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CONFIDENTIAL LICENSE AGREEMENT
FOR GAME BOY ADVANCE
(Western Hemisphere)
THIS LICENSE
AGREEMENT ("Agreement") is entered into between NINTENDO OF
AMERICA INC. ("NOA"), at 4820 150th Avenue
N.E., Redmond, WA 98052 Attn: General
Counsel (Fax: (425)-882-3585) and Majesco
Sales, Inc., ("LICENSEE") at 160
Raritan Center Parkway, Edison, NJ 08837
Attn: Jesse Sutton (Fax: (732)
225-8408). NOA and LICENSEE agree as
follows:
1. RECITALS
1.1 NOA markets
and sells advanced design, high-quality video game systems,
including the GAME BOY(R) ADVANCE
system.
1.2 LICENSEE
desires a license to use highly proprietary programming
development specifications, development
tools, trademarks and other valuable
intellectual property rights of NOA and its
parent company, Nintendo Co., Ltd.
(collectively "Nintendo"), to develop, have
manufactured, advertise, market and
sell video game software for play on the
GAME BOY(R) ADVANCE system.
1.3 NOA is
willing to grant a license to LICENSEE on the terms and
conditions set forth in this Agreement.
2. DEFINITIONS
2.1 "Artwork"
means the design specifications for the Game Cartridge label
and Printed Materials in the format
specified by NOA in the Guidelines.
2.2 "Development
Tools" means the development kits, programming tools,
emulators, and other materials that may be
used in the development of Games
under this Agreement.
2.3 "Effective
Date" means the last date on which all parties shall have
signed this Agreement.
2.4 "Finished
Product(s)" means the fully assembled and shrink-wrapped
Licensed Products, each including a Game
Cartridge, Game Cartridge label and
Printed Materials.
2.5 "Game
Cartridges(s)" means custom cartridges specifically
manufactured
under the terms of this Agreement for play
on the GAME BOY ADVANCE system,
incorporating semiconductor components in
which a Game has been stored.
2.6 "Game(s)"
means interactive video game programs (including source and
object/binary code) developed for play on
the GAME BOY(R) ADVANCE system.
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2.7 "Guidelines"
means the current version or any future revision of the
"Game Boy Packaging Guidelines, "Nintendo
Trademark Guidelines", "Game Boy
Advance Development Manual" and related
guidelines.
2.8 "Independent
Contractor" means any individual or entity that is not an
employee of LICENSEE, including any
independent programmer, consultant,
contractor, boa member or advisor.
2.9 "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 video games for play on the
GAME BOY(R) ADVANCE system including
"Nintendo(R)", "GAME BOY(R) ADVANCE", "AGB"
and the "Official Nintendo Seal of
Quality(R)", (b) select trade dress
associated with the GAME BOY(R) ADVANCE
system and licensed video games for play
thereon, (c) Proprietary Rights in the
Security Technology incorporated into the
Game Cartridges, (d) rights in the
Development Tools for use in developing the
Games, (e) patents or design
registrations associated with the Game
Cartridges, (f) copyrights in the
Guidelines, and (g) other Proprietary
Rights of Nintendo in Confidential
Information.
2.10 "Licensed
Products" means (a) Finished Products, or (b) Stripped
Products when fully assembled and
shrink-wrapped with the Printed Materials.
2.11 "Marketing
Materials" means marketing, advertising or promotional
materials developed by or for LICENSEE (or
subject to LICENSEE's approval) to
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 and print media or materials.
2.12 "NDA" means
the non-disclosure agreement providing for the protection
of Confidential Information related to the
GAME BOY(R) ADVANCE system previously
entered into between NOA and LICENSEE.
2.13 "Notice"
means any notice permitted or required under this Agreement.
All notices shall be sufficiently given
when (a) personally served or delivered,
or (b) transmitted by facsimile, with an
original sent concurrently by first
class U.S. mall, or (C) deposited, postage
prepaid, with a guaranteed air
courier service, in each case addressed as
stated herein, or addressed to such
other person or address either party may
designate in a Notice. Notice shall be
deemed effective upon the earlier of actual
receipt or two (2) business days
after transmittal.
2.14 "Price
Schedule" means the current version or any future revision of
NOA's schedule of purchase prices and
minimum order quantities for the Licensed
Products.
2.15 "Printed
Materials" means the box, user instruction booklet, poster,
warranty card and LICENSEE inserts
incorporating the Artwork, together with a
precautions booklet as specified by
NOA.
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2.16
"Proprietary Rights" means any rights or applications for
rights
owned, licensed or otherwise held in
patents, trademarks, service marks,
copyrights, mask works, trade secrets,
trade dress, moral rights and publicity
rights, together with all inventions,
discoveries, ideas, technology, know-how,
data, information, processes, formulas,
drawings and designs, licenses, computer
programs, software source code and object
code, and all amendments,
modifications, and improvements thereto for
which such patent, trademark,
service mark work, trade secrets, trade
dress, moral rights or publicity rights
may exist or may be sought and obtained in
the future.
2.17 "Reverse
Engineer(ing)" means, without limitation, (a) the x-ray,
electronic scanning or physical or chemical
stripping of semiconductor
components, (b) the disassembly,
decompilation, decryption or simulation of
object code or executable code, or (c) any
other technique designed to extract
source code or facilitate the duplication
of a program or product.
2.18 "Security
Technology" means, without limitation, any security,
signature, bios, data scrambling, password,
hardware security apparatus,
watermark, hologram, copyright management
information system or any feature
which facilitates or limits compatibility
with other hardware or software
outside of the Territory or on a different
video game system.
2.19 "Stripped
Product(s)" means the Game Cartridges with Game Cartridge
labels affixed.
2.20 "Term"
means three (3) years from the Effective Date.
2.21 "Territory"
means all countries within the Western Hemisphere and
their territories and possessions.
3. GRANT OF LICENSE: LICENSEE
RESTRICTIONS
3.1 Limited
License Grant. For the Term and for the Territory, NOA grants
to LICENSEE a nonexclusive,
nontransferable, limited license to use the
Intellectual Property Rights to develop
Games for manufacture, advertising,
marketing and sale as Licensed Products,
subject to the terms and conditions of
this Agreement. Except as permitted under a
separate written authorization from
Nintendo, LICENSEE shall not use the
Intellectual Property Rights for any other
purpose.
3.2 LICENSEE
Acknowledgement. LICENSEE acknowledges (a) the value of the
Intellectual Property Rights, (b) the
right, title, and Interest of Nintendo in
and to the Intellectual Property Rights,
and (c) the right, title and interest
of Nintendo in and to the Proprietary
Rights associated with all aspects of the
GAME BOY(R) ADVANCE system. LICENSEE
recognizes that the Games, Game Cartridges
and Licensed Products will embody valuable
rights of Nintendo and Nintendo's
licensors. LICENSEE represents and warrants
that it will not undertake any act
or thing which in any way impairs or is
intended to impair any part of the
right, title, interest or goodwill of
Nintendo in the Intellectual Property
Rights. LICENSEE's use of the Intellectual
Property Rights shall not create any
right, title, or interest of LICENSEE
therein.
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3.3 LICENSEE
Restrictions and Prohibitions. LICENSEE represents and
warrants that it will not at any time,
directly or indirectly, do or cause to be
done, any of the following:
(a) Grant access to, distribute, transmit or broadcast a Game
by
electronic means or by any other means
known or hereafter devised, including,
without limitation, by wireless, cable,
fiber optic, telephone lines, microwave,
radiowave, computer or other device
network; 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) authorize or permit any online activities involving a Game,
including, without limitation, multiplayer,
peer-to-peer or online play,
(c) modify, install or operate a Game on any server or computing
device
for the purpose of or resulting in the
rental, lease, loan or other grant of
remote access to the Game,
(d) emulate, interoperate, interface or link a Game for operation
or
use with any hardware or software platform,
accessory, computer language,
computer environment, chip instruction set,
consumer electronics device or
device other than the GAME BOY(R) ADVANCE
system or the Development Tools,
(e) embed, incorporate, or store a Game in any media or for
format
except the cartridge format utilized by the
GAME BOY(R) ADVANCE system, except
as may be necessary as part of the Game
development process under this
Agreement,
(f) design, implement or undertake any process, procedure, program
or
act designed to circumvent the Security
Technology,
(g) utilize the Intellectual Property Rights to design or develop
any
interactive video game program, except as
authorized under this Agreement,
(h) manufacture or reproduce a Game developed under this
Agreement,
except through Nintendo, or
(i) Reverse Engineer or assist in the Reverse Engineering of all or
any
part of the GAME BOY(R) ADVANCE system,
including the hardware or software
(whether embedded or otherwise), or the
Security Technology.
3.4 Development
Tools. Nintendo may lease, loan or sell Development Tools
to LICENSEE to assist in the development of
Games under this Agreement.
Ownership and use of any Development Tools
provided to LICENSEE by Nintendo
shall be subject to the terms of this
Agreement. LICENSEE acknowledges the
exclusive interest of Nintendo in and to
the Proprietary Rights associated with
the Development Tools. LICENSEE's use of
the Development Tools shall not create
any right, title or interest of LICENSEE
therein. LICENSEE shall not, directly
or indirectly, (a) use the Development
Tools for any purpose except the design
and development of Games under this
Agreement, (b) reproduce or create
derivatives of the
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Development Tools, except in association
with the development of Games under
this Agreement, (c) Reverse Engineer the
Development Tools, or (d) sell, lease,
assign, lend, license, encumber or
otherwise transfer the Development Tools. 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
derivative works of the Intellectual
Property Rights, but may be retained and
utilized by LICENSEE in connection with
this Agreement. In no event shall
LICENSEE (i) seek, claim or file for any
patent, copyright or other Proprietary
Right with regard to any such derivative
work, (ii) make available any such
derivative work to any third party, or
(iii) use any such derivative work except
in connection with the design and
development of Games under this Agreement.
4. SUBMISSION OF GAME AND
ARTWORK FOR APPROVAL
4.1 Development
and Sale of the Games. LICENSEE may develop Games and have
manufactured, advertised, marketed and sold
Licensed Products for play on the
GAME BOY(R) ADVANCE system only in
accordance with this Agreement.
4.2 Third Party
Developers. LICENSEE shall not disclose the Confidential
Information, the Guidelines or the
Intellectual Property Rights to any
Independent Contractor, nor permit any
Independent Contractor to perform or
assist in development work for a Game,
unless and until such Independent
Contractor has been approved by NOA and has
executed a written confidentiality
agreement with NOA relating to the GAME
GOY(R) ADVANCE system.
4.3 Delivery of
Completed Game. Upon completion of a Game, LICENSEE shall
deliver a prototype of the Game to NOA in a
format specified in the Guidelines,
together with written user instructions, a
complete description of any security
holes, backdoors, time bombs, cheats,
"easter eggs" or other hidden features or
characters in the Game and a complete
screen text script. NOA shall promptly
evaluate the Game with regard to (a) its
technical compatibility with an
error-free operation on the GAME BOY(R)
ADVANCE system, and (b) its compliance
with the game content guidelines of the
Entertainment Software Ratings Board
("ESRB"). LICENSEE shall provide NOA with a
certificate of a rating for the Game
from the ESRB other than "AO" or "ADULTS
ONLY".
4.4 Approval of
Completed Game. NOA shall, within a reasonable period of
time after receipt, approve or disapprove
each submitted Game. If a Game is
disapproved, NOA shall specify in writing
the reasons for such disapproval and
state what corrections or improvements are
necessary. After making the necessary
corrections or improvements, LICENSEE shall
submit a revised Game to NOA for
approval. NOA shall not unreasonably
withhold or delay its approval of any Game.
The approval of a Game by NOA shall not
relieve LICENSEE of its sole
responsibility for the development, quality
and operation of the Game or in any
way create any warranty for a Game or a
Licensed Product by NOA.
4.5 Submission
of Artwork. Upon submission of a completed Game to NOA,
LICENSEE shall prepare and submit to NOA
the Artwork for the proposed Licensed
Product. Within ten (10) business days of
receipt, NOA shall approve or
disapprove the Artwork. If any Artwork is
disapproved, NOA shall specify in
writing the reasons for such disapproval
and state what corrections or
improvements are necessary. After making
the necessary corrections or
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improvements, LICENSEE shall submit revised
Artwork to NOA for approval. NOA
shall not unreasonably withhold or delay
its approval of any Artwork. The
approval of the Artwork shall not relieve
LICENSEE of its sole responsibility
for the development and quality of the
Artwork or in any way create any warranty
for the Artwork or the Licensed product by
NOA.
4.6 Artwork for
Stripped Product. If LICENSEE submits an order for Stripped
Product, all Artwork shall be submitted to
NOA in advance of NOA's acceptance of
the order and no production of Printed
Materials shall occur until such Artwork
has been approved by NOA under Section 4.5
herein.
5. ORDER PROCESS, PURCHASE
PRICE, PAYMENT AND DELIVERY
5.1 Submission
of Orders by LICENSEE. LICENSEE may at any time submit
written purchase orders to NOA for any
approved Licensed Product title. The
purchase order shall specify whether it is
for Finished Product or Stripped
Product The terms and conditions of this
Agreement shall control over any
contrary terms of such purchase order or
any other written documents submitted
by LICENSEE. All orders are subject to
acceptance by NOA in Redmond, WA.
5.2 Purchase
Price and Minimum Order Quantities. The purchase price and
minimum order quantities for the Licensed
Products shall be set forth in NOAs
then current Price Schedule. The purchase
price includes the cost of
manufacturing together with a royalty for
the use of the Intellectual Property
Rights. No taxes, duties, import fees or
other tariffs related to the
development, manufacture, import, marketing
or sale of the Licensed Products are
included in the purchase price and all such
taxes are the responsibility of
LICENSEE (except for taxes imposed on NOA's
income). The Price Schedule is
subject to change by NOA at any time
without Notice.
5.3 Payment.
Upon placement of an order with NOA, LICENSEE shall pay the
full purchase price to NOA either (a) by
placement of an irrevocable letter of
credit in favor of NOA and payable at
sight, issued by a bank acceptable to NOA
and confirmed, if requested by NOA, at
LICENSEE's expense, or (b) in cash, by
wire transfer to NOA's designated account.
All associated banking charges shall
be for LICENSEE's account.
5.4 Shipment and
Delivery. The Licensed Products shall be delivered F.O.B.
Japan or such other delivery point
specified by NOA. with shipment at LICENSEE's
direction and expense. Orders may be
delivered by NOA in partial shipments, each
directed to not more than two (2)
destinations designated by LICENSEE within the
Territory. Title to the Licensed Products
shall vest in accordance with the
terms of the applicable letter of credit
or, in the absence thereof, at the
point of delivery.
6. MANUFACTURE OF THE LICENSED
PRODUCT
6.1
Manufacturing. Nintendo Co., Ltd. shall be the exclusive source for
the
manufacture of the Game Cartridges, 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.
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6.2 Manufacture
of the Licensed Products. Upon acceptance by NOA of a
purchase order for an approved Licensed
Product title and payment as provided
for under Section 5.3 herein, NOA (through
Nintendo Co., Ltd., and/or its
subcontractors), will arrange for the
Product or Stripped Product, as specified
in LICENSEE's purchase order.
6.3 Security
Features. The final release version of the Game, Game
Cartridges and Printed Materials shall
include such Security Technology as
Nintendo, in its sole discretion, may deem
necessary or appropriate.
6.4 Production
of Stripped Product Printed Materials. For Stripped Product,
LICENSEE shall arrange and pay for the
production of the Printed Materials using
the Artwork. Upon receipt of an order of
Stripped Product, LICENSEE shall
assemble the Game Cartridges and Printed
Materials into the Licensed Products.
Licensed Products may be sold or otherwise
distributed by LICENSEE only in fully
assembled and shrink-wrapped condition.
6.5 Prior
Approval of LICENSEE's Independent Contractor. Prior to the
placement of a purchase order for Stripped
Product, LICENSEE shall obtain NOA's
approval of any Independent Contractors
selected to perform the production and
assembly operations. LICENSEE shall provide
NOA with the names, addresses and
all business documentation reasonably
requested by NOA for such Independent
Contractors. NOA may, prior to approval and
at reasonable intervals thereafter,
(a) require submission
