|
|
***SEC CONFIDENTIAL TREATMENT
REQUESTED***
Note: The portions hereof for which confidential treatment are
being requested are denoted with highlighted, bold and underlined
language
|
LICENSE AGREEMENT
This
LICENSE AGREEMENT (“
Agreement ”)
dated as of July 1, 2008 (the “
Effective Date ”),
by and between Aptus Games, a company incorporated under the laws
of Delaware with principal offices at 871 Marlborough Avenue #100,
Riverside, CA 92507 (“
Aptus ”),
and CBS Interactive Inc., a company incorporated under the laws of
Delaware with principal offices at 7800 Beverly Boulevard, Los
Angeles, California 90036 (“
CBSI ”)
(each of CBSI and Aptus is each a “
Party ,”
and collectively, the “
Parties ”).
RECITALS
WHEREAS ,
Aptus’
technology
allows the scalable streaming of interactive virtual world games
over the internet; and
WHEREAS ,
Aptus desires to develop an interactive virtual world game
promoting the television show “Survivor,” which is
broadcast on the CBS Television Network; and
WHEREAS ,
CBSI wishes to grant Aptus the right to develop and host an
interactive virtual world game promoting the television show
“Survivor” on the terms and conditions set forth
below.
NOW, THEREFORE ,
in consideration of the premises and the mutual agreements and
covenants hereinafter set forth and intending to be legally bound
hereby, the Parties hereby agree as follows:
AGREEMENT
1.
DEFINITIONS .
(a)
“
CBS Logos ”
means the trademarks, trade names, names, designs and logos
connected to Survivor as made available by CBSI to
Aptus.
(b)
“
End User ”
means an individual who uses the Survivor Game for his/her personal
use.
(c)
“Intellectual Property Rights”
means
all rights in intellectual property of any type throughout the
world, whether existing under statute or at common law or equity,
now or hereafter in force or recognized, including, but not limited
to, the following: (i) patents; (ii) trade secrets; (iii) database
rights; (iv) copyrights; (v) rights in World Wide Web addresses and
domain names and registrations; and (vi) trade names, logos, common
law trademarks and service marks, and trademarks.
CONFIDENTIAL TREATMENT REQUESTED
WITH RESPECT TO CERTAIN PORTIONS
HEREOF
DENOTED WITH “***”
(d)
"
Licensed Territory "
means the United States and its territories and possessions only.
Any additional territories must be approved by CBSI in
writing.
(e)
“
Survivor
Game ”
shall mean a multi-player interactive online virtual world game
developed by Aptus based on, and which includes identifiable
elements of, Survivor Properties, and shall include both a
downloaded software component and an online streaming component,
both of which must be used in order to play the Survivor Game.
Survivor Game also includes any and all present and future
treatments, adaptations, drafts, derivative works and versions
thereof, that incorporate identifiable elements of the Survivor
Game.
(f)
“
Survivor
Properties ”
mean the following as made available and cleared for use by CBSI to
Aptus: the “Survivor” name, associated trademarks and
logos, and titles, photos, video footage, theme song, art,
scenarios, scripts, plot elements, depictions of environmental
settings and costumes, and actual likenesses of the contestants in
the television series entitled “Survivor” broadcast by
the CBS Television Network in the US, copyrightable material,
publicity rights, and renderings of the likenesses of the
contestants and other intellectual property used in connection with
Survivor. It is understood that Survivor Properties do not include
the license of any music that is contained in the Survivor
television show that is not wholly owned as a “work for
hire” by CBSI; provided, further, if Aptus desires to use any
music from Survivor other than the Survivor theme song, such music
shall first be approved by CBSI and then, in the event that such
music is not wholly owned as a “work for hire” by CBSI,
CBSI and Aptus shall share equally in the costs of all fees
connected with such use. Survivor Properties do not include any
rights to non-US versions, sequels, re-makes or spin-offs of
“Survivor.” Aptus shall and must obtain CBSI's written
consent (which may be exercised in CBSI's sole discretion) prior to
using any actual material (e.g. clips, audio, dialogue, etc.) from
the Survivor Properties. Aptus understands that CBSI retains
approval rights over the use of any contestant likeness at any
point in time, even if previously approved for earlier
use.
2.
Obligations
.
2.1
Game Development .
Subject to the terms and conditions of this Agreement, Aptus shall
use commercially reasonable efforts to develop and host the
Survivor Game. Aptus shall bear all development, hosting and
maintenance costs for the Survivor Game. Aptus shall use
commercially reasonable best efforts to make the Survivor Game
available to End Users in public beta (content complete) on October
20, 2008 and final public version commencing November 17,
2008.
(a)
Aptus
shall meet the milestone requirements set forth on the
attached
Exhibit A (the
“
Milestones ”).
Aptus shall notify CBSI as early as possible if it anticipates
missing a Milestone, although such notice shall not relieve Aptus
of its obligation to meet the Milestones. Aptus shall submit to
CBSI for its approval the Survivor Game as part of and in
accordance with each item set out in the Milestones (each, a
“
Creative Approval Item ”).
CONFIDENTIAL TREATMENT REQUESTED
WITH RESPECT TO CERTAIN PORTIONS
HEREOF
DENOTED WITH “***”
(b)
CBSI
shall use commercially reasonable efforts to approve or
disapprove each Creative Approval Item within seven (7) days
after its receipt (the “Review Period”). The
number of days that occur between the end of the Review Period
and the date on which CBSI approves or disapproves the
Creative Approval Item shall be added to each subsequent
Milestone, and consequently the final public launch date on
November 17, 2008. If CBSI disapproves of a Creative Approval
Item, CBSI shall provide to Aptus its reasons for the
disapproval. Aptus will then have a period of fifteen (15)
days within which to submit a revised creative concept to CBSI
for its approval. Within the Review Period for the revised
creative concept, CBSI will have the right to approve the
concept or disapprove it with reasons. If CBSI disapproves,
the process for revision as aforesaid shall be repeated. CBSI
shall exercise its rights of creative approval in good faith
and not to frustrate the intention of this Agreement.
Approvals will not be unreasonably withheld. Approval by CBSI
shall not relieve Aptus of any of its agreements, indemnities
and warranties hereunder.
(c)
Aptus
shall use its commercially reasonable efforts to create the
Survivor Game at high industry standards for creative design
and game play. Aptus shall use its best efforts to design the
Survivor Game to allow for updates. Aptus shall create at
least one update per calendar year to maintain quality levels
consistent with the latest technological developments and
highly creative game play.
(d)
Aptus
agrees to integrate registration for the Survivor
Game
into CBSI’s universal online registration by
launch .
Aptus agrees to work in good faith with CBSI to implement an
iframe feature to showcase the Survivor Game within the
designated launch site within cbs.com.
2.2
Distribution .
(a)
The
Parties anticipate that in order for an End User to play the
Survivor Game, the End User will first download and install
the software component of the Survivor Game and then enter the
online streaming environment component of the Survivor Game.
The Parties will make the software download available within
the cbs.com domain (the exact location shall be in
CBSI’s sole discretion) from servers owned or controlled
by Aptus. End Users shall enter the online streaming
environment from within the cbs.com domain (the exact location
shall be in CBSI’s sole discretion), and the Survivor
Game shall be hosted and served from Aptus’
servers.
*********.
The
parties will meet not less than once per quarter to review the
location(s) of the Survivor game on the Survivor home page and may
mutually agree that the location needs to be improved or additional
locations should be added. Aptus
will not make the Survivor Game available on any other website
without CBSI’s prior written approval.
(b)
Before
charging any End User in relation to the Survivor Game in any
way, Aptus shall obtain CBSI’s prior written approval.
Further:
CONFIDENTIAL TREATMENT REQUESTED
WITH RESPECT TO CERTAIN PORTIONS
HEREOF
DENOTED WITH “***”
(i)
Aptus
will not charge any End User for virtual purchases or other
“microtransactions” within the gameplay of the
Survivor Game without CBSI’s prior written approval,
including without limitation charges for virtual clothing for
avatars. CBSI shall exercise its rights of approval in good
faith and not to frustrate the intention of this Agreement.
Upon CBSI’s approval for such transactions, Aptus will
remit to CBSI a revenue share equal to
******** of
gross revenues from such sales (“Microtransactions
Revenue”).
(ii)
Aptus
will not charge any End User for the download of the software
component of the Survivor Game without CBSI’s prior
written approval. In the event that CBSI approves a charge to
End Users for the download of the software component, Aptus
will remit to CBSI a revenue share equal to
****** of
gross revenues from such sales (“Software
Revenue”).
(iii)
CBSI
agrees in principle to approve retail sales of the Hardware
Controls, subject to CBSI’s prior written approval of
retail plans, pricing, any packaging (including any bundled CD
with the component of the Survivor Game that would otherwise
be downloaded by End Users), and any associated branding,
marketing and/or promotions. Prior to selling any hardware
control component usable with the Survivor Game, or branded
with the CBS Logos, (the “Hardware Controls”)
Aptus shall obtain CBSI’s prior written approval. CBSI
shall exercise its rights of approval in good faith and not to
frustrate the intention of this Agreement. Approvals will not
be unreasonably withheld. For Hardware Control sales, Aptus
will remit to CBSI (i)
********.
·
With
respect to the Hardware Controls, those End Users playing the
Survivor Game with the Hardware Controls will have access to
additional functionality and features. The Hardware Controls
shall not be required to play the Survivor Game, although
Aptus can not guarantee that End Users without the Hardware
Controls will play at the same level of performance (e.g., for
scoring purposes) as players using the Hardware Controls.
Aptus may include a persistent tutorial regarding the use of
the Hardware Controls in a menu with other information
regarding the Survivor Game.
2.3
Sponsorship and Advertising.
(a)
CBSI
shall have sole control and ownership of, and the right to
sell, any sponsorship of the Survivor Game or advertising
inventory in the Survivor Game (the “In-Game
Advertising”), including without limitation that CBSI
shall have the right, in consultation with Aptus, to include
Hardware Controls in sponsorship packages for the Survivor
Game. Aptus shall
not place any advertisements, sponsorships of the Survivor
Game or advertising inventory in the Survivor
Game without
CBSI’s prior written consent. CBSI shall have the right
to sell the In-Game Advertising, and reasonably require
Aptus
to
place the In-Game Advertising within the Survivor Game,
subject to a revenue split
*****
of
all revenues generated from such In-Game Advertising net of sales
commissions and ad agencies fees (“In-Game Advertising
Revenue”).
********
.
CONFIDENTIAL TREATMENT REQUESTED
WITH RESPECT TO CERTAIN PORTIONS
HEREOF
DENOTED WITH “***”
(b)
CBSI
shall sell the In-Game Advertising at
fair market value consistent with industry practices. The
parties will meet not less than once per quarter to review the
rates charged by CBSI for the In-Game Advertising, and if the
parties mutually agree that such rates are significantly below
fair market value based on comparable metrics the parties will
cooperate to determine more appropriate rates for future sales
of In-Game Advertising and consider whether Aptus could sell
at higher rates.
2.4
End User and Personal Information .
Where permitted by applicable law, Aptus agrees to provide to CBSI
on a real-time basis as reasonably available to and sharable by
Aptus and in a written report to be provided on not less than a
monthly basis: (i) the number
of unique End Users downloading the software component of
the Survivor
Game, if available ;
( ii
)
the
number of unique End Users entering the online streaming
environment of the Survivor Game; (iii) the amount of time End
Users stay in the Survivor Gam e
;
and
(iv)
any other reasonable information Aptus collects in connection with
the Survivor
Game except
for personal end user information such as name, telephone numbers
and any other personally identifiable information. All of the
foregoing data shall be referred to individually and collectively
as “End User Data,” and all “End User Data”
as it relates to the Survivor
Game shall
be referred to herein as “CBSI Data”. CBSI shall own
all right and interest in and to CBSI Data. CBSI hereby grants to
Aptus a non-exclusive license to use the CBSI Data for internal
reporting and research purposes and to satisfy Aptus’
reporting obligations to CBSI as set forth in this Agreement. Aptus
shall not sell, trade, transfer, exchange, barter, offer, or
otherwise provide any CBSI Data to any third party. The
Parties’ use of any End User Data shall comply with all
applicable laws and regulations. Each Party shall use industry
standard or better levels of care, and shall comply with all
applicable laws, rules or regulations, in the gathering, use,
maintenance and protection of all information regarding end users
(the
“Personal Information ”).
No Personal Information will be used by either Party for any
purpose outside the scope of this Agreement or prohibited by any
applicable law. All Personal Information shall belong exclusively
to CBSI. Aptus shall deliver all Personal Information to CBSI or
its authorized designee promptly upon written request from CBSI,
and shall, subject to final accounting and billing requirements,
upon a written confirmation by CBSI, promptly and permanently
delete the Personal Information from its own files at the
expiration or earlier termination of the Agreement. All Personal
Information from end users shall be permanently deleted by each
party in compliance with all applicable laws, rules or
regulations .
All
data generated by the Survivor
Game,
either algorithmically or due to user input and interaction, and
associated with a user, but not initially created by the user (e.g.
Personal Information) shall be the property of Aptus. Examples of
such data include game scores, user settings and level progression.
For confidentiality purposes, all such data shall be treated as
CBSI’s Confidential Information by Aptus under the terms of
this Agreement.
2.5
Security and geofiltering .
Aptus
agrees to use, apply and maintain industry standard or better
technology and procedures designed to ensure that the Personal
Information, Survivor
Properties
and Survivor
Game
remain reasonably secure, and are not accessed, used, copied,
transferred or distributed in any way contrary to the terms of this
Agreement or applicable law. Aptus shall restrict
the availability of the Survivor Game to the Licensed
Territory.
CONFIDENTIAL TREATMENT REQUESTED
WITH RESPECT TO CERTAIN PORTIONS
HEREOF
DENOTED WITH “***”
2.6
Support .
Aptus shall provide the
following minimum operational services: (i) computer hosting
and serving for large-scale multi-player games, and
(ii) twenty-four hour customer support services email and web
24/7, (with a maximum 12 hour response time during weekdays and 18
hours during weekends to End User email) and technical, operational
and maintenance support and services. Aptus shall be responsible
for the use, maintenance and upgrading of its operating systems and
servers in order to satisfy the current demand and service
requirements of the Survivor Game, including full availability of
the Survivor Game servers and hosting environment at a level equal
or greater to the standard industry uptime requirement of 99% of
each calendar month. Uptime comprises the functioning of all
network infrastructure including without limitation switches,
routers and cabling. Software or services running on an End
User’s server are not included in the definition of network
uptime. Aptus reserves the right to allocate 12 hours of downtime
monthly for scheduled maintenance. Scheduled maintenance times will
be posted for End Users. In the event of material service
interruption, CBS shall have the right upon fifteen days’
written notice to Aptus to terminate this Agreement while still
requiring Aptus to pay a single subsequent Minimum Fee payment (if
such a payment is otherwise required). In the event of termination
under this section and Aptus’ payment of the single
subsequent Minimum Fee payment (if otherwise required), no further
Minimum Fee payments shall be due. Additionally, beginning one year
after the Effective Date (the “Anniversary Date”), if
revenue projections for the Survivor Game and revenues associated
with the game do not meet expectations and Aptus’ cost of
supporting the game under this section is no longer economically
feasible, Aptus shall have the right to terminate this Agreement
upon 75 days’ prior written notice to CBSI (which notice may
be sent prior to the Anniversary Date but may not become effective
until the Anniversary Date), provided, however, that such
termination shall not become effective until after the
then-current broadcast cycle of the Survivor show finishes (each
such cycle is typically approximately 4 months), although no
further Minimum Fee payments shall be due after the end of the
75-day notice period.
2.7
Terms of Service .
Aptus shall develop and implement a written set of policies and
procedures for the Survivor Game relating to End Users’
privacy and terms of service (“
Policy and Terms ”),
provided that these Policy and Terms shall at all times (a) be
consistent with all of the terms and conditions of this Agreement,
particularly the provisions of Section 4.2 below which provides
that End Users of the Survivor Game shall acknowledge and agree
that any and all CBS Works (as defined in Section 4.2 below)
created by them in the course of their use of the Survivor Game
shall belong to CBSI either as works for hire under US copyright
law or otherwise and that all rights in such items are assigned to
CBSI, (b) confirm to the highest industry standards for
similar online games, and (c) conform to all laws, regulations
and game industry standards for such online games, including, but
not limited to, all game ratings standards and policies governing
the collection, storage and dissemination of personal information.
Aptus shall be responsible for enforcement of the Policy and Terms.
If Aptus creates discussion boards or blogging areas for End Users,
Aptus shall create terms of use for such boards or blogs, which
shall be consistent with the terms and conditions of this Agreement
and conform to all laws, regulations and website industry standards
for such boards or blogs. Aptus shall be responsible for monitoring
such boards or blogs for compliance with such terms of
use.
CONFIDENTIAL TREATMENT REQUESTED
WITH RESPECT TO CERTAIN PORTIONS
HEREOF
DENOTED WITH “***”
2.8
Promotion .
Aptus and CBSI shall co-promote the Survivor Game in good faith.
During the Term, CBSI shall promote and market the Survivor Game as
CBSI deems appropriate in its discretion. The format, content,
length and timing of all such promotion and marketing shall be in
CBSI’s sole discretion.
2.9
Aptus Information .
Subject to CBSI’s approval rights in Section 2.1(a), CBSI
agrees that Aptus may (1) include information about its company and
a link to the Aptus Games home page in an “About Us”
section (the Aptus Games logo may be used to link to the Aptus
Games home page). within the Survivor Game, and (2) indicate to the
End User that the Survivor Game is “powered by” Aptus
Games. Aptus may not offer an “opt in” for information
about Aptus at any time within the Survivor Game, including upon
registration.
3.
LICENSE GRANT
.
3.1
CBSI License Grant .
Subject to the terms and conditions of this Agreement, CBSI hereby
grants to Aptus, and Aptus accepts, a non-exclusive and
non-transferable limited license during the Term in the Licensed
Territory to:
(a)
Use,
reproduce and modify the Survivor Properties solely for the
purpose of developing, marketing, providing, displaying,
hosting, performing, selling and distributing the Survivor
Game and the Hardware Controls; and
(b)
To
brand the Survivor Game and the Hardware Controls with the CBS
Logos, and to develop, market, provide, host, display, perform
and distribute the Survivor Game and the Hardware Controls
marked with the CBS Logos; and
(c)
To
use the CBS Logos on packaging, manuals and documentation for
the Survivor Game and the Hardware Controls, and on
promotional, advertising, marketing and related materials
associated with Survivor Game and the Hardware Controls, and
distribute, perform and display the foregoing.
3.2
No Sublicensing .
Aptus may not sublicense any of the foregoing rights, including
without limitation the development rights, without CBSI’s
prior written approval. In the event that CBSI approves of a
sublicense, such sublicense shall not Aptus of any of its
obligations hereunder. Aptus represents and warrants that it shall
require by contract with sublicensees that the sublicensee shall be
bound by and comply with the applicable provisions of this
Agreement.
3.3
Restrictions .
The foregoing license to the CBS Logos shall be subject to the
following:
CONFIDENTIAL TREATMENT REQUESTED
WITH RESPECT TO CERTAIN PORTIONS
HEREOF
DENOTED WITH “***”
(a)
All
goodwill associated with or that arises from Aptus’s use
of the CBS Logos shall inure to the sole benefit of CBSI;
and
(b)
Aptus
shall use the CBS Logos only in compliance with any trademark
guidelines as CBSI may provide from time to time;
and
(c)
For
the purpose of CBSI’s quality control of the CBS Logos,
Aptus shall at no charge to CBSI, provide CBSI with access to
the following for CBSI’s approval: (i) all aspects of
the Survivor Game and the Hardware Controls which bear or is
distributed in connection with the CBS Logos, (ii) all related
documentation and promotional, advertising and marketing
materials, and (iii) any other material which will bear the
CBS Logos, prior to any use or distribution of the Survivor
Game and the Hardware Controls or materials. CBSI’s
approval of each of these items shall be in its sole and
absolute discretion. CBSI shall use its commercially
reasonable efforts to respond within seven (7) days. Failure
to respond shall be deemed disapproval of an
item.
(d)
If
CBSI reasonably determines that Aptus has failed to comply
with the above quality control provisions, CBSI may require
Aptus to undertake reasonable corrective action consistent
with the terms of this Agreement.
3.4
Exclusions .
The rights licensed by CBSI to Aptus in this Agreement specifically
exclude mobile rights, personalization products, wallpapers,
screensavers, handset clients, in-show interactivity (meaning
interaction with television viewers in connection with the
television show broadcast), ringtones, voicetones, and any game
formats other than multi-player interactive online virtual world
games, including, but not limited to, mini-games, handheld games,
games for devices such as the Xbox, PlayStation, Wii, Game Boy,
Game Cube, board games, card games, slot machine games or video
lottery terminals.
3.5
Aptus License Grant .
Subject to the terms and conditions of this Agreement, Aptus hereby
grants to CBSI, and CBSI accepts, a non-exclusive and
non-transferable license to use and exploit the Aptus IP (as
defined in Section 4.2(b) below)), including without limitation to
distribute, publicly perform, display and sell the Aptus IP, solely
for the purposes of using, marketing, providing, displaying,
performing, selling and distributing the Survivor Game in
accordance with the terms of this Agreement.
4.
INTELLECTUAL PROPERTY OWNERSHIP .
4.1
Pre-Existing Rights .
As between CBSI and Aptus, and except as expressly licensed to
Aptus pursuant to Section 3.1, all right, title and interest in and
to the Survivor Properties shall be and remain the sole and
complete property of CBSI. As between CBSI and Aptus, and except as
expressly licensed to CBSI pursuant to Sections 3.5 and 8.3(b), all
right, title and interest in and to the Aptus IP shall be and
remain the sole and complete property of Aptus.
4.2
Ownership .
CONFIDENTIAL TREATMENT REQUESTED
WITH RESPECT TO CERTAIN PORTIONS
HEREOF
DENOTED WITH “***”
(a)
As
between CBSI and Aptus, CBSI shall own all right, title and
interest (including without limitation all Intellectual
Property Rights) in and to the Survivor Properties and
******
(“
Licensed Property Derivative Works ”)
(the Survivor Properties and the Licensed Property Derivative Works
shall collectively be referred to as the “
CBSI Works ”
and all right, title and interest in the CBSI Works (including
without limitation all Intellectual Property Rights) shall be
collectively referred to as the “
CBSI Rights ”).
*** . Aptus
acknowledges and agrees that the CBSI Works shall constitute
“work made for hire” as that term is used in the U.S.
Copyright Act, and that CBSI shall be the exclusive owner of the
CBSI Rights in the CBSI Works. If any of the CBSI Works are not
considered to be work made for hire for any reason, or to the
extent that there are CBSI Rights that would not vest in CBSI as a
“work made for hire,” Aptus hereby irrevocably and
exclusively grants, transfers and assigns to CBSI in perpetuity,
throughout the universe in all languages, all right, title and
interest, including, but not limited to, patent rights that have
arisen or may arise in the future, and copyright and all extension,
renewals, revivals and resuscitations thereof, that Aptus has or
may have in or to the CBSI Works. In the event that under any
current or future law of any jurisdiction worldwide, any of the
CBSI Rights are subject to a right of termination or reversion,
Aptus shall accord CBSI rights of first negotiation for thirty (30)
days, and last refusal for fifteen (15) days, to match any
third-party offer in connection therewith. With respect to any
so-called “moral rights,” Aptus hereby unconditionally
waives such rights and the enforcement thereof. Aptus acknowledges
that Aptus’ use of the CBSI Works shall not confer or imply a
grant of rights, title or interest in the CBSI Rights or goodwill
associated therewith. CBSI’s intellectual property rights
shall be indefeasible and irrevocable and shall not be subject to
reversion under any circumstance, including, but not limited to,
cancellation, termination, expiration or breach of this Agreement.
All CBSI Works created hereunder shall be prepared by an employee
of Aptus under Aptus’s sole supervision, responsibility and
monetary obligation or in accordance with agreements which permit
Aptus to comply with this subsection (a), which have been fully
executed by both parties prior to the commencement of any work
hereunder.
|
