|
April 4,
2005
|
CONFIDENTIAL
|
LICENSE AGREEMENT FOR THE NINTENDO
DS SYSTEM
(EEA, AUSTRALIA AND NEW
ZEALAND)
THIS LICENSE
AGREEMENT ("Agreement") is entered Into between NINTENDO CO., LTD.
("NINTENDO") at 11-1 Kamitoba Hokotate-cho, Minami-ku, Kyoto, Japan
601-8501, Attn: General Manager. International Business
Administration Departure (facsimile: 81.75.662.9619), and
DESTINATION SOFTWARE INC., at 137 Hurffvilie -Cross Keys Road,
Sewell, NJ 08080, USA (facsimile; 856.262.0066); Attn: Ms. Cristie
E. Walsh, and DESTINATION SOFTWARE, at Manor Barn, Manor Lane,
Great Gransden, Sandy Bedfordshire, SG19 3RL, U.K. (facsimile 44.
1767 677 425 ); Attn: Paul Tresise, Vice
President of Development (DESTINATION SOFTWARE INC. and DESTINATION
SOFTWARE together and separately: "LICENSEE"). NINTENDO and
LICENSEE agree as follows:
1.
RECITALS
1.1 NINTENDO designs, develops, manufactures,
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
NINTENDO to develop, have manufactured, advertise, market and sell
video game software for play on the Nintendo DS system.
1.3 NINTENDO 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 NINTENDO 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 the last date on
which all parties shall have signed this Agreement.
2.5 "Finished Product(s)" means the fully
assembled Game Card with a Game Card label and packaged in a
plastic case or other form of protective packaging, together with
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 Guidelines",
pertaining to layout, trademark usage and other requirements for
the Game Card label, instruction manual and Game Card packaging;
"Marketing Materials"; "Nintendo DS Development Manual";
"Guidelines on Ethical Content"; "Nintendo DS Software Submission
Requirements" together with related guidelines that NINTENDO may
provide to LICENSEE from time to time. The Guidelines on Ethical
Content are attached as Annex A, and the remainder of the
Guidelines have been provided to LICENSEE independent of this
Agreement. The Guidelines may be changed or updated from time to
time without notice, and the versions current from time to time
will be available on request from NINTENDO.
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 D5 system including "Nintendo™
, "Nintendo DS ™ , end the "Official Nintendo Seal of
Quality ™ ", (b) select trade dress associated with the
Nintendo DS system and licensed Games for 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, patent applications. utility
models 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
packaged in a plastic case or other form of protective packaging
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, print media or
materials and all audio or video media Other than the Game that is
to be included on the Game Card.
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
NINTENDO and/or Nintendo of America Inc.. NINTENDO's subsidiary of
Redmond. Washington , USA
("NOA") and LICENSEE.
2.14 "Notice" means any notice permitted
or required under this Agreement. All Notices shall be sufficiently
given when (a) personally Served or delivered. (b) transmitted by
facsimile, with an original sent concurrently by 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 mey 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 NINTENDO's schedule of purchase
prices and minimum order quantities for Finished Products and Bulk
Goods. The Price Schedule has been Provided to LICENSEE independent
of this Agreement and may be changed or updated from time to time
without notice, and the version current from time to time will be
available on request from NINTENDO.
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 Health and Safety Precautions Booklet as
specified by NINTENDO.
2.17 "Proprietary Rights" means any rights
or applications for rights to the extent recognized anywhere in the
Territory relating to the Nintendo DS System, end owned, licensed
or otherwise held in patents. trademarks, service marks, copyrights
and neighboring rights, semiconductor chip layouts or masks, trade
secrets. utility models, registered design rights, unregistered
design rights. database rights, get up, trade dress, moral rights
and publicity rights, together with all inventions, discoveries,
ideas, know-how, data, information. processes, methods, procedures,
formulas, drawings and designs, computer programs, software source
code and object code, and all amendments, modifications, and
improvements thereto for which such patent, trademark, service
mark, copyright and neighboring rights. semiconductor chip layouts
or mask, trade secrets, Utility models, registered design rights,
unregistered design rights. database rights, get up, trade dress,
moral rights or publicity rights may exist or may be sought and
obtained In the future.
2.18 "NOA" means NCL's subsidiary, Nintendo of
America Inc. of Redmond, Washington, USA.
2.19 "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.
2.20 "Security Technology" means, without
limitation, any security signature, Wm, 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.
2.21 "Sole License" shall mean
a license under which only the licensor and a single licensee
can utilize the subject matter of the license.
2.22 "Term" means three (3) years from the
Effective Date.
2.23 'Territory" means any and all countries
within the European Economic Area: namely Austria, Belgium,
Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland,
France, Germany. Greece, Hungary. Iceland, Ireland, Italy, Latvia,
Liechtenstein, Lithuania, Luxembourg, Malta, the Netherlands,
Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain,
Sweden, and the United Kingdom. The Territory shall also include
Australia, New Zealand, Switzerland and Turkey. NINTENDO may add
additional countries to the Territory upon written -notice to
LICENSEE,
2.24 "TM" means trade mark of NINTENDO, whether
registered or not.
3.
GRANT OF LICENSE; LICENSEE
RESTRICTIONS
3.1 Limited License Grant. For the Term
and for the Territory, NINTENDO grants to LICENSEE a nonexclusive,
nontransferable, limited license to use the Intellectual Property
Rights for the purpose of and to the extent necessary, to develop
Games for manufacture, advertising, marketing and sale as Licensed
Products, subject to the terms and conditions of this Agreement.
This license is royalty-free.
3.2 LICENSEE LICENSEE's use of the Intellectual
Property Rights shall not create any right, title or interest of
LICENSEE therein. In the event Mat LICENSEE challenges NINTENDO's
ownership or the validity of the Intellectual Property Rights,
NINTENDO may terminate this Agreement without any notice or
procedure.
3.3 Restrictions on License Grant.
NINTENDO does not guarantee that the hardware for the Nintendo DS
system is distributed throughout the Territory. Moreover,
the present limited license to LICENSEE does not extend to
the use of the intellectual Property Rights for the following
purposes:
(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 pert 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 eny interactive video game program, except as
authorized under this Agreement,
(h) manufacture or reproduce a Game
developed under this Agreement, except through NINTENDO, or
(1) 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, except as specifically permitted under the laws and
regulations applicable in the Territory.
3.4 Development Tools. NINTENDO may
lease, loan or sell Development Tools, including any improvements
made by NINTENDO or NOA from time to time, to LICENSEE to assist in
the development of Games under this Agreement on such terms as may
be agreed between the parties. Ownership and use of any Development
Tools, whether provided by NINTENDO or NOA, prior to or during the
Term hereof. 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.
LICENSEES use of the Development Tools shall not create any right,
title or interest of LICENSEE therein. Any license to LICENSEE to
use the Development Tools does not extend to: (a) use of the
Development Tools for any purpose except the design and development
of Games under thiS Agreement. (b) reproduction or creation of
derivatives of the Development Tools. except in association with
the development of Games under this Agreement, (c) Reverse
Engineering of the Development Tools (except as specifically
permitted under the laws and/or regulations applicable in the
Territory), or (d) selling, leasing, assigning, lending, licensing.
encumbering or otherwise transferring 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. Unless LICENSEE can demonstrate that such
derivative work has one or more applications that are independent
of and Separate from the Intellectual Property Rights ("Independent
Applications"), it shall be deemed to have granted NOA and NINTENDO
an indefinite, worldwide, royalty-free, transferable and Sole
License (including the right to sub-license) to such derivative
work. To the extent that LICENSEE can demonstrate one or more
Independent Applications, LICENSEE shell be deemed to have granted
to NOA and NINTENDO a royalty-free and transferable non-exclusive
License (including the right to sub-license) in relation to such
Independent Applications for the Term.
4.
SUBMISSION OF GAME AND
ARTWORK FOR APPROVAL
4.1 Development and Sale or 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 Delivery of Completed Game
.Upon completion of a Game, LICENSEE shall deliver a prototype of
the Game to NINTENDO 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. NINTENDO snail promptly evaluate the Game with
regard to its technical compatibility with and error-free operation
on the Nintendo DS system. LICENSEE must establish that the Game
and any other content included on the Game Card complies with the
guidelines Of the Pan European Game Information System (PEG), the
Unterhaltungssoftware Selbstkontrolle (USK), the Office of Film and
Literature Classification (OFLC), or any other national or regional
game rating system that NINTENDO may accept, as applicable.
LICENSEE shall be responsible for the submission of the Game to the
appropriate national or regional game rating organization and shall
provide NINTENDO with a statement or certificate in writing from
the relevant organization, confirming the rating for the Game.
Where any such game has been rated as being suitable only for
players aged 18 and over (or an equivalent rating), LICENSEE must
submit a certificate in writing that confirms the game is rated as
no higher than "M" (mature) by the Entertainment Software
Rating Board (ESRB) of the U.S. In addition, NINTENDO reserves the
right to require LICENSEE to provide NINTENDO with such additional
written indemnification for damages, claims, loss, liability, fine
or penalty resulting from the marketing, distribution or sale of a
Game with such an age rating, as NINTENDO, in its sole discretion,
may request. If any such age rating is subsequently changed by the
relevant organization, LICENSEE shall inform NINTENDO forthwith in
writing of that fact and LICENSEE shall then comply with the above
provisions in relation to such new age rating.
4.3 Approval of Completed Game. NINTENDO
shall, within a reasonable period of time after receipt, approve or
disapprove each submitted Game. If a Game is disapproved, NINTENDO
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 NINTENDO far approval. NINTENDO shall not
unreasonably withhold or delay its approval of any Game. The
approval of a Game by NINTENDO 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 NINTENDO.
4.4 Submission of Artwork. Upon
submission of a completed Game to NINTENDO, LICENSEE shall prepare
and submit to NINTENDO the Artwork for the proposed Licensed
Product. Within ten (10) business days of receipt, NINTENDO shall
approve or disapprove the Artwork, If any Artwork is disapproved,
NINTENDO shall specify in writing the reasons for such disapproval
aria state what corrections or Improvements are necessary. After
making the necessary corrections or improvements, LICENSEE shall
submit revised Artwork to NINTENDO for approval. NINTENDO shall not
unreasonably withhold or. delay its approval of any Artwork. The
approval of the Artwork by NINTENDO 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 NINTENDO.
4.5 Artwork for Bulk Goods, If
LICENSEE submits an order for Bulk Goods, all Artwork shall be
submitted to NINTENDO in advance of NINTENDO's acceptance of the
order and no production of Printed Materials Shall occur until such
Artwork has been approved by NINTENDO under Section 4.4
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 NINTENDO
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 take precedence over
any contrary terms of such purchase order or any other written
documents submitted by LICENSEE. Ali orders are subject to
acceptance by NINTENDO or its designee.
5.2 Purchase Price order
Quantities . The
purchase price and minimum order quantities for Finished Products
and Bulk Goods shall be set forth in NINTENDO's then current Price
Schedule. The purchase price includes the cost of manufacturing the
Licensed Products. 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 NINTENDO's income). The Price Schedule is subject to
change by NINTENDO at any time, provided, however, that any price
increase shall be applicable only to purchase orders submitted,
paid for, and accepted by NINTENDO after the effective date of the
price increase.
5.3 Payment . Upon placement of an order
with NINTENDO, LICENSEE shall pay the full purchase price to
NINTENDO either (a) by placement of an irrevocable letter
of credit in favor of NINTENDO and payable at sight, issued by a
bank acceptable to NINTENDO and confirmed, if requested by
NINTENDO, at LICENSEE's expense, or (b) In cash, by wire transfer
to NINTENDO's designated account. 411 associated banking charges
are the responsibility of the LICENSEE.
5.4 Shipment and Delivery . NINTENDO
shall deliver the Finished Products and Bulk Goods ordered by
LICENSEE to LICENSEE FOB Japan. CIP European Destination or
ex-warehouse Grossostheim, es per the terms in the Price Schedule.
Also per the Price Schedule, the minimum snipping quantity is 360
units for Finished Products and 1200 units for Bulk Goods. Upon
mutual consent of NINTENDO and LICENSEE, orders may be delivered in
partial shipments with a minimum shipment quantity as specified in
the Price Schedule. Such orders shall be delivered only to
countries 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, per incoterms 2000.
6.
MANUFACTURE OF THE LICENSED
PRODUCT
6.1 Manufacturing . Given NINTENDO's
ownership of the valuable Intellectual Property Rights, 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 end 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 NINTENDO of a purchase order for en approved
Licensed Product title and payment as provIded for under Section
6.3 herein, NINTENDO will arrange for the manufacture of Finished
Product or Bulk Goods, as specified in LICENSEE's purchase order.
In this regard, LICENSEE shall submit to NINTENDO certain technical
information as set forth in a questionnaire entitled "Software
Submission Requirements" which has been provided to LICENSEE
by NINTENDO.
6.3 Se curity 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. Licensed
Products may be sold or otherwise distributed by LICENSEE only in
fully assembled condition and placed in a plastic case or other
protective packaging.
6.5 Sample Printed Materials . Within a
reasonable period of time after LICENSEE'S assembly of the initial
order for a Bulk Goods title, LICENSEE shall provide NINTENDO with
(a) one (1) sample of the fully assembled. Licensed Product, and
(b) five (5) samples of LICENSEE produced Printed Materials for
such Licensed Product.
6.6 Retention of Sample Licensed Products by
NINTENDO. NINTENDO may. at its own expense, manufacture
reasonable quantities of the Game Cards or the Licensed Products,
not to exceed fifty (50) units, to be used for archival purposes,
legal proceedings against infringers of the I
|
