\nAlbania Czech Republic Greece Macedonia Russian Federation Turkey
\nAndorra Denmark Hungary Malta San Marino Ukraine
\nAustria Estonia Iceland Monaco Spain United Kingdom
\nAustralia Finland Ireland New Zealand Slovakia Uzbekistan
\nBenelux France Israel Norway Slovenia Yugoslavia
\nBosnia\/Herzegovina Georgia Italy Poland South Africa
\nBulgaria Germany Latvia Portugal Sweden
\nCroatia Gibraltar Lithuania Romania Switzerland
\nCyprus
\n<\/c><\/c><\/c><\/c><\/c><\/s><\/table>\n5. Copyright and Trade Mark Notices<\/p>\n
The copyright and trade mark notices set forth in Exhibit B hereof, must appear
\non all Products and any promotional material promoting the sale of the Products.<\/p>\n
6. Prices, Minimum Order Quantities and Delivery<\/p>\n
6.1 Prices<\/p>\n
Page 2 of 10
\n 3
\nUbi Soft shall pay to BAM a per-unit purchase price of [*] for each unit of the
\nProducts ordered by Ubi Soft.<\/p>\n
The Products will be delivered freight and duty paid, Free On Board to UBI SOFT
\nwarehouse (Route de la Gacilly, 56200 Carentoir, France).<\/p>\n
6.2 Minimum Order Quantities<\/p>\n
Ubi Soft shall order a minimum amount of [*] units of the Products during the
\nTerm.<\/p>\n
6.3 Payment<\/p>\n
Payments shall be made upon delivery of the Products to Ubi Soft’ warehouse to
\nBAM by a letter of credit the terms of which are set forth in Exhibit C hereof.<\/p>\n
6.4 BAM shall deliver to Ubi Soft localized versions of the Products as follows:<\/p>\n
– Fully localized English language version of the Products: Packaging, manual
\n and in-game text in English.<\/p>\n
– Fully localized French language version of the Products: Packaging, manual and
\n in-game text in French.<\/p>\n
– Partly localized German language version of the Products: Packaging and manual
\n in German, and in-game text English.<\/p>\n
– Fully localized Italian language version of the Products: Packaging, manual
\n and in-game text in Italian<\/p>\n
– Fully localized Spanish language version of the Products: Packaging, manual
\n and in-game text in Spanish.<\/p>\n
6.5 BAM shall carry out any localization and translation at its own costs and
\nsubmit to Ubi Soft’s prior written approval, such approval not to be
\nunreasonably withheld, the localized packaging, manual and in-game text of the
\nProducts before any manufacture. Ubi Soft shall notify BAM of its approval or
\ndisapproval within 5 (five) working days from the date of BAM’s submission. If
\nUbi Soft does not notify to BAM its approval or disapproval within 5 (five)
\nworking days, Ubi Soft shall be deemed to have given its approval.<\/p>\n
BAM shall promptly order the Products from NINTENDO after Ubi Soft’s order to
\nenable Ubi Soft to meet the release dates set forth in Exhibit A hereof.<\/p>\n
7. Intellectual Property Rights<\/p>\n
7.1. Ubi Soft acknowledges that all rights, title and interest in the
\n intellectual property in the Products including all copyrights, patents and
\n trade secrets therein including, but not limited to, all documentation and
\n manuals relating thereto are and shall remain the sole and exclusive
\n property of BAM or under exclusive license to BAM. The said intellectual
\n property in the Products shall (a) be licensed and not sold by BAM to Ubi
\n Soft and (b) sub-licensed by Ubi Soft to its customers on terms to be
\n approved in advance by BAM. Ubi Soft shall take all actions and execute all
\n documents, at BAM’s expense and as BAM may reasonably request, to effect
\n the acknowledgement of ownership contained herein and to secure, maintain
\n and defend for BAM’s own benefit all rights therein.<\/p>\n
7.2. All rights, title and interest in and to BAM’s registered and unregistered
\n trade marks pertaining to the Products (“BAM’s Marks”) shall be the
\n exclusive property of BAM or its licensors. Ubi Soft: (i) shall not create
\n a unitary composite mark involving any BAM’s Marks without the prior
\n written approval of BAM and (ii) shall display symbols and notices clearly
\n and sufficiently indicating the trade mark status and ownership of BAM’s
\n Marks by BAM in accordance with applicable trade mark law and practice. Ubi
\n Soft acknowledges and agrees that its utilization of BAM’s Marks will not
\n create in it, nor will it represent it has, any right, title or interest in
\n or to such of BAM’s Marks other than the licence expressly granted herein.
\n Ubi Soft agrees not to do anything contesting or impairing the trade mark
\n rights of BAM. Each party agrees that all use of BAM’s Marks in connection
\n with this Agreement shall inure to the benefit, and be on behalf, of BAM.
\n Ubi Soft shall apply BAM’s Marks to the Products, and which shall appear no
\n less prominently than Ubi Soft’s trade marks and\/or logos. To the extent
\n that (not withstanding the foregoing) any rights or goodwill in any of
\n BAM’s Marks accrue to Ubi Soft, Ubi Soft shall hold the same as bare
\n trustee of BAM and shall promptly and unconditionally assign the same to
\n BAM upon demand.<\/p>\n
* Confidential portion omitted and filed separately with the Commission.<\/p>\n
Page 3 of 10
\n 4
\n8. Marketing Obligations<\/p>\n
Ubi Soft shall at all times use reasonable commercial endeavours to market and
\nstimulate and increase interest in the Products within the Territory. In
\nparticular and without limiting the generality of the foregoing, Ubi Soft shall
\nat its own cost and expense:<\/p>\n
a) maintain adequate promotional and office facilities and a trained staff
\n within the Territory, and in particular dedicate an international marketing
\n manager to coordinate the activities of the local marketing managers in
\n charge of the promotion of the Products.<\/p>\n
b) submit for BAM’s prior written approval any marketing materials produced by
\n Ubi Soft, such approval not to be unreasonably withheld. BAM shall notify
\n Ubi Soft of its approval or disapproval within 5 (five) working days from
\n the date of Ubi Soft’s submission. If BAM does not render its approval or
\n disapproval within 5 (five) working days, BAM shall be deemed to have given
\n its approval.<\/p>\n
c) maintain complete records of sales and distribution of the Products and
\n report to BAM in writing, at Ubi Soft’s sole discretion, the results of
\n preorder collection, stock quantities and general market situation, upon
\n BAM’s request.<\/p>\n
9. Warranties<\/p>\n
9.1 <\/p>\n
a) BAM warrants and represents that, subject to the provisions of
\n clause 14, BAM has full power and authority to enter into and
\n fully perform this Agreement; <\/p>\n
b) BAM warrants that BAM is the author of or has been granted the
\n licence to distribute the Products and that the sale of the
\n Products shall not be in any way a violation of any copyright or
\n trade mark of any third party; and<\/p>\n
c) BAM warrants that during the Term, it shall not enter into any
\n agreement that is in conflict with this Agreement.<\/p>\n
9.2. <\/p>\n
a) Ubi Soft warrants and represents that subject to the provisions
\n of clause 14, Ubi Soft has full power and authority to enter into
\n and fully perform this Agreement.<\/p>\n
b) Ubi Soft warrants that the execution of this Agreement by Ubi
\n Soft does not violate any copyright or trade mark rights of a
\n third party or any agreements, rights or obligation existing
\n between Ubi Soft and any third party.<\/p>\n
10. Mutual Indemnification in Relation to Intellectual Property Rights<\/p>\n
Each Party agrees to indemnify and hold the other harmless from and against any
\nand all claims, damages and liabilities whatsoever, asserted by any person or
\nentity, arising from any action of infringement in relation to any trade mark,
\npatent, copyright or action for passing off resulting directly or indirectly
\nfrom any breach by the first Party or any of its respective employees or
\nagents, of this Agreement or of any warranty, representation or covenant
\ncontained in this Agreement. Such indemnification shall include the payment of
\nall reasonable attorney’s fees and other costs incurred by the indemnified
\nparty in defending any such claim. The Indemnified Party shall promptly inform
\nthe indemnifying Party in writing of any such claim, demand or suit and shall
\nfully cooperate in the defence thereof. The Indemnified Party will not agree to
\nthe settlement of any such claim, demand or suit prior to the final judgement
\nthereon without the consent of the indemnifying Party, whose consent will not
\nbe unreasonably withheld. The indemnified party shall not by any act or
\nomission admit liability or otherwise prejudice or jeopardise the indemnifying
\nparty’s actual or potential defence to any claim. The said indemnity is subject
\nto the indemnified party’s duty to mitigate all of its said costs, expenses,
\ndamages or liabilities.<\/p>\n
11. Confidentiality and Non-Disclosure<\/p>\n
Page 4 of 10<\/p>\n
5
\nEach Party undertakes to keep and treat as confidential and not disclose to any
\nthird party any information relating to the business or trade secrets of the
\nother, including but not limited to information relating to the Product, nor
\nmake use of such information for any purpose whatsoever other than for the
\npurposes of this Agreement. This undertaking shall survive the Termination Date
\nfor a period of two (2) years.<\/p>\n
12. Termination<\/p>\n
12.1. This Agreement may be terminated immediately by either Party (“the first
\nParty”) by written notice to the other Party (in which case all rights granted
\nto Ubi Soft shall cease and revert back to BAM) if:<\/p>\n
a) The other Party commits a breach of any of its obligations or
\n undertakings hereunder and falls within 30 (thirty) business
\n days of having received written notice to that affect from the
\n first Party to remedy the same;<\/p>\n
b) The other Party shall convene a meeting if its creditors or if a
\n proposal shall be made for a voluntary arrangement within
\n applicable laws or a proposal for any other composition scheme
\n or arrangement with (or assignment for the benefit of) its
\n creditors or if the other Party shall be unable to pay its
\n debts, or if a trustee, receiver, administrative receiver, or
\n similar officer is appointed in respect of all of any part of
\n the business or assets of the other or if a petition is
\n presented or a meeting is convened for the purpose of
\n considering a resolution or other steps are taken for the
\n winding up of the other or for the making of an administration
\n order (otherwise than for the purpose of an amalgamation or
\n reconstruction) or if the other Party takes or suffers any
\n similar step or procedure under the laws of any part of the
\n Territory.<\/p>\n
12.2 The termination of this Agreement shall be without prejudice to the rights
\nof the parties accrued up to the date of such termination.<\/p>\n
12.3 There shall survive the Termination Date:<\/p>\n
(a) clauses 1, 3.2, 7, 10, 11, 12.2, 12.3, 13, and 22; and<\/p>\n
(b) any other provision of the Agreement whose terms or context requires
\n its survival.<\/p>\n
13. Notices<\/p>\n
13.1 All notices required or permitted by the Agreement shall be in writing and
\nsent by first class letter, by facsimile or email or delivered by hand on a
\nWorking Day (with confirmation copy sent simultaneously by first class mail)
\nto the receiving party at their principal office address as written above.
\nEither party may alter its address by giving notice as aforesaid.<\/p>\n
13.2 Any such notice shall be deemed to be duly served:<\/p>\n
a) if delivered personally, on the date of delivery or, if not a Working
\n Day, on the next Working Day;<\/p>\n
b) If sent by first class mail, 2 (two) Working Days following the date
\n of posting; and<\/p>\n
c) if sent by facsimile or email, at the time of transmission, provided
\n it is made on a Working Day and that a copy is sent by first class
\n post before 5:30 pm on the same day.<\/p>\n
14. Force Majeure<\/p>\n
14.1 Neither party shall be under any liability to the other or any other party
\n in any way whatsoever for destruction, damage or delay arising out
\n circumstances beyond its reasonable control, including but not limited to
\n war, rebellion, civil commotion, strikes, lock-outs and industrial
\n disputes, fire, theft, explosion, earthquake, act of God, flood, drought
\n or bad weather, the unavailability of deliveries, supplies, products,
\n disks or other media or the requisitioning or other act or order by any
\n government<\/p>\n
Page 6 of 10<\/p>\n
6<\/p>\n
department, council or other constituted body. Notwithstanding the
\n foregoing, each party shall use all reasonable endeavours to continue to
\n perform, or resume performance of, such obligations hereunder for the
\n duration of such force majeure.<\/p>\n
14.2 If either party is affected by force majeure, it shall promptly notify
\n the other in writing of the nature and extent of the circumstances in
\n question, and the length of time for which it is estimated such
\n circumstances shall subsist.<\/p>\n
14.3 In the event that either party is affected by force majeure for a period
\n of more than ninety (90) days the other party may terminate this Agreement
\n upon written notice to the first party.<\/p>\n
15. Partial Ineffectiveness (Severability)<\/p>\n
If any term or provision of this Agreement, shall be held by any judicial,
\narbitral, regulatory or other public authority of competent jurisdiction to be
\nillegal, invalid, void, voidable or unenforceable it will to that extent
\nomitted and the validity or enforceability of the remainder of this Agreement
\nshall not be affected.<\/p>\n
16. Assignment<\/p>\n
16.1 Ubi Soft may not assign all or part of this Agreement without the prior
\n written consent of BAM which BAM may not unreasonably withhold.<\/p>\n
16.2 BAM may not assign this Agreement or any part hereof without the prior
\n written consent of Ubi Soft which Ubi Soft may not unreasonably withhold.<\/p>\n
16.3 Neither party may sub-contract or delegate any of its obligations under
\n this Agreement without the prior written consent of the other party. No
\n delegation or sub-contracting by either party of any of its obligations
\n hereunder shall relieve it of its primary obligations hereunder to the
\n other.<\/p>\n
17. Entire Agreement<\/p>\n
This Agreement supercedes any arrangements, undertakings, understandings,
\npromises or agreements made or existing between the parties hereto regarding the
\nsame purpose prior to or simultaneously with this Agreement (other than the Non
\nDisclosure Agreement entered into by the Parties on February 21st 2001) and
\nconstitutes the entire understanding between the parties hereto.<\/p>\n
18. Headings<\/p>\n
The clause headings in this Agreement are inserted for ease of reference only
\nand shall not affect the construction or interpretation of this Agreement.<\/p>\n
19. Relationship Between BAM and Ubi Soft<\/p>\n
It is agreed and understood that neither Party is the agent or representative
\nof the other Party and has no authority or power to bind or contract in the
\nname of or to create any liability against the other Party in any way or for
\nany purpose. Nothing herein contained shall be construed to create a
\npartnership or joint venture between the parties.<\/p>\n
20. Waiver<\/p>\n
The failure by either party to enforce at any time or for any period any one or
\nmore of the terms or conditions of this Agreement shall not be a waiver of them
\nor of the right at any time subsequently to enforce all terms and conditions of
\nthis Agreement.<\/p>\n
21. Alteration of Agreement<\/p>\n
No alteration, modification or addition to this Agreement nor any waiver of any
\nof the terms hereof shall be valid unless made in writing and signed by the
\nduly authorized representatives of both parties.<\/p>\n
Page 8 of 10
\n 7<\/p>\n
22. GOVERNING LAW<\/p>\n
This Agreement shall be governed by the laws of England and Wales shall be
\nsubmitted in case of any dispute to the exclusive jurisdiction of the Courts of
\nEngland and Wales.<\/p>\n
duly authorised for and on behalf of duly authorised for and on behalf of
\nUbi Soft Entertainment SA BAM Entertainment Limited<\/p>\n
\/s\/ YVES GUILLEMOT \/s\/ ANTHONY WILLIAMS
\n———————————— ————————————-
\nYves Guillemot, President Anthony Williams, Director<\/p>\n
Page 7 of 10
\n 8
\n EXHIBIT A — PRODUCTS<\/p>\n
\n\nTITLE FORMAT RELEASE DATE
\n———————————————————————————–
\n
\nPowerPuff Girls: Bad Mojo Jojo Game Boy Color April 30, 2001
\nPowerPuff Girls: Paint the Townsville Green Game Boy Color April 30, 2001
\nPowerPuff Girls: Battle Him Game Boy Color July 1st, 2001
\n———————————————————————————–
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n Page 8 of 10
\n 9<\/p>\n
EXHIBIT B – COPYRIGHT AND TRADEMARK NOTICES<\/p>\n
1. (C) BAM ENTERTAINMENT LIMITED 200[ ]. ALL RIGHTS RESERVED. WARNING:
\n THE DOING OF AN UNAUTHORIZED ACT IN RELATION TO A COPYRIGHT WORK MAY RESULT
\n IN BOTH A CIVIL CLAIM FOR DAMAGES AND CRIMINAL PROSECUTION.<\/p>\n
2.1 (R) REGISTERED TRADE MARK OF BAM ENTERTAINMENT LIMITED NUMBER [ ]<\/p>\n
OR<\/p>\n
2.2 TM: TRADE MARK OF BAM ENTERTAINMENT LIMITED<\/p>\n
Page 9 of 10<\/p>\n
10<\/p>\n
EXHIBIT C – TERMS OF LETTER OF CREDIT<\/p>\n
[INSERT]<\/p>\n
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