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Exhibit 99.6
CONFIDENTIAL LICENSE AGREEMENT
FOR NINTENDO DS (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 Atari, Inc. ("LICENSEE") at 417
Fifth Avenue,
New York, New York 10016 Attn: Legal Department (Fax: 212 726
4239). NOA and
LICENSEE agree as follows:
1. RECITALS
1.1
NOA markets and sells advanced design, high-quality video game
systems,
including the Nintendo DS system.
1.2
LICENSEE desires a license to use highly proprietary
programming
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 Nintendo DS 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 Card label
and
Printed Materials in the format specified by NOA in the
Guidelines.
2.2
"Bulk Goods" means the Game Cards with Game Card labels
affixed.
2.3
"Development Tools" means the development kits, programming
tools,
emulators and other materials that may be used in the development
of Games under
this Agreement.
2.4
"Effective Date" means (****)
2.5
"Finished Product(s)" means the fully assembled and
shrink-wrapped
Licensed Products, each including a Game Card, Game Card label and
Printed
Materials.
2.6
"Game Card(s)" means custom card media specifically manufactured
under
the terms of this Agreement for play on the Nintendo DS system,
incorporating
semiconductor components in which a Game has been stored.
2.7
"Game(s)" means the Nintendo DS version of an interactive video
game
program, or other applications approved by Nintendo (including
source and
object/binary code) developed for the Nintendo DS system.
2.8
"Guidelines" means the current version or any future revision of
the
"Nintendo DS Packaging Guidelines", "Nintendo DS Development
Manual" and related
guidelines provided by NOA.
2.9
"Independent Contractor" means any individual or entity that is not
an
employee of LICENSEE, including any independent programmer,
consultant,
contractor, board member or advisor.
2.10
"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 Games for the Nintendo DS system including
"Nintendo(R)",
"Nintendo DS(TM)", "DS(TM)", and the "Official Nintendo Seal(R)",
(b) select
trade dress associated with the Nintendo DS system and licensed
Games for
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play thereon, (c) Proprietary Rights in the Security Technology
incorporated
into the Game Cards, (d) rights in the Development Tools for use in
developing
the Games, (e) patents or design registrations associated with the
Game Cards,
(f) copyrights in the Guidelines, and (g) other Proprietary Rights
of Nintendo
in the Confidential Information.
2.11
"Licensed Products" means (a) Finished Products, or (b) Bulk
Goods
when fully assembled and shrink-wrapped with the Printed
Materials.
2.12
"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.
2.13
"NDA" means the non-disclosure agreement providing for the
protection
of Confidential Information related to the Nintendo DS system
previously entered
into between NOA and LICENSEE.
2.14
"Notice" means any notice permitted or required under this
Agreement.
All notices shall be sufficiently given when (a) personalty served
or delivered,
(b) transmitted by facsimile, with an original sent concurrently by
first class
U.S. mail, 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.
2.15
"Price Schedule" means the current version or any future revision
of
NOA's schedule of purchase prices and minimum order quantities for
Finished
Products and Bulk Goods.
2.16
"Printed Materials" means the Game Card label and title sheet,
user
instruction booklet, poster, warranty card and LICENSEE inserts
incorporating
the Artwork, together with a precautions booklet as specified by
NOA.
2.17
"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, copyright, mask work, trade secrets, trade dress,
moral rights or
publicity rights may exist or may be sought and obtained in the
future.
2.18
"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.
2.19
"Security Technology" means, without limitation, any security
signature, bios, data scrambling, password, hardware security
apparatus,
watermark, hologram, encryption, Digital Rights management system,
copyright
management information system or any feature that facilitates or
limits
compatibility with other hardware, software, or accessories or
other peripherals
outside of the Territory or on a different video game system.
2.20
"Term" means three years from the Effective Date.
2.21
"Territory" means all countries within the Western Hemisphere
and
their respective territories and possessions.
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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 valuable
nature
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 Nintendo DS system. LICENSEE recognizes that the
Games, Game
Cards and Licensed Products will embody valuable rights of Nintendo
and
Nintendo's licensors. LICENSEE represents and warrants that it will
not
knowingly undertake any act or thing that 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.
3.3
LICENSEE Restrictions and Prohibitions. LICENSEE is not licensed
to,
and covenants that, without the express written consent of
Nintendo, 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, except (a) as a part
of wireless
Game play on and among Nintendo DS systems, (b) for the purpose of
facilitating
Game development under the terms of this Agreement, or (c) as
otherwise approved
in writing by Nintendo. LICENSEE shall use reasonable security
measures,
customary within the high technology industry, to reduce the risk
of
unauthorized interception or retransmission of any Game
transmission. No right
of retransmission shall attach to any authorized transmission of a
Game.
(b) modify, install or operate a Game on any server or other
device
for the purpose of or resulting in the rental, lease, loan or sale
of rights of
access to the Game,
(c) emulate, interoperate, interface or link a Game for operation
or
use with any hardware platform, software program, accessory,
computer language,
computer environment, chip instruction set, consumer electronics
device,
telephone, cellphone, PDA, or other device, including for purposes
of data
interchange, password usage or interactive video game play, other
than a
Nintendo DS system, an application approved by Nintendo, or the
Development
Tools,
(d) emulate any past, current or future Nintendo brand video
game
system, or any portion thereof, in software or hardware or any
combination
thereof,
(e) embed, incorporate, or store a Game in any media or format
except
the Game Card format utilized by the Nintendo DS system, except as
may be
necessary as a 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
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(i) Reverse Engineer or assist in the Reverse Engineering of all
or
any part of the Nintendo DS system, including the hardware or
software (whether
embedded or otherwise), the Development Tools or the Security
Technology.
3.4
No Free-Riding; No Co-Publishing Arrangements. To protect
Nintendo's
valuable Intellectual Property Rights, to prevent the dilution of
Nintendo's
trademarks and to preclude free-riding by third parties on the
goodwill
associated with Nintendo's trademarks, the license granted under
this Agreement
is limited to LICENSEE and may not be delegated or contracted out
for the
benefit of a third party, or to a division, affiliate, or
subsidiary of
LICENSEE. This Agreement, together with all submissions,
representations,
undertakings and approvals contemplated of LICENSEE by this
Agreement, is and
shall remain the right and obligation only of LICENSEE. All Printed
Materials
and Marketing Materials for a Game shall prominently and accurately
identify
LICENSEE as NOA's licensee. NOA does not permit the designation
or
identification of any third party co-publisher for a Game on any
Licensed
Product Game Card case or Game Card label, however, LICENSEE may
identify a
third party as a co-publisher, licensor, developer or other partner
of LICENSEE
in those Printed Materials (other than the Game Card label),
Marketing Materials
or Game credits, as authorized under the Guidelines. For purposes
of
clarification, LICENSEE's name, or logo, will appear on the
Licensed Product
Game Card case and Game Card label as it appears in the preamble of
this
Agreement.
3.5
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 and any separate
license or
purchase agreement required by Nintendo. 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 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 and shall
belong to
Nintendo, 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, advertise, market and sell Licensed Products for play
on the
Nintendo DS 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 Nintendo DS 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 its technical compatibility with
and error-free
operation on the Nintendo DS system. LICENSEE is responsible for
ensuring that
the Game and any other content to be included on the Game Card
complies with the
Advertising Code of Conduct of the Entertainment Software
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Ratings Board ("ESRB") and that the Game has been rated EC, E, M or
T by the
ESRB. LICENSEE shall provide NOA with a related certificate of
rating for the
Game from the ESRB.
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. (****) 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 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 by NOA 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 any Licensed Product by
NOA.
4.6
Artwork for Bulk Goods. If LICENSEE submits an order for Bulk
Goods,
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 Products or
Bulk Goods.
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 Finished Products and Bulk Goods shall
be set forth
in NOA's 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, provided, however, that any
price increase
shall be applicable only to purchase orders submitted, paid for,
and accepted by
NOA after the effective date of the price increase.
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 are
the responsibility of the LICENSEE.
5.4
Shipment and Delivery. All Licensed Products shall be delivered
to
LICENSEE EXW Ex works Japan (as defined by Incoterms 2000), 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
(****) 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.
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6. MANUFACTURE
OF THE LICENSED PRODUCT
6.1
Manufacturing. Nintendo shall be the exclusive source for the
manufacture of the Game Cards, and shall control 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.
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 will arrange for the manufacture
of Finished
Product or Bulk Goods, as specified in LICENSEE's purchase
order.
6.3
Security Features. The final release version of the Game, Game
Cards
and Printed Materials shall include such Security Technology as
Nintendo, in its
sole discretion and at its sole expense, may deem necessary or
appropriate.
6.4
Production of Bulk Goods Printed Materials. For Bulk Goods,
LICENSEE
shall arrange and pay for the production of the Printed Materials
using the
Artwork. Upon receipt of an order of Bulk Goods, LICENSEE shall
assemble the
Game Cards and Printed Materials into the Licensed Products. Games
may be sold
or otherwise distributed by LICENSEE only in fully assembled and
shrink-wrapped
Licensed Products.
6.5
Prior Approval of LICENSEE's Independent Contractor. Prior to
the
placement of a purchase order for Bulk Goods, LICENSEE shall obtain
NOA's
approval of any Independent Contractors selected to perform
LICENSEE's
production and assembly operations, such approval not to be
unreasonably
withheld. 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 of additional business or financial information
regarding the
Independent Contractors, (b) inspect the facilities of the
Independent
Contractors, and (c) be present to supervise any work on the
Licensed Products
to be done by any Independent Contractors
