{"id":42461,"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-nintendo-64-video-game-system-nintendo-of.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"license-agreement-for-nintendo-64-video-game-system-nintendo-of","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/license-agreement-for-nintendo-64-video-game-system-nintendo-of.html","title":{"rendered":"License Agreement for Nintendo 64 Video Game System – Nintendo of America Inc. and Bay Area Multimedia Inc."},"content":{"rendered":" (Confidential Portions Omitted)\n\n CONFIDENTIAL LICENSE AGREEMENT\n FOR NINTENDO 64 VIDEO GAME SYSTEM\n (Western Hemisphere)\n\n\n THIS AGREEMENT is entered into between NINTENDO OF AMERICA INC., a\nWashington corporation with an address for notice purposes of 4820 150th Avenue\nN.E., Redmond, WA 98052 (Fax: 425-882-3585) (\"NINTENDO\") and Bay Area Multimedia\nInc., a California corporation with an address for notice purposes of 333 West\nSanta Clara Street, Suite 930, San Jose, CA 95113, (Fax: 408-298-9600),\nAttention: President (\"LICENSEE\").\n\nNINTENDO and LICENSEE acknowledge and agree as follows:\n\n1. RECITALS\n\n 1.1 NINTENDO markets and sells a high-quality video game system,\nincluding hardware, software and an input controller, marketed by NINTENDO under\nits trademarks \"Nintendo 64\" and \"N64\", for playing video games.\n\n 1.2 LICENSEE desires to gain access to and rights to utilize highly\nproprietary programming specifications, development tools, trademarks and other\nvaluable intellectual property rights in order to develop video game software\nand to purchase and sell such video game software from NINTENDO for play on the\nNintendo 64 system, which system was developed by NCL and Silicon Graphics, Inc.\n\n 1.3 NINTENDO is willing to grant a license to utilize such proprietary\ninformation and intellectual property rights and to sell video game software to\nLICENSEE upon the terms and conditions set forth in this Agreement.\n\n2. DEFINITIONS\n\n 2.1 \"Artwork\" shall mean the final art and mechanical formats for the\nLicensed Product including the Game Cartridge box, user instruction manual with\nconsumer precautions and warranty, Game Cartridge label and inserts.\n\n 2.2 \"Competing Systems\" shall mean hardware platforms, whether marketed now\nor in the future, designed to play interactive video games, including but\nwithout limitation: Apple\/Bandai Pippin or Atmark, Atari Jaguar, Atari Lynx,\nBandai WonderSwan, 3DO Real, Matsushita M2, Microsoft X-Box, Phillips CD-1\nInteractive Player, Sega Master System, Sega Genesis, Sega CD, Sega Game Gear,\nSega CD\/X, Sega Nomad, Sega 32X, Sega Saturn, Sega Pico, Sega Dreamcast, Sony\nPSX\/Playstation, Sony PSX II\/Playstation II, SNK Neo Geo\/Neo Geo Pocket, VM Labs\nProject X, and any successors or derivatives of any of the foregoing.\n\n 2.3 \"Effective Date\" shall mean the last date on which all parties shall\nhave signed this Agreement.\n\n 2.4 \"Exclusive Licensed Product\" shall mean the audiovisual work in its\ncurrent form and as hereafter developed, which is sold by LICENSEE as a Licensed\nProduct under this Agreement.\n\n 2.5 \"Finished Goods\" shall mean the Game Cartridge, fully assembled with\nexterior labels, packaged in a plastic or polyethylene bag, placed in a high\nquality, custom packaging box, including all\n\n\n\nPAGE 1\n\n\n 2\n required Artwork.\n\n 2.6 \"Game Cartridge(s)\" shall mean interchangeable plastic cartridges \nadapted for use with the N64 System, housing the Game embodied in electronic \nmemory devices or comparable medium authorized by NINTENDO for storing and \nplaying Games on the N64 System.\n\n 2.7 \"Game(s)\" shall mean video game software compatible with the N64 \nSystem developed under this Agreement.\n\n 2.8 \"Guidelines\" shall mean the \"Nintendo 64 Packaging Guidelines\" and \nthe \"Nintendo 64 Development Manual\" setting forth trademark, copyright and \nrelated artwork standards, as published from time to time by NINTENDO.\n\n 2.9 \"Independent Contractor\" shall mean any third party agent, \nconsultant, contractor or independent programmer, other than LICENSEE.\n\n 2.10 \"Licensed Copyright(s)\" shall mean various copyrights in printed \nmaterials, art or logo designs, trade dress, computer software, microcode, \nelectronic circuitry and rights in integrated circuit layout designs employed \nin the N64 System.\n\n 2.11 \"Licensed Intellectual Properties\" shall mean individually, \ncollectively or in any combination, the Licensed Inventions, Licensed \nProprietary Information, Licensed Copyrights and Licensed Trademarks.\n\n 2.12 \"Licensed Invention(s)\" shall mean improvements and inventions \nconcerning the N64 System, including inventions that are or may become the \nsubject matter of various patents or patent applications.\n\n 2.13 \"Licensed Product(s)\" shall mean Game Cartridges (or comparable \nmedium authorized by Nintendo) for employing the Licensed Intellectual \nProperties and having electronic memory devices storing the Games.\n\n 2.14 \"Licensed Proprietary Information\" shall mean any of the following \ninformation relating to the N64 System: (a) all current or future information, \nknow-how, techniques, methods, information, tools, emulator boards, software \ndevelopment specifications, and\/or trade secrets, (b) any patents or patent \napplications, (c) any business, marketing or sales data information, and (d) \nany other information or data relating to development, design, operation, \nmanufacturing, marketing or sales. \"Licensed Proprietary Information\" shall \ninclude information disclosed to LICENSEE by NINTENDO, NINTENDO's affiliated \ncompanies, SGI, and\/or other third parties working with NINTENDO. Such Licensed \nProprietary Information shall include all confidential information disclosed, \nwhether in writing, orally, visually, or in the form of drawings, technical \nspecification, software, samples, pictures, models, recordings, or other \ntangible items which contain or manifest, in any form, the Licensed Proprietary \nInformation. Licensed Proprietary Information shall not include: (a) data and \ninformation which was in the public domain prior to LICENSEE's receipt of the \nsame hereunder, or which subsequently becomes part of the public domain by \npublication or otherwise, except by LICENSEE's wrongful act or omission, (b) \ndata and information which LICENSEE can demonstrate, through written records \nkept in the ordinary course of business, was in its possession without \nrestriction on use or disclosure, prior to its receipt of the same hereunder \nand was not acquired directly or indirectly from NINTENDO under an obligation \nof confidentiality which is still in force, (c) data and information which \nLICENSEE can show was received by it from a third party who did not acquire the \nsame directly or indirectly from NINTENDO and to whom LICENSEE has no \nobligation of confidentiality, and (d) data and information which is required \nto be disclosed by an authorized governmental or judicial entity, provided that \nLICENSEE shall notify NINTENDO at least thirty (30) days prior to such \ndisclosure.\n\n\nPAGE 2\n 3\n\n 2.15 \"Licensed Trademarks\" shall mean registered and unregistered \ntrademarks and trademark applications used in connection with the N64 System, \nincluding \"Nintendo\", \"Nintendo 64\", \"N64\", \"Official Nintendo Seal of Quality\" \nand trade dress in the N64 System.\n\n 2.16 \"Marketing Materials\" shall mean marketing, advertising or promotional\nmaterials that incorporate the Licensed Intellectual Properties that are\ndeveloped by or for LICENSEE to promote the sale of the Licensed Products.\n\n 2.17 \"NCL\" shall mean NINTENDO's parent company, Nintendo Co., Ltd. of \nKyoto, Japan.\n\n 2.18 \"Nintendo 64 System\" and \"N64 System\" shall mean the 64-bit Nintendo \n64 video game system, including the hardware, software and input controller \nmarketed by NINTENDO and NCL.\n\n 2.19 \"Product Proposal\" shall mean a written proposal that provides a \ndetailed explanation of the Game.\n\n 2.20 \"Schedule 1\" shall mean the \"Nintendo of America Inc. Price Sheet N64 \nLicensed Game Paks\" attached to this Agreement and incorporated by reference \ninto this Agreement.\n\n 2.21 \"SGI\" shall mean Silicon Graphics, Inc. and\/or MIPS Technologies, Inc.\n\n 2.22 \"Stripped Cartridge(s)\" shall mean fully assembled Game Cartridges \nwith exterior labels shipped in a plastic or polyethylene bag, excluding the \nrequired Artwork.\n\n 2.23 \"Term\" shall mean three (3) years from the Effective Date.\n\n 2.24 \"Territory\" shall mean all countries within the Western Hemisphere, \nincluding the United States, Canada, South America, Central America, Mexico and \nall applicable territories and possessions.\n\n3. GRANT OF LICENSE; RESERVATION OF RIGHTS BY NINTENDO\n\n 3.1 Grant. For the Term and in the Territory, NINTENDO hereby grants to \nLICENSEE, and LICENSEE hereby accepts under the terms and conditions set forth \nin this Agreement, a nonexclusive license to employ the Licensed Intellectual \nProperties solely to develop and sell video games incorporated into Game \nCartridges for play on the N64 System. Except as may be permitted under a \nseparate written authorization from NINTENDO or NCL, LICENSEE shall not use the \nLicensed Intellectual Properties for any other purpose.\n\n 3.2 Reservation of Rights in the Licensed Intellectual Properties. \nLICENSEE acknowledges NINTENDO and NCL's right, title, and interest in and to \nthe Licensed Intellectual Properties and the goodwill associated with the \nLicensed Trademarks. LICENSEE will not at any time do or cause to be done any \nact or thing which in any way impairs or is intended to impair any part of such \nright, title, interest or goodwill. LICENSEE shall not represent that it has \nany ownership in the Licensed Intellectual Properties. Use of the Licensed \nIntellectual Properties shall not create any right, title or interest therein \nin LICENSEE's favor.\n\n 3.3 Reservation of Rights of Distribution Outside the Territory. LICENSEE \nshall market and sell the Licensed Products only in the Territory. LICENSEE \nshall not directly or indirectly export any Licensed Products from the \nTerritory nor shall LICENSEE knowingly permit or assist any third party in \ndoing so.\n\n\nPAGE 3\n\n \n 4\n 3.4 Reservation of Rights to Reverse Engineer. LICENSEE may utilize and\nstudy the design, performance and operation of the N64 System and the Licensed\nProprietary Information solely for the purpose of developing software which is\ncompatible with the N64 System for license under this Agreement. LICENSEE shall\nnot, directly or indirectly, reverse engineer or aid or assist in the reverse\nengineering of all or any part of the N64 System, including the hardware,\nsoftware, input controller and\/or tools. For purposes of this Agreement,\n\"reverse engineering\" shall mean: (a) the x-ray electronic scanning and\/or\nphysical or chemical stripping of semiconductor components; (b) the disassembly,\ndecompilation, decryption, simulation, debugging or code tracing of microcode;\nand\/or (c) the disassembly, decompilation, decryption, simulation, debugging or\ncode tracing of object code or executable code, specifically including, but not\nlimited to, any NINTENDO supplied or developed libraries or microcode. The\nlimitations set forth in this Section 3.4 shall not preclude LICENSEE from\nengaging in reverse engineering of any Game code which was developed solely by\nLICENSEE and related only to the Game and was not supplied by nor derived from\nany code supplied by NINTENDO.\n\n 3.5 Reservation of Rights of Electronic Transmission. LICENSEE shall not \ndirectly or indirectly duplicate, distribute or transmit Games via electronic \nmeans or any other means now known or hereafter devised, including within \nlimitation, wireless, cable, fiber optic means, telephone lines, satellite \ntransmission, microwave or radio waves or over a network of interconnected \ncomputers or other devices. Notwithstanding this limitation, LICENSEE shall not \nbe prohibited from the electronic transmission of Games during the development \nprocess for the sole purpose of facilitating development; provided, however, \nthat no right of retransmission shall attach to any such transmission, and, \nprovided further, that LICENSEE shall use reasonable security measures, \ncustomary within the industry, to reduce the risk of unauthorized interception \nor retransmission of such transmissions.\n\n 3.6 Notification Obligations. LICENSEE shall promptly notify NINTENDO of \nthe loss or unauthorized use or disclosure of any Licensed Proprietary \nInformation and shall promptly act to recover any such information and\/or \nprevent further breach of the confidentiality obligations herein.\n\n4. CONFIDENTIALITY\n\n 4.1 Disclosure of Proprietary Information. NINTENDO has and shall during \nthe Term provide LICENSEE with highly proprietary development information, \ndevelopment tools, emulation systems, programming specifications and related \nresources and information constituting and incorporating the Licensed \nProprietary Information to enable LICENSEE to develop video games for use with \nthe N64 System.\n\n 4.2 Confidentiality of Licensed Proprietary Information. LICENSEE shall\nmaintain all Licensed Proprietary Information as strictly confidential and will\nuse such Licensed Proprietary Information only in accordance with this\nAgreement. LICENSEE shall limit access to the Licensed Proprietary Information\nto LICENSEE's employees having a strict need to know and shall advise such\nemployees of their obligation of confidentiality as provided herein. LICENSEE\nshall require each such employee to retain in confidence the Licensed\nProprietary 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 Licensed Proprietary\nInformation shall not disclose or make unauthorized use of the Licensed\nProprietary Information.\n\n 4.3 Agent\/Consultant Confidentiality. LICENSEE shall not disclose the \nLicensed Proprietary Information to any Independent Contractor without \nNINTENDO's prior written approval. Each approved Independent Contractor shall \nbe required to enter into a written non-disclosure agreement with NINTENDO \nprior to receiving any access to or disclosure of the Licensed Proprietary \nInformation.\n\n\nPAGE 4\n\n \n 5\n 4.4 SGI as a Third-Party Beneficiary. LICENSEE hereby acknowledges and \nagrees that SGI shall be a third-party beneficiary of LICENSEE's \nconfidentiality obligations as set forth in this Section 4.\n\n5. DEVELOPMENT; QUALITY STANDARDS; ARTWORK; MANUFACTURING\n\n 5.1 Development and Sale of the N64 System Programs. During the Term, \nLICENSEE may develop Games and\/or sell Licensed Products for the N64 System in \naccordance with this Agreement.\n\n 5.2 Exclusivity; Exclusive Licensed Product. For the Exclusive Licensed \nProduct, LICENSEE agrees that, commencing on the Effective Date and continuing \nfor a period of one (1) year from NINTENDO's first shipment of such Exclusive \nLicensed Product to LICENSEE, neither the Game incorporated into such Exclusive \nLicensed Product nor any adaptation, translation, derivative, sequel or \nsubstantially similar game which is sold by LICENSEE as a Licensed Product \nunder this Agreement shall be sold anywhere in the Territory by LICENSEE or by \nany third party for play on any Competing System. Except as provided herein with\nregard to the Exclusive Licensed Product, or as may otherwise be limited by the \nlegitimate intellectual property rights of NINTENDO or any third party, \nLICENSEE shall retain all rights with regard to the adaptation of Games for \ndevelopment and sale in any other format, including on any Competing System.\n\n 5.3 Submission of Game Concept. Before commencing development of a Game, \nLICENSEE shall submit to NINTENDO for approval, a Product Proposal. Such \nProduct Proposal must include a detailed explanation of the manner in which the \nGame will utilize and exploit: (a) the unique 3-D capabilities and high quality \ngraphics display of the N64 System; (b) the complex, high-capacity processing \nspeed of the N64 System; and, (c) the dynamic interfaces and touch control \nfeatures of the unique N64 System controller. For that purpose, the Product \nProposal shall include: (a) a description of the proposed Game; (b) the \ndevelopment team profile, including information regarding any Independent \nContractor which LICENSEE proposes to retain to work on the Game; (c) a \ndescription of any special hardware or software requirements; and, (d) the \nanticipated completion date of the proposed Licensed Product. Subsequent to \nacceptance and approval of a Product Proposal, LICENSEE shall notify NINTENDO \nin writing of any material proposed changes in the Product Proposal and\/or the \nproposed Licensed Product. From time to time, at approximately quarterly \nintervals or such other reasonable times NINTENDO may establish for purposes of \nensuring utilization and exploitation of the N64 System in the manner set forth \nabove, LICENSEE shall submit work-in-progress on the Game to NINTENDO for \nfurther review in accordance with the criteria set forth herein. NINTENDO shall \nnot unreasonably withhold or delay any approval provided for herein.\n\n 5.4 Delivery of Completed Game. Upon completion of a Game, LICENSEE shall \ndeliver to NINTENDO one (1) prototype of the Game in a format specified by \nNINTENDO, together with written user instructions and a complete screen text \nscript. NINTENDO shall promptly evaluate the Game with regard to: (a) its \ntechnical compatibility with and error-free operation on the N64 System; (b) \nthe suitability of the Game content, taking into account reasonable standards \nset forth in the Guidelines; and, (c) whether the Game achieves the objectives \nset forth in LICENSEE's approved Product Proposal. LICENSEE shall have \nsatisfied the Game content suitability criteria by providing NINTENDO with \nproof that the Game has been provided with a certificate of a rating other than \nADULTS ONLY (or its equivalent) from the Entertainment Software Ratings Board \nor comparable independent ratings body which reviews and certifies product for \nviolent or sexual content.\n\n 5.5 Approval of Completed Game. NINTENDO shall, within a reasonable \nperiod of time after receipt, approve or disapprove such Game. If such Game is \ndisapproved, NINTENDO shall specify in writing the reasons for such disapproval \nand state what corrections and\/or improvements are necessary. After making the \nnecessary corrections and\/or improvements, LICENSEE shall submit a revised Game \nfor approval by NINTENDO. The approval of any Game by NINTENDO shall not \nrelieve LICENSEE of its sole responsibility for the development, quality and \noperation of the Game or in any way create any warranty for\n\n\nPAGE 5\n\n 6\na Licensed Product by NINTENDO. NINTENDO shall not unreasonably withhold or \ndelay any approval provided for herein.\n\n 5.6 Development and Quality of Artwork. In connection with the \nsubmission of a proposed Licensed Product to NINTENDO, LICENSEE shall submit all\nArtwork to NINTENDO. All Artwork shall conform to the requirements set forth in \nthe Guidelines. Within fifteen (15) business days of receipt of the Artwork, \nNINTENDO shall approve or disapprove the Artwork based upon the Guidelines. If \nany of the Artwork is disapproved, NINTENDO shall specify in writing the \nreasons for such disapproval and state what corrections and\/or improvements are \nnecessary. After making the necessary corrections and\/or improvements to the \ndisapproved Artwork, LICENSEE shall resubmit new Artwork for approval by \nNINTENDO. NINTENDO shall not unreasonably withhold or delay its approval of any \nArtwork.\n\n 5.7 Appointment of NCL as Manufacturer of Licensed Product. LICENSEE\nhereby appoints NCL, and NINTENDO hereby confirms that NCL accepts such\nappointment, as manufacturer of the Licensed Products in the form of Finished\nGoods and\/or Stripped Cartridges. NCL shall acquire and retain responsibility\nfor all equipment, tooling, molds or masks used in connection with the\nmanufacture of the Licensed Products. NCL shall have the sole responsibility for\nestablishing and fulfilling all aspects of the manufacturing process of the\nLicensed Products, including selecting the location of the specifications of any\nmanufacturing facilities, appointing suppliers and subcontractors, and managing\nall work-in progress.\n\n 5.8 Manufacture of Licensed Products. Upon approval of a Game and upon\nreceipt from LICENSEE of an order in accordance with Section 6 herein, NCL will\nmanufacture the Licensed Products for LICENSEE. LICENSEE may, at its option,\norder Stripped Cartridges rather than Finished Goods and utilize an Independent\nContractor to manufacture the Artwork and\/or complete the final pack-out only,\nprovided such Independent Contractor is approved in writing by NINTENDO.\n\n 5.9 Retention of Sample Licensed Products. NCL may, at its own expense, \nmanufacture samples of the Licensed Products, only to the extent necessary, to \nbe used by NINTENDO for archival purposes, legal proceedings against infringers \nof the Licensed Intellectual Properties, and for other lawful purposes.\n\n6. PURCHASE PRICE; PAYMENT; DELIVERY OF COMPLETED LICENSED PRODUCT\n\n 6.1 Minimum Initial Orders. Upon placement of an initial order, LICENSEE\nshall order a minimum quantity of [*] units of a Licensed Product.\n\n 6.2 Subsequent Minimum Orders. LICENSEE may subsequently order additional \nLicensed Product in a minimum quantity of [*] units per title.\n\n 6.3 Purchase Price. The purchase price to be paid by LICENSEE to NINTENDO \nfor the Licensed Products shall be in accordance with NINTENDO's pricing \nschedule currently set forth in the attached Schedule 1. The purchase price \nincludes the cost of manufacturing, printing and packaging the Licensed \nProducts and a royalty for the use of the Licensed Intellectual Properties. \nSchedule 1 is subject to change by NINTENDO at any time without notice.\n\n 6.4 Payment. At the time an order is placed, LICENSEE shall provide to \nNINTENDO an irrevocable letter of credit in favor of NINTENDO and payable at \nsight, issued by a bank acceptable to NINTENDO and confirmed, at LICENSEE's \nexpense, if requested by NINTENDO. The letter of credit shall be in United \nStates dollars in an amount equal to the purchase price of the Licensed \nProducts ordered. All associated banking charges are for LICENSEE's account.\n\n\nPAGE 6\n\n\n* Confidential Portions Omitted and Filed Separately with the Commission.\n\n 7\n 6.5 Shipment and Delivery. The Licensed Products shall be delivered \nF.O.B. Japan, with shipment at LICENSEE's direction and expense. Orders may be \ndelivered by NINTENDO in partial shipments, each directed to no more than two \n(2) destinations designated by LICENSEE in the Territory. Title to the Licensed \nProducts shall vest in accordance with the terms of the applicable letter of \ncredit.\n\n7. MARKETING, SALE AND RENTAL OF THE LICENSED PRODUCTS\n\n 7.1 Marketing Materials. LICENSEE agrees that any Marketing Materials \nshall all be of high quality and shall comply with the Guidelines.\n\n 7.2 Submission of Proposed Marketing Materials. Prior to actual use or \ndistribution, LICENSEE shall submit to NINTENDO for review and evaluation \ninitial samples of all Marketing Materials. NINTENDO shall, within fifteen (15) \nbusiness days of receipt of such samples, approve or disapprove of the quality \nof such samples. If any of the samples are disapproved as to quality, NINTENDO \nshall specify the reasons for such disapproval and state what corrections \nand\/or improvements are necessary. After making the necessary corrections \nand\/or improvements to the disapproved samples, LICENSEE may resubmit new \nsamples for approval by NINTENDO as to quality. No Marketing Materials shall be \ndistributed or utilized by LICENSEE without obtaining prior written approval as \nto quality by NINTENDO. NINTENDO shall not unreasonably withhold or delay its \napproval of the proposed Marketing Materials. NINTENDO reserves the right to \ndisapprove Marketing Materials that include non-licensed accessories.\n\n 7.3 Warranty and Repair. With respect to the Licensed Product, LICENSEE \nshall provide to the original consumer a minimum ninety (90) day limited \nwarranty, comparable to that offered by NINTENDO. LICENSEE shall also provide \nto the original consumer, either directly or indirectly through authorized \nservice centers, reasonably accessible product service, including \nout-of-warranty service for a period of three (3) years following sale of the \nLicensed Product. In the event LICENSEE is unable to obtain sufficient \nquantities of repair parts for service obligations from defective and\/or \nproduct returns, NINTENDO shall cooperate in providing reasonable quantities of \nrepair parts to LICENSEE at its standard cost.\n\n 7.4 Business Facilities; Sales of Game Cartridges. LICENSEE agrees to \ndevelop, maintain and utilize during the Term: (a) suitable office facilities \nwithin the Territory, adequately staffed to enable LICENSEE to fulfill all \nresponsibilities under this Agreement; (b) necessary warehouse, distribution, \nmarketing, sales, collection and credit operations to facilitate proper \nhandling of the Licensed Product; and, (c) customer service and game counseling \nsupport, including telephone service, to adequately support the Licensed \nProduct.\n\n 7.5 Defects; Recall. In the event of a material programming defect in the \nLicensed Product, which defect in the reasonable judgment of NINTENDO would \nsignificantly impair the ability of a consumer to play the Licensed Product, \nNINTENDO may require the LICENSEE to recall the Licensed Product and undertake \nsuitable repairs or replacements prior to sale.\n\n 7.6 Rental. In the event LICENSEE elects to engage in the commercial \nrental of the Licensed Products within the Territory on such terms and \nconditions as LICENSEE shall determine, LICENSEE shall secure appropriate \nauthorizations and\/or assignments from the author(s) of the copyrightable \nelements in the computer programs for the Licensed Product. LICENSEE shall \nclearly provide notice on the Artwork for each Licensed Product of any rental \nright or reservation thereof.\n\n 7.7 Nintendo Promotional Materials, Publications and Events. At its \noption, NINTENDO may: (a) insert in the packaging for the Licensed Product \npromotional materials concerning Nintendo Power magazine; (b) utilize screen \nshots, package art and related art and information regarding the Licensed \nProduct in Nintendo Power, Nintendo Power Source (NINTENDO's on-line version of \nNintendo Power) or other media\n\n\nPAGE 7\n 8\nor marketing programs which promote NINTENDO products; and (c) exercise public \nperformance rights of the Licensed Product, related trademarks and art in \nNINTENDO sponsored contests, tours and events which generally promote NINTENDO \nproducts, provided that no other third party approvals are required.\n\n 7.8 NINTENDO Gateway System. LICENSEE acknowledges that NINTENDO operates \nthe Nintendo Gateway System in various non-coin activated commercial settings \nincluding, but not limited to, commercial airlines, cruise ships and hotels, \nwhereby customers may be charged on a per use basis to play various Games on an \nadapted Nintendo 64 and\/or Super Nintendo Entertainment System. The purpose of \nthe Gateway System is to promote and increase demand for Nintendo 64 software \nin general. LICENSEE acknowledges that NINTENDO selects high quality Nintendo \n64 software for possible participation in the program and may indentify one or \nmore of LICENSEE's Games for possible adaptation and participation. Should \nNINTENDO identify one of LICENSEE's Games for possible participation, LICENSEE \nhereby agrees to conduct a good faith discussion with NINTENDO about the \ninclusion and adaptation of such Game for the Nintendo 64 Gateway System.\n\n8. LICENSEE'S COPYRIGHTS AND TRADEMARKS\n\n 8.1 Copyright and Trademark Warranties. LICENSEE represents and warrants \nthat, throughout the Territory, LICENSEE is either: (a) the sole owner of all \nright, title and interest in and to the trademarks, copyrights and Artwork used \non or in association with the Licensed Products; or (b) the holder of \nsufficient rights to the trademarks, copyrights and Artwork which have been \nlicensed from a third party for use in the Licensed Product.\n\n 8.2 Licensee's Indemnification. LICENSEE shall indemnify and hold \nNINTENDO and NCL harmless from any claims, losses, liabilities, damages, \nexpenses and costs, including, without limitation, reasonable attorneys' fees \nand costs, which result from: (a) a breach of any of the representations or \nwarranties provided by LICENSEE herein; (b) any claim of infringement of any \nthird party's intellectual property rights with respect to the Licensed \nProduct, excluding claims based solely upon NINTENDO's trademarks, copyrights \nand patents; or, (c) any claim of bodily injury (including death) or property \ndamage arising out of, or in connection with, the development, sale and\/or use \nof any of the Licensed Products. NINTENDO shall give LICENSEE prompt written \nnotice of the assertion of any such claim and provided, further, that LICENSEE \nshall have the right to select counsel and control the defense and\/or \nsettlement of any such claim, subject to the right of NINTENDO to participate \nin any such action or proceeding at its own expense with counsel of its own \nchoice.\n\n 8.3 Insurance. LICENSEE shall, at its own expense, obtain a policy of \ngeneral liability insurance that includes product liability coverage by a \nrecognized insurance company. Such policy of insurance shall be in an amount of \nnot less than Three Million Dollars ($3,000,000 US) and shall provide for \nadequate protection against any suits, claims, loss or damage or any alleged \nintellectual property infringements by the Licensed Products. Such policy shall \nname NINTENDO as an additional insured and may not be canceled without thirty \n(30) days' prior written notice to NINTENDO. A Certificate of Insurance shall \nbe provided to NINTENDO's Licensing Department within thirty (30) days of the \nEffective Date. If LICENSEE fails to maintain such insurance during the Term, \nNINTENDO may secure and maintain such insurance at LICENSEE's expense.\n\n9. LIMITATION OF LIABILITY\n\n 9.1 Disclaimer of Licensed Intellectual Properties. NINTENDO makes no \nrepresentations, guarantees or warranties concerning the scope or validity of \nthe Licensed Intellectual Properties and does not warrant that the sale of the \nLicensed Products by LICENSEE will not infringe upon the patent, trade secret, \ncopyright, mask work or trademark rights of another in the Territory. LICENSEE \nHEREBY ASSUMES THE\n\n\nPAGE 8\n 9\nRISK OF INFRINGEMENT.\n\n 9.2 Warranty Disclaimer. NINTENDO DISCLAIMS ANY AND ALL WARRANTIES OF THE\nLICENSED PRODUCTS AS BETWEEN NINTENDO AND LICENSEE AND AS BETWEEN NINTENDO AND\nANY THIRD PARTY PURCHASERS FROM LICENSEE. LICENSEE PURCHASES AND ACCEPTS ALL\nLICENSED PRODUCTS FROM NINTENDO ON AN \"AS IS\" AND \"WHERE IS\" BASIS AND WITHOUT\nANY WARRANTIES, EXPRESS OR IMPLIED. WITH RESPECT TO THE LICENSED PRODUCTS,\nNINTENDO DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A GENERAL\nOR PARTICULAR PURPOSE AND SHALL IN NO EVENT BE LIABLE FOR ANY INCIDENTAL AND\/OR\nCONSEQUENTIAL DAMAGES OF LICENSEE, ITS RETAILERS OR CUSTOMERS. LICENSEE SHALL BE\nSOLELY RESPONSIBLE FOR PROVIDING WARRANTY AND REPAIR\/REPLACEMENT SERVICES FOR\nANY DEFECTIVE LICENSED PRODUCTS. NOTWITHSTANDING THE CONDITIONS SET FORTH IN\nTHIS PARAGRAPH, NINTENDO WILL USE ITS BEST EFFORTS TO RESOLVE ANY CATASTROPHIC\nDEFECT IN THE LICENSED PRODUCTS PURCHASED BY LICENSEE FROM NINTENDO. A\n\"CATASTROPHIC DEFECT\" IS DEFINED AS A MANUFACTURING DEFECT RATE OF FIVE PERCENT\n(5%) OR GREATER IN ANY SHIPMENT OF LICENSED PRODUCTS TO LICENSEE.\n\n10. INFRINGEMENT OF LICENSED INTELLECTUAL PROPERTIES AND\n LICENSEE'S TRADEMARKS AND COPYRIGHTS\n\n 10.1 Reporting. In the event (a) any claim is asserted against either\nparty alleging that any of the Licensed Intellectual Properties or a Licensed\nProduct constitutes an infringement of another's rights; or, (b) either party\ndiscovers that any of the Licensed Intellectual Properties or LICENSEE's\ncopyrights or trademarks used in connection with the Licensed Products have been\ninfringed by a third party, then the party with such knowledge shall promptly\nnotify the other party.\n\n 10.2 Licensed Intellectual Properties. NINTENDO shall have the sole right,\nat its expense, to commence and\/or defend a legal action or negotiate a\nsettlement relating to any alleged infringement by the Licensed Intellectual\nProperties. LICENSEE agrees to give reasonable assistance in any such legal\naction, but at no expense to it. NINTENDO shall be entitled to all of the\nrecovery or damages collected as a result of such legal action or negotiated\nsettlement. In the event of a legal action against LICENSEE alleging an\ninfringement by the Licensed Intellectual Properties as incorporated into\nLICENSEE's Licensed Products which NINTENDO affirmatively elects in writing not\nto defend, LICENSEE may defend or settle such legal action, at its option and\nexpense. NINTENDO agrees to provide reasonable assistance in defending any such\nlegal action. LICENSEE agrees to keep NINTENDO fully informed with respect to\ndevelopments in any such legal action and to provide NINTENDO reasonable notice\nof the terms of any proposed settlement and to consider any comments by NINTENDO\nbefore settlement is made.\n\n 10.3 Infringement of Licensed Products. LICENSEE shall take reasonable\nsteps to abate any infringement of LICENSEE's copyrights and trademarks in the\nLicensed Products. LICENSEE shall also take all reasonable and necessary steps,\nincluding legal action, to defend against any alleged infringement caused by any\nof LICENSEE's software programs developed under this Agreement or any Artwork,\ntitle or designation used in conjunction with any of the Licensed Products.\nNINTENDO shall give to LICENSEE reasonable assistance and cooperation in any\nsuch legal action, but at no expense to NINTENDO.\n\n11. TERM AND TERMINATION\n\n 11.1 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 written notice thereof, then this Agreement shall automatically terminate\non the date specified in such notice.\n\n\nPAGE 9\n\n 10\n 11.2 Bankruptcy\/Insolvency. At NINTENDO's option, this Agreement can be \nterminated immediately and without notice in the event that LICENSEE: (a) makes \nan assignment 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 11.3 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 sixty (160) days to sell any unsold Licensed \nProducts. LICENSEE shall destroy all Licensed Products in LICENSEE's control \nfollowing expiration of such sell-off period, within ten (10) days.\n\n 11.4 Termination by LICENSEE's Breach. If this Agreement is terminated \nby NINTENDO as a result of a breach of its terms and conditions by LICENSEE, \nLICENSEE shall immediately cease all distribution, promotion or sale of any \nLicensed Products. LICENSEE shall have a period of one hundred sixty (160) days \nto sell any unsold Licensed Products. All Licensed Products in LICENSEE's \ncontrol following expiration of such sell-off period shall be destroyed by \nLICENSEE within ten (10) days.\n\n 11.5 Licensed Intellectual Property Rights. Upon expiration and\/or\ntermination of this Agreement, LICENSEE will cease all use of the Licensed\nIntellectual Properties for any purpose, and will not disclose to third parties\nany Licensed Proprietary Information. LICENSEE shall also return to NINTENDO all\nwritings, drawings, models, data and other materials and things in LICENSEE's\npossession or in the possession or any past or present employee, agent or\ncontractor receiving the information through LICENSEE, which constitute or\nrelate to or disclose any Licensed Proprietary Information without making copies\nor otherwise retaining any such information.\n\n 11.6 Termination by Nintendo's Breach. If this Agreement is terminated \nby LICENSEE as a result of a breach of its terms or conditions by NINTENDO, \nLICENSEE may continue to sell the Licensed Products in the Territory until the \nexpiration of the Term, at which time the provisions herein relating to \ntermination other than by default of LICENSEE shall apply to any unsold \nLicensed Products.\n\n12. GENERAL PROVISIONS\n\n 12.1 Nonassignability\/Sublicensing. This Agreement is personal to \nLicensee and may not be sold, assigned, delegated, sublicensed or otherwise \ntransferred or encumbered, in whole or in part, including without limitation, \nby operation of law, without the prior written consent of Nintendo, which \nconsent may be withheld by Nintendo in its sole discretion. For purposes of \ndetermining whether an assignment of this agreement by Licensee (but not by \nLicensor) has occurred under this Section 12.1, a merger of Licensee into \nanother business entity or a merger of another business entity into Licensee; \nthe sale or transfer of more than twenty percent (20%) of the stock of \nLicensee, Licensee's assets, or ownership interest or control of Licensee; or, \nthe granting of any security interest or other encumbrance in this Agreement or \nany rights arising under this Agreement, shall be deemed an assignment \nrequiring notice to, and the prior written consent of, Nintendo, which consent \nmay be withheld by Nintendo in its sole discretion. Upon any attempted sale, \nassignment, delegation, sublicense or other transfer or encumbrance in \nviolation of the preceding sentences, this Agreement shall be deemed null and \nvoid, and of no effect, and in such event, notwithstanding anything in this \nAgreement to the contrary, Nintendo shall have the immediate, unqualified right \nto terminate this Agreement in addition to all other rights and remedies it may \nobtain due to Licensee's breach. This Agreement may be assigned by Licensor \nupon written notice to Licensee but without any consent, provided, however, \nthat any such assignment shall not release the Licensor from its obligations to \nthe Licensee under this Agreement. Subject to such restriction and to the \nrestriction against assignment provided above, this Agreement shall be binding \nupon and inure to the benefit of the parties, their successors and assigns.\n\n 12.2 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\n\n\nPAGE 10\n 11\ncommotion, fire, natural disaster, labor disputes, restraints affecting \nshipment or credit, delay of carriers, inadequate supply of suitable materials, \nor any other cause which could not with reasonable diligence be controlled or \nprevented by the parties. In the event of material shortages, including \nshortages of microcomputer chips necessary for production of the Licensed \nProducts, NINTENDO reserves the right to allocate essential materials among \nitself and its licensees.\n\n 12.3 Waiver; Severability; Integration. The failure of any party to \nenforce any provision of this Agreement shall not be construed to be a waiver \nof such provision or of the right of such party to thereafter enforce such \nprovision. In the event that any term, clause or provision of this Agreement \nshall be construed to be or adjudged invalid, void or unenforceable, such term, \nclause or provision shall be construed as severed from this Agreement, and the \nremaining terms, clauses and provisions shall remain in effect. This Agreement \nconstitutes the entire agreement between the parties relating to the subject \nmatter hereof, provided, however, that the Other Agreements shall remain in \neffect, except as may be modified by specific reference herein. All prior \nnegotiations, representations, agreements and understandings are merged into, \nextinguished by and completely expressed by this Agreement. Any amendment to \nthis Agreement shall be in writing, signed by both parties.\n\n 12.4 Governing Law; Venue. This Agreement shall be governed by, subject to \nand construed under the laws of the State of Washington. Any legal actions \nprosecuted or instituted by NINTENDO or by LICENSEE under this Agreement, with \nrespect to any matters arising under or growing out of this Agreement, shall \nonly be brought in a court of competent jurisdiction in King County, Washington \nand each party hereby consents to the jurisdiction and venue of such courts for \nsuch purposes.\n\n 12.5 Equitable Relief. LICENSEE acknowledges that in the event of its\nbreach of this Agreement, no adequate remedy at law may be available to NINTENDO\nand that NINTENDO shall be entitled to seek injunctive or other equitable relief\nin addition to any relief available at law.\n\n 12.6 Attorneys' Fees. In the event it is necessary for either party of \nthis Agreement to undertake legal action to enforce any of the terms, \nconditions or rights contained herein, or to defend any such action, then the \nprevailing party in any such action shall be entitled to recover from the other \nparty all reasonable attorneys' fees, costs and expenses relating to such legal \naction.\n\n 12.7 Notices. All notices required or permitted under this Agreement shall \nbe sufficiently given when: (a) personally served or delivered; (b) deposited, \npostage prepaid, with a guaranteed air courier service, addressed as stated \nherein, or to such other person or address either party may designate in a \nnotice; or, (c) by facsimile, with an original sent concurrently by first class \nU.S. mail. Notice shall be deemed effective upon the earlier of actual receipt \nor two (2) business days after transmittal.\n\n 12.8 Counterparts; Signature by Facsimile. This Agreement may be signed in \ncounterparts, which shall together constitute a complete Agreement. A signature \ntransmitted by facsimile shall be considered an original for purpose of this \nAgreement.\n\n 12.9 Time is of the Essence. Time if of the essence with regard to this \nAgreement and the performance of the parties' obligations hereunder.\n\n\n\nPAGE 11\n\n 12\nIN WITNESS WHEREOF, NINTENDO and LICENSEE have entered into this Agreement on \nthe dates set forth below.\n\n\n\nNINTENDO: LICENSEE:\n\nNINTENDO OF AMERICA INC. BAY AREA MULTIMEDIA, INC.\n\nBy: \/s\/ JOHN BAUER By:\n ------------------------------------------ ------------------------------\n\nIts: Executive Vice President, Administration Its:\n -----------------------------\n\nDate: 2\/18\/00 Date:\n ---------------------------------------- ----------------------------\n\n\n\nPAGE 12\n\n\n 13\nIN WITNESS WHEREOF, NINTENDO and LICENSEE have entered into this Agreement on \nthe dates set forth below.\n\nNINTENDO: LICENSEE:\n\nNINTENDO OF AMERICA INC. BAY AREA MULTIMEDIA, INC.\n\nBy: By: \/s\/ RAYMOND C. MUSCI\n ---------------------------- -----------------------------\nIts: Executive Vice President, Its: President\n Administration ----------------------------\nDate: Date: [Illegible]\n -------------------------- ----------------------------\n\n\n\n\nPAGE 12\n 14\n SCHEDULE 1\n\n NINTENDO OF AMERICA INC.\n\n PRICE SHEET\n\n N64 LICENSED GAME PAKS\n\n\n<\/pre>\n
\n\nMemory Capacity NOA Price
\n———————————————————–
\n
\n32 Megabit $ [*]
\n32 Megabit + 4K bit E. ROM $ [*]
\n32 Megabit + 16K bit E. ROM $ [*]
\n32 Megabit + 256K SRAM + Battery $ [*]
\n64 Megabit $ [*]
\n64 Megabit + 4K bit E. ROM $ [*]
\n64 Megabit + 16K bit E. ROM $ [*]
\n64 Megabit + 256K SRAM + Battery $ [*]
\n96 Megabit $ [*]
\n96 Megabit + 4K bit E. ROM $ [*]
\n96 Megabit + 16K bit E. ROM $ [*]
\n96 Megabit + 256K SRAM + Battery $ [*]
\n128 Megabit $ [*]
\n128 Megabit + 4K bit E. ROM $ [*]
\n128 Megabit + 16K bit E. ROM $ [*]
\n128 Megabit + 256K SRAM + Battery $ [*]
\n256 Megabit $ [*]
\n<\/c><\/s><\/caption>\n<\/table>\nPAGE 13<\/p>\n
* Confidential Portions Omitted and Filed Separately with the Commission.
\n 15
\n256 Megabit + 4K bit E. ROM $[*]
\n256 Megabit + 16K bit E. ROM $[*]
\n256 Megabit + 256K SRAM + Battery $[*]<\/p>\n
Price includes an instruction manual up to 40 pages. There will be an extra
\ncharge for manuals larger than 40 pages (including the front and back cover).<\/p>\n
EXTRA PACKAGING (Must be ordered with product on a separate PO)<\/p>\n
Game Pak Box $[*]
\nInstruction Manual $[*] (under 40 pages)
\nInstruction Manual $[*] (over 40 pages)
\nGame Pak Label $[*]
\nGame Pak Poster $[*]
\nWarranty Card $[*]
\nInner Carton $[*]
\nMaster Carton $[*]<\/p>\n
ALL PRICES ARE SUBJECT TO CHANGE WITHOUT NOTICE<\/p>\n
Revised 7\/15\/98<\/p>\n
PAGE 14<\/p>\n
* Confidential Portions Omitted and Filed Separately with the Commission.<\/p>\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-42461","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\/42461","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=42461"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42461"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42461"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42461"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}