RIGHTS
11.1
Joint Actions against Infringers. LICENSEE and NOA may agree to jointly pursue
cases of infringement involving the Licensed Products, as such Licensed Products
will contain Proprietary Rights owned by each of them. Unless the parties
otherwise agree, or unless the recovery is expressly allocated between them
by
the court, in the event of such an action, any recovery shall be used first
to
reimburse LICENSEE and NOA for their respective reasonable attorneys' fees
and
costs, pro rata, and any remaining recovery shall be distributed to LICENSEE
and
NOA, pro rata, based upon the fees and costs incurred in bringing such action.
11.2
Actions by LICENSEE. LICENSEE, without the consent of NOA, may bring any action
or proceeding relating to an infringement or potential infringement of
LICENSEE's Proprietary Rights in the Licensed Products. LICENSEE shall make
reasonable good faith efforts to inform NOA of such actions in a timely manner.
LICENSEE will have the right to retain all proceeds it may derive from any
recovery in connection with such actions.
11.3
Actions by NOA. NOA, without the consent of LICENSEE, may bring any action
or
proceeding relating to an infringement or potential infringement of NOA's
Intellectual Property Rights in the Licensed Products. NOA shall make
reasonable, good faith efforts to inform LICENSEE of such actions likely to
affect LICENSEE's rights in a timely manner. NOA will have the right to retain
all proceeds it may derive from any recovery in connection with such actions.
12.
ASSIGNMENT
12.1
Definition. "Assignment" means every type and form of assignment, transfer,
sale, sublicense, delegation, encumbrance, pledge and/or hypothecation of
LICENSEE's rights or obligations under this Agreement, including, but not
limited to, (a) a voluntary assignment, transfer, sale, sublicense, delegation,
encumbrance, pledge and/or hypothecation by LICENSEE of all or any portion
of
its rights or obligations under this Agreement, (b) the assignment, transfer,
sale, sublicense, delegation, encumbrance, pledge and/or hypothecation of all
or
any portion of LICENSEE's rights or obligations under this Agreement to or
by
LICENSEE's trustee in bankruptcy, receiver, or other individual or entity
appointed to control or direct the business and affairs of LICENSEE, (c) an
involuntary assignment, transfer, sale, sublicense, delegation, encumbrance,
pledge or hypothecation of all or a portion of LICENSEE's rights or obligations
under this Agreement, including but not limited to a foreclosure by a third
party upon assets of LICENSEE, (d) the merger or consolidation of LICENSEE
if
LICENSEE is a corporation, and (e) any other means or method whereby rights
or
obligations of LICENSEE under this Agreement are sold, assigned or transferred
to another individual or entity for any reason. Assignment also includes the
sale, assignment, transfer or other event affecting a change in the controlling
interest of LICENSEE, whether by sale, transfer or assignment of shares in
LICENSEE, or by sale, transfer or assignment of partnership interests in
LICENSEE, or otherwise.
12.2
No
Assignment by LICENSEE. This Agreement and the subject matter hereof are
personal to LICENSEE. No Assignment of LICENSEE's rights or obligations
hereunder shall be valid or effective without NOA's prior written consent,
which
consent may be withheld by NOA for any reason whatsoever in its sole discretion.
In the event of an attempted Assignment in violation of this provision, NOA
shall have the right at any time, at its sole option, to immediately terminate
this Agreement. Upon such termination, NOA shall have no further
obligation under this Agreement to LICENSEE or to LICENSEE's intended or
purported assignee.
13
12.3
Proposed Assignment. Prior to any proposed Assignment of this Agreement,
LICENSEE shall give NOA not less than thirty (30) days prior written Notice
thereof, which Notice shall disclose the name of the proposed assignee, the
proposed effective date of the Assignment and the nature and extent of the
rights and obligations that LICENSEE proposes to assign. NOA may, in its sole
discretion, approve or disapprove such proposed Assignment. Unless written
consent is given by NOA to a proposed Assignment, any attempted or purported
Assignment shall be deemed disapproved and NOA shall have the unqualified right,
in its sole discretion, to terminate this Agreement at any time. Upon
termination, NOA shall have no further obligation under this Agreement to
LICENSEE or to LICENSEE's intended or purported assignee.
12.4
LICENSEE's Obligation of Non-Disclosure. LICENSEE shall not (a) disclose
Nintendo's Confidential Information to any proposed assignee of LICENSEE, or
(b)
permit access to Nintendo's Confidential Information by any proposed assignee
or
other third party, without the prior written consent of NOA to such disclosure.
13.
TERM
AND TERMINATION
13.1
Term. This Agreement shall commence on the Effective Date and shall continue
for
the Term, unless earlier terminated as provided for herein, or extended by
a
written amendment to this Agreement.
13.2
Termination.
(a)
In
the event that either party is in default or commits a breach of this Agreement,
that is not cured within thirty (30) days after Notice thereof, then this
Agreement shall, except as otherwise provided, automatically terminate on the
date specified in such Notice.
(b)
In
the event NOA reasonably believes that LICENSEE has developed, marketed, or
sold
a product that infringes any intellectual property rights of NOA or its parent
company, Nintendo Co., Ltd., anywhere in the world, then NOA may terminate
this
Agreement upon one hundred twenty (120) days Notice to Licensee, provided that
if the parties are able to resolve such alleged infringement within such 120
day
period, such termination shall not take effect.
(c)
At
NOA's option, any breach by LICENSEE of (i) the NDA, or (ii) any other license
agreement between NOA and LICENSEE relating to the development of games for
any
Nintendo video game system that is not cured within the time period for cure
allowed under the applicable agreement, shall be considered a material breach
of
this Agreement entitling NOA to immediately terminate this Agreement.
(d)
At
NOA's option, this Agreement may be terminated immediately and without Notice
in
the event that LICENSEE (a) makes an assignment for the benefit of creditors,
(b) becomes insolvent, (c) files a voluntary petition for bankruptcy, (d)
acquiesces to any involuntary bankruptcy petition, (e) is adjudicated as a
bankrupt, or (f) ceases to do business.
(e)
At
NOA's option, this Agreement may be terminated, upon LICENSEE's receipt of
Notice, if LICENSEE or any entity that controls, is controlled by, or is under
common control with LICENSEE, initiates legal action against NOA or any entity
that controls, is controlled by, or is under common control with NOA.
14
13.3
Sell-Off or Destruction of Licensed Product.
(a)
Upon
(i) the expiration of this Agreement, (ii) its termination other than by
LICENSEE's breach, or (iii) its termination pursuant to Section 13.2(b),
LICENSEE shall have a period of one hundred eighty (180) days to sell any unsold
Licensed Products. All Licensed Products in LICENSEE's control following the
expiration of such sell-off period shall be destroyed by LICENSEE within ten
(10) days and proof of such destruction (certified by an officer of LICENSEE)
shall be provided to NOA.
(b)
If
this Agreement is terminated by NOA as a result of a breach of its terms and
conditions by LICENSEE, LICENSEE shall immediately cease all distribution,
advertising, marketing or sale of any Licensed Products. All Licensed Products
in LICENSEE's control as of the date of such termination shall be destroyed
by
LICENSEE within ten (10) days and proof of such destruction (certified by an
officer of LICENSEE) shall be provided to NOA.
13.4
No
Further Use of the Intellectual Property Rights. Upon expiration and/or
termination of this Agreement, LICENSEE shall cease all use of the Intellectual
Property Rights for any purpose, except as may be required in connection with
the sale of Licensed Products authorized under Section 13.3 herein. LICENSEE
shall, within thirty (30) days thereafter, return or destroy all Guidelines,
writings, drawings, models, data, tools and other materials and things in
LICENSEE's possession or in the possession of any past or present employee,
agent or contractor receiving the information through LICENSEE, that constitute
or relate to or disclose any Confidential Information, without making copies
or
otherwise retaining any such information. Proof of any destruction shall be
certified by an officer of LICENSEE and promptly provided to NOA.
13.5
Permitted Sales After Termination for NOA's Breach. If this Agreement is
terminated by LICENSEE as a result of a breach of its terms or conditions by
NOA, LICENSEE may continue to sell the Licensed Products in the Territory until
the expiration of the Term, at which time the provisions of Section 13.3 shall
apply.
14.
GENERAL PROVISIONS
14.1
Export Control. LICENSEE agrees to comply with the export laws and regulations
of the United States and any other country with jurisdiction over the
Intellectual Property Rights, the Licensed Products or the Development Tools.
14.2
Force Majeure. Neither party shall be liable for any breach of this Agreement
occasioned by any cause beyond the reasonable control of such party, including
governmental action, war, riot or civil commotion, fire, natural disaster,
labor
disputes, restraints affecting shipping or credit, delay of carriers, inadequate
supply of suitable materials, or any other cause which could not with reasonable
diligence be controlled or prevented by the parties. In the event of material
shortages, including shortages of materials or production facilities necessary
for production of the Bulk Goods, NOA reserves the right to allocate such
resources among itself and its licensees.
14.3
Records and Audit. During the Term and for a period of two (2) years thereafter,
LICENSEE agrees to keep accurate, complete and detailed records relating to
the
use of the Confidential Information, the Development Tools and the Intellectual
Property Rights. Upon reasonable Notice to LICENSEE, NOA may, at its expense,
audit LICENSEE's records, reports and other information related to LICENSEE's
compliance with this Agreement; provided, however, that NOA shall not, during
the course of the audit, access LICENSEE's source code, development plans,
marketing plans, internal business plans or other items deemed confidential
by
LICENSEE, except to the extent such materials incorporate, disclose or reference
Nintendo's Confidential Information or Intellectual Property Rights.
15
14.4
Waiver, Severability, Integration, and Amendment. The failure of a party to
enforce any provision of this Agreement shall not be construed to be a waiver
of
such provision or of the right of such party to thereafter enforce such
provision. In the event that any term, clause or provision of this Agreement
shall be construed to be or adjudged invalid, void or unenforceable, such term,
clause or provision shall be construed as severed from this Agreement, and
the
remaining terms, clauses and provisions shall remain in effect. Together with
the NDA, this Agreement constitutes the entire agreement between the parties
relating to the subject matter hereof. All prior negotiations, representations,
agreements and understandings are merged into, extinguished by and completely
expressed by this Agreement and the NDA. Any amendment to this Agreement shall
be in writing, signed by both parties.
14.5
Survival. In addition to those rights specified elsewhere in this Agreement,
the
rights and obligations set forth in Sections 3, 8, 9, 10, 11, 12.4, 13.3, 13.4,
13.5 and 14 shall survive any expiration or termination of this Agreement to
the
degree necessary to permit their complete fulfillment or discharge.
14.6
Governing Law and Venue. This Agreement shall be governed by the laws of the
State of Washington, without regard to its conflict of laws principles. Any
legal actions (including judicial and administrative proceedings) with respect
to any matter arising under or growing out of this Agreement, shall be brought
in a court of competent jurisdiction in King County, Washington. Each party
hereby consents to the jurisdiction and venue of such courts for such purposes.
14.7
Equitable Relief. LICENSEE acknowledges that in the event of its breach of
this
Agreement, no adequate remedy at law may be available to NOA and that NOA shall
be entitled to seek injunctive or other equitable relief in addition to any
relief available at law.
14.8
Attorneys' Fees. In the event it is necessary for either party to this Agreement
to undertake legal action to enforce or defend any action arising out of or
relating to this Agreement, the prevailing party in such action shall be
entitled to recover from the other party all reasonable attorneys' fees, costs
and expenses relating to such legal action or any appeal therefrom.
14.9
Counterparts and Signature by Facsimile. This Agreement may be signed in
counterparts, which shall together constitute a complete Agreement. A signature
transmitted by facsimile shall be considered an original for purposes of this
Agreement.
IN
WITNESS WHEREOF, the parties have entered into this Agreement.
NINTENDO OF AMERICA INC. ZOO GAMES INC. |
LICENSEE
ZOO
GAMES, INC.
|
|||
By: | /s/ Xxxxx X. Xxxxxxxxx | By: |
/s/
Xxxxx Xxxx
|
|
Xxxxx X. Xxxxxxxxx
Executive Vice President, Administration
Date: July 14, 2008
|
Xxxxx
Xxxx
President
Date:
July 14, 2008
|
16