Consumer Group Contract No. 19355
(Confidential Portions Omitted)
MICROSOFT CORPORATION
XBOX(TM) PUBLISHER LICENSE AGREEMENT
This License Agreement (the "Agreement") is entered into and effective as of
Nov. 28, 2000 (the "Effective Date") by and between MICROSOFT CORPORATION, a
Washington corporation ("Microsoft"), and BAY AREA MULTI MEDIA, INC., a Delaware
corporation ("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).
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1.7 "Software Title" shall mean the single software product as described
in the applicable Exhibit A (i.e., Exhibit A-1, 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 immediately. 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 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
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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 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 Playtesting. 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
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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 licensee(s)
(each an "XDK License") pursuant to which Microsoft would license 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.
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
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prohibitions of this section, Licensee shall promptly remedy such
non-conformance and notify Microsoft of the non-conformance and remedial steps
taken.
3.14 Certification Requirements. Licensee may use the Licensed
Trademarks only in connection with the copies of the Software Title that meet
the Certificate 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 two (2) years 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.
Licensee shall be reimbursed by Microsoft for all reasonable expenses incurred
by Licensee in connection with the foregoing. 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 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.
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 authorizer 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.
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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 or 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.
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 that all Finished Product Units must be
replicated in conformity with all of the quality standards and manufacturing
specifications, policies and procedures that Microsoft requires of its
Authorized Replicators, and that all so-called "adders" must be approved by
Microsoft prior to packaging (in accoreway
System.
8. CONFIDENTIAL INFORMATION
8.1 Definition. "Confidential Information" means information provided to
LICENSEE by Nintendo or any third party working with Nintendo relating to the
hardware and software for the GAME BOY ADVANCE system or the Development Tools,
including, but not limited to, (a) all current or future information, know-how,
techniques, methods, information, tools, emulator hardware or software,
software development specifications, and/or trade secrets, (b) any patents or
patent applications, (c) any business, marketing or sales data or information,
and (d) any other information or data relating to development, design,
operation, manufacturing, marketing or sales. Confidential Information shall
include all confidential information disclosed, whether in writing, orally,
visually, or in the form of drawings, technical specifications, software,
samples, pictures, models, recordings, or other tangible items which contain or
manifest, in any form, the above listed information. Confidential Information
shall not include (i) data and information which was in the public domain prior
to LICENSEE's receipt of the same hereunder, or which subsequently becomes part
of the public domain by publication or otherwise, except by LICENSEE's wrongful
act or omission, (ii) data and information which LICENSEE can demonstrate,
through written records kept in the ordinary course of business, was in its
possession without restriction or use or disclosure, prior to its receipt of
the same hereunder and was not acquired directly or indirectly from Nintendo
under an obligation of confidentiality which is still in force, and (iii) data
and information which LICENSEE can show was received by it from a third party
who did not acquire the same directly or indirectly from Nintendo and to whom
LICENSEE has no obligation of confidentiality.
8.2 Disclosures Required by Law. LICENSEE shall be permitted to disclose
Confidential Information if such disclosure is required by an authorized
governmental or judicial entity, provided that NOA is given Notice thereof at
least thirty (30) days prior to such disclosure. LICENSEE shall use its best
efforts to limit the disclosure to the greatest extent possible consistent with
LICENSEE's legal obligations, and if required by NOA, shall cooperate in the
preparation and entry of appropriate protective orders.
8.3 Disclosure and Use. NOA may provide LICENSEE with highly confidential
development information, Guidelines, Development Tools, systems, specifications
and related resources and information constituting and incorporating the
Confidential Information to assist LICENSEE in the
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development of Games. LICENSEE agrees to maintain all Confidential Information
as strictly confidential and to use such Confidential Information only in
accordance with this Agreement. LICENSEE shall limit access to the Confidential
Information to LICENSEE's employees having a strict need to know and shall
advise such employees of their obligation of confidentiality as provided
herein. LICENSEE shall require each such employee to retain in confidence the
Confidential Information pursuant to a written non-disclosure agreement between
LICENSEE and such employee. LICENSEE shall use its best efforts to ensure that
its employees working with or otherwise having access to Confidential
Information shall not disclose or make any unauthorized use of the Confidential
Information.
8.4 No Disclosure to Independent Contractors. LICENSEE shall not disclose
the Confidential Information to any Independent Contractor without the prior
written consent of NOA. Any Independent Contractor seeking access to
Confidential Information shall be required to enter into a written
non-disclosure agreement with NOA prior to receiving any access to or
disclosure of the Confidential Information from either LICENSEE or NOA.
8.5 Agreement Confidentiality. LICENSEE agrees that the terms, conditions
and contents of this Agreement shall be treated as Confidential Information.
Any public announcement or press release regarding this Agreement or the
release dates for Games developed by LICENSEE under this Agreement shall be
subject to NOA's prior written approval. The parties may disclose this
Agreement (a) to accountants, banks, financing sources, lawyers, parent
companies and related parties under substantially equivalent confidentiality
obligations, (b) in connection with any formal legal proceeding for the
enforcement of this Agreement, (c) as required by the regulations of the
Securities and Exchange Commission ("SEC"), provided that all Confidential
Information regarding NOA shall be redacted from such disclosures to the
maximum extent allowed by the SEC, and (d) in response to lawful process,
subject to a written protective order approved in advance by Software Titles contact
information (including without limitation Licensee's street address and
telephone number, and the applicable individual/group responsible for customer
support). Such end user support will be consistent with the then-applicable
console game industry standards. Licensee acknowledges and agrees that
Microsoft will have no support responsibilities whatsoever to end users of the
Software Title or with Respect to Finished Product Units.
5.2 Art & Marketing Materials. In accordance with Section 2.1.6 above,
Licensee shall submit all Art & Marketing Materials to Microsoft, and Licensee
shall not distribute such Art & Marketing Materials unless and until Microsoft
has approved them in writing. Prior to publication of any Art & Marketing
Materials, Licensee agrees to incorporate all changes relating to use of the
Licensed Trademarks that Microsoft may request, and will use its commercially
reasonable efforts to incorporate other changes reasonably suggested by
Microsoft (provided, however, that Licensee shall at all times comply with the
requirements set forth in the Branding Specifications and/or the Xbox Guide).
5.3 Warranty. Licensee shall provide the original end user of any
Finished Product Unit a minimum ninety (90) day limited warranty that the
Finished Product Unit will perform in accordance with its user documentation or
Licensee will provide a replacement Finished Product Unit at no charge.
5.4 Recall. Notwithstanding anything to the contrary contained in this
Agreement (including without limitation Section 2.1.4), in the event of a
material defect in a Software Title and/or any Finished Product Units, which
defect in the reasonable judgement of Microsoft would significantly impair the
ability of an end user to play such Software Title or Finished Product Unit,
Microsoft may require Licensee to recall Finished Product Units and undertake
prompt repair or replacement of such Software Title and/or Finished Product
Units. Microsoft shall also entertain in good faith any proposals by Licensee of
additional or alternative remedial measures to effectively address such
situation.
5.5 Software Title License. Subject to third party rights of which
Licensee shall have informed Microsoft in writing at the time of delivery of
the feature-complete version of the applicable Software Title, Licensee hereby
grants to Microsoft a fully-paid, royalty-free, non-exclusive license (i) to
publicly perform the Software Titles at conventions, events, trade shows, press
briefings, and the like; and (ii) to use the title of the Software Title, and
screen shots from the Software Title, in advertising and promotional material
relating to Xbox and related Microsoft products and services, as Microsoft may
reasonably deem appropriate.
6. PAYMENTS
6.1 Royalties. Licensee shall pay Microsoft royalties, on a Software
Title-by-Software Title basis, for each Finished Product Unit manufactured, in
accordance with the following table:
Xbox Publisher License Agreement - Microsoft Corp. and Bay Area Multimedia Inc.
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