MICROSOFT CORPORATION
XBOX(TM) PUBLISHER LICENSE AGREEMENT
This License Agreement (the "Agreement") is entered into and
effective as
of January 31, 2001 (the "Effective Date") by and between MICROSOFT
CORPORATION,
a Washington corporation ("Microsoft"), and MAJESCO/PIPEDREAM New
Jersey Corp.
("Licensee").
A. Whereas, Microsoft develops and licenses a computer game system,
known
as the Xbox(TM) game system; and
B. Whereas, Licensee .is an experienced publisher of software
products that
wishes to develop and/or publish one or more software products
running on the
Xbox game system, and to license proprietary materials from
Microsoft, on the
terms and conditions set forth herein.
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. For the purposes of this Agreement, the following
terms will
have the respective indicated meanings.
1.1 "ART & MARKETING MATERIALS" shall mean art and mechanical
formats for a
Software Title including the retail packaging, end user instruction
manual with
end user license agreement and warranties, Finished Product Unit
media label,
and any promotional inserts and other materials that are to be
included in the
retail packaging, as well as all press releases, marketing,
advertising or
promotional materials related to the Software Title and/or Finished
Product
Units (including without limitation web advertising and Licensee's
web pages to
the extent they refer to the Software Title(s) or the Finished
Product Units).
1.2 "AUTHORIZED REPLICATOR" shall mean a software replicator
certified and
approved by Microsoft for replication of games that run on Xbox.
Upon Licensee's
written request, Microsoft will provide Licensee with a copy of the
then-current
list of Authorized Replicators, but the status of a particular
replicator and
such list may change from time to time in Microsoft's sole and
absolute
discretion.
1.3 "BRANDING SPECIFICATIONS" shall mean the specifications in
Exhibit C,
and such other design specifications as Microsoft may hereafter
provide from
time to time, for using the Licensed Trademarks on a Software Title
and/or on
related product packaging, documentation, and other materials.
1.4 "COMMERCIAL RELEASE" shall mean (a) with respect to Xbox, the
first
distribution of an Xbox to the public for payment, and (b) with
respect to a
Software Title, the earlier of the first distribution of the
Software Title for
payment or distribution of Finished Product Units that are not
designated as
beta or prerelease versions.
1.5 "FINISHED PRODUCT UNIT" shall mean a DVD-9 copy, in software
object
code only, of a Software Title, in whole or in part.
1.6 "LICENSED TRADEMARKS" shall mean the Microsoft trademarks
depicted in
Exhibit B (which Microsoft unilaterally may modify from time to
time during the
term of this Agreement upon written notice to Licensee).
1.7 "SOFTWARE TITLE" shall mean the single software product as
described in
the applicable Exhibit A (i.e., Exhibit A-I, Exhibit A-2, or
Exhibit A-n, as the
case may be), developed by Licensee, and running on Xbox. A
Software Title shall
include the improvements and patches thereto (if and to the extent
approved by
Microsoft), but shall not include any "prequel" or "sequel." If
Microsoft
approves one or more additional concept(s) for another single
software product
proposed by Licensee to run on Xbox, pursuant to the procedure set
forth in
Section 2.1.1 below and the Xbox Guide (as defined in Section 2.1),
then upon
Microsoft's written approval of such concept, this Agreement, and
the term
"Software Title," shall be broadened automatically to cover the
respective new
software product and the parties will prepare, initial and append
to this
Agreement a new Exhibit A-n for each such additional new software
product.
1.8 "CERTIFICATION REQUIREMENTS" shall mean the requirements
specified in
this Agreement (including without limitation the Xbox Guide) for
quality,
compatibility, and/or performance of a Software Title, and, to the
extent not
inconsistent with the foregoing standards, the standards of quality
and
performance generally accepted in the console game industry.
1.9 "TERRITORY" shall be determined on a Software Title-by-Software
Title
basis, and shall mean such countries as may be specified in writing
by Microsoft
when the concept of the applicable Software Title is approved
pursuant to
Section 2.1.1 below.
1.10 "XBOX" shall mean the first version (as of the Commercial
Release) of
Microsoft's Xbox game system, including operating system software
and hardware
design specifications.
2. DEVELOPMENT; DELIVERY; APPROVAL
2.1 SOFTWARE TITLE DEVELOPMENT. Licensee's development activities
with
respect to each Software Title shall be in accordance with the
development
schedule set forth in the applicable Exhibit A-n. Furthermore,
Licensee agrees
to be bound by all provisions contained in the then-applicable
version of the
"Xbox Guide", the current version of which Microsoft or its
affiliate will
deliver to Licensee when it is completed, after the execution of
this Agreement.
Licensee understands and agrees that Microsoft may, in its
discretion,
supplement, revise and update the Xbox Guide from time to time and
that upon
Licensee's receipt of the applicable supplement, revision or
updated version,
Licensee automatically shall be bound by all provisions of the
then-current Xbox
Guide; Microsoft will specify in each such supplement, revision or
updated
version a reasonable effective date of each change if such change
or revision is
not required to be effective inunediate1y. If Licensee proceeds
with the
development of a Software Title, Licensee shall deliver each
milestone (as
described in this Section 2.1) to Microsoft for approval in
writing. All
certification and playtesting (and applicable fees therefor, if
any) will be
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in accordance with the then applicable version of the Xbox Guide.
If Microsoft
does not approve Licensee's submission for a given milestone then
Licensee shall
either correct the problems that contributed to the lack of
approval or, if
Microsoft gives Licensee written notice to cease development,
Licensee shall
immediately cease all development activities for the applicable
Software Title's
subsequent milestones. Each successive milestone shall comply in
all material
respects with the characteristics of previously approved
milestones. Each
software milestone shall be delivered in compiled object code form.
2.1.1 CONCEPT. Licensee shall deliver to Microsoft a written and
completed concept submission form (in the form provided by
Microsoft to
Licensee), including without limitation: (a) a detailed description
of the
Software Title, including but not limited to (to the extent
applicable) title,
theme, plot, characters, play elements, and technical
specifications; (b) the
identities of any proposed subcontractors, and general information
about the
principal team of individual developers, and (c) an explanation of
the design,
technical and marketing suitability of the Software Title.
Evaluation of the
proposed design will be based on criteria including, but not
necessarily limited
to, the following: (i) originality; (ii) play breadth and depth;
(iii)
playability; (iv) replayability and long-term interest; and (v)
theme,
characters and storyline. Technical evaluation of the concept will
be based on
criteria including, but not necessarily limited to, feasibility of
execution and
usage of system capabilities (such as graphics, audio, hard drive,
play control,
online capabilities and peripherals). Marketing suitability will be
evaluated
based on criteria including, but not necessarily limited to, the
following: (i)
market viability; (ii) Licensee's Version marketing commitment (if
any); (iii)
suitability to the target demographic; and (iv) overall fit with
the Xbox
certified software products portfolio.
2.1.2 PRELIMINARY VERSIONS. Licensee may, but will not be required
to,
deliver to Microsoft certain preliminary versions of the Software
Title, as
addressed in the Xbox Guide.
2.1.3 FEATURE-COMPLETE VERSION. Licensee shall deliver to Microsoft
a
feature complete version of the Software Title (the "Beta
Version"), which
includes all features of the Software Title and such other content
as may be
required under the Xbox Guide. Concurrently with delivery of the
Beta Version,
Licensee will disclose in writing to Microsoft the details about
any and all
so-called "hidden characters," "cheats," "easter eggs," "bonus
video and/or
audio," and similar elements included in the Beta Version and/or
intended to be
included in the final release version of the Software Title.
2.1.4 FINAL RELEASE VERSION. Licensee shall deliver to Microsoft,
Licensee's proposed final release version of the applicable
Software Title that
is complete and ready for manufacture and commercial distribution,
with the
final content rating certification, with identified program errors
corrected,
and with any and all changes previously requested by Microsoft
implemented.
However, nothing herein will be deemed to relieve Licensee of its
obligation to
correct program bugs and errors, whenever discovered (including
without
limitation after Commercial Release), and Licensee agrees to
correct such bugs
and errors as soon as possible after discovery (provided that, with
respect' to
bugs or errors discovered after Commercial Release of the
applicable Software
Title, Licensee will use commercially reasonable efforts to correct
the
bug/error in all Finished Product Units manufactured after
discovery). In
addition, Licensee will comply with all certification procedures,
guidelines and
standards set forth in the then applicable version of the Xbox
Guide. Licensee
shall not distribute the Software
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Title, nor manufacture any Finished Product Units intended for
distribution,
unless and until Microsoft shall have given its final certification
and approval
of the final release version of the Software Title, and Microsoft
shall have
provided the code for the final release version to the applicable
Authorized
Replicator(s).
2.1.5 PLAY TESTING. Microsoft will playtest the Beta Version and
proposed final release version of each Software Title; if Licensee
delivers
preliminary versions of a Software Title, Microsoft may (but will
not be
obligated to) playtest such versions. Microsoft will provide
written comments to
Licensee regarding the results of its playtest results, and
Licensee shall
comply with any requests made by Microsoft to improve the
applicable Software
Title based on such playtest results. Licensee acknowledges that,
notwithstanding its receipt of approvals from Microsoft for prior
milestones or
versions during the development process, Licensee's proposed final
release
version of each Software Title must be approved by Microsoft, as
set forth in
the Xbox Guide. In addition to conforming with the approved
concept, with all
technical specifications, and with all other requirements set by
Microsoft
during the development and approval process, each Software Title
must achieve a
satisfactory rating in final playtesting. Notwithstanding anything
to the
contrary contained herein, Licensee acknowledges and understands
that, in part,
the results of playtesting will be subjective, that Microsoft will
have the
right to deny final approval based on its determination, and that
Licensee has
and will have no expectation of final approval of any Software
Title regardless
of any approvals or assessments given or made by Microsoft,
informally or
formally, at any time.
2.1.6 ART & MARKETING MATERIALS. Licensee shall deliver to
Microsoft
for approval all Art & Marketing Materials as and when
developed, whether during
development activities or thereafter. Licensee shall not distribute
any specific
Art & Marketing Materials unless and until Microsoft shall have
given its final
certification and approval of the specific item.
2.2 CONTENT RATING. Licensee understands and agrees that, without
limitation, Microsoft will not give final certification and
approval of a
Software Title unless and until Licensee shall have obtained, at
Licensee's sole
cost, a rating of no higher than "Mature (17+)" or its equivalent
from the
appropriate rating bodies for the applicable Territory (such as,
ESRB, ELSPA,
etc.) and/or any and all other independent content rating
authority/authorities
reasonably designated by Microsoft. Licensee shall make any changes
to the
Software Title required to obtain a rating of no higher than
"Mature (17+)" (or
its equivalent). In no event shall Licensee distribute any Software
Title under
an "Adults Only" or higher rating (or equivalent rating). Licensee
shall include
the applicable rating(s) prominently on Finished Product Units, in
accordance
with the applicable rating body guidelines.
2.3 DEVELOPMENT KIT LICENSE. Microsoft or its affiliate will offer
to
Licensee the opportunity to enter into one or more development kit
license(s)
(each an "XDK License") pursuant to which Microsoft would license
to Licensee
software development tools and hardware to assist Licensee in the
development of
Software Titles, including without limitation certain sample code
and other
redistributable code which Licensee could incorporate into Software
Titles, on
such terms and conditions as are contained in the XDK License.
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2.4 SUBCONTRACTORS. Licensee shall not use any subcontractors or
any other
third parties to perform software development work in connection
with a Software
Title unless and until (i) the proposed subcontractor or other
third party and
(ii) Microsoft shall have executed an XDK license; provided that
nothing
contained herein will be deemed to require Microsoft or its
affiliate to execute
an XDK License with any particular person or entity if Microsoft or
its
affiliate determines that it is not appropriate to execute such an
XDK License.
2.5 CHANGES OF REQUIREMENTS BY MICROSOFT. Unless otherwise
reasonably
specified by Microsoft at the respective time: (a) after approval
by Microsoft
of the Beta Version of a Software Title, Licensee will not be
obligated to
comply, with respect to such Software Title only, with any
subsequent changes
made by Microsoft to the technical or content requirements for
Software Titles
generally in the Xbox Guide; and (b) subject to the immediately
preceding clause
(a), any changes made by Microsoft in Branding Specifications or
other
requirements after final certification of a Software Title by
Microsoft will be
effective as to such Software Title only on a "going forward" basis
(i.e. only
to such Art & Marketing Materials and/or Finished Product Units
as are
manufactured after Microsoft notifies Licensee of the change),
unless (i) the
change can be accommodated by Licensee with insignificant added
expense, or (ii)
Microsoft pays for Licensee's direct, out-of-pocket expenses
necessarily
incurred as a result of its retrospective compliance with the
change.
3. RIGHTS AND RESTRICTIONS
3.1 TRADEMARKS.
3.1.1 LICENSE. In each Software Title, and on each Finished Product
Unit (and the packaging therefor), Licensee shall incorporate the
Licensed
Trademarks and include credit and acknowledgement to Microsoft as
set forth in
the Branding Specifications and the Xbox Guide. Microsoft grants to
Licensee a
non-exclusive, non-transferable, personal license to use the
Licensed
Trademarks, according to the Branding Specifications and other
conditions
herein, and solely in. connection with marketing, sale, and
distribution in the
Territory of Finished Product Units that meet the Certification
Requirements.
3.1.2 LIMITATIONS. Licensee is granted no right, and shall not
purport, to permit any third party to use the Licensed Trademarks
in any manner
without Microsoft's prior written consent. Licensee's license to
use Licensed
Trademarks in connection with the Software Title and Finished
Product Units
shall not extend to the merchandising or sale of related or
promotional products
under the Licensed Trademarks.
3.1.3 BRANDING SPECIFICATIONS. Licensee's use of the Licensed
Trademarks (including without limitation in Finished Product Unit
and Art &
Marketing Materials) shall comply with the Branding Specifications
in Exhibit C.
Licensee shall not use Licensed Trademarks in association with any
third party
trademarks in a manner that might suggest co-branding or otherwise
create
potential confusion as to source or sponsorship of the Software
Title or
Finished Product Units or ownership of the Licensed Trademarks.
Upon notice or
other discovery of any non-conformance with the requirements or
prohibitions of
this section, Licensee shall promptly remedy such non-conformance
and notify
Microsoft of the non-conformance and remedial steps taken.
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3.1.4 CERTIFICATION REQUIREMENTS. Licensee may use the Licensed
Trademarks only in connection with the copies of the Software Title
that meet
the Certification Requirements. Licensee shall test the Software
Title and
Finished Product Units for conformance with the Certification
Requirements
according to generally accepted and best industry practices, and
shall keep
written or electronic records of such testing during the term of
this Agreement
and for no less than **** thereafter ("Test Records"). Upon
Microsoft's request,
Licensee shall provide Microsoft with copies of or reasonable
access to inspect
the Test Records, Finished Product Units and Software Title (either
in
pre-release or commercial release versions, as Microsoft may
request). Upon
notice or other discovery of any non-conformance with the
Certification
Requirements, Licensee shall promptly remedy such non-conformance
in all
Finished Product Units wherever in the chain of distribution
(subject to
Sections 2.1.4 and 2.5 above), and shall notify Microsoft of the
non-conformance
and remedial steps taken.
3.1.5 PROTECTION OF LICENSED TRADEMARKS. Licensee shall assist
Microsoft in protecting and maintaining Microsoft's rights in the
Licensed
Trademarks, including preparation and execution of documents
necessary to
register the Licensed Trademarks or record this Agreement, and
giving immediate
notice to Microsoft of potential infringement of the Licensed
Trademarks.
Microsoft shall have the sole right to and in its sole discretion
may commence,
prosecute or defend, and control any action concerning the Licensed
Trademarks,
either in its own name or by joining Licensee as a party thereto.
Licensee shall
not during the Term of this Agreement contest the validity of, by
act or
omission jeopardize, or take any action inconsistent with,
Microsoft's rights or
goodwill in the Licensed Trademarks in any country, including
attempted
registration of any Licensed Trademark, or use or attempted
registration of any
mark confusingly similar thereto.
3.1.6 OWNERSHIP. Licensee acknowledges Microsoft's ownership of all
Licensed Trademarks, and all goodwill associated with the Licensed
Trademarks.
Use of the Licensed Trademarks shall not create any right, title or
interest
therein in Licensee's favor. Licensee's use of the Licensed
Trademarks shall
inure solely to the benefit of Microsoft.
3.1.7 NO BUNDLING WITH UNAPPROVED PERIPHERALS, PRODUCTS OR
SOFTWARE.
Licensee shall not market or distribute any Finished Product Unit
bundled with a
peripheral product software or other products, nor shall Licensee
knowingly
permit or assist any third party in such bundling, without
Microsoft's prior
written consent.
3.2 EULA. Licensee shall distribute (directly or indirectly) the
Software
Title to end users subject to an end user license agreement
("EULA") in a form
to be approved by Microsoft prior to any distribution of the
Software Title;
provided that, in any event, Licensee's EULA for the Software Title
shall (a)
name Microsoft as a third party beneficiary, with the right to
enforce the
agreement, (b) grant the end user the right to use the Software
Title on only
one Xbox console at a time, and (c) forbid the end user from
reverse engineering
or decompiling the Software Title or Xbox. Microsoft will have the
right to
modify its requirements for the EULA at any time, in its
discretion, and
Licensee shall implement, at its sole cost, all such new
requirements as soon as
reasonably possible after receiving written notice from Microsoft
of such
required modifications.
[*]
Confidential portion omitted and filed separately with the
Securities
Exchange Commission
6
3.3 NO ELECTRONIC TRANSMISSION; NO ONLINE ACTIVITIES. Licensee
shall
distribute the Software Title only as embodied in Finished Product
Units;
specifically, but without limitation, Licensee shall not distribute
the Software
Title by any means of electronic transmission without the prior
written approval
of Microsoft, which Microsoft may grant or withhold in its
discretion.
Furthermore, Licensee will not authorize or permit any online
activities
involving the Software Title, including without limitation
multiplayer,
peer-to-peer and/or online play, without the prior written approval
of
Microsoft, which Microsoft may grant or withhold in its discretion.
3.4 NO DISTRIBUTION OUTSIDE THE TERRITORY. Licensee shall
distribute
Finished Product Units only in the Territory. Licensee shall not
directly or
indirectly export any Finished Product Units from the Territory nor
shall
Licensee knowingly permit or assist any third party in doing so,
nor shall
Licensee distribute Finished Product Units to any person or entity
that it has
reason to believe may re-distribute sell such Finished Product
Units outside the
Territory.
3.5 NO REPRODUCTION OF FINISHED PRODUCT UNITS EXCEPT BY MICROSOFT
OR
AUTHORIZED REPLICATORS. Licensee acknowledges that this Agreement
does not grant
Licensee the right to reproduce or otherwise manufacture Finished
Product Units
itself, or on its behalf, other than with Microsoft or an
Authorized Replicator.
Licensee must use Microsoft or an Authorized Replicator to produce
Finished
Product Units, pursuant to Section 4.
3.6 NO REVERSE ENGINEERING. Licensee may utilize and study the
design,
performance and operation of Xbox solely for the purposes of
developing the
Software Title. Notwithstanding the foregoing, Licensee shall not,
directly or
indirectly, reverse engineer or aid or assist in the reverse
engineering of all
or any part of Xbox except and only to the extent that such
activity is
expressly permitted by applicable law notwithstanding this
limitation. Reverse
engineering includes, without limitation, decompiling, disassembly,
sniffing,
peeling semiconductor components, or otherwise deriving source
code. In addition
to any other rights and remedies that Microsoft may have under the
circumstances, Licensee shall be required in all cases to pay
royalties to
Microsoft in accordance with Section 6 below with respect to any
games or other
products that are developed, marketed or distributed by Licensee,
and derived in
whole or in part from the reverse engineering of Xbox or any
Microsoft data,
code or other material.
3.7 RESERVATION OF RIGHTS. Microsoft reserves all rights not
explicitly
granted herein.
3.8 OWNERSHIP OF THE SOFTWARE TITLES. Except for the intellectual
property
supplied by Microsoft to Licensee (including without limitation the
licenses in
the Licensed Trademarks hereunder and the licenses in certain
software and
hardware granted by an XDK License), ownership of which is retained
by
Microsoft, insofar as Microsoft is concerned, Licensee will own all
rights in
and to the Software Titles.
4. MANUFACTURING
4.1 APPROVED REPLICATORS. Licensee shall retain only an Authorized
Replicator to manufacture all Finished Product Units.
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4.2 TERMS OF USE OF AUTHORIZED REPLICATOR. Licensee will notify
Microsoft
in writing of the identity of the applicable Authorized Replicator
and unless
Microsoft agrees otherwise, the agreement for such
manufacturing/replication
services shall be as negotiated by Licensee and the applicable
Authorized
Replicator, subject to the following requirements:
4.2.1 Microsoft, and not Licensee, will provide to the single
applicable Authorized Replicator the final release version of the
Software Title
and all specifications required by Microsoft for the manufacture of
the Finished
Product Units (including without limitation the Security Technology
(as defined
in Section 4.4 below); Licensee will be responsible for preparing
and delivering
to the Authorized Replicator all other items required for
manufacturing Finished
Product Units; and Licensee agrees tha
