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Exhibit 10.19
DEVELOPER AGREEMENT
THIS DEVELOPER AGREEMENT (the "Developer Agreement" or the "Agreement") is
entered into as of the 26th day of January, 1996, by and between SONY COMPUTER
ENTERTAINMENT AMERICA, a division of Sony Interactive Entertainment Inc.,
formerly known as Sony Electronic Publishing Company, with offices at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (hereinafter "Sony"), and The Lightspan
Partnership, Inc., with offices at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇ (hereinafter "Developer").
WHEREAS, Sony and/or its affiliates have developed a CD-based interactive
console for playing video games and for other entertainment purposes known as
PlayStation(TM) (formerly known under the development code name "PS-X(TM)")
(hereinafter referred to as the "Player") and also own or have the right to
grant licenses to certain intellectual property rights used in connection with
the Player.
WHEREAS, Developer desires to be granted a non-exclusive license to develop
Products (as defined below) for the School Market (as defined below) pursuant to
the terms and conditions set forth in this Agreement.
WHEREAS, Sony and Developer have entered into a Sale and License Agreement,
dated as of January 12, 1996, regarding the distribution of PlayStation consoles
and accessories and Products to the School Market (hereinafter the "License
Agreement").
WHEREAS, Sony is willing, on the terms and subject to the conditions of this
Agreement, to grant Developer the desired non-exclusive license to develop
Products for the School Market.
WHEREAS, the Developer desires to obtain from Sony, and Sony is willing to
provide Developer with, certain software, hardware and documentation for use by
Developer in the development of application software for the Player (the
"Development Tools").
NOW, THEREFORE, in consideration of the representations, warranties and
covenants contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, Developer and Sony
hereby agree as follows:
1. DEFINITION OF TERMS.
1.1 "Developer Software" means Developer's application object code and data
(including audio and video material) developed by Developer in accordance with
this Agreement, which, when linked to any software provided by Sony, create
Executable Software. All Developer Software shall be educational in nature.
1.2 "Documentation" means any document, including the Tool Catalog,
regarding usage of the Hardware Tools or the Software Tools and provided by Sony
to the Developer in writing, on floppy discs, on CD-ROM discs or through
electronic media.
1.3 "Executable Software" means Developer's object code software which
includes the Developer Software and any software (whether in object code or
source code form) provided by Sony which is intended to be combined with
Developer Software for execution on a Player and has the ability to communicate
with the software resident in the Player.
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1.4 "Hardware Tools" means the hardware described in the Tool Catalog
which was developed by Sony for use in the creation of Executable Software.
1.5 "Intellectual Property Rights" means, by way of example but not by way
of limitation, all current and future worldwide patents and other patent
rights, copyrights, trademarks, service marks, trade names, mask work rights,
trade secret rights, technical information, know-how, and the equivalents of
the foregoing under the laws of any jurisdiction, and all other proprietary or
intellectual property rights throughout the universe, including without
limitation all applications and registrations with respect thereto, and all
renewals and extensions thereof.
1.6 "Products" shall mean the Executable Software embodied on CD-ROM
media.
1.7 "Software Tools" means the software described in the Tool Catalog
which may be provided to the Developer by Sony for use in the creation of
Executable Software on floppy discs, CD-ROM discs or through electronic media.
1.8 "Sony Materials" means any data, object code, source code,
documentation, and hardware provided or supplied to Developer by Sony,
including, without limitation, any portion or portions of the Development Tools.
1.9 "Sony Trademarks" means the trademarks, service marks and logos
designated by Sony. Nothing contained in this Agreement shall in any way grant
Developer the right to use the trademark "Sony" in any manner as a trademark,
trade name, service ▇▇▇▇ or logo other than as expressly permitted by Sony. Sony
may amend such Sony Trademarks upon reasonable notice to Developer.
1.10 "Tool Catalog" means the PS-X Development Tool Catalog prepared by
Sony and provided separately to the Developer.
1.11 "School Market" shall mean distribution directly by Licensee to and
for elementary and secondary (i.e., K-12) students, through distribution and
sale to elementary and secondary (i.e., K-12) public and private schools in the
United States and Canada.
2. LICENSE AND PROVISION OF DEVELOPMENT TOOLS.
2.1 LICENSE. Sony hereby grants to Developer, and Developer hereby
accepts, for the term of this Agreement, within the United States and Canada,
under Sony's Intellectual Property Rights, including without limitation any
relevant patents Sony may own or have acquired by license, a non-exclusive,
nontransferable license, without the right to sublicense (except as
specifically provided herein) to use the object code version of any software
supplied by Sony that is intended to be combined with Developer Software and
executed on a Player internally as may reasonably be necessary to develop
Products for the School Market. Developer agrees that all rights to
manufacture, market, distribute and sell Products shall be governed by the
terms and conditions of the License Agreement.
2.2 SOFTWARE TOOLS. Sony herby agrees to provide to Developer, and
Developer hereby accepts, for the term and subject to the conditions set forth
herein, the Software Tools. Developer will not, except as provided herein,
permit, directly or indirectly, any third party to use all or any part of the
Software Tools or the Documentation. Developer will only use the Software Tools
internally for the sole purpose of developing the Executable Software in
accordance with the Developer Agreement, and will only use the Documentation
supplied with the Software Tools to
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support such efforts. Developer shall not sell, lease, license or otherwise
transfer or dispose of the Software Tools, or permit any lien or other
encumbrance with respect to the Software Tools. Developer shall not make any
alterations, additions or modifications to the Software Tools without the
written permission of Sony in its discretion, and, if such permission is
granted, all right, title and interest in alterations or modifications shall
become the property of, and are hereby assigned to, Sony. Developer shall
execute such additional documents as reasonably necessary to effectuate any such
assignment.
2.3 HARDWARE TOOLS. Sony hereby agrees to provide to Developer, and
Developer hereby accepts, for the term and subject to the conditions set forth
herein, the Hardware Tools. Developer will only use the Hardware Tools
internally for the sole purpose of developing the Executable Software in
accordance with the Developer Agreement, and will only use the Documentation
supplied with the Hardware Tools to support such efforts. Sony shall retain
title to the Hardware Tools, and Developer shall keep such system free of all
security interests, liens and other encumbrances. Developer will not, except as
provided herein, permit, directly or indirectly, any third party to use all or
any part of the Hardware Tools. Developer shall not sell, lease or otherwise
transfer or dispose of the Hardware Tools, or permit any lien or other
encumbrance with respect to the Hardware Tools. Developer shall not make any
alterations, additions or modifications to the Hardware Tools without the
written permission of Sony in its discretion, and, if such permission is
granted, all right, title and interest in alterations or modifications shall
become the property of, and are hereby assigned to, Sony. Developer shall
execute such additional documents as reasonably necessary to effectuate any such
assignment.
3. CONSIDERATION AND DELIVERY.
3.1 CONSIDERATION. Sony agrees to provide such number of copies of the
Software Tools, Documentation and other Sony Materials and provide such number
of units of the Hardware Tools as Developer may reasonably request, subject to
availability, during the term of this Developer Agreement. The nonrefundable
amount to be paid by Developer (the "Nonrefundable Payment") for each such copy
and/or unit shall be set forth in the Tool Catalog. The Nonrefundable Payment
for Development Tools may be changed by Sony from time to time without notice to
Developer. Any Nonrefundable Payments are exclusive of any withholding taxes or
other assessments which may be imposed by any governmental authority or any
other U.S. or foreign federal, state or local sales or value-added tax, use or
excise tax, customs duties or other similar taxes or duties, which Sony may be
required to collect or pay. Developer shall be solely responsible for the
payment or reimbursement of any such taxes, fees, and other such charges or
assessments applicable to the payment by Developer of any such Nonrefundable
Payment. In addition, Developer shall pay or reimburse Sony for all personal
property taxes or similar charges, however imposed, on the ownership, use and
possession of the Development Tools during the term of the Developer Agreement.
3.2 DELIVERY. Sony shall deliver the Development Tools and any other
requisite Sony Materials to Developer, when available, at the site listed in
Exhibit A hereto (the "Development Site") for use only at such Development Site,
subject to receipt of the Nonrefundable Payment. Developer shall bear all
transport costs, including but not limited to, any insurance costs, related
thereto and risk of loss or damage in transit to any and all of the Development
Tools shall vest in Developer immediately upon delivery to the carrier.
4. LIMITATIONS ON LICENSES; RESERVATION OF RIGHTS.
4.1 REVERSE ENGINEERING PROHIBITED. Developer hereby agrees not to
disassemble, peel
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semiconductor components, decompile, or otherwise reverse engineer or attempt
to reverse engineer or derive source code from, all or any portion of the Sony
Materials (whether or not all or any portion of the Sony Materials are
integrated with the Developer Software), or permit or encourage any third party
to do so, or use or acquire any materials from any third party who does so.
Developer shall not use, modify, reproduce, sublicense, distribute, create
derivative works from, or otherwise provide to third parties, the Sony
Materials, in whole or in part, other than as expressly permitted by this
Developer Agreement. Developer shall be required in all cases to pay royalties
in accordance with payments made under the License Agreement to Sony on any
products which are in any way derived from the disassembly, decompilation,
reverse engineering of, or use of source code derived from the Sony Materials.
4.2 RESERVATION OF SONY'S RIGHTS. The licenses granted in this Developers
Agreement extend only to development of Products for the School Market for use
on the Player, in such format as may be designated by Sony. Without limiting
the generality of the foregoing and except as otherwise provided herein,
Developer shall not have the right to publish, manufacture, market, promote,
distribute, sell or transmit the Executable Software or the Products in any
manner, including, but not limited to, distribution or sale outside the School
Market (including without limitation to or through retail channels of
distribution) or via electronic means or any other means now known or hereafter
devised, including without limitation, via wireless, cable, fiber optic means,
telephone lines, microwave and/or radio waves, or over a network of
interconnected computers or other devices. This Developer Agreement does not
grant any right or license, under any Intellectual Property Rights of Sony or
otherwise, except as expressly provided herein, and no other right or license
is to be implied by or inferred from any provision of this Developer Agreement
or the conduct of the parties hereunder. Developer shall not make use of any of
the Development Tools, other Sony Materials or the Player or any Intellectual
Property Rights related to the Sony Materials and Player (or any portion
thereof) except as authorized by and in compliance with the provisions of this
Developer Agreement or as may be otherwise expressly authorized in writing by
Sony. No right, license or privilege has been granted to Developer hereunder
concerning the development of any collateral product or other use or purpose
of any kind whatsoever which displays or depicts any of the Sony Trademarks.
4.3 RESERVATION OF DEVELOPER'S RIGHTS. Developer retains all rights, title
and interest in and to the Developer Software, including without limitation,
Developer's Intellectual Property Rights therein, and nothing in this Agreement
shall be construed to restrict the right of Developer to develop products
incorporating the Developer Software (separate and apart from the Sony
Materials) for any hardware platform or service other than the Player.
4.4 THIRD PARTY DEVELOPMENT. Developer may develop Products under
contract for a third party provided that such third party is: (i) an authorized
developer that has executed a Developer Agreement, or (ii) an authorized
subcontractor that is in compliance with the provisions of Section 15.5.
Developer shall notify Sony in writing of the identity of any such third party
within thirty (30) days of entering into an agreement or other arrangement with
the third party. Developer shall have the responsibility for determining that
such third parties meet the criteria set forth herein. Developer shall not have
the right to develop, publish, manufacture, market, promote, distribute, sell
or transmit the Executable Software or the Products in any manner for end user
or any third parties not in compliance with the above criteria unless Developer
directly enters into a License Agreement with Sony. Developer agrees that,
pursuant to the License Agreement, any publication, marketing, distribution or
sale of Products outside of the School Market may only be made upon negotiation
of a separate agreement with Sony for such rights, and that Sony shall have a
right of first refusal to distribute, publish, market or sell such Products.
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5. TITLE TO DEVELOPMENT TOOLS. Subject to the rights granted by Sony to
Developer hereunder, all rights with respect to the Development Tools,
including, without limitation, all of Sony's Intellectual Property Rights
therein, are and shall be the exclusive property of Sony. Nothing herein shall
give Developer any right, title or interest in or to the Development Tools (or
any portion thereof), or any Intellectual Property Rights therein other than the
right to use the Development Tools for the development of the Executable
Software solely in accordance with the provisions of this Developer Agreement.
Developer shall not do or cause to be done any act or thing contesting or
in any way impairing or tending to impair any of Sony's rights, title, and/or
interests in or to the Development Tools (or any portion thereof).
6. CONFIDENTIALITY.
6.1 NONDISCLOSURE AGREEMENT. Developer hereby acknowledges that the
Nondisclosure Agreement dated September 28, 1995 between Sony and Developer
("Nondisclosure Agreement") will remain in full force and effect with respect to
the Confidential Information of Sony throughout the term of this Agreement.
Except as otherwise specified herein, the terms and provisions of the
Nondisclosure Agreement shall apply with respect to the Confidential Information
of Sony.
6.2 CONFIDENTIAL INFORMATION OF DEVELOPER. For the purposes of this
Developer Agreement, "Confidential Information" of Developer shall mean the
Developer Software as provided to Sony pursuant to this Developer Agreement and
all documentation and information relating thereto that is disclosed in writing
or in any other form by Developer to Sony if the information is designated as
(or is provided under circumstances indicating the information is) confidential
or proprietary.
6.3 PRESERVATION OF CONFIDENTIALITY: NON-DISCLOSURE. Sony shall take all
steps necessary to preserve the confidentiality of the Confidential Information
of the Developer, and except as may be expressly authorized by Developer or
unless one of the exceptions set forth in Section 6.5 applies, Sony shall not at
any time, either before or after any termination of this Developer Agreement,
directly or indirectly: (i) disclose any Confidential Information to any person
other than an employee or subcontractor of the receiving party who needs to know
or have access to such Confidential Information for the purposes of this
Developer Agreement, and only to the extent necessary for such purposes; (ii)
except as otherwise provided in this Developer Agreement, duplicate the
Confidential Information for any purpose whatsoever; (iii) use the Confidential
Information for any reason or purpose other than as expressly permitted in this
Developer Agreement; or (iv) remove any copyright notice, trademark notice
and/or other proprietary legend set forth on or contained within any of the
Confidential Information.
6.4 OBLIGATIONS UPON UNAUTHORIZED DISCLOSURE. If at any time either Sony
or Developer (the "receiving party") becomes aware of any unauthorized
duplication, access, use, possession or knowledge of any Confidential
Information of the other party (the "disclosing party"), the receiving party
shall immediately notify the disclosing party. The receiving party shall provide
any and all reasonable assistance to the disclosing party to protect the
disclosing party's proprietary rights in any Confidential Information that the
receiving party or its employees or permitted publishers or subcontractors may
have directly or indirectly disclosed or made available and that may be
duplicated, accessed, used, possessed or known in a manner or for a purpose not
expressly authorized by this Developer Agreement including but not limited to
enforcement of confidentiality agreements, commencement and prosecution in good
faith (alone or with the disclosing party) of legal action, and reimbursement
for all reasonable attorneys' fees (and all related costs), costs and expenses
incurred by the disclosing party to protect its proprietary rights in the
Confidential Information. The receiving party shall take all reasonable steps
requested by the disclosing party to prevent the recurrence of any unauthorized
duplication, access, use, possession or knowledge of
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the Confidential Information.
6.5 EXCEPTIONS. The foregoing restrictions will not apply to information
to the extent that the receiving party can demonstrate such information: (i) was
known to the receiving party at the time of disclosure to the receiving party by
the disclosing party as shown by the files of the receiving party in existence
at the time of disclosure; (ii) becomes part of information in the public domain
through no fault of the receiving party; (iii) has been rightfully received from
a third party authorized by the disclosing party to make such disclosure without
restriction; or (iv) has been disclosed by court order or as otherwise required
by law (including without limitation to the extent that disclosure may be
required under Federal or state securities laws), provided that the receiving
party has notified the disclosing party immediately upon learning of the
possibility of any such court order or legal requirement and has given the
disclosing party a reasonable opportunity (and cooperated with the disclosing
party) to contest or limit the scope of such required disclosure (including
application for a protective order). Information shall not be deemed known to
the receiving party or publicly known for purposes of the above exceptions (A)
merely because it is embraced by more general information in the prior
possession of the receiving party or others, or (B) merely because it is
expressed in public material in general terms not specifically the same as
Confidential information.
6.6 CONFIDENTIALITY OF AGREEMENT. The terms and conditions of this
Developer Agreement shall be treated as Confidential Information; provided that
each party may disclose the terms and conditions of this Developer Agreement:
(i) to legal counsel; (ii) in confidence, to accountants, banks and financing
sources and their advisors; and (iii) in confidence, in connection with the
enforcement of this Developer Agreement or rights under this Developer
Agreement. Both parties shall treat the fact that the parties have entered into
this Developer Agreement as Confidential Information until a public announcement
regarding this Developer Agreement is released by Sony, at its sole discretion,
announcing that Developer has become a Developer under this Developer Agreement.
Notwithstanding the foregoing, Developer shall not disclose any Confidential
Information or any of the terms of this Agreement to TCI (Telecommunications
Inc.), Microsoft or any other investors in Licensee without Sony's prior written
approval.
7. USAGE.
7.1 LOCATION AND ACCESS. Developer agrees to use and store the Sony
Materials solely at the Development Site or other location approved in writing
by Sony and insure that they are accessible only to those employees and
subcontractors entitled to use such Sony Materials. Developer agrees to restrict
access to the Sony Materials so that only those employees and subcontractors
entitled to access to such Sony Materials pursuant to the terms of the
Nondisclosure Agreement may see or use the Sony Materials. In the event that
Developer wishes to change the Development Site, it shall obtain Sony's prior
written approval thereto. Developer shall affix to and maintain on the Hardware
Tools, in a conspicuous location, a notice stating that such hardware is owned
by Sony. In addition, Developer must preserve any other proprietary rights
notices placed on the Sony Materials by Sony and must place all such notices on
any copies made as permitted by the terms hereof.
7.2 DEVELOPER DESIGNEE. Developer agrees that the individual named in
Exhibit A hereto shall act as the designated caretaker of the Sony Materials
(the "Developer Designee"). The Developer Designee shall be responsible for
receiving all Sony Materials, overseeing that the terms of this Section 7 are
fulfilled and shall act as Developer's contact for matters related to the Sony
Materials. In the event that Developer wishes to appoint a new Developer
Designee, it shall give Sony written notice ten (10) days prior to the change.
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7.3 COPIES. Developer agrees that it shall not make, nor allow anyone else
to make, a copy of any Software Tools or Documentation; provided, however, that
Developer may, without payment of any additional license fee, make one (1) copy
of each set of Software Tools and Documentation licensed from Sony for backup
purposes only. In addition, if Sony chooses to provide, or permits Developer to
obtain, any Software Tools or Documentation via electronic media, Developer may
copy such Software Tools and/or Documentation from the electronic media subject
to the payment of the applicable fees for each such copy. Any copies permitted
pursuant to the terms of this Section 7.3 shall be used pursuant to the terms
and conditions hereof.
7.4 VERIFICATION OF COMPLIANCE. Developer agrees that authorized Sony
representatives may at any time or times upon reasonable notice to Developer
inspect the Development Site, the Development Tools and copies of other Sony
Materials during Developer's normal business hours in order to verify that
Developer is complying with its obligations under this Developer Agreement.
7.5 CARE. Developer undertakes, at all times until the Hardware Tools are
returned to Sony, to: (i) take all reasonable and proper care of the Hardware
Tools; (ii) keep the Hardware Tools in good and serviceable condition; (iii)
ensure the full compliance with all instructions relating to the maintenance,
security or operation of the Hardware Tools; (iv) maintain and service with all
due care the Hardware Tools at its expense in accordance with any written
instructions given by Sony; (v) take all such further steps as are necessary to
ensure that the Hardware Tools are safe and constituting no risk to the health
or safety of any person or property; (vi) inform Sony immediately or any failure
or breakdown in the Hardware Tools howsoever caused.
7.6 LIMITATION ON USE. In developing the Executable Software, Developer
shall fully comply in all respects with any and all technical specifications
which may from time to time be issued by Sony or forwarded by Licensed
Publishers to Developer at the instruction of Sony. For purposes of this
Agreement, such technical specifications, whenever issued, shall be deemed to be
Documentation. Developer shall not develop or attempt to develop Executable
Software other than by the use of the Development Tools strictly in accordance
with all the terms and provisions of this Agreement.
8. REPAIRS AND ENHANCEMENTS.
8.1 NOTIFICATION OF DEFECTS. Developer will notify Sony of any material
reproducible errors, bugs or defects that Developer uncovers in the Development
Tools, and in the event that within the first six (6) months of delivery of such
Development Tools to Developer, such Development Tools are found to have such
material errors, bugs or defects (not due to the negligence or fault of
Developer), then Sony shall make such efforts as Sony in its discretion deems
reasonable to fix such errors, bugs or defects in such Development Tools.
8.2 ENHANCEMENTS. During the term of this Developer Agreement, Sony will
notify Developer if and when (i) any revised or updated version of the Software
Tools or Documentation are generally released to Sony's Developers and the terms
of the license therefor, and Developer shall be entitled to license from Sony
such revisions or updates on such terms, and (ii) any updated, modified or
enhanced version or component for the Hardware Tools are generally released to
Sony's Developers, and the terms of delivery therefor, and Developer shall be
entitled to obtain from Sony such update, modification, enhancement or component
on such terms.
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9. REPRESENTATIONS AND WARRANTIES.
9.1 REPRESENTATIONS AND WARRANTIES OF SONY. Sony represents and warrants
solely for the benefit of Developer that Sony has the right, power and
authority to enter into this Developer Agreement and to fully perform its
obligations hereunder.
9.2 REPRESENTATIONS AND WARRANTIES OF DEVELOPER. Developer represents and
warrants that: (i) there is no threatened or pending action, suit, claim or
proceeding alleging that the use by Developer of all or any part of the
Developer Software or any underlying work or content embodied therein, or any
name, designation or trademark used in conjunction with the Products infringes
or otherwise violates any Intellectual Property Right or other right or interest
of any kind whatsoever of any third party, or otherwise contesting any right,
title or interest of Developer in or to the Developer Software or any
underlying work or content embodied therein, or any name, designation or
trademark used in conjunction with the Products; (ii) Developer has the right,
power and authority to enter into this Developer Agreement and to fully perform
its obligations hereunder; (iii) the making of this Developer Agreement by
Developer does not violate any separate agreement, rights or obligations
existing between Developer and any other person or entity, and, throughout the
term of this Developer Agreement, Developer shall not make any separate
agreement with any person or entity that is inconsistent with any of the
provisions of this Developer Agreement; (iv) Developer shall not make any
representation or give any warranty to any person or entity expressly or
impliedly on Sony's behalf, or to the effect that the Products are connected in
any way with Sony (other than that the Products have been developed under
license from Sony); (v) the Executable Software shall be delivered to
Publishers by Developer solely in object code or source code form; (vi) each of
the Products shall be developed in an ethical manner and in accordance with all
applicable laws and regulations and will not contain any obscene matter; and
(vii) Developer's policies and practices with respect to the development of the
Products shall in no manner reflect adversely upon the name, reputation or
goodwill of Sony.
10. INDEMNITIES; LIMITED LIABILITY.
10.1 INDEMNIFICATION BY SONY. Sony shall indemnify and hold Developer
harmless from and against any and all claims, losses, liabilities, damages,
expenses and costs, including, without limitation, reasonable fees for
attorneys, expert witnesses and litigation costs, and including costs incurred
in the settlement or avoidance of any such claim which result from or are in
connection with a breach of any of the warranties provided by Sony herein;
provided, however, that Developer shall give prompt written notice to Sony of
the assertion of any such claim, and provided, further, that Sony shall have
the right to select counsel and control the defense and/or settlement thereof,
subject to the right of Developer to participate in any such action or
proceeding at its own expense with counsel of its own choosing. Sony shall have
the exclusive right, at its discretion, to commence and prosecute at its own
expense any lawsuit or to take such other action with respect to such matters
as shall be deemed appropriate by Sony. Developer agrees to provide Sony, at no
expense to Developer, reasonable assistance and cooperation concerning any such
matter; and Developer shall not agree to the settlement of any such claim,
action or proceeding without Sony's prior written consent.
10.2 INDEMNIFICATION BY DEVELOPER. Developer shall indemnify and hold Sony
harmless from and against any and all claims, losses, liabilities, damages,
expenses and costs, including, without limitation, reasonable fees for
attorneys, expert witnesses and litigation costs, and including costs incurred
in the settlement or avoidance of any such claim, which result from or are
in connection with (i) a breach of any of the representations or warranties
provided by Developer herein, including without limitation claims resulting
from Developer's failure to timely pay any
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withholding taxes or other assessments as set forth in Section 3.1 hereto or
any breach of Developer's confidentiality obligations as set forth in Section 6
hereto; or (ii) any claim of infringement or alleged infringement of any third
party's Intellectual Property Rights with respect to the Developer Software; or
(iii) any claims of or in connection with any bodily injury (including death)
or property damage, by whomsoever such claim is made, arising out of, in whole
or in part, the development of the Products or any use of any of the
Development Tools hereunder, unless due to the negligence of Sony in performing
any of the specific duties and/or providing any of the specific services
required of it hereunder; provided, however, that Sony shall give prompt
written notice to Developer of the assertion of any such claim, and provided,
further, that Developer shall have the right to select counsel and control the
defense and/or settlement thereof, subject to the right of Sony to participate
in any such action or proceeding at its own expense with counsel of its own
choosing. Developer shall have the exclusive right, at its discretion, to
commence and/or prosecute at its own expense any lawsuit or to take such other
action with respect to such matter as shall be deemed appropriate by Developer.
Sony shall provide Developer, at no expense to Sony, reasonable assistance and
cooperation concerning any such matter. If Sony is joined as a party to any
lawsuit initiated by or against Developer, Developer shall indemnify and hold
Sony harmless from and against all claims, losses, liabilities, damages,
expenses and costs, including, without limitation, reasonable fees for
attorneys and court costs, incurred in connection with any such lawsuit. Sony
shall not agree to the settlement of any such claim, action or proceeding
without Developer's prior written consent.
10.3 LIMITATION OF LIABILITY.
10.3.1 LIMITATION OF SONY'S LIABILITY. IN NO EVENT SHALL SONY OR
ITS AFFILIATES, SUPPLIERS, OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE
FOR PROSPECTIVE PROFITS, OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES
ARISING OUT OF OR IN CONNECTION WITH THIS DEVELOPER AGREEMENT, INCLUDING
WITHOUT LIMITATION THE BREACH OF THIS DEVELOPER AGREEMENT BY SONY, THE USE OF
THE PRODUCTS BY DEVELOPER, ANY LICENSED PUBLISHER OR ANY END USERS AND/OR THE
USE OF OR INABILITY TO USE THE DEVELOPMENT TOOLS BY DEVELOPER, WHETHER UNDER
THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), INDEMNITY, PRODUCT LIABILITY
OR OTHERWISE. SONY SHALL NOT BE LIABLE FOR ANY INJURY, LOSS OR DAMAGE, DIRECT
OR CONSEQUENTIAL, ARISING OUT OF THE USE OR INABILITY TO USE THE DEVELOPMENT
TOOLS. IN NO EVENT SHALL SONY'S LIABILITY ARISING UNDER OR IN CONNECTION WITH
THIS DEVELOPER AGREEMENT, INCLUDING WITHOUT LIMITATION ANY LIABILITY FOR DIRECT
DAMAGES, AND INCLUDING WITHOUT LIMITATION ANY LIABILITY UNDER SECTION 10.1 AND
ANY WARRANTY IN SECTION 9.1 HERETO, EXCEED THE TOTAL AMOUNT PAID BY DEVELOPER
TO SONY UNDER THIS DEVELOPER AGREEMENT. EXCEPT AS EXPRESSLY SET FORTH HEREIN,
NEITHER SONY NOR ANY AFFILIATE, NOR ANY OF THEIR RESPECTIVE DIRECTORS,
OFFICERS, EMPLOYEES OR AGENTS, SHALL BEAR ANY RISK, OR HAVE ANY RESPONSIBILITY
OR LIABILITY, OF ANY KIND TO DEVELOPER OR TO ANY THIRD PARTIES WITH RESPECT TO
THE QUALITY AND/OR PERFORMANCE OF ANY PORTION OF THE SONY MATERIALS, ANY
PRODUCT, ANY OF THE DEVELOPMENT TOOLS OR ANY PORTION THEREOF.
10.3.2 LIMITATION OF DEVELOPER'S LIABILITY. IN NO EVENT SHALL
DEVELOPER BE LIABLE TO SONY FOR ANY PROSPECTIVE PROFITS, OR SPECIAL, INCIDENTAL
OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH (i) THIS
DEVELOPER AGREEMENT, (ii) THE USE IN ACCORDANCE WITH THE TERMS AND CONDITIONS
OF THIS DEVELOPER AGREEMENT OF THE DEVELOPMENT TOOLS, OR (iii) THE USE OR
DISTRIBUTION IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT OF
ANY OBJECT CODE PROVIDED BY SONY, IN WHOLE OR IN PART, WHETHER UNDER THEORY OF
CONTRACT,
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TORT (INCLUDING NEGLIGENCE), INDEMNITY, PRODUCT LIABILITY OR OTHERWISE,
PROVIDED THAT SUCH LIMITATIONS SHALL NOT APPLY TO DAMAGES RESULTING FROM
DEVELOPER'S BREACH OF SECTIONS 2, 4, 5, 6, 10.2 OR 11.2 OF THIS AGREEMENT, AND
PROVIDED FURTHER THAT SUCH LIMITATIONS SHALL NOT APPLY TO AMOUNTS WHICH
DEVELOPER MAY BE REQUIRED TO PAY TO THIRD PARTIES UNDER SECTIONS 10.2 OR 15.9.
10.3.3. DEVELOPER'S OBLIGATIONS. If at any time or times subsequent to
Sony's approval of the Executable Software as contemplated by the License
Agreement to be signed by Licensed Publishers, Sony identifies any bugs with
respect to the Product or any bugs are brought to the attention of Sony,
Developer shall, at no cost to Sony, promptly correct any such bugs, to Sony's
reasonable satisfaction. In the event any units of any of the Products create
any risk of loss or damage to any property or injury to any person, Developer
shall immediately take effective steps or cooperate with the appropriate
Licensed Publisher to take effective steps, at Developer's or Licensed
Publisher's sole liability and expense, to recall and/or remove such defective
product units from any affected channels of distribution. Either Developer or
the appropriate Licensed Publisher shall provide all end-user support for the
Products.
10.4. DISCLAIMER OF WARRANTIES. NEITHER SONY NOR ITS AFFILIATES AND
SUPPLIERS MAKE, NOR DOES DEVELOPER RECEIVE, ANY WARRANTIES, EXPRESS, IMPLIED OR
STATUTORY REGARDING THE SONY MATERIALS, THE PLAYER OR THE DEVELOPMENT TOOLS
PROVIDED HEREUNDER, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SONY AND
ITS AFFILIATES AND SUPPLIERS EXPRESSLY DISCLAIM THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND THEIR EQUIVALENTS
UNDER THE LAWS OF ANY JURISDICTION, REGARDING THE SONY MATERIALS, THE PLAYER OR
THE DEVELOPMENT TOOLS. ANY WARRANTY AGAINST INFRINGEMENT THAT MAY BE PROVIDED
IN SECTION 2-312(3) OF THE UNIFORM COMMERCIAL CODE AND/OR IN ANY OTHER
COMPARABLE STATUTE IS EXPRESSLY DISCLAIMED.
11. COPYRIGHT, TRADEMARK AND TRADE SECRET RIGHTS.
11.1 DEVELOPER RIGHTS. The copyrights with respect to the Developer
Software (exclusive of the rights licensed from Sony hereunder) and any names
or other designations used as titles for the Products are and shall be the
exclusive property of Developer or of any third party from which Developer has
been granted, or to whom Developer has granted, the license and related rights
to develop and otherwise exploit any such Developer Software or any such names
or other designations.
11.2 SONY RIGHTS.
11.2.1 LICENSE OF SONY MATERIALS AND PLAYER. Subject to the
rights granted by Sony to Developer hereunder, all rights with respect to the
Sony Materials and Player, including, without limitation, all of Sony's
Intellectual Property Rights therein, are and shall be the exclusive property
of Sony. Nothing herein shall give Developer any right, title or interest in or
to the Sony Materials or the Player (or any portion thereof), other than the
non-exclusive license and privilege during the term hereof to use the Sony
Materials and Player for the development of the Executable Software solely in
accordance with the provisions of this Developer Agreement. Developer shall not
to or cause to be done any act or thing contesting or in any way impairing to
tending to impair any of Sony's rights, title, and/or interests in or to the
Sony Materials or the Player (or any portion thereof).
11.2.1 SONY TRADEMARKS. The Sony Trademarks and the goodwill
associated
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11
therewith are and shall be the exclusive property of Sony. Nothing herein shall
give Developer any right, title or interest in or to any of the Sony Trademarks.
Developer shall not do or cause to be done any act or thing contesting or in any
way impairing or tending to impair any of Sony's rights, title, or interests in
or to any of the Sony Trademarks, nor shall Developer register any trademark in
its own name or in the name of any other person or entity which is similar to or
is likely to be confused with any of the Sony Trademarks.
11.3 EFFECT OF TERMINATION. Upon the expiration or earlier termination of
this Developer Agreement for any reason, Developer shall immediately cease and
desist from any further use of the Sony Materials licensed hereunder.
12. COPYRIGHT, TRADEMARK AND TRADE SECRET PROTECTION.
In the event that either Developer or Sony discovers or otherwise becomes
aware that any of the Intellectual Property Rights of the other embodied in any
of the Developed Products have been or are being infringed upon by any third
party, then the party with knowledge of such infringement or apparent
infringement shall promptly notify the other party.
13. TERM AND TERMINATION.
13.1 EFFECTIVE DATE; TERM. This Developer Agreement shall not be binding
upon the parties until it has been signed by or on behalf of each party, in
which event it shall be effective as of the date first written above (the
"Effective Date"). Unless sooner terminated in accordance with the provisions
hereof, the initial term of this Developer Agreement shall be four (4) years
from the Effective Date.
13.2 TERMINATION BY SONY. Sony shall have the right to terminate this
Developer Agreement immediately, by providing written notice of such election
to Developer, upon the occurrence of any of the following events or
circumstances: (i) If Developer breaches any of its material obligations
provided for in this Developer Agreement and such breach is not corrected or
cured within thirty (30) days after receipt of written notice of such breach;
(ii) If the License Agreement between Sony and Developer is terminated for any
reason; (iii) If, in Sony's reasonable judgment, the laws or enforcement of the
laws of the country or countries in which the Developer or the Development Site
is located do not protect Sony's Intellectual Property Rights; (iv) Developer's
failure to pay, or a statement that it is unable to pay, any amount due
hereunder, or is unable to pay its debts generally as they shall become due; or
(v) Developer's filing of an application for, or consenting to, or directing
the appointment of, or the taking of possession by, a receiver, custodian,
trustee or liquidator of all or substantially all of Developer's property,
whether tangible or intangible, wherever located; or (vi) The making by
Developer of a general assignment for the benefit of creditors; or (vii) The
commencing by Developer or Developer's intention to commence a voluntary case
under any applicable bankruptcy laws (as now or hereafter may be in effect); or
(viii) The adjudication that Developer is a bankrupt or insolvent; or (ix) The
filing by Developer or the intent to file by Developer of a petition seeking to
take advantage of any other law providing for the relief of debtors; or (x)
Developer's acquiescence to, intention to acquiesce to, or failure to have
dismissed within ninety (90) days, any petition filed against it in any
involuntary case under any such bankruptcy law; or (xi) If control of more than
fifty percent (50%) of the ownership of Developer or substantially all of
Developer's assets are transferred to any person or entity; or (xii) If,
directly or indirectly, control of more than twenty-five percent (25%) of the
ownership of Licensee or substantially all of Licensee's assets are transferred
to any one of Acclaim Entertainment, Atari, Blockbuster, Electronic Arts,
Hasbro, Matsushita, Mattel, Microsoft, NEC, Nintendo, Philips, Sega, 3DO, Time
Warner, Viacom International, Virgin Games, ▇▇▇▇▇▇▇▇
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CONFIDENTIAL
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Entertainment, or any other dedicated platform holder, known or unknown.
13.3 PRODUCT-BY-PRODUCT TERMINATION BY SONY. In addition to the events
of termination described in Section 13.2 above, Sony, at its option, shall be
entitled to terminate, on a product-by-product basis, the licenses and related
rights herein granted to Developer in the event that (i) Developer fails to
comply with the requirements of Section 4.4 in connection with the development
of any Product or (ii) any third party with whom Developer has contracted
pursuant to the provisions of Section 4.4 hereto breaches any of its material
obligations to Sony pursuant to its agreement with Sony with respect to such
Product.
13.4 PAYMENTS NONREFUNDABLE. In the event of the termination of this
Developer Agreement in accordance with any of the provisions of Section 13,
above, no portion of any payments of any kind whatsoever, including without
limitation any and all Nonrefundable Payments, previously provided to Sony
hereunder shall be owed or be repayable to Developer.
14. EFFECT OF EXPIRATION OR TERMINATION.
14.1 REVERSION OF RIGHTS. If this Developer Agreement is terminated by
Sony as a result of any breach or default by Developer, all rights herein
granted by Sony to Developer shall immediately revert to Sony, and Developer
shall cease and desist from any further use of the Development Tools,
Documentation, other Sony Materials and any Intellectual Property Rights
therein.
14.2 RETURN OF DEVELOPMENT TOOLS. Upon the expiration or earlier
termination of this Developer Agreement, Developer shall immediately deliver to
Sony, or if and to the extent requested by Sony destroy, all Development Tools,
Documentation, other Sony Materials and any and all copies thereof, including,
without limitation, any Confidential Information including such information,
knowledge, or know-how of which either party, as the receiving party, was
apprised and which was reduced to tangible or written form by such party or on
its behalf at any time during the term of this Developer Agreement. Within five
(5) working days after any such destruction, Developer shall provide Sony with
an itemized statement certified to be accurate by an officer of Developer,
indicating the number of copies and/or units of the Development Tools,
Documentation and other Sony Materials which have been destroyed, the location
and date of such destruction and the disposition of the remains of such
destroyed materials.
14.3 EFFECT OF EXPIRATION OR TERMINATION OF DEVELOPER AGREEMENT. Sony
shall be under no obligation to renew or extend this Developer Agreement
notwithstanding any actions taken by either of the parties prior to the
expiration of this Developer Agreement. Upon the expiration of this Developer
Agreement, neither party shall be liable to the other for any damages (whether
direct, consequential, or incidental, and including, without limitation, any
expenditures, loss of profits, or prospective profits) sustained or arising out
of or alleged to have been sustained or to have arisen out of such expiration.
However, the expiration of this Developer Agreement shall not excuse either
party from its previous breach of any of the provisions of this Developer
Agreement or from any obligations surviving the expiration of this Developer
Agreement, and full legal and equitable remedies shall remain available for any
breach or threatened breach of this Developer Agreement or any obligations
arising therefrom.
14.4 TERMINATION WITHOUT PREJUDICE. The expiration or termination of
this Developer Agreement in accordance with the provisions of Section 13,
above, shall be without prejudice to any rights or remedies which one party may
otherwise have against the other party.
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15. MISCELLANEOUS PROVISIONS.
15.1 NOTICES. All notices or other communications required or desired to be
sent to either of the parties shall be in writing and shall be sent by
registered or certified mail, postage prepaid, return receipt requested, or sent
by recognized international courier service (e.g., Federal Express, DHL, etc.),
telex, telegram or facsimile, with charges prepaid and subject to confirmation
by letter sent via registered or certified mail, postage prepaid, return receipt
requested. The address for all notices or other communications required to be
sent to Sony or Developer, respectively, shall be the mailing address stated in
the preamble hereof, or such other address as may be provided by written notice
from one party to the other on at least ten (10) days' prior written notice. Any
such notice shall be effective upon the date of receipt.
15.2 FORCE MAJEURE. Neither Sony nor Developer shall be liable for any loss
or damage or be deemed to be in breach of this Developer Agreement if its
failure to perform or failure to cure any of its obligations under this
Developer Agreement results from any event or circumstance beyond its reasonable
control, including, without limitation, any natural disaster, fire, flood,
earthquake, or other Act of God; shortage of equipment, materials, supplies, or
transportation facilities; strike or other industrial dispute; war or rebellion;
or compliance with any law, regulation, or order (whether valid or invalid) of
any governmental body, other than an order, requirement, or instruction arising
out of Developer's violation of any applicable law or regulation; provided,
however, that the party interfered with gives the other party written notice
thereof promptly, and, in any event, within fifteen (15) working days of
discovery of any such Force Majeure condition. If notice of the existence of any
Force Majeure condition is provided within such period, the time for performance
or cure shall be extended for a period equal to the duration of the Force
Majeure event or circumstance described in such notice, except that any such
cause shall not excuse the payment of any sums owed to Sony prior to, during, or
after any such Force Majeure condition.
15.3 NO PARTNERSHIP OR JOINT VENTURE. The relationship between Sony and
Developer, respectively, is that of licensor and licensee. Developer is an
independent contractor and is not the legal representative, agent, joint
venturer, partner, or employee of Sony for any purpose whatsoever. Neither party
has any right or authority to assume or create any obligations of any kind or to
make any representation or warranty on behalf of the other party, whether
express or implied, or to bind the other party in any respect whatsoever.
15.4 ASSIGNMENT. Sony has entered into this Developer Agreement based upon
the particular reputation, capabilities and experience of Developer and its
officers, directors and employees. Accordingly, Developer may not assign this
Developer Agreement or any of its rights hereunder, nor delegate or otherwise
transfer any of its obligations hereunder, to any third party unless the prior
written consent of Sony shall first be obtained. Any attempted or purported
assignment, delegation or other such transfer without the required consent of
Sony shall be void and a material breach of this Developer Agreement. Subject to
the foregoing, this Developer Agreement shall inure to the benefit of the
parties and their respective successors and permitted assigns. Sony shall have
the right to assign any and all of its rights and obligations hereunder to any
affiliate(s).
15.5 SUBCONTRACTORS. Developer shall not sell, lease, assign, delegate,
subcontract, license or otherwise transfer or encumber all or any portion of the
rights herein granted. Developer shall have the right to employ suitable
subcontractors for the purposes of assisting Developer with the development of
the Products, provided that Developer must obtain the prior written consent of
Sony, which consent may not be unreasonably withheld or delayed. Developer shall
not disclose to any subcontractor any Confidential Information of Sony (as
defined herein and in the Nondisclosure
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Agreement), including, without limitation, any Development Tools or other Sony
Materials, or allow any usage of the Development Tools by any such
subcontractor unless and until Developer shall have such subcontractor sign a
written agreement containing substantially identical terms to the Nondisclosure
Agreement, the confidentiality provisions of this Agreement and Section 7 of
this Agreement and shall submit a copy of such agreement to Sony. Any and all
agreements between Developer and its permitted subcontractors shall provide
that Sony is a third party beneficiary of such agreements and has the full
right to bring any actions against such subcontractors to comply in all
respects with the terms and conditions of this Agreement and the Developer
Agreement. Notwithstanding any consent which may be granted by Sony for
Developer to employ any such permitted subcontractor(s), or any such separate
agreement(s) that may be entered into by Developer with any such permitted
subcontractor, Developer shall remain fully liable for its compliance with all
of the provisions of this Developer Agreement and for the compliance of any and
all permitted subcontractors with the provisions of any agreements entered into
by such subcontractors in accordance with this Section 15.5. Developer shall
cause its subcontractors to comply in all respects with the terms and
conditions of this Developer Agreement, and hereby unconditionally guarantees
all obligations of its subcontractors. Notwithstanding the foregoing, Developer
shall not subcontract any rights under this Agreement to TCI
(Telecommunications, Inc.) or Microsoft without Sony's prior written approval.
15.6 COMPLIANCE WITH APPLICABLE LAWS. The parties shall at all times
comply with all applicable regulations and orders of their respective countries
and all conventions and treaties to which their countries are a party or
relating to or in any way affecting this Developer Agreement and the
performance by the parties of this Developer Agreement. Each party, at its own
expense, shall negotiate and obtain any approval, license or permit required in
the performance of its obligations, and shall declare, record or take such
steps to render this Developer Agreement binding, including, without
limitation, the recording of this Developer Agreement with any appropriate
governmental authorities (if required).
15.7 GOVERNING LAW; CONSENT TO JURISDICTION. This Developer Agreement
shall be governed by and interpreted in accordance with the laws of the State
of New York, excluding that body of law related to choice of laws, and of the
United States of America. Any action or proceeding brought to enforce the terms
of this Developer Agreement or to adjudicate any dispute arising hereunder
shall be brought in the courts of the County of New York, State of New York (if
under State law) or the Southern District of New York (if under Federal law).
Each of the parties hereby submits itself to the exclusive jurisdiction and
venue of such courts for purposes of any such action and agrees that any
service of process may be effected by delivery of the summons in the manner
provided in the delivery of notices set forth in Section 15.1 above.
15.8 LEGAL COSTS AND EXPENSES. In the event it is necessary for either
party to retain the services of an attorney or attorneys to enforce the terms
of this Developer Agreement or to file or defend any action arising out of this
Agreement, then the prevailing party in any such action shall be entitled, in
addition to any other rights and remedies available to it at law or in equity
to recover from the other party its reasonable fees for attorneys and expert
witnesses, plus such court costs and expenses as may be fixed by any court of
competent jurisdiction. The term "prevailing party" for the purposes of this
Section shall include a defendant who has by motion, judgment, verdict or
dismissal by the court, successfully defended against any claim that has been
asserted against it.
15.9 REMEDIES. Unless expressly set forth to the contrary, either party's
election of any remedies provided for in this Developer Agreement shall not be
exclusive of any other remedies available hereunder or otherwise at law or in
equity, and all such remedies shall be deemed to be cumulative. Any breach of
Sections 2, 4, 6, 7 and 11 of this Agreement would cause irreparable
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harm to Sony, the extent of which would be difficult to ascertain. Accordingly,
Developer agrees that, in addition to any other remedies to which Sony may be
entitled, in the event of a breach by Developer or any of its employees or
permitted subcontractors of any such sections of this Agreement. Sony shall be
entitled to the immediate issuance without bond of exparte injunctive relief
enjoining any breach or threatened breach of any or all of such provisions. In
addition, Developer shall indemnify Sony for all losses, damages, liabilities,
costs and expenses (including actual attorneys' fees and all related costs)
which Sony may sustain or incur as a result of such breach.
15.10 SEVERABILITY. In the event that any provision of this Developer
Agreement (or portion thereof) is determined by a court of competent
jurisdiction to be invalid or otherwise unenforceable, such provision (or part
thereof) shall be enforced to the extent possible consistent with the stated
intention of the parties, or, if incapable of such enforcement, shall be deemed
to be deleted from this Developer Agreement, while the remainder of this
Developer Agreement shall continue in full force and remain in effect according
to its stated terms and conditions.
15.11 SECTIONS SURVIVING EXPIRATION OR TERMINATION. The following
sections shall survive the expiration or earlier termination of this Developer
Agreement for any reason: 4, 6, 9.2, 10, 11, 12, 13.3, 14, 15.4, 15.5, 15.7,
15.8, 15.9, and 15.10.
15.12 WAIVER. No failure or delay by either party in exercising any
right, power, or remedy under this Developer Agreement shall operate as a
waiver of any such right, power, or remedy. No waiver of any provision of this
Developer Agreement shall be effective unless in writing and signed by the
party against whom such waiver is sought to be enforced. Any waiver by either
party of any provision of this Developer Agreement shall not be construed as a
waiver of any other provision of this Developer Agreement, nor shall such waiver
operate as or be construed as a waiver of such provision respecting any future
event or circumstance.
15.13 MODIFICATION. No modification of any provision of this Developer
Agreement shall be effective unless in writing and signed by both of the
parties.
15.14 HEADINGS. The section headings used in this Developer Agreement
are intended primarily for reference and shall not by themselves determine the
construction or interpretation of this Developer Agreement or any portion
hereof.
15.15 INTEGRATION. This Developer Agreement (together with the
Exhibits attached hereto) constitutes the entire agreement between Sony and
Developer and supersedes all prior or contemporaneous agreements, proposals,
understandings, and communications between Sony and Developer, whether oral or
written, with respect to the subject matter hereof; provided, however, that
notwithstanding anything to the contrary in the foregoing, the Nondisclosure
Agreement referred to in Section 6 hereto shall remain in full force and effect.
15.16 COUNTERPARTS. This Agreement may be executed in two counterparts,
each of which shall be deemed an original, and both of which together shall
constitute one and the same instrument.
15.17. CONSTRUCTION. This Developer Agreement shall be fairly
interpreted in accordance with its terms and without any strict construction in
favor of or against either of the parties.
15.18 EXPORT. Developer shall not reexport, directly or indirectly,
any Development Tools outside of the United States or Canada. In addition,
Developer certifies that it shall not reexport,
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directly or indirectly, any Development Tools in violation of U.S. law and
regulations. If for any reason Sony permits Developer to reexport Development
Tool, Developer shall be exporter of record and shall be solely responsible for
the obtaining of the compliance with any required export licenses. Developer
certifies that the Development Tools will not be resold or delivered, directly
or indirectly, to entities located in destinations prohibited under U.S. laws
and regulations or resold or delivered, directly or indirectly, to nationals
from those destinations. The prohibited destinations include Cuba, Iraq, Libya,
North Korea, Yugoslavia (Serbia and Montenegro) or any other countries that are
subsequently declared prohibited destinations under such laws or regulations.
Prohibited sales may subject Developer to fines and imprisonment under
applicable U.S. law. Violation of this certification will result in the
termination for cause of this Agreement and all licenses granted hereunder from
Sony to Developer. In addition, Developer shall, at its own expense, obtain and
arrange for the maintenance in full force and effect of all governmental
approvals, consents, licenses, authorizations, declarations, filings and
registrations as may be necessary or advisable for performance of all of the
terms and conditions of this Agreement, including, but not limited to, foreign
exchange approvals, import and offer agent licenses, fair trade approvals and
all approvals which may be required to realize the purposes of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Developer Agreement to be duly
executed as of the day and year first written above.
SONY COMPUTER THE LIGHTSPAN PARTNERSHIP, INC.
ENTERTAINMENT AMERICA
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By /s/ ▇. ▇. ▇▇▇▇▇▇
---------------------- --------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇
Title: VP Bus. Dev. Title: Chairman & CEO
------------------- -----------------------
Date: 02-22-26 Date: 1/30/96
-------------------- ------------------------
NOT AN AGREEMENT UNTIL
EXECUTED BY BOTH PARTIES
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EXHIBIT A
Development Site:
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
------------------------
Developer Designee:
signature illegible
------------------------
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[SONY COMPUTER ENTERTAINMENT AMERICA LETTERHEAD]
January 25, 2000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
The Lightspan Partnership
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
Due to the recent delays in executing the Licensed Developer Agreement between
Sony Computer Entertainment America (SCEA) and The Lightspan Partnership, SCEA
hereby extends the Developer Agreement, entered into on January 26, 1996, by
and between SCEA and the Lightspan Partnership, for a period of thirty (30)
days. As a result, the Developer Agreement will expire February 24, 2000.
Best regards,
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President, Business and Technology
cc: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇