Exhibit 10.2
MARCH 20, 2002 CONFIDENTIAL
LICENSE AGREEMENT FOR
THE NINTENDO GAMECUBE SYSTEM
(EEA)
THIS LICENSE AGREEMENT ("Agreement") is entered into between NINTENDO CO., LTD.
("NCL") at ▇▇-▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇, ▇▇▇▇▇▇-▇▇, ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇ (Fax:
▇▇.▇▇.▇▇▇.▇▇▇▇), Attn: General Manager, International Business Administrative
Department, and ACTIVISION, INC., a corporation of California, and its
subsidiaries (Activision UK, Ltd., a limited company of the United Kingdom; ATVI
France, S.A.R.L., a corporation of France; Activision GmbH, a corporation of
Germany, and Activision Pty., Ltd., a limited company of Australia) (jointly and
severally "LICENSEE") at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn:
Mr. ▇▇▇▇▇▇▇ ▇▇▇▇ (facsimile: 310.255.2152). NCL and LICENSED agree as follows:
1. RECITALS
1.1 NCL designs, develops, manufactures, markets and sells advanced design,
high-quality video game systems, including the "NINTENDO GAMECUBE(TM)" system.
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 NCL, 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 the
NINTENDO GAMECUBE system.
1.3 NCL 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 NCL 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
NCL.
2.4 "Confidential Information" means the information described in Section
8.1.
MARCH 20, 2002 CONFIDENTIAL
2.5 "Development Tools" means the development kits, programming tools,
emulators and other materials that may be used in the development of Games under
this Agreement.
2.6 "Effective Date" means the last date on which all parties shall have
signed this Agreement.
2.7 "Finished Goods" means Game Discs that have been fully assembled with
the Printed Materials, protective wrapped and boxed for delivery to LICENSEE by
NCL. The Finished Goods may also include the Optional Printed Materials.
2.8 "Game Disc(s)" means custom optical discs for play on the NINTENDO
GAMECUBE system on which a Game has been stored.
2.9 "Game(s)" means interactive video game programs (including source and
object/binary code) developed for play on the NINTENDO GAMECUBE system.
2.10 "Guidelines" means the then current version of the "NINTENDO GAMECUBE
Development Manual," "NINTENDO GAMECUBE Packaging Guidelines" pertaining to the
layout, trademark usage and the requirements of the Game Disc label, instruction
manual and Game Disc packaging, "Nintendo Trademark Guidelines" and "Guidelines
on Ethical Content," together with related guidelines that may be provided by
NCL to LICENSEE from time to time. The Guidelines on Ethical Content are
attached as Annex A, and the remainder of the Guidelines have been, or may be,
provided to LICENSEE independent of this Agreement. The Guidelines may be
changed or updated by Nintendo from time to time without notice.
2.11 "Independent Function/Use" means a derivative work that has one or
more functions/uses that are independent of and separate from the applicable
Intellectual Property Right.
2.12 "Independent Contractor" means any individual or entity that is not an
employee of LICENSEE, including any independent programmer, consultant,
contractor, board member or advisor.
2.13 "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 the NINTENDO GAMECUBE system including "Nintendo(TM)", "NINTENDO
GAMECUBE(TM)," "GCN", "NGC" and "Official
MARCH 20, 2002 CONFIDENTIAL
Nintendo Seal of Quality(TM)", (b) select trade dress associated with the
NINTENDO GAMECUBE system and licensed video games for play thereon, (c)
Proprietary Rights in the Security Technology employed in the Games or Game
Discs by NCL, (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, without obtaining any
necessary licenses or consents, (e) patents, patent applications, design
registrations, utility models, or copyrights which may be associated with the
Game Discs or Printed Materials, (f) copyrights in the Guidelines, and (g) other
Proprietary Rights of NCL in the Confidential Information.
2.14 "Licensed Products" means (a) Finished Goods when fully assembled, or
(b) Bulk Goods after being assembled with the Printed Materials in accordance
with the Guidelines by LICENSEE.
2.15 "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
media other than the Game that is to be included on the Game Disc.
2.16 "NDA" means the non-disclosure agreement related to the NINTENDO
GAMECUBE system previously entered into between NCL and LICENSEE or between one
of NCL's subsidiaries and LICENSEE.
2.17 "Nintendo" means NCL individually or collectively with its subsidiary.
2.18 "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
registered air mail, or (c) deposited, carriage 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, or (d)
transmitted by e-mail with an express written acknowledgement of receipt sent
personally by or on behalf of the recipient (which shall include any automated
reply). Notice shall be deemed effective upon the earlier of actual receipt or
three (3) business days after transmittal by facsimile (with an original sent
concurrently by registered air mail) or deposit with a guaranteed air courier
service.
MARCH 20, 2002 CONFIDENTIAL
2.19 "Optional Printed Materials" means other optional printed materials
such as a warranty card and poster incorporating the Artwork.
2.20 "Price Schedules" mean the then current version(s) of Nintendo's
schedules of purchase prices and minimum order quantities for the Licensed
Products, the Printed Materials and the Optional Printed Materials. The Price
Schedules have been, or will be, provided to LICENSEE independent of this
Agreement and may be changed or updated by Nintendo from time to time without
notice.
2.21 "Printed Materials" means a plastic disc storage case, title page, and
instruction booklet, together with a precautions booklet in the form specified
by NCL.
2.22 "Promotional Disc(s)" means custom optical discs compatible with the
NINTENDO GAMECUBE system that incorporate select game promotional or
supplemental materials, as may be specified or permitted in the Guidelines.
2.23 "Proprietary Rights" means any rights or applications for rights to
the extent recognized in the Territory relating or applicable to the NINTENDO
GAMECUBE system and owned, licensed or otherwise held in patents, trademarks,
service marks, copyrights, semiconductor chip layout or masks, trade secrets,
trade dress, moral rights and publicity rights, together with all inventions,
discoveries, ideas, know-how, data, information, processes, methods, procedures,
formulas, drawings and designs, computer programs, software source code and
object code, and all amendments, modifications, and improvements thereto for
which such patent, trademark, service ▇▇▇▇, copyright, semiconductor chip layout
or masks, trade secrets, trade dress, moral rights or publicity rights may exist
or may be sought and obtained in the future.
2.24 "Rebate Program" means any then current version of NCL's optional
rebate program, establishing select terms for price rebates under this
Agreement.
2.25 "Reverse Engineer(ing)" means any technique designed to extract source
code or facilitate the duplication of a program or product including, without
limitation, (a) the x ray, electronic scanning or physical or chemical stripping
of semiconductor components, or (b) the disassembly, decompilation, decryption
or simulation of object code or executable code.
2.26 "Security Technology" means the highly proprietary security features
incorporated by NCL into 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, copyright management information system,
proprietary manufacturing process or any feature
MARCH 20, 2002 CONFIDENTIAL
that obstructs piracy, limits unlawful, unsafe or unauthorized use or
facilitates or limits compatibility with other hardware or software outside of
the Territory or on a different video game system.
2.27 "Term" means three (3) years from the Effective Date.
2.28 "Territory" means any and all countries within the European Economic
Area; namely Austria, Belgium, Denmark, Finland, France, Germany, Greece,
Iceland, Ireland, Italy, Liechtenstein, Luxembourg, the Netherlands, Norway,
Portugal, Spain, Sweden and the United Kingdom. The Territory also includes
Australia, New Zealand, and Switzerland. NCL may add additional countries to the
Territory upon written notice to LICENSEE.
2.29 "(TM)" means trademark of NCL, whether registered or not.
3. GRANT OF LICENSE, LICENSEE RESTRICTIONS
3.1 Limited License Grant. For the Term and for the Territory, NCL grants
to LICENSEE a nonexclusive, nontransferable, limited license to use the
Intellectual Property Rights for the purpose of and to the extent necessary to
develop (or have developed on its behalf) Games for manufacture, advertising,
marketing and sale as Licensed Products, subject to the terms and conditions of
this Agreement. This license is royalty free.
3.2 LICENSEE Acknowledgment. LICENSEE's use of the Intellectual Property
Rights shall not create any right, title or interest of LICENSEE therein. In the
event that LICENSEE challenges NCL's ownership or the validity of the
Intellectual Property Rights, NCL may terminate this Agreement without any
notice or procedure.
3.3 Restrictions on License Grant. The present limited license to LICENSEE
does not extend to the use of the Intellectual Property Rights for the following
purposes:
(a) granting access to, distributing, transmitting or broadcasting 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; provided,
however, that limited transmissions may be made for the sole purpose of
facilitating development under the terms of this Agreement, but no right of
retransmission shall attach to any such authorized transmission and
reasonable security measures, customary within the high technology
industry, shall be utilized to reduce the risk of unauthorized interception
or retransmission of any such authorized transmission,
(b) authorizing or permitting any online activities involving a Game,
including, without limitation, multiplayer, peer-to-peer or online play,
MARCH 20, 2002 CONFIDENTIAL
(c) modifying, installing or operating 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) emulating, interoperating, interfacing or linking 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 the NINTENDO GAMECUBE system or the
Development Tools,
(e) embedding, incorporating, or storing a Game in any media or format
except the optical disc format utilized by the NINTENDO GAMECUBE system,
except as may be necessary as a part of the Game development process under
this Agreement,
(f) designing, implementing or undertaking any process, procedure,
program or act designed to disable, obstruct, circumvent or otherwise
diminish the effectiveness or operation of the Security Technology,
(g) utilizing the Intellectual Property Rights to design or develop
any interactive video or computer game program, except as authorized under
this Agreement,
(h) manufacturing or reproducing a Game developed under this
Agreement, except through Nintendo, or
(i) Reverse Engineering or assisting in Reverse Engineering all or any
part of the NINTENDO GAMECUBE system, including the hardware, software
(embedded or not) or the Security Technology, except as specifically
permitted under the laws and regulations applicable in the Territory.
3.4 NCL Development Tools. NCL may lease, loan or sell Development Tools to
LICENSEE to assist in the development of Games under this Agreement. LICENSEE
acknowledges the exclusive interest of NCL 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. Any license
to LICENSEE to use the Development Tools does not extend to: (a) use of the
Development Tools for any purpose except the design and development of Games
under this Agreement, (b) reproduction or creation of derivatives of the
Development Tools, except in association with the development of Games under
this Agreement, (c) Reverse Engineering of the Development Tools, except as
specifically permitted by the laws and regulations applicable in the Territory,
or (d) selling, leasing, assigning, lending, licensing, encumbering or otherwise
transferring the Development Tools. Any tools developed or derived by LICENSEE
as a result of a study of the performance, design or operation of the
Development Tools shall be considered a
MARCH 20, 2002 CONFIDENTIAL
derivative work of the Intellectual Property Rights, but may be retained and
utilized by LICENSEE in connection with this Agreement. Unless LICENSEE can
demonstrate that such derivative work has Independent Functions/Uses, it shall
be deemed to have granted NCL an indefinite, worldwide, royalty-free,
transferable and exclusive license (including the right to sub-license) to such
derivative work. To the extent that LICENSEE can demonstrate one or more
Independent Functions/Uses, LICENSEE shall be deemed to have granted to NCL a
royalty-free and transferable non-exclusive license (including the right to
sub-license) in relation to such Independent Functions/Uses for the Term and an
indefinite, worldwide, royalty-free, transferable and exclusive license
(including the right to sub-license) in relation to all other functions/uses.
3.5 Third Party Development Tools. NCL may authorize third parties to
develop and market Development Tools to authorized developers of Games.
Notwithstanding any referral or information provided or posted regarding such
Development Tools, NCL makes no representations or warranties with regard to any
such third party Development Tools. LICENSEE acquires and utilizes such
Development Tools at its own risk. LICENSEE shall not, directly or indirectly,
use such Development Tools for any purpose except the design and development of
Games under this Agreement. All of NCL's Proprietary Rights contained in or
derived from such Development Tools shall remain owned by NCL.
3.6 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
the NINTENDO GAMECUBE system and on another NCL video game system, LICENSEE
shall be required to acquire and maintain with NCL such additional licenses as
are necessary for the use of the Proprietary Rights associated with such other
NCL video game system.
4. SUBMISSION AND APPROVAL OF GAME AND ARTWORK
4.1 Submission of a Completed Game to NCL. Upon completion of a Game,
LICENSEE shall deliver a prototype of the Game to NCL in a format specified in
the Guidelines. Delivery shall be made in accordance with the methods approved
in the Guidelines. Each submission shall include such other information or
documentation deemed necessary by NCL, 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 ***. LICENSEE must establish that the Game and any other
content included on the Game Disc complies with the guidelines of the European
Leisure Software Publishers Association (ELSPA), the Syndicate des Editeurs de
Logiciels de Loisir (SELL), Interactive Software Federation of Europe (ISFE)
(should ISFE adopt any such guidelines in the future), Unterhal Tungssoftware
Selbstkontrolle (USK), or other independent European body, or the Office of
[*] Confidential portion omitted and filed separately with the Securities and
Exchange Commission.
MARCH 20, 2002 CONFIDENTIAL
Film and Literature Classification (OFLC), as applicable. LICENSEE shall provide
NCL with a certificate of a rating for the Game from the ELSPA, SELL, ISFE, USK,
or other independent European body other than "AO" or "ADULTS ONLY."
4.2 Testing of a Completed Game. Upon submission of a completed Game, NCL
shall promptly test the Game with regard to its technical compatibility with and
error-free operation on the NINTENDO GAMECUBE system utilizing the lot check
process. Within a reasonable period of time after receipt, NCL shall approve or
disapprove such Game. If a Game is disapproved, NCL 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 NCL
for testing. NCL shall not unreasonably withhold or delay its approval of any
Game. Neither the testing nor approval of a Game by NCL shall relieve LICENSEE
of its sole responsibility for the development, quality and operation of the
Game or in any way create any warranty for the Licensed Product by NCL.
4.3 Production of Check Discs. By submission of a completed Game to NCL in
accordance with Section 4.1, LICENSEE authorizes NCL to proceed with production
of Check Discs for such Game. If NCL 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, NCL, 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
NCL 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 NCL in writing and may, after undertaking any necessary
changes or corrections, resubmit the Game to NCL 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 Licensed Product shall not proceed without
LICENSEE's signed authorization.
4.5 Cost of Check Disc Production. ***. The payment will be due upon the
earlier of (a) the subsequent submission by LICENSEE of a revised version of the
Game to NCL, or (b) six (6) months after the date the Game was first approved by
NCL.
4.6 Submission and Approval of Artwork. Prior to submitting a completed
Game to NCL under Section 4.1, LICENSEE shall submit to NCL all Artwork for the
proposed Licensed Product. Within ten (10) business days of receipt, NCL shall
approve or disapprove the Artwork. If any Artwork is disapproved, NCL 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 NCL for approval. NCL
shall not unreasonably withhold or delay its approval of any Artwork. The
approval of the Artwork by NCL 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 NCL. All Artwork
must be approved prior to submitting an order for the Licensed Product.
4.7 Artwork for Bulk Goods. If LICENSEE intends to submit an order for Bulk
Goods, all Artwork and other materials to be included with the Licensed Product
shall be submitted to NCL in accordance with Section 4.6 herein. No Printed
Materials shall be produced by LICENSEE until such Artwork has been approved by
NCL.
4.8 Promotional Discs. In the event NCL 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 NCL's approval for a
Game and Artwork, LICENSEE may at any time submit a written purchase order to
NCL for such Game. The purchase order shall specify whether the order is for
Finished Goods or Bulk Goods, and for Finished Goods the purchase order may also
specify any Optional Printed Materials. The terms and conditions of this
Agreement shall control over any contrary terms of such purchase order or any
other written documentation or verbal instruction from LICENSEE. All orders
shall be subject to acceptance by NCL or its designee.
5.2 Purchase Price and Minimum Order Quantities. The purchase price and
minimum initial order and re-order quantities for the Licensed Products (both
Finished Goods and Bulk Goods) and Printed Materials and Optional Printed
Materials shall be as set forth in Nintendo's then current Price Schedules.
Unless otherwise specifically provided for, the purchase price includes the cost
of manufacturing the Game Disc(s). Current Price Schedules
[*] Confidential portion omitted and filed separately with the Securities and
Exchange Commission.
MARCH 20, 2002 CONFIDENTIAL
have been, or will be, provided to LICENSEE independent of this Agreement. No
taxes, duties, import fees or other tariffs related to the development,
manufacture, import, marketing or sale of the Licensed Products are included in
the Purchase Price and all such impositions are the responsibility of LICENSEE.
The Price Schedules are subject to change by Nintendo at any time without
Notice.
5.3 Payment. Upon placement of an order with NCL, LICENSEE shall pay the
full purchase price either (a) by tender of an irrevocable letter of credit in
favor of NCL (or its designee) and payable at sight, issued by a bank acceptable
to NCL and confirmed, if requested by NCL, at LICENSEE's expense, or (b) in
cash, by wire transfer to an account designated by NCL. All letters of credit
shall comply with NCL's written instructions and all associated banking charges
shall be for LICENSEE's account.
5.4 Shipment and Delivery. NCL shall deliver the Finished Goods or Bulk
Goods ordered by LICENSEE to LICENSEE, CIP LICENSEE's delivery location for
destinations in Europe and F.O.B. Grossostheim, Germany, with shipment at
LICENSEE's direction and expense, or such other delivery point as may be
specified by Nintendo. Upon mutual consent of NCL and LICENSEE, orders may be
delivered in partial shipments ***. Such orders shall be delivered only to
countries within the Territory.
5.5 Rebate Program. NCL, at its sole option, may elect to offer LICENSEE a
Rebate Program. The terms and conditions of any Rebate Program shall be subject
to NCL's sole discretion. LICENSEE shall not be entitled to offset any claimed
rebate amount against other amounts owing NCL. No interest shall be payable by
NCL to LICENSEE on any claimed rebate. The Rebate Program is subject to change
or cancellation by NCL at any time without Notice.
6. MANUFACTURE OF THE LICENSED PRODUCT
6.1 Manufacturing. NCL shall manufacture 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 NCL of a purchase order from LICENSEE and receipt of payment as
provided for at Section 5.3 herein, NCL shall (through its suppliers and
subcontractors) arrange for the manufacture of the Licensed Product.
6.2 Security Features. The final release version of the Game, the Game Disc
and the Printed Materials shall include such Security Technology as NCL, in its
sole discretion,
[*] Confidential portion omitted and filed separately with the Securities and
Exchange Commission.
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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 NCL and of the LICENSEE, (c) promote consumer confidence, and (d) increase
the quality, reliability or operation of the NINTENDO GAMECUBE system.
6.3 Bulk Goods Orders. LICENSEE may elect to order Bulk Goods under the
terms of this Agreement, in which event LICENSEE shall arrange and pay for the
production of the Printed Materials and the final assembly of the Licensed
Product in accordance with the Guidelines.
6.4 Printed Materials for Bulk Goods. Upon delivery to LICENSEE of Bulk
Goods, LICENSEE shall assemble the Printed Materials and Game Discs into the
Licensed Products in accordance with the Guidelines. Bulk Goods may be sold or
distributed by LICENSEE only when fully assembled in accordance with the
Guidelines. NCL may establish quality standards with regard to some or all of
the Printed Materials and may identify to LICENSEE certain named suppliers
within the Territory who NCL believes can meet such quality standards. LICENSEE
may choose its own suppliers of such Printed Materials but shall comply with all
such quality standards as may be notified to LICENSEE by NCL from time to time.
6.5 Sample Printed Materials for Bulk Goods. Within a reasonable period of
time after LICENSEE's assembly of an initial order for a Bulk Goods title,
LICENSEE shall provide NCL with (a) two (2) samples of the fully assembled
Licensed Product, and (b) *** of the LICENSEE-produced Printed
Materials (excluding the plastic disc storage case, warranty card, poster and
precautions booklet) for such Bulk Goods.
6.6 Retention of Sample Licensed Products by NCL. NCL may, at its own
expense, manufacture reasonable quantities of the Game Discs, the Printed
Materials or the Licensed Products not to exceed fifty (50) copies, to be used
for archival purposes, legal proceedings against infringers of the Intellectual
Property Rights and for other lawful purposes, not to include sales of the
copies.
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 the Guidelines, and shall comply with all applicable laws,
regulations, orders, and official codes in those jurisdictions in the Territory
where they will be used or distributed. All LICENSEE-controlled web sites
featuring the Games shall adopt a privacy policy that complies ***
[*] Confidential portion omitted and filed separately with the Securities and
Exchange Commission.
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***. Prior to actual use or distribution, LICENSEE shall submit to NCL for
review samples of all proposed Marketing Materials. NCL shall, within ten (10)
business days of receipt, approve or disapprove of the quality of such samples.
If any of the samples are disapproved, NCL 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 NCL. No Marketing Materials shall be used or
distributed by LICENSEE without NCL's prior written approval. NCL shall not
unreasonably withhold or delay its approval of any proposed Marketing Materials.
7.2 Bundling. In order to avoid use of the licensed Intellectual Property
Rights giving rise to any implication of NCL's sponsorship, association,
approval or endorsement where this is not the case, LICENSEE shall not, without
NCL's prior written approval, market or distribute any Finished Goods or Bulk
Goods that have been bundled with (a) any peripheral designed for use with the
NINTENDO GAMECUBE system that has not been licensed or approved in writing by
NCL, or (b) any other product or service where NCL's association or endorsement
might be suggested by bundling the material, item, products or services.
7.3 Warranty and Repair. LICENSEE shall provide the original consumer with
a minimum one hundred eighty (180) day (or such longer minimum period as may be
required by applicable law) 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 law.
7.4 Business Facilities. LICENSEE agrees to develop and maintain sufficient
customer service, either directly or through a third party, to adequately
support the Licensed Products.
7.5 No Sales Outside the Territory. LICENSEE represents and warrants that
it shall not market, sell, offer to sell, import or distribute the Licensed
Products outside the Territory, or within the Territory when with 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 NCL's reasonable judgment, significantly impair
the ability of a consumer to play the Game, NCL may, after consultation with
LICENSEE, require LICENSEE, at LICENSEE's expense, to recall the Licensed
Products and undertake suitable repairs or replacements.
[*] Confidential portion omitted and filed separately with the Securities and
Exchange Commission.
MARCH 20, 2002 CONFIDENTIAL
7.7 NCL Promotional Materials, Publications and Events. With a view to
improving the competitiveness of the video game products consisting of NCL video
game systems and services and compatible software published by LICENSEE, at its
option, NCL may: (a) insert in the Printed Materials for the Licensed Products
promotional materials concerning, publications about, and promotions for such
video game products; (b) utilize screen shots, Artwork and information regarding
the Licensed Products in NCL published magazines or other publications, or in
other advertising, promotional or marketing media which promotes such video game
products; and (c) exercise public performance rights in the Games and use
related trademarks and Artwork in connection with NCL sponsored contests, tours,
conventions, trade shows, press briefings and similar events which promote such
video game products. Nintendo shall submit to Licensee for review printed
materials and related art for the Game that Nintendo intends to use in
publications or media or marketing programs.
7.8 Nintendo Gateway System. To promote and increase demand for games on
NCL video game systems, NCL 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 NCL video game hardware
referred to as the "Nintendo Gateway System." If NCL 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.
8. CONFIDENTIAL INFORMATION
8.1 Definition. Confidential Information means information provided to
LICENSEE, by NCL or any third party working with NCL relating to the hardware
and software for the NINTENDO GAMECUBE system 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 any inventions, patents or patent applications,
(c) any business, legal, marketing 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 that contain or manifest, in any
form, the above listed information. Confidential Information shall not include
(i) data and information that was in the public domain prior to LICENSEE's
receipt of the same hereunder, or that subsequently becomes part of the public
domain by publication or otherwise, except by LICENSEE's wrongful act or
omission,
MARCH 20, 2002 CONFIDENTIAL
(ii) data and information that 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 NCL under an obligation of
confidentiality which is still in force, and (iii) data and information that
LICENSEE can show was received by it from a third party who did not acquire the
same directly or indirectly from NCL 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 NCL 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 NCL, shall cooperate in the
preparation and entry of appropriate court orders limiting the persons to whom
Confidential Information may be disclosed and the extent of disclosure of such
Confidential Information.
8.3 Disclosure and Use. Nintendo 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 having a strict need to know and shall advise such
employees of their obligation of confidentiality as provided herein. LICENSEE
shall require each such employee to retain in confidence the Confidential
Information pursuant to a written non-disclosure agreement between LICENSEE and
such employee. LICENSEE shall use its best efforts to ensure that its employees
working with or otherwise having access to Confidential Information shall not
disclose or make any unauthorized use of the Confidential Information.
8.4 Independent Contractor Use. 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, nor utilize any Development Tools without
NCL's prior written consent. Each approved Independent Contractor shall be
required to enter into a written non-disclosure agreement with NCL prior to
receiving any access to or disclosure of such materials from either LICENSEE or
Nintendo.
MARCH 20, 2002 CONFIDENTIAL
At LICENSEE's option, the written non-disclosure agreement may be with
LICENSEE rather than with NCL, in which case the form and substance of the
non-disclosure agreement must be acceptable to NCL. Also, in such case LICENSEE
shall provide to NCL on a continuing basis a listing of all Independent
Contractors who have received or been granted access to Confidential Information
along with copies of the applicable written non-disclosure agreements. In
addition, LICENSEE shall take all reasonable measures to ensure that its
Independent Contractors fulfill the requirements of the applicable written
non-disclosure agreements.
LICENSEE shall use its best efforts to ensure that its employees and
Independent Contractors working with or otherwise having access to Confidential
Information shall not disclose or make unauthorized use of the Confidential
Information. LICENSEE agrees to indemnify NCL against all loss or damage,
including consequential economic loss, for breach of these obligations by the
LICENSEE, its employees and Independent Contractors.
8.5 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
NCL'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 government agency in the
Territory that regulates publicly funded securities, provided that all
Confidential Information regarding NCL shall be omitted from such disclosures to
the maximum extent allowed by such government agency, and (d) in response to
lawful process, subject to a written protective order approved in advance by
NCL.
8.6 Notification Obligations. LICENSEE shall promptly notify NCL of the
unauthorized use or disclosure of any Confidential Information 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 NCL under
this Agreement or applicable law.
8.7 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.
MARCH 20, 2002 CONFIDENTIAL
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 NCL's Representations and Warranties. NCL 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 NCL
does not conflict with any agreement or understanding to which NCL may be
bound.
9.3 ***
[*] Confidential portion omitted and filed separately with the Securities and
Exchange Commission.
MARCH 20, 2002 CONFIDENTIAL
***
9.4 ***.
9.5 LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW,
NEITHER NCL NOR ITS AFFILIATES, LICENSORS, SUPPLIERS OR SUB-CONTRACTORS 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
NCL, THE MANUFACTURE OF THE LICENSED PRODUCTS OR THE USE OF THE LICENSED
PRODUCTS ON ANY NCL VIDEO GAME SYSTEM BY LICENSEE OR BY ANY END USER.
10. INDEMNIFICATION
10.1 LICENSEE's Indemnification. LICENSEE shall indemnify and hold harmless
NCL (and any of its respective affiliates, subsidiaries, licensors, suppliers,
officers, directors, employees or agents) from any claims, 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, which result from or are in connection with:
(a) a breach of any of the provisions, representations or warranties
undertaken by LICENSEE in this Agreement,
[*] Confidential portion omitted and filed separately with the Securities and
Exchange Commission.
MARCH 20, 2002 CONFIDENTIAL
(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) any claims alleging 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 of any aspect of the Licensed Products, and
(d) any civil or criminal actions relating to the design, development,
advertising, marketing, sale or use of any aspect of the Licensed Products,
Marketing Materials or any other promotional materials.
NCL and LICENSEE shall give prompt Notice to the other of any claim which
is or which may be subject to indemnification under this Section 10.1. With
respect to any such third party claim, LICENSEE, as indemnitor, shall have the
right to select counsel and to control the defense and/or settlement thereof.
NCL 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
matter in which (i) NCL has been named as a party, or (ii) claims relating to
the Intellectual Property Rights have been asserted, without NCL's prior written
consent. NCL shall provide reasonable assistance to LICENSEE in its defense of
any such claim.
10.2 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 a recognized insurance
company. Such policy of insurance shall be in an amount of not less than the
equivalent of *** and shall provide for adequate protection against any suits,
claims, loss or damage by the Licensed Products. Such policy shall name NCL as
an additional insured and shall specify it may not be canceled without thirty
(30) days' prior written Notice to NCL. If LICENSEE fails to maintain such
insurance at any time during the Term and for a period of two (2) years
thereafter, NCL may secure such insurance at LICENSEE's expense.
10.3 Suspension of Production. In the event NCL deems itself at risk with
respect to any claim, action or proceeding under this Section 10, NCL may, at
its sole option, suspend production, delivery or order acceptance for any
Licensed Products, in whole or in part, pending resolution of such claim, action
or proceeding.
[*] Confidential portion omitted and filed separately with the Securities and
Exchange Commission.
MARCH 20, 2002 CONFIDENTIAL
11. PROTECTION OF PROPRIETARY RIGHTS
11.1 Joint Actions against Infringers. LICENSEE and NCL 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 NCL for their respective reasonable
attorneys' fees and costs, pro rata, and any remaining recovery shall be
distributed to LICENSEE and NCL, pro rata, based upon the fees and costs
incurred in bringing such action.
11.2 Actions by LICENSEE. LICENSEE, without the consent of NCL, 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 NCL 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 NCL. NCL, without the consent of LICENSEE, may bring any
action or proceeding relating to an infringement or potential infringement of
NCL's Intellectual Property Rights in the Licensed Products. NCL shall make
reasonable, good faith efforts to inform LICENSEE of such actions likely to
affect LICENSEE's rights in a timely manner. NCL will have the right to retain
all proceeds it may derive from any recovery in connection with such actions.
12. ASSIGNMENT
12.1 No Assignment by LICENSEE. This Agreement is personal to LICENSEE and
may riot be sold, assigned, delegated, sublicensed or otherwise transferred or
encumbered, in whole or in part, without NCL's prior written consent, ***. In
the event of an assignment or other transfer in violation of this Agreement, NCL
shall have the unqualified right to immediately terminate this Agreement without
further obligation to LICENSEE.
12.2 Assignment by Operation of Law. In the event of an assignment by
operation of law which purports to affect this Agreement, LICENSEE shall, not
later than thirty (30) days thereafter, give Notice and seek consent thereto
from NCL. Such Notice shall disclose the name of the assignee, the effective
date and the nature and extent of the assignment. An assignment by operation of
law includes, but is not limited to (a) a merger of LICENSEE into another
business entity or a merger of another business entity into LICENSEE, (b) the
sale,
[*] Confidential portion omitted and filed separately with the Securities and
Exchange Commission.
MARCH 20, 2002 CONFIDENTIAL
assignment or transfer of all or substantially all of the assets of LICENSEE to
a third party, (c) the sale, assignment or transfer to a third party of any of
the LICENSEE's proprietary rights that are used in the development of or are
otherwise incorporated into any Licensed Products, or (d) the sale, assignment
or transfer of any of LICENSEE's stock resulting in the acquirer having
management power over or voting control of LICENSEE. Following the later of (i)
an assignment by operation of law, or (ii) receipt of Notice of an assignment by
operation of law, NCL shall have the unqualified right for a period of ninety
(90) days to immediately terminate this Agreement without further obligation to
LICENSEE.
12.3 Non-Disclosure Obligation. In no event shall LICENSEE disclose or
allow access to NCL's Confidential Information prior to or upon the occurrence
of an assignment, whether by operation of law or otherwise, unless and until NCL
gives its written consent to such disclosure.
13. TERM AND TERMINATION
13.1 Term. This Agreement shall commence on the Effective Date and continue
for the Term, unless earlier terminated as provided for herein.
13.2 Default or Breach. In the event that either party is in default or
commits a material breach of this Agreement, which is not cured within thirty
(30) days after Notice thereof, then this Agreement shall automatically
terminate on the date specified in such Notice.
13.3 Bankruptcy. At NCL'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.
13.4 Termination Other Than by Breach. Upon the expiration of this
Agreement or its termination other than by LICENSEE's breach, LICENSEE shall
have a period of *** 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 Notice of such destruction (with
proof certified by an officer of LICENSEE) shall be delivered to NCL.
13.5 Termination by LICENSEE's Breach. If this Agreement is terminated by
NCL as a result of a material 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
[*] Confidential portion omitted and filed separately with the Securities and
Exchange Commission.
MARCH 20, 2002 CONFIDENTIAL
destroyed by LICENSEE within ten (10) days and Notice of such destruction (with
proof certified by an officer of LICENSEE) shall be delivered to NCL.
13.6 Breach of NDA or other NCL License Agreements. At NCL's option, any
breach by LICENSEE of (a) the NDA, or (b) any other license agreement between
NCL and LICENSEE relating to the development of games for any NCL video game
system, which breach is not cured within the time period for cure allowed under
the applicable agreement, shall be considered a material breach of this
Agreement entitling NCL to terminate this Agreement in accordance with Section
13.5 herein.
13.7 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 the Licensed Products authorized under Section 13.4
herein. LICENSEE shall, within thirty (30) days thereafter, (a) return to NCL
all Development Tools, and (b) return to NCL 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, which constitute
or relate to or disclose any Confidential Information, without making copies or
otherwise retaining any such information. Proof of such return or destruction
shall be certified by an officer of LICENSEE and promptly provided to NCL.
13.8 Termination by NCL's Breach. If this Agreement is terminated by
LICENSEE as a result of a material breach of its terms or conditions by NCL,
LICENSEE may continue to sell the Licensed Products in the Territory until the
expiration of the Term, at which time the provisions of Section 13.4 shall
apply.
14. GENERAL PROVISIONS
14.1 Compliance with Applicable Laws and Regulations. LICENSEE shall at all
times comply with applicable laws, regulations, orders, and official codes of
practice in the countries of the Territory relating to or in any way affecting
this Agreement and LICENSEE's performance under this Agreement, including,
without limitation, the export laws and regulations of any country with
jurisdiction over the Licensed Products and/or either party. LICENSEE shall not
market, distribute, or sell the Game(s) and/or Game Disc(s) in any country in
the Territory in which such marketing, distribution or sale would violate any
applicable laws, regulations, orders, or official codes of practice of such
country. NCL may from time to time give notice to LICENSEE of laws, regulations,
orders, and official codes of practice whether existing, new or revised,
applicable to this Agreement.
MARCH 20, 2002 CONFIDENTIAL
14.2 Force Maieure. 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 Licensed Products, NCL
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 *** 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 *** Notice to LICENSEE, NCL may, at its expense, arrange
for a third party audit of LICENSEE's records, reports and other information
related to LICENSEE's compliance with this Agreement; provided, however, that
NCL 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 NCL's Confidential Information or
Intellectual Property Rights.
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
and 13 shall survive any expiration or termination of this Agreement to the
degree necessary to permit their complete fulfilment or discharge.
[*] Confidential portion omitted and filed separately with the Securities and
Exchange Commission.
MARCH 20, 2002 CONFIDENTIAL
14.6 Governing Law and Venue. This Agreement shall be governed by the laws
of Japan. Any legal actions (including judicial and administrative proceedings)
with respect to any matter arising under or growing out of this Agreement, shall
be brought only in Kyoto District Court, Kyoto, Japan. 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 NCL and
that NCL 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 Expansion of Rights. NCL may expand the rights granted to LICENSEE
under this Agreement by providing written notice of such expansion of rights to
LICENSEE and without having to enter into a written addendum to the present
Agreement with LICENSEE.
14.10 Delegation of Duties. NCL, at its option, may delegate its duties
under the present Agreement to a wholly owned subsidiary. To the extent
necessary for the parties to carry out their duties under this Agreement, NCL
shall provide notice to LICENSEE of any such delegation, including to whom at
NCL's wholly owned subsidiary communications from LICENSEE under this Agreement
may be directed. Also in the event of a delegation by NCL, the provisions of
this Agreement shall continue to govern the relationship between NCL and
LICENSEE and shall govern the relationship between NCL's subsidiary and
LICENSEE,, subject to any amendments or modifications to this Agreement which
such subsidiary and LICENSEE may agree to in their relationship. NCL shall
remain obligated under the present Agreement for the performance of NCL's duties
by NCL's subsidiary.
14.11 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.
MARCH 20, 2002 CONFIDENTIAL
IN WITNESS WHEREOF, the parties have entered into this Agreement on the dates
set forth below.
NCL: LICENSEE:
Nintendo Co., Ltd. Activision, Inc.
By: /s/ Santura ? By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
------------------------------------ -------------------------------------
▇▇▇▇▇▇ ▇▇▇▇
President General counsel
Date: Jun. -5, 2002 Date: 4/16/02
------------------------------------ -------------------------------------
LICENSEE:
Activision UK, Ltd.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇▇▇▇
Director
Date: 4/16/02
-------------------------------------
LICENSEE:
ATVI France, S.A.R.I.
-------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Director
Date: 4/20/02
-------------------------------------
LICENSEE:
Activision GmbH
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇▇▇▇
Managing Director
Date: 4/16/02
-------------------------------------
LICENSEE:
Activision Pty, Ltd.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇▇▇▇
Director
Date: 4/16/02
-------------------------------------
MARCH 20, 2002 CONFIDENTIAL
ANNEX A
Guidelines on Ethical Content
The following Guidelines on Ethical Content are presented for assistance in the
development of Games by defining the types of the theme inconsistent with NCL's
corporate philosophy. Exceptions may be made when necessary to maintain the
integrity of the Game or the Game's theme. Games shall not:
(a) contain sexually explicit content including but not limited to nudity,
rape, sexual intercourse and sexual touching; for instance, NCL does not allow
barebreasted women in Games, however, mild displays of affection such as kissing
or hugging are acceptable;
(b) contain language or depictions which specifically denigrate members of
any race, gender, ethnicity, religion or political group;
(c) depict gratuitous or excessive blood or violence. NCL does not permit
depictions of animal cruelty or torture;
(d) depict verbal or physical spousal or child abuse;
(e) permit racial, gender, ethnic, religious or political stereotypes; for
example, religious symbols such as crosses will be acceptable when fitting into
the theme of the Game and not promoting a specific religious denomination;
(f) use profanity, obscenity or incorporate language or gestures that are
offensive by prevailing public standards and tastes; and
(g) promote the use of illegal drugs, smoking materials, tobacco and/or
alcohol; for example NCL does not allow an unnecessary beer or cigarette
advertisement anywhere in a Game; however, Sherlock ▇▇▇▇▇▇ smoking a pipe would
be acceptable as it fits the theme of the Game.