{"id":42459,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/license-agreement-for-game-boy-advance-nintendo-of-america-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"license-agreement-for-game-boy-advance-nintendo-of-america-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/license-agreement-for-game-boy-advance-nintendo-of-america-inc.html","title":{"rendered":"License Agreement for Game Boy Advance &#8211; Nintendo of America Inc. and BAM! Entertainment Inc."},"content":{"rendered":"<pre>\n                         CONFIDENTIAL LICENSE AGREEMENT\n                              FOR GAME BOY ADVANCE\n                              (Western Hemisphere)\n\n     THIS LICENSE AGREEMENT (\"Agreement\") is entered into between NINTENDO OF \nAMERICA INC. (\"NOA\"), at 4820 150th Avenue N.E., Redmond, WA 98052 Attn: \nGeneral Counsel (Fax: 425-882-3585) and BAM Entertainment, Inc., (\"LICENSEE\") \nat 333 West Santa Clara Street, Suite 930, San Jose, CA 95113, Attn: Ray Musci \n(Fax: (408) 298-9600). NOA and LICENSEE agree as follows:\n\n1.   RECITALS\n\n     1.1  NOA markets and sells advanced design, high-quality video game \nsystems, including the GAME BOY(R) ADVANCE system.\n\n     1.2  LICENSEE desires a license to use highly proprietary programming \nspecifications, development tools, trademarks and other valuable intellectual \nproperty rights of NOA and its parent company, Nintendo Co., Ltd. (collectively \n\"Nintendo\"), to develop, have manufactured, advertise, market and sell video \ngame software for play on the GAME BOY ADVANCE system.\n\n     1.3  NOA is willing to grant a license to LICENSEE on the terms and \nconditions set forth in this Agreement.\n\n2.   DEFINITIONS\n\n     2.1  \"Artwork\" means the design specifications for the Game Cartridge \nlabel and Printed Materials in the format specified by NOA in the Guidelines.\n\n     2.2  \"Development Tools\" means the development kits, programming tools, \nemulators, and other materials that may be used in the development of Games \nunder this Agreement.\n\n     2.3  \"Effective Date\" means the last date on which all parties shall have \nsigned this Agreement.\n\n     2.4  \"Finished Product(s)\" means the fully assembled and shrink-wrapped \nLicensed Products, each including a Game Cartridge, Game Cartridge label and \nPrinted Materials.\n\n     2.5  \"Game Cartridges(s)\" means custom cartridges specifically \nmanufactured under the terms of this Agreement for play on the GAME BOY ADVANCE \nsystem, incorporating semiconductor components in which a Game has been stored.\n\n     2.6  \"Game(s)\" means interactive video game programs (including source and \nobject\/binary code) developed for play on the GAME BOY ADVANCE system.\n\n     2.7  \"Guidelines\" means the current version or any future revision of the \n\"Game Boy Packaging Guidelines\", \"Nintendo Trademark Guidelines\", \"Game Boy \nAdvance Development Manual\" and related guidelines.\n\n     2.8  \"Independent Contractor\" means any individual or entity that is not \nan employee of LICENSEE, including any independent programmer, consultant, \ncontractor, board member or advisor.\n\n     2.9  \"Intellectual Property Rights\" means individually, collectively or in \nany combination, Proprietary Rights owned, licensed or otherwise held by \nNintendo that are associated with the development, manufacturing, advertising, \nmarketing or sale of the Licensed Products, including, without limitation, (a) \nregistered and unregistered trademarks and trademark applications used in \nconnection with video games for play on the GAME BOY ADVANCE system including \n\"Nintendo(R)\", \"GAME BOY(R) ADVANCE,\" \"AGB\" and the \"Official Nintendo Seal of \nQuality(R)\", (b) select trade dress associated with the \n\n\n                                                                          PAGE 1\n\n   2\n\nGAME BOY ADVANCE system and licensed video games for play thereon, (c) \nProprietary Rights in the Security Technology incorporated into the Game \nCartridges, (d) rights in the Development Tools for use in developing the \nGames, (e) patents or design registrations associated with the Game Cartridges, \n(f) copyrights in the Guidelines, and (g) other Proprietary Rights of Nintendo \nin Confidential Information.\n\n      2.10  \"Licensed Products\" means (a) Finished Products, or (b) Stripped \nProducts when fully assembled and shrink-wrapped with the Printed Materials.\n\n      2.11  \"Marketing Materials\" means marketing, advertising or promotional \nmaterials developed by or for LICENSEE (or subject to LICENSEE's approval) to \npromote the sale of the Licensed Products, including, but not limited to, \ntelevision, radio and on-line advertising, point-of-sale materials (e.g. \nposters, counter-cards), package advertising and print media or materials.\n\n      2.12  \"NDA\" means the non-disclosure agreement providing for the \nprotection of Confidential Information related to the GAME BOY ADVANCE system \npreviously entered into between NOA and LICENSEE.\n\n      2.13  \"Notice\" means any notice permitted or required under this \nAgreement. All notices shall be sufficiently given when (a) personally served \nor delivered, or (b) transmitted by facsimile, with an original sent \nconcurrently by first class U.S. mail, or (c) deposited, postage prepaid, with \na guaranteed air courier service, in each case addressed as stated herein, or \naddressed to such other person or address either party may designate in a \nNotice. Notice shall be deemed effective upon the earlier of actual receipt or \ntwo (2) business days after transmittal.\n\n      2.14  \"Price Schedule\" means the current version or any future revision \nof NOA's schedule of purchase prices and minimum order quantities for the \nLicensed Products.\n\n      2.15  \"Printed Materials\" means the box, user instruction booklet, \nposter, warranty card and LICENSEE inserts incorporating the Artwork, together \nwith a precautions booklet as specified by NOA.\n\n      2.16  \"Proprietary Rights\" means any rights or applications for rights \nowned, licensed or otherwise held in patents, trademarks, service marks, \ncopyrights, mask works, trade secrets, trade dress, moral rights and publicity \nrights, together with all inventions, discoveries, ideas, technology, know-how, \ndata, information, processes, formulas, drawings and designs, licenses, \ncomputer programs, software source code and object code, and all amendments, \nmodifications, and improvements thereto for which such patent, trademark, \nservice mark, copyright, mask work, trade secrets, trade dress, moral rights or \npublicity rights may exist or may be sought and obtained in the future.\n\n      2.17  \"Reverse Engineer(ing)\" means, without limitation, (a) the x-ray, \nelectronic scanning or physical or chemical stripping of semiconductor \ncomponents, (b) the disassembly, decompilation, decryption or simulation of \nobject code or executable code, or (c) any other technique designed to extract \nsource code or facilitate the duplication of a program or product.\n\n      2.18  \"Security Technology\" means, without limitation, any security \nsignature, bios, data scrambling, password, hardware security apparatus, \nwatermark, hologram, copyright management information system or any feature \nwhich facilitates or limits compatibility with other hardware or software \noutside of the Territory or on a different video game system.\n\n      2.19  \"Stripped Product(s)\" means the Game Cartridges with Game Cartridge \nlabels affixed.\n\n      2.20  \"Term\" means three (3) years from the Effective Date.\n\n      2.21  \"Territory\" means all countries within the Western Hemisphere and \ntheir respective territories and possessions.\n\n\n                                                                          PAGE 2\n   3\n3.   GRANT OF LICENSE; LICENSEE RESTRICTIONS\n\n     3.1  Limited License Grant. For the Term and for the Territory, NOA grants \nto LICENSEE a nonexclusive, nontransferable, limited license to use the \nIntellectual Property Rights to develop Games for manufacture, advertising, \nmarketing and sale as Licensed Products, subject to the terms and conditions of \nthis Agreement. Except as permitted under a separate written authorization from \nNintendo, LICENSEE shall not use the Intellectual Property Rights for any other \npurpose.\n\n     3.2  LICENSEE Acknowledgement. LICENSEE acknowledges (a) the value of the \nIntellectual Property Rights, (b) the right, title, and interest of Nintendo in \nand to the Intellectual Property Rights, and (c) the right, title and interest \nof Nintendo in and to the Proprietary Rights associated with all aspects of the\nGAME BOY ADVANCE system. LICENSEE recognizes that the Games, Game Cartridges \nand Licensed Products will embody valuable rights of Nintendo and Nintendo's \nlicensors. LICENSEE represents and warrants that it will not undertake any act \nor thing which in any way impairs or is intended to impair any part of the \nright, title, interest or goodwill of Nintendo in the Intellectual Property \nRights. LICENSEE's use of the Intellectual Property Rights shall not create any \nright, title or interest of LICENSEE therein.\n\n     3.3  LICENSEE Restrictions and Prohibitions. LICENSEE represents and \nwarrants that it will not at any time, directly or indirectly, do or cause to \nbe done any of the following:\n\n          (a)  grant access to, distribute, transmit or broadcast a Game by \nelectronic means or by any other means known or hereafter devised, including, \nwithout limitation, by wireless, cable, fiber optic, telephone lines, \nmicrowave, radiowave, computer or other device network; provided, however, that \nlimited transmissions may be made for the sole purpose of facilitating \ndevelopment under the terms of this Agreement, but no right of retransmission \nshall attach to any such authorized transmission and, reasonable security \nmeasures, customary within the high technology industry, shall be utilized to \nreduce the risk of unauthorized interception or retransmission of any such \nauthorized transmission,\n\n          (b)  authorize or permit any online activities involving a Game, \nincluding, without limitation, multiplayer, peer-to-peer or online play,\n\n          (c)  modify, install or operate a Game on any server or computing \ndevice for the purpose of or resulting in the rental, lease, loan or other \ngrant of remote access to the Game,\n\n          (d)  emulate, interoperate, interface or link a Game for operation or \nuse with any hardware or software platform, accessory, computer language, \ncomputer environment, chip instruction set, consumer electronics device or \ndevice other than the GAME BOY ADVANCE system or the Development Tools,\n\n          (e)  embed, incorporate, or store a Game in any media or format \nexcept the cartridge format utilized by the GAME BOY ADVANCE system, except as \nmay be necessary as a part of the Game development process under this Agreement,\n\n          (f)  design, implement or undertake any process, procedure, program \nor act designed to circumvent the Security Technology,\n\n          (g)  utilize the Intellectual Property Rights to design or develop \nany interactive video game program, except as authorized under this Agreement,\n\n          (h)  manufacture or reproduce a Game developed under this Agreement, \nexcept through Nintendo, or\n\n          (i)  Reverse Engineer or assist in the Reverse Engineering of all or \nany part of the GAME BOY ADVANCE system, including the hardware or software \n(whether embedded or otherwise), or the Security Technology.\n\n\n                                                                          PAGE 3\n\n   4\n     3.4  Development Tools. Nintendo may lease, loan or sell Development Tools \nto LICENSEE to assist in the development of Games under this Agreement. \nOwnership and use of any Development Tools provided to LICENSEE by Nintendo \nshall be subject to the terms of this Agreement. LICENSEE acknowledges the \nexclusive interest of Nintendo in and to the Proprietary Rights associated with \nthe Development Tools. LICENSEE's use of the Development Tools shall not create \nany right, title or interest of LICENSEE therein. LICENSEE shall not, directly \nor indirectly, (a) use the Development Tools for any purpose except the design \nand development of Games under this Agreement, (b) reproduce or create \nderivatives of the Development Tools, except in association with the \ndevelopment of Games under this Agreement, (c) Reverse Engineer the Development \nTools, or (d) sell, lease, assign, lend, license, encumber or otherwise \ntransfer the Development Tools. Any tools developed or derived by LICENSEE as a \nresult of a study of the performance, design or operation of the Development \nTools shall be considered derivative works of the Intellectual Property Rights, \nbut may be retained and utilized by LICENSEE in connection with this Agreement. \nIn no event shall LICENSEE (i) seek, claim or file for any patent, copyright or \nother Proprietary Right with regard to any such derivative work, (ii) make \navailable any such derivative work to any third party, or (iii) use any such \nderivative work except in connection with the design and development of Games \nunder this Agreement.\n\n4.   SUBMISSION OF GAME AND ARTWORK FOR APPROVAL\n\n     4.1  Development and Sale of the Games. LICENSEE may develop Games and \nhave manufactured, advertise, market and sell Licensed Products for play on the \nGAME BOY ADVANCE system only in accordance with this Agreement.\n\n     4.2  Third Party Developers. LICENSEE shall not disclose the Confidential \nInformation, the Guidelines or the Intellectual Property Rights to any \nIndependent Contractor, nor permit any Independent Contractor to perform or \nassist in development work for a Game, unless and until such Independent \nContractor has been approved by NOA and has executed a written confidentiality \nagreement with NOA relating to the GAME BOY ADVANCE system.\n\n     4.3  Delivery of Completed Game. Upon completion of a Game, LICENSEE shall \ndeliver a prototype of the Game to NOA in a format specified in the Guidelines, \ntogether with written user instructions, a complete description of any security \nholes, backdoors, time bombs, cheats, \"easter eggs\" or other hidden features or \ncharacters in the Game and a complete screen text script. NOA shall promptly \nevaluate the Game with regard to (a) its technical compatibility with and \nerror-free operation on the GAME BOY ADVANCE system, and (b) its compliance \nwith the game content guidelines of the Entertainment Software Ratings Board \n(\"ESRB\"). LICENSEE shall provide NOA with a certificate of a rating for the \nGame from the ESRB other than \"AO\" or \"ADULTS ONLY\".\n\n     4.4  Approval of Completed Game. NOA shall, within a reasonable period of \ntime after receipt, approve or disapprove each submitted Game. If a Game is \ndisapproved, NOA shall specify in writing the reasons for such disapproval and \nstate what corrections or improvements are necessary. After making the \nnecessary corrections or improvements, LICENSEE shall submit a revised Game to \nNOA for approval. NOA shall not unreasonably withhold or delay its approval of \nany Game. The approval of a Game by NOA shall not relieve LICENSEE of its sole \nresponsibility for the development, quality and operation of the Game or in any \nway create any warranty for a Game or a Licensed Product by NOA.\n\n     4.5  Submission of Artwork. Upon submission of a completed Game to NOA, \nLICENSEE shall prepare and submit to NOA the Artwork for the proposed Licensed \nProduct. Within ten (10) business days of receipt, NOA shall approve or \ndisapprove the Artwork. If any Artwork is disapproved, NOA shall specify in \nwriting the reasons for such disapproval and state what corrections or \nimprovements are necessary. After making the necessary corrections or \nimprovements, LICENSEE shall submit revised Artwork to NOA for approval. NOA \nshall not unreasonably withhold or delay its approval of any Artwork. The \napproval of the Artwork by NOA shall not relieve LICENSEE of its sole \nresponsibility for the development and quality of the Artwork or in any way \ncreate any warranty for the Artwork or the Licensed product by NOA.\n\n\n                                                                          PAGE 4\n   5\n     4.6  Artwork for Stripped Product. If LICENSEE submits an order for \nStripped Product, all Artwork shall be submitted to NOA in advance of NOA's \nacceptance of the order and no production of Printed Materials shall occur \nuntil such Artwork has been approved by NOA under Section 4.5 herein.\n\n5.   ORDER PROCESS, PURCHASE PRICE, PAYMENT AND DELIVERY\n\n     5.1  Submission of Order by LICENSEE. LICENSEE may at any time submit \nwritten purchase orders to NOA for any approved Licensed Product title. The \npurchase order shall specify whether it is for Finished Product or Stripped \nProduct. The terms and conditions of this Agreement shall control over any \ncontrary terms of such purchase order or any other written documents submitted \nby LICENSEE. All orders are subject to acceptance by NOA in Redmond, WA.\n\n     5.2  Purchase Price and Minimum Order Quantities. The purchase price and \nminimum order quantities for the Licensed Products shall be set forth in NOA's \nthen current Price Schedule. The purchase price includes the cost of \nmanufacturing together with a royalty for the use of the Intellectual Property \nRights. No taxes, duties, import fees and other tariffs related to the \ndevelopment, manufacture, import, marketing or sale of the Licensed Products \nare included in the purchase price and all such taxes are the responsibility of \nLICENSEE (except for taxes imposed on NOA's income). The Price Schedule is \nsubject to change by NOA at any time without Notice.\n\n     5.3  Payment. Upon placement of an order with NOA, LICENSEE shall pay the \nfull purchase price to NOA either (a) by placement of an irrevocable letter of \ncredit in favor of NOA and payable at sight, issued by a bank acceptable to NOA \nand confirmed, if requested by NOA, at LICENSEE's expense, or (b) in cash, by \nwire transfer to NOA's designated account. All associated banking charges shall \nbe for LICENSEE's account.\n\n     5.4  Shipment and Delivery. The Licensed Products shall be delivered \nF.O.B. Japan or such other delivery point specified by NOA, with shipment at \nLICENSEE's direction and expense. Orders may be delivered by NOA in partial \nshipments, each directed to not more than two (2) destinations designated by \nLICENSEE within the Territory. Title to the Licensed Products shall vest in \naccordance with the terms of the applicable letter of credit or, in the absence \nthereof, at the point of delivery.\n\n6.   MANUFACTURE OF THE LICENSED PRODUCT\n\n     6.1  Manufacturing. Nintendo Co., Ltd. shall be the exclusive source for \nthe manufacture of the Game Cartridges, with responsibility for all aspects of \nthe manufacturing process, including the selection of the locations and \nspecifications for any manufacturing facilities, determination of materials and \nprocesses, appointment of suppliers and subcontractors and management of all \nwork-in-progress.\n\n     6.2  Manufacture of the Licensed Products. Upon acceptance by NOA of a \npurchase order for an approved Licensed Product title and payment as provided \nfor under Section 5.3 herein, NOA (through Nintendo Co., Inc., and\/or its \nsubcontractors), will arrange for the manufacture of Finished Product or \nStripped Product, as specified in LICENSEE's purchase order.\n\n     6.3  Security Features. The final release version of the Game, Game \nCartridges and Printed Materials shall include such Security Technology as \nNintendo, in its sole discretion, may deem necessary or appropriate.\n\n     6.4  Production of Stripped Product Printed Materials. For Stripped \nProduct, LICENSEE shall arrange and pay for the production of the Printed \nMaterials using the Artwork. Upon receipt of an order of Stripped Product, \nLICENSEE shall assemble the Game Cartridges and Printed Materials into the \nLicensed Products. Licensed Products may be sold or otherwise distributed by \nLICENSEE only in fully assembled and shrink-wrapped condition.\n\n     6.5  Prior Approval of LICENSEE's Independent Contractor. Prior to the \nplacement of a purchase order for Stripped Product, LICENSEE shall obtain \nNOA's approval of any independent\n\n                                                                          PAGE 5\n   6\nContractors selected to perform the production and assembly operations. LICENSEE\nshall provide NOA with the names, addresses and all business documentation\nreasonably requested by NOA for such Independent Contractors. NOA may, prior to\napproval and at reasonable intervals thereafter, (a) require submission of\nadditional business or financial information regarding the Independent\nContractors, (b) inspect the facilities of the Independent Contractors, and (c)\nbe present to supervise any work on the Licensed Products to be done by the\nIndependent Contractors. If at any time NOA deems an Independent Contractor to\nbe unable to meet quality, security or performance standards reasonably\nestablished by NOA, NOA may refuse to grant its approval or withdraw its\napproval upon Notice to LICENSEE. LICENSEE may not proceed with the production\nof the Printed Materials or assembly of the Licensed Product until NOA's\nconcerns have been resolved to its satisfaction or until LICENSEE has selected\nand received NOA's approval of another Independent Contractor.\n\n     6.6  NOA Inserts for Stripped Product. NOA, at its option, may provide\nLICENSEE with NOA produced promotional materials (as provided for at Section\n7.7(a) herein), which LICENSEE agrees to include in the assembly of the Licensed\nProducts.\n\n     6.7  Sample Printed Materials and Stripped Product. Within a reasonable\nperiod of time after LICENSEE's assembly of the initial order for a Stripped\nProduct title, LICENSEE shall provide NOA with (a) one (1) sample of the fully\nassembled shrink-wrapped Licensed Product, and (b) fifty (50) samples of\nLICENSEE produced Printed Materials for such Licensed Product.\n\n     6.8  Retention of Sample Licensed Products by Nintendo. Nintendo may, at\nits own expense, manufacture reasonable quantities of the Game Cartridges or the\nLicensed Products to be used for archival purposes, legal proceedings against\ninfringers of the Intellectual Property Rights or for other lawful purposes.\n\n7.   MARKETING AND ADVERTISING\n\n     7.1  Approval of Marketing Materials. LICENSEE represents and warrants that\nthe Marketing Materials shall (a) be of high quality and comply with the\nGuidelines, (b) comply with all voluntary ESRB advertising, marketing or\nmerchandising guidelines, and (c) comply with all applicable laws and\nregulations in those jurisdictions in the Territory where they will be used or\ndistributed. Prior to actual use or distribution, LICENSEE shall submit to NOA\nfor review samples of all proposed Marketing Materials. NOA shall, within ten\n(10) business days of receipt, approve or disapprove the quality of such\nsamples. If any of the samples are disapproved, NOA shall specify the reasons\nfor such disapproval and state what corrections and\/or improvements are\nnecessary. After making the necessary corrections and\/or improvements, LICENSEE\nshall submit revised samples for approval by NOA. No Marketing Materials shall\nbe used or distributed by LICENSEE without NOA's prior written approval. NOA\nshall not unreasonably withhold or delay its approval of any proposed Marketing\nMaterials.\n\n     7.2  No Bundling. LICENSEE shall not market or distribute any Finished\nProduct or Stripped Product that has been bundled with (a) any peripheral\ndesigned for use with the GAME BOY ADVANCE system which has not been licensed or\napproved in writing by NOA, or (b) any other product or service where NOA's\nsponsorship, association, approval or endorsement might be suggested by the\nbundling of the products or services.\n\n     7.3  Warranty and Repair. LICENSEE shall provide the original consumer with\na minimum ninety (90) day limited warranty on all Licensed Products. LICENSEE\nshall also provide reasonable product service, including out-of-warranty\nservice, for all Licensed Products.\n\n     7.4  Business Facilities. LICENSEE agrees to develop and maintain (a)\nsuitable office facilities within the United States, adequately staffed to\nenable LICENSEE to fulfill all responsibilities under this Agreement, (b)\nnecessary warehouse, distribution, marketing, sales, collection and credit\noperations to facilitate proper handling of the Licensed Products, and (c)\ncustomer service and game counseling, including telephone service, to adequately\nsupport the Licensed Products.\n\n\n\n                                                                          PAGE 6\n\n   7\n\n     7.5  No Sales Outside the Territory. LICENSEE represents and warrants that \nit shall not market, sell, offer to sell, import or distribute the Licensed \nProducts outside the Territory, or within the Territory when with actual or \nconstructive knowledge that a subsequent destination of the Licensed Product is \noutside the Territory.\n\n     7.6  Defects and Recall. In the event of a material programming defect in \na Licensed Product that would, in NOA's reasonable judgment, significantly \nimpair the ability of a consumer to play the Game, NOA may, after consultation \nwith LICENSEE, require the LICENSEE to recall the Licensed Product and \nundertake suitable repairs or replacements.\n\n     7.7  NOA Promotional Materials, Publications and Events. At its option, \nNOA may (a) insert in the Printed Materials for the Licensed Products \npromotional materials concerning Nintendo Power magazine or other NOA products, \nservices or programs, (b) utilize screen shots, Artwork and Information \nregarding the Licensed Products in Nintendo Power, Nintendo Power Source or \nother advertising, promotional or marketing media which promotes Nintendo \nproducts, services or programs, and (c) exercise public performance rights in \nthe Games and use related trademarks and Artwork in connection with NOA \nsponsored contests, tours, conventions, trade shows, press briefings and \nsimilar events which promote the GAME BOY ADVANCE system.\n\n     7.8  Nintendo Gateway System. To promote and increase demand for games on \nNintendo video game systems, NOA licenses a system (the \"Nintendo Gateway \nSystem\") in various non-coin activated commercial settings such as commercial \nairlines, cruise ships, rail systems and hotels, where customers play games on \nspecially adapted Nintendo video game systems. If NOA identifies a Game for \npossible license on the Nintendo Gateway System, the parties agree to conduct \ngood faith negotiations toward including the Game in the Nintendo Gateway \nSystem.\n\n8.   CONFIDENTIAL INFORMATION\n\n     8.1  Definition. \"Confidential Information\" means information provided to \nLICENSEE by Nintendo or any third party working with Nintendo relating to the \nhardware and software for the GAME BOY ADVANCE system or the Development Tools, \nincluding, but not limited to, (a) all current or future information, know-how, \ntechniques, methods, information, tools, emulator hardware or software, \nsoftware development specifications, and\/or trade secrets, (b) any patents or \npatent applications, (c) any business, marketing or sales data or information, \nand (d) any other information or data relating to development, design, \noperation, manufacturing, marketing or sales. Confidential Information shall \ninclude all confidential information disclosed, whether in writing, orally, \nvisually, or in the form of drawings, technical specifications, software, \nsamples, pictures, models, recordings, or other tangible items which contain or \nmanifest, in any form, the above listed information. Confidential Information \nshall not include (i) data and information which was in the public domain prior \nto LICENSEE's receipt of the same hereunder, or which subsequently becomes part \nof the public domain by publication or otherwise, except by LICENSEE's wrongful \nact or omission, (ii) data and information which LICENSEE can demonstrate, \nthrough written records kept in the ordinary course of business, was in its \npossession without restriction or use or disclosure, prior to its receipt of \nthe same hereunder and was not acquired directly or indirectly from Nintendo \nunder an obligation of confidentiality which is still in force, and (iii) data \nand information which LICENSEE can show was received by it from a third party \nwho did not acquire the same directly or indirectly from Nintendo and to whom \nLICENSEE has no obligation of confidentiality.\n\n     8.2  Disclosures Required by Law. LICENSEE shall be permitted to disclose \nConfidential Information if such disclosure is required by an authorized \ngovernmental or judicial entity, provided that NOA is given Notice thereof at \nleast thirty (30) days prior to such disclosure. LICENSEE shall use its best \nefforts to limit the disclosure to the greatest extent possible consistent with \nLICENSEE's legal obligations, and if required by NOA, shall cooperate in the \npreparation and entry of appropriate protective orders.\n\n     8.3  Disclosure and Use. NOA may provide LICENSEE with highly confidential \ndevelopment information, Guidelines, Development Tools, systems, specifications \nand related resources and information constituting and incorporating the \nConfidential Information to assist LICENSEE in the \n\n\n                                                                          PAGE 7\n\n   8\ndevelopment of Games. LICENSEE agrees to maintain all Confidential Information \nas strictly confidential and to use such Confidential Information only in \naccordance with this Agreement. LICENSEE shall limit access to the Confidential \nInformation to LICENSEE's employees having a strict need to know and shall \nadvise such employees of their obligation of confidentiality as provided \nherein. LICENSEE shall require each such employee to retain in confidence the \nConfidential Information pursuant to a written non-disclosure agreement between \nLICENSEE and such employee. LICENSEE shall use its best efforts to ensure that \nits employees working with or otherwise having access to Confidential \nInformation shall not disclose or make any unauthorized use of the Confidential \nInformation.\n\n     8.4  No Disclosure to Independent Contractors. LICENSEE shall not disclose \nthe Confidential Information to any Independent Contractor without the prior \nwritten consent of NOA. Any Independent Contractor seeking access to \nConfidential Information shall be required to enter into a written \nnon-disclosure agreement with NOA prior to receiving any access to or \ndisclosure of the Confidential Information from either LICENSEE or NOA.\n\n     8.5  Agreement Confidentiality. LICENSEE agrees that the terms, conditions \nand contents of this Agreement shall be treated as Confidential Information. \nAny public announcement or press release regarding this Agreement or the \nrelease dates for Games developed by LICENSEE under this Agreement shall be \nsubject to NOA's prior written approval. The parties may disclose this \nAgreement (a) to accountants, banks, financing sources, lawyers, parent \ncompanies and related parties under substantially equivalent confidentiality \nobligations, (b) in connection with any formal legal proceeding for the \nenforcement of this Agreement, (c) as required by the regulations of the \nSecurities and Exchange Commission (\"SEC\"), provided that all Confidential \nInformation regarding NOA shall be redacted from such disclosures to the \nmaximum extent allowed by the SEC, and (d) in response to lawful process, \nsubject to a written protective order approved in advance by NOA.\n\n     8.6  Notification Obligations. LICENSEE shall promptly notify NOA of the \nunauthorized use or disclosure of any Confidential Information and shall \npromptly act to recover any such information and prevent further breach of the \nobligations herein. The obligations of LICENSEE set forth herein are in \naddition to and not in lieu of any other legal remedy that may be available to \nNOA under this Agreement or applicable law.\n\n     8.7  Continuing Effect of the NDA. The terms of this Section 8 supplement \nthe terms of the NDA, which shall remain in effect. In the event of a conflict \nbetween the terms of the NDA and this Agreement, the terms of this Agreement \nshall control.\n\n9.   REPRESENTATIONS AND WARRANTIES\n\n     9.1  LICENSEE's Representations and Warranties. LICENSEE represents and \nwarrants that:\n\n          (a)  it is a duly organized and validly existing corporation and has \nfull authority to enter into this Agreement and to carry out the provisions \nhereof,\n\n          (b)  the execution, delivery and performance of this Agreement by \nLICENSEE does not conflict with any agreement or understanding to which \nLICENSEE may be bound, and\n\n          (c)  excluding the Intellectual Property Rights, LICENSEE is either \n(i) the sole owner of all right, title and interest in and to the trademarks, \ncopyrights and other intellectual property rights used on or in association with\nthe development, advertising, marketing and sale of the Licensed Products and \nthe Marketing Materials, or (ii) the holder of such rights to the trademarks, \ncopyrights and other intellectual property rights which have been licensed from \na third party as are necessary for the development, advertising, marketing and \nsale of the Licensed Products and the Marketing Materials under this Agreement.\n\n\n                                                                          PAGE 8\n\n   9\n     9.2  NOA'S Representations and Warranties. NOA represents and warrants\nthat:\n          (a) it is a duly organized and validly existing corporation and has\nfull authority to enter into this Agreement and to carry out the provisions \nhereof, and\n\n          (b) the execution, delivery and performance of this Agreement by NOA\ndoes not conflict with any agreement or understanding to which NOA may be bound.\n\n     9.3  INTELLECTUAL PROPERTY RIGHTS DISCLAIMER BY NOA. NOA MAKES NO \nREPRESENTATION OR WARRANTY CONCERNING THE SCOPE OR VALIDITY OF THE \nINTELLECTUAL PROPERTY RIGHTS. NOA DOES NOT WARRANT THAT THE DESIGN, \nDEVELOPMENT, ADVERTISING, MARKETING OR SALE OF THE LICENSED PRODUCTS OR THE USE\nOF THE INTELLECTUAL PROPERTY RIGHTS BY LICENSEE WILL NOT INFRINGE UPON PATENT, \nCOPYRIGHT, TRADEMARK OR OTHER PROPRIETARY RIGHTS OF A THIRD PARTY. ANY \nWARRANTY THAT MAY BE PROVIDED IN ANY APPLICABLE PROVISION OF THE UNIFORM \nCOMMERCIAL CODE OR ANY OTHER COMPARABLE LAW OR STATUTE IS EXPRESSLY DISCLAIMED.\nLICENSEE HEREBY ASSUMES THE RISK OF INFRINGEMENT.\n\n     9.4  GENERAL DISCLAIMER BY NOA. NOA DISCLAIMS ANY AND ALL WARRANTIES WITH\nRESPECT TO THE LICENSED PRODUCTS, INCLUDING, WITHOUT LIMITATION, THE SECURITY\nTECHNOLOGY. LICENSEE PURCHASES AND ACCEPTS ALL LICENSED PRODUCTS ON AN \"AS IS\"\nAND \"WHERE IS\" BASIS. NOA DISCLAIMS ALL WARRANTIES UNDER THE APPLICABLE LAWS OF \nANY COUNTRY, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF \nMERCHANTABILITY OR FITNESS FOR A GENERAL OR PARTICULAR PURPOSE.\n\n     9.5  LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, \nNEITHER NOA NOR NINTENDO CO., LTD. (OR THEIR RESPECTIVE AFFILIATES, LICENSORS\nOR SUPPLIERS) SHALL BE LIABLE FOR LOSS OF PROFITS, OR FOR ANY SPECIAL, \nPUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF LICENSEE OR ITS CUSTOMERS \nARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE\nBREACH OF THIS AGREEMENT BY NOA, THE MANUFACTURE OF THE LICENSED PRODUCTS OR \nTHE USE OF THE LICENSED PRODUCTS ON ANY NINTENDO VIDEO GAME SYSTEM BY LICENSEE\nOR ANY END USER.\n\n10.  INDEMNIFICATION\n\n     10.1 LICENSEE'S Indemnification. LICENSEE shall indemnify and hold \nharmless NOA and Nintendo Co., Ltd. (and any of their respective affiliates, \nsubsidiaries, licensors, suppliers, officers, directors, employees or agents) \nfrom any claims, losses, liabilities, damages, expenses and costs, including,\nwithout limitation, reasonable attorney's fees and costs and any expenses \nincurred in the settlement or avoidance of any such claim, which result from or\nare in connection with:\n\n          (a) a breach of any of the provisions, representations or warranties,\nundertaken by LICENSEE in this Agreement,\n\n          (b) any infringement of a third party's Proprietary Rights as a \nresult of the design, development, advertising, marketing, sale or use of the \nLicensed Products or the Marketing Materials.\n\n          (c) any claims alleging a defect, failure to warn, bodily injury \n(including death) or other personal or property damage arising out of, or in \nconnection with, the design, development, advertising, marketing, sale or use\nof any of the Licensed Products, and\n\n          (d) any federal, state or foreign civil or criminal actions relating\nto the design, development, advertising, marketing, sale or use of the Licensed\nProducts or the Marketing Materials.\n\n\n                                                                         PAGE 9\n\n   10\n\nNOA and LICENSEE shall give prompt Notice to the other of any indemnified claim \nunder this Section 10.1. With respect to any third party claim subject to this \nindemnity clause, LICENSEE, as indemnitor, shall have the right to select \ncounsel and to control the defense and\/or settlement thereof. NOA may, at its \nown expense, participate in such action or proceeding with counsel of its own \nchoice. LICENSEE shall not enter into any settlement of any such claim in which \n(i) NOA or Nintendo Co., Ltd. has been named as a party, or (ii) claims \nrelating to the Intellectual Property Rights have been asserted, without NOA's \nprior written consent. NOA shall provide reasonable assistance to LICENSEE in \nits defense of any such claim.\n\n      10.2  LICENSEE's Insurance. LICENSEE shall, at its own expense, obtain a \ncomprehensive policy of general liability insurance (including coverage for \nadvertising injury and product liability claims) from a recognized insurance \ncompany. Such policy of insurance shall be in an amount of not less than Five \nMillion Dollars ($5,000,000 US) on a per occurrence basis and shall provide for \nadequate protection against any suits, claims, loss or damage by the Licensed \nProducts. Such policy shall name NOA and Nintendo Co., Ltd. as additional \ninsureds and shall specify that it may not be canceled without thirty (30) \ndays' prior written Notice to NOA. A Certificate of Insurance shall be provided \nto NOA's Licensing Department not later than the date of the initial order of \nLicensed Products under this Agreement. If LICENSEE fails to maintain such \ninsurance at any time during the Term and for a period of two (2) years \nthereafter, NOA may secure such insurance at LICENSEE's expense.\n\n      10.3  Suspension of Production. In the event NOA deems itself at risk \nwith respect to any claim, action or proceeding under this Section 10, NOA may, \nat its sole option, suspend production, delivery or order acceptance for any \nLicensed Products, in whole or in part, pending resolution of such claim, \naction or proceeding.\n\n11.   PROTECTION OF PROPRIETARY RIGHTS\n\n      11.1  Joint Actions Against Infringers. LICENSEE and NOA may agree to \njointly pursue cases of infringement involving of the Licensed Products, as \nsuch Licensed Products will contain Proprietary Rights owned by each of them. \nUnless the parties otherwise agree, or unless the recovery is expressly \nallocated between them by the court, in the event of such an action, any \nrecovery shall be used first to reimburse LICENSEE and NOA for their respective \nreasonable attorneys' fees and costs incurred in bringing such action, pro \nrata, and any remaining recovery shall be distributed to LICENSEE and NOA, pro \nrata, based upon the fees and costs incurred in bringing such action.\n\n      11.2  Actions by LICENSEE. LICENSEE, without the consent of NOA, may \nbring any action or proceeding relating to an infringement or potential \ninfringement of LICENSEE's Proprietary Rights in the Licensed Products. \nLICENSEE shall make reasonable efforts to inform NOA of such actions in a \ntimely manner. LICENSEE will have the right to retain all proceeds it may \nderive from any recovery in connection with such actions.\n\n      11.3  Actions by NOA. NOA, without the consent of LICENSEE, may bring any \naction or proceeding relating to an infringement or potential infringement of \nNOA's Intellectual Property Rights in the Licensed Products. NOA shall make \nreasonable efforts to inform LICENSEE of such actions in a timely manner. NOA \nwill have the right to retain all proceeds it may derive from any recovery in \nconnection with such actions.\n\n12.   ASSIGNMENT\n\n      12.1  No Assignment by LICENSEE. This Agreement is personal to LICENSEE \nand may not be sold, assigned, delegated, sublicensed or otherwise transferred \nor encumbered, in whole or in part, without NOA's prior written consent, which \nconsent may be withheld by NOA in its sole discretion. In the event of an \nassignment or other transfer in violation of this Agreement, NOA shall have the \nunqualified right to immediately terminate this Agreement without further \nobligation to LICENSEE.\n\n      12.2  Assignment by Operation of Law. In the event of an assignment of \nthis Agreement by operation of law, LICENSEE shall, not later than thirty (30) \ndays thereafter, give Notice and seek consent\n\n\n                                                                         PAGE 10\n\n   11\nthereto from NOA. Such Notice shall disclose the name of the assignee, the \neffective date and the nature and extent of the assignment. An assignment by \noperation of law includes, but is not limited to (a) a merger of LICENSEE into \nanother business entity or a merger of another business entity into LICENSEE, \n(b) the sale, assignment or transfer of all or substantially all of the assets \nof LICENSEE to a third party, (c) the sale, assignment or transfer to a third \nparty of any of LICENSEE's intellectual property rights which are used in the \ndevelopment of or are otherwise incorporated into any Licensed Products, or (d) \nthe sale, assignment or transfer of any of LICENSEE's stock resulting in the \nacquirer having management power over or voting control of LICENSEE. Following \nthe later of (i) such an assignment by operation of law, or (ii) receipt of \nNotice therefor, NOA shall have the unqualified right for a period of ninety \n(90) days to immediately terminate this Agreement without further obligation to \nLICENSEE.\n\n     12.3 Non-Disclosure Obligation. In no event shall LICENSEE disclose or \nallow access to NOA's Confidential Information prior to or upon the occurrence \nof an assignment, whether by operation of law or otherwise, unless and until \nNOA gives its written consent to such disclosure.\n\n13.  TERM AND TERMINATION\n\n     13.1 Term. This Agreement shall commence on the Effective Date and \ncontinue for the Term, unless earlier terminated as provided for herein.\n\n     13.2 Default or Breach. In the event that either party is in default or \ncommits a breach of this Agreement, which is not cured within thirty (30) days \nafter Notice thereof, then this Agreement shall automatically terminate on the \ndate specified in such Notice.\n\n     13.3 Bankruptcy. At NOA's option, this Agreement may be terminated \nimmediately and without Notice in the event that LICENSEE (a) makes an \nassignment for the benefit of creditors, (b) becomes insolvent, (c) files a \nvoluntary petition for bankruptcy, (d) acquiesces to any involuntary bankruptcy \npetition, (e) is adjudicated as a bankrupt, or (f) ceases to do business.\n\n     13.4 Termination Other Than by Breach. Upon the expiration of this \nAgreement or its termination other than by LICENSEE's breach, LICENSEE shall \nhave a period of one hundred eighty (180) days to sell any unsold Licensed \nProducts. All Licensed Products in LICENSEE's control following the expiration \nof such sell-off period shall be destroyed by LICENSEE within ten (10) days and \nproof of such destruction (certified by an officer of LICENSEE) shall be \nprovided to NOA.\n\n     13.5 Termination by LICENSEE's Breach. If this Agreement is terminated by \nNOA as a result of a breach of its terms and conditions by LICENSEE, LICENSEE \nshall immediately cease all distribution, advertising, marketing or sale of any \nLicensed Products. All Licensed Products in LICENSEE's control as of the date \nof such termination shall be destroyed by LICENSEE within ten (10) days and \nproof of such destruction (certified by an officer of LICENSEE) shall be \nprovided to NOA.\n\n     13.6 Breach of NDA or Other NOA License Agreements. At NOA's option, any \nbreach by LICENSEE of (a) the NDA, or (b) any other license agreement between \nNOA and LICENSEE relating to the development of games for any Nintendo video \ngame system which is not cured within the time period for cure allowed under \nthe applicable agreement, shall be considered a material breach of this \nAgreement entitling NOA to terminate this Agreement in accordance with Section \n13.5 herein.\n\n     13.7 No Further Use of the Intellectual Property Rights. Upon expiration \nand\/or termination of this Agreement, LICENSEE shall cease all use of the \nIntellectual Property Rights for any purpose, except as may be required in \nconnection with the sale of Licensed Products authorized under Section 13.4 \nherein. LICENSEE shall, within thirty (30) days thereafter, return or destroy \nall Guidelines, writings, drawings, models, data, tools and other materials and \nthings in LICENSEE's possession or in the possession of any past or present \nemployee, agent or contractor receiving the information through LICENSEE, which \nconstitute or relate to or disclose any Confidential Information, without \nmaking copies or otherwise retaining any such information. Proof of any \ndestruction shall be certified by an officer of LICENSEE and promptly provided \nto NOA.\n\n\n                                                                         PAGE 11\n   12\n     13.8  Termination by NOA's Breach. If this Agreement is terminated by \nLICENSEE as a result of a breach of its terms or conditions by NOA, LICENSEE \nmay continue to sell the Licensed Products in the Territory until the \nexpiration of the Term, at which time the provisions of Section 13.4 shall \napply.\n\n14.  GENERAL PROVISIONS\n\n     14.1  Export Control. LICENSEE agrees to comply with the export laws and \nregulations of the United States and any other country with jurisdiction over \nthe Licensed Products and\/or either party.\n\n     14.2  Force Majeure. Neither party shall be liable for any breach of this \nAgreement occasioned by any cause beyond the reasonable control of such party, \nincluding governmental action, war, riot or civil commotion, fire, natural \ndisaster, labor disputes, restraints affecting shipping or credit, delay of \ncarriers, inadequate supply of suitable materials or any other cause which \ncould not with reasonable diligence be controlled or prevented by the parties. \nIn the event of material shortages, including shortages of materials or \nproduction facilities necessary for production of the Licensed Products, NOA \nreserves the right to allocate such resources among itself and its licensees.\n\n     14.3  Records and Audit. During the Term and for a period of two (2) years \nthereafter, LICENSEE agrees to keep accurate, complete and detailed records \nrelated to the development and sale of the Licensed Products and the Marketing \nMaterials. Upon reasonable Notice to LICENSEE, NOA may, at its expense, audit \nLICENSEE's records, reports and other information related to LICENSEE's \ncompliance with this Agreement.\n\n     14.4  Waiver, Severability, Integration, and Amendment. The failure of a \nparty to enforce any provision of this Agreement shall not be construed to be a \nwaiver of such provision or of the right of such party to thereafter enforce \nsuch provision. In the event that any term, cause or provision of this \nAgreement shall be construed to be or adjudged invalid, void or unenforceable, \nsuch term, clause or provision shall be construed as severed from this \nAgreement, and the remaining terms, clauses and provisions shall remain in \neffect. Together with the NDA, this Agreement constitutes the entire agreement \nbetween the parties relating to the subject matter hereof. All prior \nnegotiations, representations, agreements and understandings are merged into, \nextinguished by and completely expressed by this Agreement and the NDA. Any \namendment to this Agreement shall be in writing, signed by both parties.\n\n     14.5  Survival. In addition to those rights specified elsewhere in this \nAgreement, the rights and obligations set forth in Sections 3, 8, 9, 10 and 13 \nshall survive any expiration or termination of this Agreement to the degree \nnecessary to permit their complete fulfillment of discharge.\n\n     14.6  Governing Law and Venue. This agreement shall be governed by the \nlaws of the State of Washington, without regard to its conflict of laws \nprinciples. Any legal action (including judicial and administrative \nproceedings) with respect to any matter arising under or growing out of this \nAgreement, shall be brought in a court of competent jurisdiction in King \nCounty, Washington. Each party hereby consents to the jurisdiction and venue of \nsuch courts for such purposes.\n\n     14.7  Equitable Relief. LICENSEE acknowledges that in the event of its \nbreach of this Agreement, no adequate remedy at law may be available to NOA and \nthat NOA shall be entitled to seek injunctive or other equitable relief in \naddition to any relief available at law.\n\n     14.8  Attorneys' Fees. In the event it is necessary for either party to \nthis Agreement to undertake legal action to enforce or defend any action \narising out of or relating to this Agreement, the prevailing party in such \naction shall be entitled to recover from the other party all reasonable \nattorneys' fees, costs and expenses relating to such legal action or any appeal \ntherefrom.\n\n     14.9  Counterparts and Signature by Facsimile. This Agreement may be \nsigned in counterparts, which shall together constitute a complete Agreement. A \nsignature transmitted by facsimile shall be considered an original for purposes \nof this Agreement.\n\n                                                                         PAGE 12\n\n   13\n\nIN WITNESS WHEREOF, the parties have entered into this Agreement on the dates \nset forth below.\n\n\nNOA:                                       LICENSEE:\n\nNINTENDO OF AMERICA INC.                   BAM ENTERTAINMENT, INC.\n\n\n\nBy:    \/s\/ John Bauer                      By:    \/s\/ Raymond C. Musci\n       ----------------------------               -------------------------\nTitle: Executive VP, Administration        Title: President\n       ----------------------------               -------------------------\nDate:  05\/29\/01                            Date:  May 21, 2001\n       ----------------------------               -------------------------\n\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6843],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9613,9616],"class_list":["post-42459","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-bam-entertainment-inc","corporate_contracts_industries-technology__software","corporate_contracts_types-operations","corporate_contracts_types-operations__ip"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42459","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42459"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42459"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42459"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42459"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}