Exhibit 10.38
ADD ON CONTENT
ADDENDUM
TO CONFIDENTIAL LICENSE
AGREEMENT
FOR THE WII
CONSOLE
THIS ADD ON CONTENT ADDENDUM
(“Addendum”) to the CONFIDENTIAL LICENSE AGREEMENT FOR
THE WII CONSOLE (Western Hemisphere) (“Agreement”) is
entered into between Nintendo of America Inc. (“NOA”)
and THQ Inc. (“LICENSEE”), and shall be deemed a part
of the Agreement. NOA and LICENSEE agree as
follows:
1.
BACKGROUND
1.1
The parties previously entered into the Agreement, which Agreement,
among other things, restricts LICENSEE from developing additional
content for Games for download by consumers, without the express
written approval of NOA.
1.2
NOA now desires to offer LICENSEE the opportunity to create
additional new content for Games for download by customers through
NOA’s Wii Network Services.
1.3
LICENSEE desires to develop additional new content for Games, and
have NOA offer that new content to customers for download through
the Wii Network Services.
1.4
NOA desires to market, distribute and sell additional new content
for Games through the Wii Network Services.
2.
DEFINITIONS
All capitalized terms used in this Addendum that
are not otherwise defined herein shall have the meaning set forth
in the Agreement. The following additional definitions
specifically apply to this Addendum:
2.1
“Add On Content” means any new content for Games
developed by or for LICENSEE and Distributed by NOA.
“Add On Content” shall be deemed a part of a Game, as
defined in the Agreement.
2.2
“Add On Content Final Title Sheet” means NOA’s
form that is completed and submitted by LICENSEE with each proposed
Add On Content.
2.3
“Distribute”, “Distributed” or
“Distribution” means any offer of Add On Content to a
customer by NOA through the Wii Network Services.
2.4
“E-Commerce Library Programming Guidelines for Wii”
means the current guidelines specific to the incorporation of
e-commerce functionality in Games to allow for the Sale,
Distribution, and download of Add On Content. The E-commerce
Guidelines shall be deemed a part of the Guidelines, as defined in
the Agreement.
2.5
“Instruction Manuals” means electronic manuals or other
documents, in such form as may be required by NOA, that describe
how to use Add On Content and that set forth any necessary warnings
related to such use.
2.6
“Licensee Intellectual Property Rights” means
Proprietary Rights owned or licensed by LICENSEE (excluding any
Intellectual Property Rights) in or relating to the Game or Add On
Content.
2.7
“Performance Threshold” means, for each specific piece
of Add On Content, the minimum number of Sales or other criteria
required to be satisfied for specific Add On Content before
LICENSEE will be eligible to be paid a Royalty for that Add On
Content.
2.8
“Royalty” or “Royalties” means the amounts
payable to LICENSEE by NOA in accordance with this
Addendum.
2.9
“Sale” means each redemption by a customer of Wii
Points (or the actual purchase price to download content, should
NOA allow purchases by other than Wii Points), which enables such
customer to download specific Add On Content (collectively,
“Sales”). “Sell” or
“Sold” shall mean the completion of each such Sale
through NOA.
2.10
“System Updates” mean upgrades, bug fixes, or
additional features that modify the operating system of the Wii
console and/or are designed to optimize or enhance the operation,
performance, or security of the Wii Network Services or the Wii
console.
2.11
“Wii Points” means the points which customers purchase
from NOA and its subsidiaries through means such as the Wii Shop
Channel and points cards sold or distributed by NOA’s
promotional partners and authorized retailers and distributors, and
that may be redeemed by customers to download Add On Content or
other content.
2.12
“Wii Shop Channel” means the service provided by NOA or
Nintendo that is associated with the Wii console (or any successor
consoles) whereby customers, through an Internet connection, can
download content for such console upon a Sale to a
customer.
3.
GRANT OF LICENSE; RESTRICTIONS
3.1
Grant of Development License to LICENSEE . Subject to
the terms and conditions of the Agreement, NOA grants to LICENSEE,
during the Term and throughout the Territory, a nonexclusive,
nontransferable, limited license to use the Intellectual Property
Rights to develop Add On Content (or have Add On Content developed
on LICENSEE’s behalf) for Distribution and Sale solely by
NOA.
3.2
Grant of License to NOA . Subject to the terms and
conditions of the Agreement, LICENSEE grants to NOA, during the
Term and throughout the Territory, a license in and to the Add On
Content, and all of LICENSEE’s Proprietary Rights associated
therewith, sufficient to permit NOA, its subsidiaries or third
parties working on NOA’s behalf, to advertise, market,
Distribute and Sell the Add On Content in object code form.
NOA shall not be in breach of this license grant if it advertises,
markets, Distributes or Sells to any customer representing him or
herself to be within the Territory, even if such customer is not in
fact within the Territory.
3.3
Restrictions and Prohibitions . NOA will not
(i) modify, Distribute or Sell Add On Content or all or any
part of the Licensee Intellectual Property Rights, except as
permitted by this Agreement; or (ii) reverse engineer or
assist in the reverse engineering of all or any part of the Add On
Content. LICENSEE will not (I) reverse engineer or
assist in the reverse engineering of all or any part of the
Intellectual Property Rights; or (II) use the Intellectual
Property Rights for any purpose other than that set forth in the
Agreement and in Subsection 3.1 of this Addendum ****.
4.
DEVELOPMENT; APPROVALS; UPGRADES; DISTRIBUTION;
SUPPORT
4.1
Responsibility for Add On Content . LICENSEE is solely
responsible for development, testing, quality, content, operation
and support of Add On Content, and must comply with any Guidelines
made available to LICENSEE by NOA in connection therewith.
Failure to comply with any Guidelines shall be a breach of this
Agreement. LICENSEE shall review all Add On Content prior to
submission to NOA, and shall ensure that all Add On Content
submitted to NOA by LICENSEE for Distribution: (i) is
free
* Confidential portion omitted and filed
separately with the Securities and Exchange Commission.
2
of bugs or other operational defects or errors
that have a material adverse effect on the use and/or enjoyment of
the applicable Game, (ii) does not contain any third party
software (including free or open source software) that:
(a) creates, or purports to create, obligations on NOA with
respect to such software; (b) grants, or purports to grant, to
any third party any rights or immunities in or to the Add On
Content or the Intellectual Property Rights; or (c) causes the
Add On Content or the Intellectual Property Rights to be subject to
any licensing terms or obligations that would require the Add On
Content or the Intellectual Property Rights to be disclosed or
distributed, whether or not in source code form, to be licensed for
the purpose of making derivative works or to be redistributed free
of charge, and (iii) does not include material that would
change the existing ESRB rating or descriptors for the Game.
To the extent an Instruction Manual is required by the Guidelines,
LICENSEE must include an Instruction Manual with its
submission.
4.2
Security Technology, System Updates and Notifications
. In its sole discretion, and without Notice to LICENSEE, NOA
or Nintendo may add Security Technology, System Updates, and
trademark, copyright or customer notifications to Add On Content or
Instruction Manuals; provided, however, any such addition by NOA
will not serve to release LICENSEE from any obligation under the
Agreement or under applicable laws, rules or
regulations. NOA may in addition require LICENSEE at
LICENSEE’s sole expense to update its Add On Content from
time to time to (i) comply with any new Wii Network Services
or Wii console requirements or Guidelines, or (ii) fix bugs or
other operational defects or errors in the Add On Content in
accordance with NOA’s then-current Guidelines.
4.3
Submission of Completed Add On Content . When
development and testing of proposed Add On Content has been
completed, LICENSEE will submit such proposed Add On Content to NOA
for approval, and shall provide along with each submission a
completed Add On Content Final Title Sheet for such proposed Add On
Content, and such additional information or documentation as deemed
necessary by NOA.
4.4
No Obligation to Market, Distribute or Sell . LICENSEE
acknowledges that its development of proposed Add On Content is at
its sole risk. NOA is under no obligation to advertise,
market, Distribute or Sell specific Add On Content and thereby
incur any Royalty or other financial obligation to LICENSEE.
If NOA elects to Distribute any Add On Content, the commencement
date of such Distribution, the length of time, and the countries
within the Territory in which it is Distributed, shall be in
NOA’s sole discretion, provided, however, LICENSEE may
terminate NOA’s right to Distribute or Sell specific Add On
Content, upon thirty day’s prior Notice to NOA. NOA may
at any time and for any reason (i) remove Add On Content from
the Wii Network Services for all or a portion of the Territory
without liability to LICENSEE, other than payment of any Royalties
that may be due under Section 5 of this Addendum for Sales
that occurred prior to such removal, and (ii) restore Add On
Content to the Wii Network Services for all or a portion of the
Territory during the Term (and in such
