XBOX(TM) LIVE DISTRIBUTION AMENDMENT
TO THE
XBOX(TM) PUBLISHER LICENSING AGREEMENT
This Xbox(TM) Live Distribution Amendment (the "Amendment") is
entered into and
effective as of the latter of the two signature dates below (the
"Effective
Date") by and between MICROSOFT LICENSING, INC. a Nevada
corporation
("Microsoft"), and ____________________________________
("Licensee"), and
supplements the Xbox(TM) Publisher License Agreement between the
parties dated
as of _________ ("PLA").
RECITALS
A. Whereas, Microsoft and its affiliated companies develop and
license a
computer game system, known as the Xbox(TM) game system; and
B. Whereas, Microsoft and its affiliated companies intend to
develop and
maintain a proprietary online service accessible via the Xbox(TM)
game system;
and
C. Whereas, Licensee is an experienced publisher of software
products and
is developing and publishing one or more software products to run
on the
Xbox(TM) game system pursuant the parties' PLA; and
D. Whereas, Licensee wishes to participate in the Xbox Live service
by
making such software products available to subscribers of such
service.
Accordingly, for and in consideration of the mutual covenants and
conditions
contained herein, and for other good and valuable consideration,
receipt of
which each party hereby acknowledges, Microsoft and Licensee agree
as follows:
1. DEFINITIONS; INTERPRETATION
1.1 Except as expressly provided otherwise in this Amendment,
capitalized
terms shall have the same meanings ascribed to them in the PLA.
1.2 The terms of the PLA are incorporated by reference, and except
and to
the extent expressly modified by this Amendment, the PLA shall
remain in full
force and effect and is hereby ratified and confirmed.
1.3 "XBOX LIVE" shall mean the proprietary online service offered
by
Microsoft to End Users. The Xbox Live service may change from time
to time, and
may include, without limitation, the Base Service and Premium
Service(s).
1.4 "ONLINE FEATURES" shall mean a Software Title's content,
features and
services that will be available to End Users via Xbox Live. Online
Features may
be Base Online Features and/or Premium Online Features.
1.5 "BASE SERVICE" shall mean a base level of Xbox Live services
available
to End Users for a fee payable to Microsoft or its affiliates. The
Base Service,
and the terms and conditions for Licensee's Base Online Features,
is further
defined in this Amendment and the Xbox Guide.
1.6 "BASE ONLINE FEATURES" shall mean a Software Title's Online
Features
that are available to End Users as part of the Base Service.
1.7 "PREMIUM SERVICE(S)" shall mean Xbox Live services (other than
the Base
Service) available to End Users for additional fee(s) above and
beyond the Base
Service fee. The Premium Service, and the terms and conditions for
Licensee's
Premium Online Features, is further defined in this Amendment and
the Xbox
Guide.
1.8 "PREMIUM ONLINE FEATURES" shall mean a Software Title's Online
Features
that are available to End Users as part of the Premium Service.
1.9 "END USER" shall mean any individual or entity that accesses
and uses
Xbox Live, whether as a guest of a Subscriber, via a user account
established by
a Subscriber, or otherwise.
1.10 "SUBSCRIBER" shall mean an End User that establishes a
subscription
billing account to Xbox Live.
1.11 "COMMERCIAL RELEASE" shall mean (a) with respect to Xbox, the
first
commercial availability of Xbox Live in the United States to the
general public,
and (b) with respect to a the Online Features of a Software Title,
the first
availability of such features via Xbox Live to the general public.
1.12 "TRIAL VERSION" shall mean a time-limited or feature-limited
version
of a Software Title's Online Features that is available to End
Users only to
advertise or promote the applicable Software Title, and is further
defined in
this Amendment and the Xbox Guide.
1.13 "ONLINE TERRITORY" shall be determined on an Online
Feature-by-Online
Feature basis, and shall mean such geographic regions or countries
as may be
specified in writing when the Concept of the applicable Online
Feature is
approved. The Online Territories for Online Features of a Software
Title may
differ in scope from the Territories for the Software Title's
Finished Product
Units.
2. DEVELOPMENT; DELIVERY; APPROVAL
2.1 DEVELOPMENT SUPPORT. Microsoft shall provide Licensee a
reasonable
level of support in connection with the development and testing of
Licensee's
Online Features in a manner consistent with the guidelines and
requirements set
forth in the Xbox Guide.
2.2 APPROVAL PROCESS. The approval process for Online Features is
as set
forth in the PLA (i.e., the stages for Concept approval,
pre-Certification,
Certification and Marketing Materials shall apply to all aspects of
the Software
Title, including without limitation, its Online Features).
Additional approval
criteria specific to Online Features are as set forth below and in
the Xbox
Guide.
2.2.1 CONCEPT. Licensee's Concept submission form shall include a
description of the Online Features, including, without limitation,
a description
of any incremental content (i.e., to be made available following
the Commercial
Release of the Finished Product Units of the Software Title) and
proposed
distribution schedule. Licensee shall designate, in its sole
discretion, which
Online Features shall be included in the Base Service and in the
Premium
Service. Subject to the foregoing, Microsoft may require that all
Online Feature
Concept submissions include, at a minimum, certain basic
functionality necessary
to achieve certification (e.g., all features must support user
authentication),
and any such requirements shall be set forth in the Xbox Guide.
Licensee may
additionally propose Online Features at any time after a Software
Title Concept
has been approved, in which case Licensee shall deliver to
Microsoft a separate
Concept submission addendum form for each Online Feature proposal.
Evaluation of
the proposed Online Features will be based on criteria including,
but not
limited to, the criteria set forth in the Xbox Guide. To the extent
Licensee
desires that Online Features be available in the Territory
comprising European
Union countries, the EU Approval Option shall not apply.
2.2.2 CLIENT-SERVER GAMES. The Online Features of certain Software
Titles may require that all or part of the Online Features be
hosted on game
server(s) ("Game Servers"). Such Game Servers shall be maintained
and operated
by Microsoft or its affiliate unless Licensee desires to maintain
and operate
its own game server(s) for Premium Online Services ("Licensee Game
Servers"), in
which case Licensee Game Servers must be Certified in accordance
with Section
2.2.5 below. Notwithstanding the foregoing, given the necessity of
creating a
secure and reliable online service to ensure the success of the
Xbox Live
platform, the option for Licensee to maintain and operate its own
Licensee Game
Servers may not be available until at least one year following the
Online
Commercial Release of Xbox Live. All maintenance and operation of
Game Servers,
if any, for Base Online Features shall be conducted solely by
Microsoft or its
affiliate.
2.2.3 PRE-CERTIFICATION. At the Pre-Certification submission,
Licensee
shall deliver to Microsoft a version of the Online Features, and
such other
content as may be required by the Xbox Guide. Microsoft shall also
conduct
certain testing of the Online Features, which may vary depending on
the nature
of the Online Features. If applicable, Licensee shall also provide
access to
Licensee Game Servers and/or the Game Server software for
Pre-Certification
testing in
2
accordance with the Xbox Guide. Online Features must receive
satisfactory
Pre-Certification testing results prior to the Software Title
proceeding to Beta
Trials.
As set forth in the PLA, all feedback provided by Microsoft to
Licensee as a
result of Microsoft's Pre-Certification testing shall be advisory
in nature.
However, Licensee acknowledges that the Pre-Certification and
Certification
submissions evaluate different aspects of the Online Features and
at different
stages in Licensee's development schedule and therefore
satisfactory feedback
regarding Pre-Certification is not an indication that the Online
Features will
be approved following the Certification submission. Licensee shall
be given the
opportunity to resubmit Online Features that fail the
Pre-Certification approval
process. In Microsoft's discretion, Licensee may be charged a
reasonable fee
designed to offset the costs associated with the Pre-Certification
testing of
Software Titles in the event of resubmission(s).
2.2.4 BETA TRIALS. If the Pre-Certification submission receives
satisfactory results, Microsoft may require that internal and
public beta
testing be conducted by or on behalf of Microsoft (the "Beta
Trials"). All
feedback provided by Microsoft to Licensee as a result of the Beta
Trials shall
be advisory in nature, and satisfactory feedback from the Beta
Trials is not an
indication that the Online Features will be approved following the
Certification
submission. Likewise, Beta Trial feedback may include information
regarding
violations of Technical Certification Requirements that could, if
not addressed
by Licensee, result in Certification failure. The Beta Trial
process shall be as
further described in the Xbox Guide.
2.2.5 CERTIFICATION. In addition to the deliverables set forth in
the
PLA, Licensee shall deliver to Microsoft a proposed final release
version of the
Software Title with Online Features that is complete and ready for
access via
Xbox Live, in addition to such other content as may be required by
the Xbox
Guide. Such version shall provide the final content rating
certification and
with all identified program errors corrected. If applicable,
Licensee shall also
provide Microsoft access to Licensee's Game Servers and Game Server
software.
Microsoft shall conduct compliance, compatibility, functional and
other testing
consistent with the Xbox Guide ("Certification Testing") and shall
subsequently
provide Licensee with the results of such testing. As set forth in
the Xbox
Guide, Certification Testing may vary depending on the nature of
the Online
Features (e.g., a series of episodic downloads for a
client-to-client game may
have different Certification criteria and testing times than the
features of a
multiplayer client-server game).
2.2.5.1 Certification for Online Features may be conditioned upon
(1) successful completion of the Certification Testing; (2)
conformance with the
approved Online Feature Concept as identified in the Concept
Summary; (3)
demonstration of conformance with the Technical Certification
Requirements as
described in the Xbox Guide; (4) consistency with the goals and
objectives of
the Xbox Live service; and (5) continuing and ongoing compliance
with all
Certification requirements and other requirements as set forth in
the Xbox Guide
and this Amendment.
2.2.5.2 Certification for Licensee Game Servers may be
conditioned upon: (1) successful completion of the Certification
Testing, (2)
demonstration of conformance with the Service Level Requirements as
described in
the Xbox Guide, and (3) continuing and ongoing compliance with all
Certification
requirements, Service Level Requirements, and other requirements as
set forth in
the Xbox Guide and this Amendment.
2.2.5.3 If warranted on the basis of its tests, Microsoft shall
make reasonable efforts to provide Licensee with feedback regarding
the Online
Features and Licensee Game Servers and modifications that must be
made prior to
approval of the Certification submission. Provided that Licensee
has made good
faith efforts to address issues raised by Microsoft, Licensee shall
be given the
opportunity to resubmit Online Features and Licensee Game Servers
that fail the
Certification approval process. In Microsoft's discretion, Licensee
may be
charged a reasonable fee designed to offset the costs associated
with the
testing of Online Features and Licensee Game Servers upon
resubmission.
2.2.6 POST-RELEASE COMPLIANCE. As set forth in Section 2.2.5 above,
Online Features (and Licensee Game Servers, as applicable) must
remain in
compliance with all Certification requirements on a continuing and
ongoing
basis. If, following Certification and Commercial Release, the
Online Features
thereafter fail at any time to comply with any of the Certification
criteria set
forth herein, Microsoft reserves the right, at its option, to
terminate this
Amendment with respect to such Online Features, or to revoke
Certification and
suspend the availability of such Online Features in whole or in
part until such
time that such Online Features are re-Certified in accordance with
Section
2.2.5. Re-Certification may be conditioned upon Licensee's delivery
to Microsoft
of Auto-Updates (as defined in Section 2.3.3) in accordance with
and within the
time frames set forth in the Xbox Guide. If Licensee Game Servers
fail at any
time to comply with any of the Certification criteria set forth
herein,
Microsoft reserves the right, at its option, to suspend Licensee's
maintenance
and operation of such Licensee Game Servers until such time that
such Licensee
Game Servers achieve Certification again and/or terminate
Licensee's right to
maintain and operate Licensee Game Servers; and during such period
of
noncompliance
3
Microsoft further reserves the right to host, at Licensee's cost
and expense,
the Online Features on its own Game Servers, and Licensee shall
cooperate as
requested by Microsoft in effecting a smooth and prompt transition
of the Online
Features from Licensee Game Servers to Microsoft's Game Servers.
2.3 OTHER APPROVAL CONSIDERATIONS.
2.3.1 OTHER VERSIONS. The parties may mutually agree that Licensee
submit versions of the Online Features or Licensee Game Servers at
stages of
development other than as identified above for review and feedback
by Microsoft.
Such review shall be within the discretion of Microsoft and may
require the
payment of processing fees by Licensee to offset the costs
associated with the
review of such Software Titles.
2.3.2 CHANGES OF REQUIREMENTS BY MICROSOFT. Licensee acknowledges
that
the Xbox Live service is a new and evolving network environment,
and as a
result, it and the Xbox Guide are subject to change during the Term
of this
Amendment. Notwithstanding Microsoft's Certification of Online
Features and/or
Licensee Game Servers, nothing herein shall be deemed to relieve
Licensee of its
obligation to correct material program bugs and errors in
conformance with the
Xbox Guide, whenever discovered (including without limitation after
Commercial
Release of the Online Features), and Licensee agrees to correct
such material
bugs and errors as soon as possible after discovery, regardless of
whether the
bug or error necessitates a correction to Finished Product Units or
Licensee
Game Servers. Microsoft will make commercially reasonable efforts
to promptly
notify Licensee of any changes to the Xbox Guide, and the time
frames for
implementing changes to its Online Features and/or Licensee Game
Servers to
comply with the updated requirements of the Xbox Guide.
2.3.3 POST-RELEASE UPDATES. Licensee understands that certain
changes
to the Xbox Guide, or the revocation of Certification with respect
to Online
Features or Licensee Game Servers, may require that Licensee
develop and make
available for download to End Users or to Microsoft various
updates, upgrades,
or fixes thereto (collectively, "Auto-Updates"). Microsoft reserves
the right to
charge Licensee a reasonable fee to offset the costs associated
with the
Certification, hosting and distribution of Auto-Updates to End
Users; however,
no fees shall be charged for the first two Auto-Updates (if any)
per Software
Title. In addition, Licensee may desire, from time to time, to make
availa
