\n N64 $[*]
\n PLAYSTATION $[*]
\n<\/c><\/s><\/caption>\n<\/table>\n 5.2 GUARANTEED COMPENSATION Payment Terms. GUARANTEED COMPENSATION shall
\nbe due and payable [*] upon execution of this AGREEMENT; [*] upon completion of
\neach version of the LICENSED PRODUCT; and [*] on the approval of each version of
\nthe LICENSED PRODUCT by NINTENDO or SONY, as appropriate. In the event both
\nLICENSED PRODUCTS are not completed and approved as contemplated above
\n(“FINALIZED”) by April 30, 2000, LICENSEE shall have the right to notify
\nLICENSOR of its intent to terminate this AGREEMENT (“FINALIZATION TERMINATION
\nNOTICE”). GUARANTEED COMPENSATION and ROYALTY PAYMENTS, defined in Section 5.3
\nbelow, shall be transmitted by telegraph to The Fuji Bank Ltd.,
\nKatsushika-Branch at 1-3-12 Tateishi, Katsushika-Ku Tokyo, Japan, account number
\n12185, account name Takara Co., Ltd., within seven (7) days of LICENSEE’s
\nFINALIZATION TERMINATION NOTICE. If within thirty (30) days of delivery of the
\nFINALIZATION TERMINATION NOTICE both LICENSED PRODUCTS are not FINALIZED,
\nnotwithstanding any other term of this AGREEMENT, LICENSEE shall have the
\nimmediate right to terminate this AGREEMENT and receive from LICENSOR all funds
\npreviously delivered by LICENSEE to LICENSOR under this AGREEMENT.<\/p>\n
5.3 ROYALTY COMPENSATION. LICENSEE shall pay LICENSOR additional
\ncompensation equal to $[*] per PLAYSTATION unit; $[*] per N64 unit (“ROYALTY
\nCOMPENSATION”), less returns and units sold to existing customers as replacement
\nproducts. ROYALTY COMPENSATION shall not be payable on units sold at or below
\ncost. In each contract year LICENSEE shall be permitted an allowance of up to
\n[*] units of each LICENSED PRODUCT per platform, royalty-free (“ROYALTY FREE
\nPROMOTIONAL UNITS”), provided that such ROYALTY FREE PROMOTIONAL UNITS must be
\ndistributed at no charge as samples and\/or as review copies, or as otherwise
\npermitted by this AGREEMENT, and LICENSEE shall provide an accounting thereof.<\/p>\n
*Confidential Portions Omitted and Filed Separately with the Commission.<\/p>\n
2
\n 3<\/p>\n
LICENSOR shall have the right to check the ROYALTY COMPENSATION records of
\nLICENSEE during normal business hours upon two (2) weeks written notice.
\nLICENSEE shall keep such records for five (5) years from the EXECUTION DATE of
\nthis AGREEMENT.<\/p>\n
5.4 ROYAL COMPENSATION Payment Terms. ROYALTY COMPENSATION shall be
\npayable quarterly in arrears within forty-five (45) days after the conclusion of
\nthe respective calendar quarter. LICENSEE shall provide LICENSOR a full and
\naccurate written accounting of sales during the preceding quarter (“QUARTERLY
\nSALES REPORT”).<\/p>\n
5.5 Recoupment. The payments otherwise required under Sections 6.3
\nand 6.4 shall not apply until the aggregate amounts due thereunder for both
\nversions of the LICENSED PRODUCTS exceeds $[*].<\/p>\n
5.6 USD. All payments under this AGREEMENT shall be made in USD.<\/p>\n
5.7 Deduction of Taxes. LICENSEE shall be authorized to withhold from
\npayments to LICENSOR under this AGREEMENT the amount of any taxes assessed, if
\nany, by any governmental entity in any jurisdiction on amounts payable to
\nLICENSOR hereunder and shall effect payment to the appropriate tax authority.
\nLICENSEE shall promptly forward to LICENSOR copies of all receipts and other
\nrelevant documents evidencing payment of applicable withholding taxes.<\/p>\n
6. LICENSOR Copyright and Trademark.<\/p>\n
6.1 Notice. “NOTICE” as used in this Section, shall mean the
\ncopyright notice defined in EXHIBIT B.<\/p>\n
6.2 PUBLISHED MATERIALS. LICENSEE must receive approval from LICENSOR
\nfor the design and copyright of all “PUBLISHED MATERIALS”. “PUBLISHED
\nMATERIALS” shall include manuals, flyers, labels, and sales catalogues. All such
\ncopyrights shall be owned by LICENSOR.<\/p>\n
7. Infringement Litigation.<\/p>\n
7.1 Assistance. LICENSEE agrees to assist LICENSOR, at LICENSOR’s
\nsole expense, to the extent necessary in the procurement of any protection or to
\nprotect any of LICENSOR’s rights to the PRODUCT.<\/p>\n
7.2 Notification. Each party hereto shall promptly notify the other
\nparty of an infringement or possible infringement (collectively, “INFRINGEMENT”)
\nof any rights granted to LICENSEE hereunder.<\/p>\n
7.3 Defense. Upon notification of an INFRINGEMENT, the parties shall
\npromptly confer with respect thereto and, if no mutually satisfactory agreement
\nis reached concerning remedial action, or, if the INFRINGEMENT is not terminated
\nwithin thirty (30) days after the date of receipt by a party hereto of a notice
\ncontemplated by Section 8.2, LICENSOR shall have the exclusive right for a
\nperiod of sixty (60) days, commencing the day after the last day of said thirty
\n(30) day period, to institute legal action (at its own expense), against the
\nINFRINGER or to otherwise terminate such INFRINGEMENT; provided, however, that
\nLICENSEE shall have the right to join such action as a party to protect its
\ninterests in any rights granted to LICENSEE hereunder (at its own expense). If,
\nwithin said sixty (60) day period, LICENSOR should fail to institute legal
\naction against the INFRINGER or to otherwise terminate the INFRINGEMENT,
\nLICENSEE shall have the right to institute such action at LICENSOR’S expense or
\nto otherwise<\/p>\n
*Confidential Portions Omitted and Filed Separately with the Commission.<\/p>\n
3
\n 4<\/p>\n
terminate such INFRINGEMENT; provided, however, that LICENSOR shall have the
\nright to join such action as a party to protect its interest in the PRODUCT at
\nits own expense.<\/p>\n
7.4 Settlement. Neither party hereto shall enter into any settlement
\nwith an INFRINGER of any rights granted by LICENSOR to LICENSEE hereunder
\nwithout the prior written consent of the other party; provided, however, that
\nsuch consent shall not be unreasonably delayed or withheld. The parties agree to
\ncooperate with each other with respect to any suits or other action taken under
\nthis Section and to keep the other party promptly and fully advised. with
\nrespect thereto.<\/p>\n
7.5 Communication. In the event a party elects to prosecute a legal
\naction pursuant to this Section, such party agrees, to the extent procedurally
\npracticable, to furnish to the other party copies of all pleadings, motions,
\nbriefs, and other papers proposed to be served or filed in connection with such
\naction reasonably prior to the contemplated date of service or filing.<\/p>\n
8. LICENSOR Representations and Warranties.<\/p>\n
8.1 LICENSOR’s Representations. LICENSOR represents and warrants to
\nLICENSEE that:<\/p>\n
a. LICENSOR has not previously granted and will not grant any
\nrights in the PRODUCT to any third party which are inconsistent with the rights
\ngranted to LICENSEE herein; LICENSOR has full power to enter into this
\nAGREEMENT, to carry out its obligations hereunder and to grant the rights herein
\ngranted to LICENSEE; and the PRODUCT is the creation, work, and property of
\nLICENSOR and does not infringe or misappropriate the rights or intellectual
\nproperty of any third party.<\/p>\n
b. The PRODUCT will perform in accordance with reasonable
\nindustry standards. If any failure to so perform is reported to LICENSOR by
\nLICENSEE, LICENSOR will exercise its best efforts to correct such nonconformity.<\/p>\n
8.2 Infringement. If LICENSEE has been given notice that the PRODUCT
\ninfringes or misappropriates an intellectual property right of a third party
\n(“INFRINGEMENT CLAIM”), LICENSEE shall so notify LICENSOR (“INFRINGEMENT
\nNOTIFICATION”). Then, in addition to the obligation to defend and indemnify
\nagainst damages as described below, LICENSOR shall:<\/p>\n
a. Procure for LICENSEE the right to continue to utilize and
\nmarket the PRODUCT; or<\/p>\n
b. Replace or modify the PRODUCT in such a way that it will not
\ncontinue to constitute an infringement; or<\/p>\n
c. If a. or b. is not provided within one hundred twenty (120)
\ndays of the INFRINGEMENT NOTIFICATION, if the following calculation provides a
\npositive number, LICENSOR immediately shall pay to LICENSEE the difference
\nbetween (i)(a) the GUARANTEED COMPENSATION plus (b) all costs incurred by
\nLICENSEE in conjunction with the sale of the LICENSED PRODUCTS minus (ii) the
\nROYALTY COMPENSATION paid by LICENSEE to LICENSOR hereunder.<\/p>\n
9. Indemnification.<\/p>\n
9.1 By LICENSOR. LICENSOR agrees to indemnify LICENSEE (including its
\nofficers, employees, and agents) from and against all claims, suits, damages and
\nexpenses<\/p>\n
4
\n 5<\/p>\n
(including attorneys’ fees) directly or indirectly arising out of or relating to
\nany breach of LICENSOR’s representations, agreements or obligations under this
\nAGREEMENT or to LICENSOR’s performance of activities related to this AGREEMENT.<\/p>\n
9.2 By LICENSEE. Except with respect to matters for which LICENSEE
\nis entitled to indemnification under Section 9.1, LICENSEE agrees to indemnify,
\ndefend and hold harmless LICENSOR and its officers, employees, and agents from
\nand against any and all claims, losses, damages, costs and expenses (including
\nattorneys’ fees), directly or indirectly arising out of or relating to any
\nbreach of LICENSEE’s representations, agreements or obligations under this
\nAGREEMENT or to LICENSEE’s activities related to this AGREEMENT including the
\nproduction and distribution of the PRODUCTS.<\/p>\n
10. Materials Supplied to LICENSEE. LICENSOR shall provide LICENSEE with
\nthe following:<\/p>\n
a. a copy of the object code for the PRODUCTS;<\/p>\n
b. currently available transparencies of character images and
\ndocumentation in English that LICENSEE may use to develop marketing
\nadvertisements and packaging;<\/p>\n
c. manuals\/documentation of the game;<\/p>\n
d. video tapes of the game (entire game played and video ROM
\nsamples).<\/p>\n
11. Termination.<\/p>\n
11.1 Procedure.<\/p>\n
a. Except for FINALIZATION TERMINATION as provided in Section
\n6.2, in the event that either party is in default or commits a breach of this
\nAGREEMENT, and if such default or breach is not cured within 30 days after
\nwritten notice of such default or breach is given by the non-defaulting party to
\nthe defaulting party, then at any time after the expiration of such 30 days, the
\nnon-defaulting party may terminate this AGREEMENT by giving written notice to
\nthe defaulting party of its election to terminate; provided, however, that the
\nparties recognize that it may not be practical to complete within 30 days a cure
\nof certain types of breaches or defaults. Therefore in situations in which the
\ncure of a default or breach cannot reasonably be completed within 30 days, this
\nAGREEMENT shall not be subject to termination if the defaulting party in breach
\nreasonably commences a cure of a breach or default within 30 days of receiving
\nnotice from the other party and diligently pursues the cure to completion;
\nprovided, further, that with respect to LICENSEE obligation to submit reports
\nand make payments as provided herein, such defaulting party shall have only 15
\ndays to cure a default or breach of such obligations.<\/p>\n
b Such right of termination will not be exclusive of any other
\nremedies or means of redress to which the non-defaulting party may be lawfully
\nentitled.<\/p>\n
11.2 Survival. The following rights and obligations survive any
\nexpiration or termination of this AGREEMENT to the degree necessary to permit
\ntheir complete fulfillment or discharge:<\/p>\n
a LICENSEE’ obligation to pay and LICENSOR’s right to receive
\npayments in accordance with this AGREEMENT, including payments on account of
\nany sales of PRODUCTS after the date of expiration or termination;<\/p>\n
5
\n 6<\/p>\n
b. The obligation of confidentiality of each party as provided
\nin Section 18;<\/p>\n
c. Any cause of action or claim of either party, accrued or to
\naccrue, because of any breach or default by the other party; and<\/p>\n
d. The warranties and indemnities of the parties set forth in
\nthis AGREEMENT.<\/p>\n
12. Disposal of Inventory. Upon the expiration or termination of this
\nAGREEMENT, LICENSEE shall have the right to sell the LICENSED PRODUCTS in
\naccordance with this AGREEMENT.<\/p>\n
13. Additional Acts. Each party, at the expense of the other, will
\ndeliver such documents and take such actions as such other party may reasonably
\nrequest to evidence or otherwise perfect such other party’s rights as specified
\nin this AGREEMENT.<\/p>\n
14. Applicable Law; Venue. Both parties hereby agree that the applicable
\nlaw shall be the law of the State of California, except to the extent
\nspecifically superseded by the laws of the United States, in which case the laws
\nof the United States shall apply. Both parties agree that the Federal Courts
\nlocated in the State of California and the State Courts of the State of
\nCalifornia shall have EXCLUSIVE jurisdiction over ALL issues which arise out of
\nor relate to this AGREEMENT.<\/p>\n
15. Obligations. Neither party is authorized to and shall not at any
\ntime attempt to act on behalf of the other to bind it in any manner whatsoever
\nto any obligations whatsoever. Each party shall not act as an agent, or
\nrepresentative of the other, its parent, subsidiaries, or affiliate, without the
\nprior written consent of the other.<\/p>\n
16. Independent Contractor. Neither party is a partner or joint venturer
\nwith the other, or any parent, subsidiary, or affiliate of the other. The
\nrelationship between LICENSEE and LICENSOR is that of independent contractors.<\/p>\n
17. PROPRIETARY INFORMATION. Each party agrees that any data,
\ninformation and\/or drawings, whether or not protected by patent, copyright or
\notherwise, including, but not limited to: (a) technical specifications which
\nrelate to the PRODUCT, (b) sales information and (c) account activity; which is
\ndisclosed to the other (the “PROPRIETARY INFORMATION”), shall be treated by the
\nother as PROPRIETARY INFORMATION of such party and shall not be disclosed to any
\nthird party without the prior written consent of a duly authorized officer of
\nsuch party for a period of 7 years after disclosure of such PROPRIETARY
\nINFORMATION. Each party shall not reproduce, provide or otherwise make available
\nany such confidential data or information to any person other than those
\nemployees of such party who have a need to know for the purpose of the
\nperformance of this AGREEMENT. Each party agrees that any such employees to whom
\nsuch information is disclosed shall first execute an agreement with such party
\nnot to disclose such information to any third parties without the prior written
\npermission of the other.<\/p>\n
18. Amendments; Entire Agreement. No amendment to this AGREEMENT shall
\nbe valid, unless in writing and signed by all of the parties hereto. Further,
\nthe terms and conditions set forth in this AGREEMENT constitute the entire
\nagreement between the parties respecting the subject matter hereof.<\/p>\n
19. Notices, Payments, Etc. All reports, consents, payments, and notices
\nrequired or permitted to be given under this AGREEMENT will be deemed to have
\nbeen validly given if in writing and delivered or mailed via professional
\ncourier to the receiving party or transmitted by<\/p>\n
6
\n 7<\/p>\n
facsimile, e-mail or other method of simultaneous transmission and will be
\ndeemed to have been received by the receiving party upon delivery.<\/p>\n
20. Assignment. This AGREEMENT shall be binding upon and inure to the
\nbenefit of each party and its successors and\/or permitted assigns. LICENSOR may
\nnot assign any of the rights or delegate any of the obligations of this
\nAGREEMENT without the prior written consent of LICENSEE, which consent shall not
\nbe unreasonably withheld or delayed; provided, however, that LICENSOR may assign
\nthis AGREEMENT to a purchaser of the PRODUCT. Assignments by LICENSOR permitted
\nby this Section shall be subject to the condition precedent that the assignee
\nshall assume in writing all obligations and conditions of assignor under this
\nAGREEMENT.<\/p>\n
21. Attorneys’ Fees. Should any party hereto institute legal action
\nagainst the other to interpret or enforce any of the terms or provisions of this
\nAGREEMENT, the prevailing party in such action shall be entitled to recover
\nreasonable fees of attorneys, accountants and expert witnesses, as costs, in
\naddition to any other damages that may otherwise be awarded by the court.<\/p>\n
22. Waiver. A waiver by either party of any of the terms and conditions
\nof this AGREEMENT in any instance will not be deemed or construed to be a waiver
\nof such terms or conditions for the future, or of any subsequent breach thereof.<\/p>\n
23. Severability. In the event that any term, clause or provision of
\nthis AGREEMENT is construed to be or adjudged invalid, void or unenforceable,
\nsuch term, clause or provision will be construed as severed from this AGREEMENT,
\nand the remaining terms, clauses and provisions will remain in full force and
\neffect.<\/p>\n
24. Interpretation. This AGREEMENT shall be construed without regard to
\nthe party responsible for the preparation of the same, and shall be deemed to
\nhave been prepared jointly by the parties. Any ambiguity or uncertainty existing
\nherein shall not be interpreted against either party, but according to the
\napplication of other rules of contract interpretation.<\/p>\n
IN WITNESS WHEREOF, the parties hereto have executed this AGREEMENT as
\nof the date first set forth above.<\/p>\n
LICENSOR:<\/p>\n
TAKARA CO., LTD.
\n a Japan corporation<\/p>\n
\/s\/ KEITA SATOH, PRESIDENT
\n —————————————-
\n Keita Satoh, President<\/p>\n
LICENSEE:<\/p>\n
BAY AREA MULTIMEDIA, INC.,
\n a California corporation<\/p>\n
By: \/s\/ RAYMOND C. MUSCI
\n ————————————
\n Title: PRESIDENT
\n ———————————-<\/p>\n
7
\n 8<\/p>\n
EXHIBIT A<\/p>\n
DESCRIPTION OF THE PRODUCT<\/p>\n
Video Game Software titled “TRANSFORMERS, BEAST WARS TRANSMETALS” for
\nNintendo 64 and Sony PlayStation. (C) Takara Co., Ltd. 2000.<\/p>\n
i<\/p>\n
9<\/p>\n
EXHIBIT B<\/p>\n
NOTICE<\/p>\n
“TRANSFORMERS(TM), BEAST WARS(R) TRANSMETALS(R)” (C) Takara Co., Ltd.
\n2000 TRANSFORMERST(TM), BEAST WARS(R) and TRANSMETALS(R) are trademarks of
\nHasbro, Inc. (C) 2000 Hasbro, Inc. All Rights Reserved. Manufactured under
\nlicense from Takara Co., Ltd.<\/p>\n
ii<\/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-42936","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\/42936","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=42936"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42936"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42936"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42936"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}