Exhibit10.56**XBOX 360 PUBLISHER LICENSE AGREEMENT**     This Xbox 360 Publisher License Agreement (“Agreement”) is entered into and effective as ofthe later of the two signature dates below (the “Effective Date”) by and between MicrosoftLicensing, GP**,**a Nevada general partnership (“Microsoft”), and **______**, a______corporation (“Publisher”).**RECITALS**     **A. **Microsoft and its affiliated companies develop and license a computer game system known asthe Xbox 360 game system and a proprietary online service accessible via the Xbox 360 game systemknown as Xbox Live.     **B. **Publisher wishes to develop and/or publish one or more software products running on theXbox 360 game system, which software products may also be made available to subscribers of XboxLive, and to license proprietary materials from Microsoft on the terms and conditions set forthherein.     Accordingly, for and in consideration of the mutual covenants and conditions contained herein,and for other good and valuable consideration, receipt of which each party hereby acknowledges,Microsoft and Publisher agree as follows:**1. Exhibits**The following exhibits are hereby incorporated to this Agreement (some require completion and/orexecution by one or both parties):   Exhibit 1: PaymentsExhibit 2: Xbox 360 Royalty Tier Selection FormExhibit 3: Xbox 360 Publisher Enrollment FormExhibit 4: Authorized SubsidiariesExhibit 5: Non-Disclosure AgreementExhibit 6: Japan/Asian Royalty Incentive ProgramExhibit 7: Xbox Live Incentive Program**2. Definitions**As further described in this Agreement and the Xbox 360 Publisher Guide (defined below), thefollowing terms have the following respective meanings:     2.1 **“Asian Manufacturing Region”**means the region for manufacturing comprising Taiwan, HongKong, Singapore, Korea, Japan and any other countries that are included by Microsoft from time totime as set forth in the Xbox 360 Publisher Guide.     2.2 **“Asian Sales Territory”**means the territory for sales distribution comprising Taiwan, HongKong, Singapore, Korea, and any other countries that are included by Microsoft from time to time asset forth in the Xbox 360 Publisher Guide. The Asian Sales Territory does not include Japan.     2.3 **“Authorized Replicator”**means a software replicator certified and approved by Microsoftfor replication of FPUs (defined below) that run on the Xbox 360.     2.4 “**Branding Specifications**” means the specifications as provided by Microsoft from time totime for using the Licensed Trademarks in connection with a Software Title and/or Online Contentand on Marketing Materials as set forth in the Xbox 360 Publisher Guide.     2.5 **“BTS”**means a Microsoft designed break-the-seal sticker that will be issued to theAuthorized Replicator for placement on the Packaging Materials (defined below) as specified in theXbox 360 Publisher Guide.
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     2.6 **“Certification”**means the final stage of the approval process by which Microsoft approvesor disapproves of a Software Title or Online Content for manufacture and/or distribution.Certification is further defined in this Agreement and the Xbox 360 Publisher Guide.     2.7 **“Commercial Release**” with respect to a Software Title means the first commercialdistribution of an FPU that is not designated as a Demo Version. With respect to Online Content,Commercial Release means its first availability via Xbox Live to Xbox Live Users.     2.8 **“Concept”**means the detailed description of Publisher’s proposed Software Title and/orOnline Content in each case including such information as may be requested by Microsoft.     2.9 **“Demo Versions”**means a small portion of an applicable Software Title that is provided toend users to advertise or promote a Software Title.     2.10 **“European Sales Territory”**means the territory for sales distribution comprising theUnited Kingdom, France, Germany, Spain, Italy, Netherlands, Belgium, Sweden, Denmark, Norway,Finland, Austria, Switzerland, Ireland, Portugal, Greece, Australia, New Zealand and any othercountries that are included by Microsoft from time to time as set forth in the Xbox 360 PublisherGuide     2.11 **“European Manufacturing Region”**means the region for manufacturing comprising the UnitedKingdom, France, Germany, Spain, Italy, Netherlands, Belgium, Sweden, Denmark, Norway, Finland,Austria, Switzerland, Ireland, Portugal, Greece, Australia, New Zealand and any other countriesthat are included by Microsoft from time to time as set forth in the Xbox 360 Publisher Guide.     2.12 **“FPU”**or **“Finished Product Unit”**means a copy of a Software Title in object code formthat has passed Certification, has been affixed to a DVD disk and approved by Microsoft for releaseand manufacturing. Once the Packaging Materials have been added, and the BTS has been assigned oraffixed to the FPU or its packaging, the FPU also includes its accompanying BTS and PackagingMaterials.     2.13 **“Japan Sales Territory”**means the territory for sales distribution comprising the countryof Japan.     2.14 **“Licensed Trademarks”**means the Microsoft trademarks identified in the Xbox 360 PublisherGuide.     2.15 **“Marketing Materials**” collectively means the Packaging Materials and all press releases,marketing, advertising or promotional materials related to the Software Title, FPUs and/or OnlineContent (including without limitation Web advertising and Publisher’s Web pages to the extent theyrefer to the Software Title(s), FPU(s) and/or Online Content) that will be used and distributed byPublisher in the marketing of the Software Title(s), FPU(s) and/or Online Content.     2.16 **“Manufacturing Region”**means the Asian Manufacturing Region, European ManufacturingRegion, and/or North American Manufacturing Region.     2.17 **“North American Sales Territory”**means the territory for sales distribution comprisingthe United States, Canada, Mexico, Colombia and any other countries that may be included byMicrosoft from time to time as set forth in the Xbox 360 Publisher Guide     2.18 **“North American Manufacturing Region”**means the region for manufacturing comprising theUnited States, Canada, Mexico, Colombia and any other countries that may be included by Microsoftfrom time to time as set forth in the Xbox 360 Publisher Guide     2.19 **“Online Content”**means any content, feature, or access to software or online service thatis distributed by Microsoft pursuant to this Agreement. Online Content includes, but is notlimited to, Online Game Features, Title Updates, Demo Versions, trailers, “themes,” “gamerpictures” or any other category of online content or service approved by
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Microsoft from time to time. Trailers, “themes,” “gamer pictures” and any other approvedOnline Content will be further described in the Xbox 360 Publisher Guide.     2.20 **“Online Game Features”**means a Software Title’s content, features and/or services thatare available to Xbox Live Users via Xbox Live, whether included in the Software Title’s FPU orotherwise distributed via Xbox Live.     2.21 **“Packaging Materials”**means art and mechanical formats for a Software Title including theretail packaging, end user instruction manual with end user license agreement and warranties, enduser warnings, FPU media label, and any promotional inserts and other materials that are to beincluded in the retail packaging.     2.22 **“Pre-Certification”**means the first stage of the approval process wherein Microsoft teststo provide feedback and/or identify any issues that may prevent the Software Title from beingapproved during the Certification phase. Pre-Certification is further described in this Agreementand the Xbox 360 Publisher Guide.     2.23 **“Sales Territory”**means the Asian Sales Territory, European Sales Territory, Japan SalesTerritory, and/or North American Sales Territory.     2.24 **“Software Title”**means the single software product as approved by Microsoft for use onXbox 360, including any Title Updates thereto (if and to the extent approved by Microsoft) and allOnline Game Features for such Software Title. If Microsoft approves one or more additional singlesoftware product(s) proposed by Publisher to run on Xbox 360, this Agreement, and the term“Software Title,” will be broadened automatically to cover the respective new software product(s)as additional Software Title(s) under this Agreement.     2.25 **“Subscriber”**means an Xbox Live User that establishes an account with Xbox Live.     2.26 **“Sub-Publisher”**means an entity that has a valid Xbox 360 publisher license agreementwith Microsoft or a Microsoft affiliate and with whom Publisher has entered an agreement to allowsuch entity to publish a Software Title or Online Content in specific Sales Territories.     2.27 **“Suggested Retail Price”**means the highest per unit price that Publisher or its agentrecommends the FPU be made commercially available to end-users in a particular Sales Territory. Ifthe Suggested Retail Price of a particular Software Title varies among the countries in a singleSales Territory, then the highest Suggested Retail Price established for any of the countries willbe used to determine the appropriate royalty fees for the entire Sales Territory.     2.28 **“Title Update”**means an update, upgrade, or technical fix to a Software Titlethat Xbox Live Users can automatically download to the Xbox Live User’s Xbox 360.     2.29 **“Wholesale Price”**means the highest per unit price that Publisher charges retailersand/or distributors in bona fide third party transactions for the right to distribute and sell theSoftware Title within a Sales Territory, it being agreed that (i) any transactions involvingaffiliates of Publisher (entities controlling, controlled by or under common control of, Publisher)are not to be considered in determining the Wholesale Price; (ii) if Publisher enters into anagreement with a third party (such as a Sub-Publisher) providing the third party with theexclusive right to distribute the Software Title in a Sales Territory, the Wholesale Price isgoverned by the price charged by the third party rather than the terms of the exclusivedistribution agreement between Publisher and such third party; and (iii) if the Wholesale Pricevaries among countries in a single Sales Territory, the highest Wholesale Price used in the SalesTerritory will be used to determine the appropriate royalty fees for the entire Sales Territory.     2.30 **“Xbox 360**” means the second version of Microsoft’s proprietary game system, successor tothe Xbox game system, including operating system software and hardware design specifications.     2.31 **“Xbox 360 Publisher Guide”**means a document (in physical, electronic or Web site form)created by Microsoft that supplements this Agreement and provides detailed requirements regardingthe Pre-Certification and
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Certification approval process, Branding Specifications, replication requirements, royaltypayment process, marketing guidelines, technical specifications and certification requirements,Demo Version requirements, packaging requirements and other operational aspects of the Xbox 360 andXbox Live. Microsoft may supplement, revise or update the Xbox 360 Publisher Guide from time totime in its reasonable discretion as set forth in this Agreement.     2.32 **“Xbox Live”**means the proprietary online service offered by Microsoft to Xbox Live Users.     2.33 **“Xbox Live User”**means any individual that accesses and uses Xbox Live.     2.34 **Other Terms**. All other capitalized terms have the definitions set forth with the firstuse of such term as described in this Agreement.**3. Xbox 360 Development Kit License**     Publisher shall enter into one or more development kit license(s) for the applicable territory(ies)to which Xbox 360 game development kits will be shipped for use by Publisher (each an “XDKLicense”) pursuant to which Microsoft or its affiliate may license to Publisher softwaredevelopment tools and hardware to assist Publisher in the development and testing of SoftwareTitles, including redistributable code that Publisher must incorporate into Software Titlespursuant to the terms and conditions contained in the XDK License.**4. Approval Process**     4.1 **Standard Approval Process**. The standard approval process for a Software Title is dividedinto four phases comprised of Concept approval, Pre-Certification, Certification, and MarketingMaterials approval. Unless Publisher elects the EU Approval Option for a European FPU (describedbelow), Publisher is required to submit its Software Title to Microsoft for evaluation at all fourphases. Each phase is identified below and further described in the Xbox 360 Publisher Guide.Additional or alternate approval processes for Online Content may be further described in the Xbox360 Publisher Guide          **4.1.1 Concept**. For each Software Title, Publisher shall deliver to Microsoft a completedConcept submission form (in the form provided by Microsoft to Publisher) that describes theSoftware Title. In the event that Publisher desires to host or have a third party host or provideto Xbox Live Users any of Publisher’s Online Game Features, Publisher shall so indicate on theConcept submission form and must execute an addendum to this Agreement, which addendum is availableupon request and will be incorporated into this Agreement upon execution. Following evaluation ofPublisher’s Concept submission, Microsoft will notify Publisher of whether the Concept is approvedor rejected. If approved, the Concept submission form, in the form submitted and approved byMicrosoft, is incorporated herein by reference and adherence to its terms is a requirement forCertification. Publisher may propose Online Content at any time after a Concept has been approved,in which case Publisher shall deliver to Microsoft a separate Concept submission for each proposedpiece of Online Content.          **4.1.2 Pre-Certification**. If the Concept is approved, Publisher shall deliver to Microsoft acode-complete version of the Software Title or Online Content that includes all current features ofthe Software Title and such other content as may be required under the Xbox 360 Publisher Guide.Upon receipt, Microsoft shall conduct technical screen and/or other testing of the Software Titleor Online Content consistent with the Xbox 360 Publisher Guide and will subsequently providePublisher with advisory feedback regarding such testing.          **4.1.3 Certification**. Following Pre-Certification, Publisher shall deliver to Microsoft theproposed final release version of the applicable Software Title that is complete, ready for accessvia Xbox Live (if applicable), release, manufacture, and commercial distribution. Such versionmust include the final content rating certification required by Section 4.4, have identifiedprogram errors corrected, and have any and all changes previously required by Microsoftimplemented. Microsoft shall conduct compliance, compatibility, functional and other testingconsistent with the Xbox 360 Publisher Guide (“Certification Testing”) and shall subsequentlyprovide Publisher with the results of such testing, including any required fixes required prior toachieving Certification. Release from Certification for a Software Title (and for Online Contentas applicable) is based on (1) passing the Certification Testing; (2) conformance with the approvedConcept and any
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required submission materials as stated in the Xbox 360 Publisher Guide; (3) PackagingMaterials approval; (4) consistency with the goals and objectives of the Xbox 360 console platformand Xbox Live; and (5) continuing and ongoing compliance with all Certification requirements andother requirements as set forth in the Xbox 360 Publisher Guide and this Agreement.          **4.1.4 Marketing Materials Approval**. Publisher shall submit all Marketing Materials toMicrosoft and shall not distribute such Marketing Materials unless and until Microsoft hasapproved them in writing. Prior to use or publication of any Marketing Materials, Publisher agreesto incorporate all changes relating to use of the Licensed Trademarks that Microsoft may requestand will use its commercially reasonable efforts to incorporate other changes reasonably suggestedby Microsoft (provided, however, that in any event Publisher shall at all times comply with theBranding Specifications).     4.2 **EU Approval Option**. For a Software Title that Publisher intends to distribute solely inthe European Sales Territory (a “European FPU”), Publisher may choose to forego Concept approval(Section 4.1.1), Pre-Certification (Section 4.1.2) and/or Marketing Materials approval (Section4.1.4) and submit such Software Title to Microsoft only for Certification approval. This option isreferred to herein as the “EU Approval Option.” The EU Approval Option applies solely todistribution of European FPUs, and is not available for Online Content intended to be available inthe European Sales Territory. If Publisher chooses the EU Approval Option, Publisher shall notuse the Licensed Trademarks on the European FPU and the license grant set forth in Section 12.1 iswithdrawn as to such European FPU. In addition, Publisher shall make no statements in advertising,marketing materials, packaging, Web sites or otherwise that the European FPU is approved orotherwise sanctioned by Microsoft or is an official Xbox 360 Software Title. The European FPU maynot be distributed outside the European Sales Territory without complying with all terms of thisAgreement concerning approvals and the release of the FPU as deemed relevant by Microsoft.Microsoft may provide additional information in the Xbox 360 Publisher Guide regarding the EuropeanApproval Option. Notwithstanding Publisher’s choice of the EU Approval Option, all other portionsof this Agreement other than those specifically identified above shall remain in effect.     4.3 **Resubmissions and Additional Review**. If a Software Title or Online Content failsCertification, and if Publisher has made good faith efforts to address any issues raised byMicrosoft, Microsoft will give Publisher the opportunity to resubmit such Software Title or OnlineContent for Certification. Microsoft may charge Publisher a reasonable fee designed to offset thecosts associated with testing upon resubmission. Publisher may request the ability to submitversions of the Software Title or Online Content at stages of development other than as identifiedabove for review and feedback by Microsoft. Such review is within the discretion of Microsoft andmay require the payment of reasonable fees by Publisher to offset the costs associated with thereview of such Software Titles or Online Content.     4.4 **Content Rating**. For those Sales Territories that utilize a content rating system,Microsoft will not accept submission of a Software Title for Certification approval unless anduntil Publisher has obtained, at Publisher’s sole cost, a rating not higher than “Mature (17+)” orits equivalent from the appropriate rating bodies and/or any and all other independent contentrating authority/authorities for the applicable Sales Territory(ies) reasonably designated byMicrosoft (such as ESRB, ELSPA, CERO, *etc.*). Publisher shall include the applicable rating(s)prominently on FPUs and Marketing Materials, in accordance with the applicable rating bodyguidelines, and shall include the applicable rating in a header file of the Software Title and inOnline Content, as described in the Xbox 360 Publisher Guide. For those Sales Territories that donot utilize a content rating system, Microsoft will not approve any Software Title or OnlineContent that, in its opinion, contains excessive sexual content or violence, inappropriate languageor other elements deemed unsuitable for the Xbox 360 platform. If, after Commercial Release, aSoftware Title is determined as suitable for adults only or otherwise as indecent, obscene orotherwise prohibited by law, the Publisher shall at its own costs recall all FPUs. Publisherhereby represents and warrants that any Online Game Features and other game-related Online Contentnot included in the initial Software Title FPU will not be inconsistent with the content rating(or, in those countries that do not utilize a content rating system, with the overall nature of thecontent) of the underlying Software Title. Content rating information and requirements may befurther described in the Xbox 360 Publisher Guide.     4.5 **Publisher Testing**. Publisher shall perform its own testing of the Software Title and FPUsand shall keep written or electronic records of such testing during the term of this Agreement andfor no less than (****) thereafter (“Test Records”). Upon Microsoft’s request, Publisher shall provideMicrosoft with copies of, or reasonable access to inspect, the Test Records, FPUs and SoftwareTitle (either in pre-Commercial Release or Commercial Release versions, as Microsoft may request).
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     4.6 **Mutual Approval Required**. Publisher shall not distribute the Software Title, normanufacture any FPU intended for distribution, unless and until Microsoft has given its finalapproval and release from Certification version of the Software Title and both parties haveapproved the FPU in writing.     4.7 **Title Updates**          4.7.1 All Title Updates for Software Titles are subject to approval by Microsoft. Publishermay release one Title Update per Software Title free of charge. Any additional Title Updatesproposed by Publisher may be subject to a reasonable charge.          4.7.2 Microsoft may require Publisher to develop and provide a Title Update if (a) a SoftwareTitle or Online Content adversely affects Xbox Live, (b) if a change to the Xbox 360 PublisherGuide requires a Title Update, (c) if Certification is revoked for Online Content, or (d) for anyother reason at Microsoft’s reasonable discretion. Microsoft will not charge Publisher for theCertification, hosting, and distribution of Title Updates to Xbox Live Users for the first TitleUpdate (if any) per Software Title or Online Content required by a specific change in the Xbox 360Publisher Guide or for any other reason at Microsoft’s reasonable discretion. Microsoft reservesthe right to charge Publisher a reasonable fee to offset the costs associated with theCertification, hosting, and distribution of Title Updates to Xbox Live Users that are requiredbecause of revocation of Certification or a Software Title or Online Content adversely affectingXbox Live.**5. Xbox 360 Publisher Guide**Publisher acknowledges that the Xbox 360 Publisher Guide is an evolving document and subject tochange during the term of this Agreement. Publisher agrees to be bound by all provisions containedin the then-applicable version of the Xbox 360 Publisher Guide. Publisher agrees that uponPublisher’s receipt of notice of availability of the applicable supplement, revision, or updatedversion of the Xbox 360 Publisher Guide (which may be via a publisher newsletter or otherelectronic notification), Publisher automatically is bound by all provisions of the Xbox 360Publisher Guide as supplemented, revised, or updated. Publisher’s continued distribution of FPUsafter a notice of supplement, revision or update is included in the Xbox 360 Publisher Guide ormade available to Publisher constitutes Publisher’s agreement to the then-current Xbox 360Publisher Guide as supplemented, revised or updated. Microsoft will specify in each suchsupplement, revision or update a reasonable effective date of each change if such change is notrequired to be effective immediately. Only with respect to a Software Title that has passedPre-Certification prior to the applicable revision or update, Publisher will not be obligated tocomply with any changes made to the technical or content requirements for Software Titles in theXbox 360 Publisher Guide, except in circumstances where such change is deemed by Microsoft to bevitally important to the success of the Xbox 360 platform (e.g. changes due to piracy, technicalfailure) or will not add significant expense to the Software Title’s development. In addition,changes made in Branding Specifications or other Marketing Materials requirements will be effectiveas to a Software Title that has passed Certification only on a “going forward” basis (*i.e.,*only tosuch Marketing Materials and/or FPUs as are manufactured after Microsoft notifies Publisher of thechange). Notwithstanding the foregoing, Publisher shall comply with such changes to the Xbox 360Publisher Guide related to Branding Specifications or other Marketing Materials requirementsretroactively if Microsoft agrees to pay for Publisher’s direct, out-of-pocket expenses necessarilyincurred as a result of its retrospective compliance with the change.**6. Post-Release Compliance**     6.1 **Correction of Bugs or Errors**. Notwithstanding Microsoft’s Certification, all SoftwareTitles must remain in compliance with all Certification requirements and requirements set forth inthe Xbox 360 Publisher Guide on a continuing and ongoing basis. Publisher must correct anymaterial program bugs or errors in conformance with the Xbox 360 Publisher Guide wheneverdiscovered and Publisher agrees to correct such material bugs and errors as soon as possible afterdiscovery. With respect to bugs or errors discovered after Commercial Release of the applicableSoftware Title, Publisher will, at Microsoft’s request or allowance, correct the bug or error inall FPUs manufactured after discovery and Microsoft may charge a reasonable amount to cover thecosts of Certifying the Software Title again.     6.2 **Online Content; Minimum Commitment**          6.2.1 Publisher agrees that each Online Game Feature of a Software Title will be madeavailable via Xbox Live for at least (****) following the respective Commercial Release of the FPUs of theSoftware Title in each Sales Territory
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in which Xbox Live is available (the “Minimum Commitment”). Publisher is obligated to provideall necessary support for such Online Game Feature during its availability and for (****) afterdiscontinuation. Following the Minimum Commitment period, Publisher may terminate Microsoft’slicense associated with such Online Game Feature upon (****) prior written notice to Microsoft; and/orMicrosoft may discontinue the availability of any or all such Online Game Feature via Xbox Live(****) upon prior written notice to Publisher. Publisher is responsible for communicating the duration ofOnline Game Feature availability to Xbox Live Users, and for providing reasonable advance notice toXbox Live Users of any discontinuation of such Online Game Feature.          6.2.2 Subject to Section 10.3, Publisher agrees that Microsoft has the right to make OnlineContent other than Online Games Features submitted by Publisher available to Xbox Live Users forthe Term of this Agreement. Publisher agrees to provide all necessary support for such OnlineContent as long as such Online Content is made available to Xbox Live Users and for (****) thereafter.          **6.2.3 Archive Copies.**Publisher agrees to maintain, and to possess the ability to support,copies in object code, source code and symbol format, of all Online Content available to Xbox LiveUsers during the term of this Agreement and for no less than (****) thereafter.**7. Manufacturing**     7.1 **Authorized Replicators**. Publisher will use only an Authorized Replicator to produce FPUs.Prior to placing an order with a replicator for FPUs, Publisher shall confirm with Microsoft thatsuch entity is an Authorized Replicator. Microsoft will endeavor to keep an up-to-date list ofAuthorized Replicators in the Xbox 360 Publisher Guide. Publisher will notify Microsoft in writingof the identity of the applicable Authorized Replicator and the agreement for such replicationservices shall be as negotiated by Publisher and the applicable Authorized Replicator, subject tothe requirements in this Agreement. Publisher acknowledges that Microsoft may charge theAuthorized Replicator fees for rights, services or products associated with the manufacture of FPUsand that the agreement with the Authorized Replicator grants Microsoft the right to instruct theAuthorized Replicator to cease the manufacture or FPU and/or prohibit the release of FPU toPublisher or its agents in the event Publisher is in breach of this Agreement or any creditarrangement entered into by Microsoft and Publisher or Publisher affiliates. Microsoft does notguarantee any level of performance by the Authorized Replicators, and Microsoft will have noliability to Publisher for any Authorized Replicator’s failure to perform its obligations under anyapplicable agreement between Microsoft and such Authorized Replicator and/or between Publisher andsuch Authorized Replicator. Microsoft has no responsibility for ensuring that FPUs are free of alldefects.     7.2 **Submissions to the Authorized Replicator**. Microsoft, and not Publisher, will provide tothe applicable Authorized Replicator the final release version of the Software Title and allspecifications required by Microsoft for the manufacture of the FPUs including, without limitation,the Security Technology (as defined in Section 7.9 below). Publisher is responsible for preparingand delivering to the Authorized Replicator all other items required for manufacturing FPUsincluding approved Packaging Materials associated with the FPUs. Subject to the approval ofPublisher (which approval shall not be unreasonably withheld), Microsoft has the right to haveincluded in the packaging of FPUs such promotional materials for Xbox, Xbox 360, Xbox Live, and/orother Xbox or Xbox 360 products or services as Microsoft may determine in its reasonablediscretion. Microsoft will be responsible for delivering to the Authorized Replicator all suchpromotional materials as it desires to include with FPUs, and, unless otherwise agreed by theparties, any incremental insertion costs relating to such marketing materials will be borne byMicrosoft.     7.3 **Verification Versions**. Publisher shall cause the Authorized Replicator to create severaltest versions of each FPU (“Verification Version(s)”) that will be provided to both Microsoft andPublisher for evaluation. Prior to full manufacture of a FPU by the Authorized Replicator, bothPublisher and Microsoft must approve the applicable Verification Version. Throughout themanufacturing process and upon the request of Microsoft, Publisher shall cause the AuthorizedReplicator to provide additional Verification Versions of the FPU for evaluation by Microsoft.Microsoft’s approval is a condition precedent to manufacture, however Publisher shall grant thefinal approval and shall work directly with the Authorized Replicator regarding the production run.Publisher agrees that all FPUs must be replicated in conformity with all of the quality standardsand manufacturing specifications, policies and procedures that Microsoft requires of its AuthorizedReplicators, and that all Packaging Materials must be approved by Microsoft prior to packaging.Publisher shall cause the Authorized Replicator to include the BTS on each FPU.
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     7.4 **Samples**. For each Software Title sku, at Publisher’s cost, Publisher shall provideMicrosoft with (****) FPUs and accompanying Marketing Materials per Sales Territory in which the FPU willbe released. Such units may be used in marketing, as product samples, for customer support,testing and for archival purposes. Publisher will not have to pay a royalty fee for such samplesnor will such samples count towards the Unit Discounts under Exhibit 1.     7.5 **Minimum Order Quantities**          7.5.1Within (****) after the date on which both Microsoft and Publisher have authorized theAuthorized Replicator to begin replication of FPUs for distribution to a specified Sales Territory,(receipt of both approvals is referred to as “Release to Manufacture”), Publisher must place ordersto manufacture the minimum order quantities (“MOQs”) as described in the Xbox 360 Publisher Guide.Microsoft may update and revise the MOQs (****) which will beeffective starting the following (****).Currently, the MOQs are as follows:                         (****)(****)(****)          (****)(****)(****)          (****)(****)(****)          (****)(****)(****)          (****)(****)           7.5.2 For the purposes of this section, a “Disc” shall mean an FPU that is signed for use on acertain defined range of Xbox 360 hardware, regardless of the number of languages or product skuscontained thereon. The MOQs per Software Title are cumulative per Sales Territory. For example,if an FPU is released in both the North American Sales Territory and the European Sales Territory,the cumulative MOQ per Software Title would be (****). The MOQ per Software Title and the MOQ per Disc,however, are not cumulative. For example, a single Disc FPU released only in the North AmericaSales Territory will have a total minimum order quantity of (****),which would cover the  (****) MOQ per SoftwareTitle and the (****) MOQ per Disc (rather than (****) which would have been the total minimum order quantity ifthe MOQ per Software Title and the MOQ per Disc had been cumulative).          7.5.3 If Publisher fails to place orders to meet any applicable minimum order quantity within(****) of Release to Manufacture, Publisher shall immediately pay Microsoft the applicable royalty fee forthe number of FPUs represented by the difference between the applicable MOQ and the number of FPUsof the Software Title actually ordered by Publisher.     7.6 **Manufacturing Reports**. For purposes of assisting in the scheduling of manufacturingresources, on a (****) basis, or as otherwise requested by Microsoft in its reasonable discretion,Publisher shall provide Microsoft with forecasts showing manufacturing projections by SalesTerritory (****) out for each Software Title. Publisher will use commercially reasonable efforts to causethe Authorized Replicator to deliver to Microsoft true and accurate(****) statements of FPUs manufacturedin each (****), on a Software Title-by-Software Title basis and in sufficient detail to satisfy Microsoft,within (****). Microsoft will have reasonable audit rights to examine the records of the AuthorizedReplicator regarding the number of FPUs manufactured.     7.7 **New Authorized Replicator**. If Publisher requests that Microsoft certify and approve athird party replicator that is not then an Authorized Replicator, Microsoft will consider suchrequest in good faith. Publisher acknowledges and agrees that Microsoft may conditioncertification and approval of such third party on the execution of an agreement in a formsatisfactory to Microsoft pursuant to which such third party agrees to strict quality standards,non-disclosure requirements, license fees for use of Microsoft intellectual property and tradesecrets, and procedures to protect Microsoft’s intellectual property and trade secrets.Notwithstanding anything contained herein, Publisher acknowledges that Microsoft is not required tocertify, maintain the certification or approve any particular third party as an AuthorizedReplicator, and that the certification and approval process may be time-consuming.     7.8 **Alternate Manufacturing in Europe**. Publisher may, solely with respect to FPUsmanufactured for distribution in the European Sales Territory, utilize a different process orcompany for the combination of a FPU with Packaging Materials provided that such packaging processincorporates the BTS and otherwise complies with the Xbox 360 Publisher Guide. Publisher shallnotify Microsoft regarding its use of such process or company so that the parties may properlycoordinate their activities and approvals. To the extent that Microsoft is unable to accommodatesuch processes or company, Publisher shall modify its operations to comply with Microsoft’srequirements.
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     7.9 **Security**. Microsoft has the right to add to the final release version of the SoftwareTitle delivered by Publisher to Microsoft, and to all FPUs, such digital signature technology andother security technology and copyright management information (collectively, “SecurityTechnology”) as Microsoft may determine to be necessary, and/or Microsoft may modify the signatureincluded in any Security Technology included in the Software Title by Publisher at Microsoft’sdiscretion. Additionally, Microsoft may add Security Technology that prohibits the play ofSoftware Titles on Xbox 360 units manufactured in a region or country different from the locationof manufacture of the respective FPUs or that have been modified in any manner not authorized byMicrosoft.     7.10 **Demo Versions**. If Publisher wishes to distribute a Demo Version in FPU format, Publishermust obtain Microsoft’s prior written approval and Microsoft may charge a reasonable fee to offsetcosts of the Certification. Subject to the terms of the Xbox 360 Publisher Guide, such DemoVersion(s) may be placed on a single disc, either as a stand-alone or with other Demo Versions andthe price of such units must be (****) or its equivalent in local currency. Unless separately addressedin the Xbox 360 Publisher Guide, all rights, obligations and approvals set forth in this Agreementas applying to Software Titles shall separately apply to any Demo Version. (****) If Publishers wishes todistribute a Demo Versions in an online downloadable format, such downloadable Demo Version shallbe distributed via by Microsoft Xbox Live in accordance with Section 10.3, and such downloadableDemo Version will be subject to all other terms and policies applicable to Online Content set forthherein and in the Xbox 360 Publisher Guide.**8. Payments**The Parties shall make payments to each other under the terms of Exhibit 1.**9. Marketing, Sales and Support**     9.1 **Publisher Responsible**. As between Microsoft and Publisher, Publisher is solelyresponsible for the marketing and sales of the Software Title. Publisher is also solelyresponsible for providing technical and all other support relating to the FPUs (including for XboxLive Users of Online Content). Publisher shall provide all appropriate contact information(including without limitation Publisher’s address and telephone number, and the applicableindividual/group responsible for customer support), and shall also provide all such information toMicrosoft for posting on http://www.xbox.com, or such successor or related Web site identified byMicrosoft or in Xbox Live. Customer support shall at all times conform to the Customer ServiceRequirements set forth in the Xbox 360 Publisher Guide and industry standards in the console gameindustry.     9.2 **Warranty.**Publisher shall provide the original end user of any FPU a minimum warranty inaccordance with local laws and industry practices. For example, in the United States, Publishershall, as of the Effective Date, provide a minimum (****) limited warranty that the FPU will perform inaccordance with its user documentation or Publisher will refund the purchase price or provide areplacement FPU at no charge. Publisher may offer additional warranty coverage consistent with thetraditions and practices of video game console game publishers within the applicable SalesTerritory or as otherwise required by local law.     9.3 **Recall.**Notwithstanding anything to the contrary contained in this Agreement, if there isa material defect in a Software Title and/or any FPUs, which defect in the reasonable judgment ofMicrosoft would significantly impair the ability of an end user to play such Software Title or FPUor would adversely affect the gameplay of the Xbox 360 or Xbox Live, Microsoft may requirePublisher to recall FPUs and undertake prompt repair or replacement of such Software Title and/orFPUs.     9.4 **No Bundling with Unapproved Peripherals, Products or Software**. Except as expressly statedin this section, Publisher shall not market or distribute a FPU bundled with any other product orservice, nor shall Publisher knowingly permit or assist any third party in such bundling, withoutMicrosoft’s prior written consent. Publisher may market or distribute (i) FPU bundled with aSoftware Title(s) that has been previously certified and released by Microsoft for manufacturing;or (ii) FPU bundled with a peripheral product (e.g. game pads) that has been previously licensed asan “Xbox 360 Licensed Peripheral” by Microsoft, without obtaining the written permission ofMicrosoft. Publisher shall contact Microsoft in advance to confirm that the peripheral or SoftwareTitle to be bundled has previously been approved by Microsoft pursuant to a valid license.
9***Microsoft Confidential***

 
     9.5 **Software Title License**. Publisher grants Microsoft a fully-paid, royalty-free, worldwide,non-exclusive license (i) to publicly perform the Software Titles at conventions, events, tradeshows, press briefings, public interactive displays and the like; (ii) to use the title of theSoftware Title, and screen shots from the Software Title, in advertising and promotional materialrelating to Xbox 360 and related Microsoft products and services, as Microsoft may reasonably deemappropriate; (iii) distribute Demo Versions with the *Official Xbox Magazine*, as a standaloneproduct with other demo software; and (iv) distribute Software Title trailers via xbox.com.Publisher may also select Online Content for inclusion in public interactive displays and/orcompilation demo discs published by Microsoft, in which case Publisher grants Microsoft afully-paid, royalty-free, worldwide, transferable, sublicenseable license to broadcast, transmit,distribute, host, publicly display, reproduce and manufacture such selected Online Content as partof public interactive displays and compilation demo discs, and to distribute and permit end usersto download and store (and, at Publisher’s discretion, to make further copies) such Online Contentvia public interactive displays, The rights granted in the preceding sentence are in addition toany rights that Microsoft may have for uses of Publisher Software Titles under the applicable law,such as uses that are “referential,” “fair use” or “reasonable use.”**10. Grant of Distribution License, Limitations**     10.1 **Distribution License**. Upon Certification of the Software Title, approval of theMarketing Materials and the FPU test version of the Software Title by Microsoft, and subject to theterms and conditions contained within this Agreement, Microsoft grants Publisher a non-exclusive,non-transferable, license to distribute FPUs containing Redistributable and Sample Code (asdefined in the XDK License) and Security Technology (as defined above) within the Sales Territoriesapproved in the Software Title’s Concept in FPU form to third parties for distribution to end usersand/or directly to end users. The license to distribute the FPUs is personal to Publisher andexcept for transfers of FPU through normal channels of distribution (e.g. wholesalers, retailers),absent the written approval of Microsoft, Publisher may not sublicense or assign its rights underthis license to other parties. For the avoidance of doubt, without the written approval ofMicrosoft, Publisher may not sublicense, transfer or assign its right to distribute Software Titlesor FPU to another entity that will brand, co-brand or otherwise assume control over such productsas a “publisher” as that concept is typically understood in the console game industry. Publishermay only grant end users the right to make personal, non-commercial use of Software Titles and maynot grant end users any of the other rights reserved to a copyright holder under US Copyright Law,Japanese Copyright Law, or its international equivalent. Publisher’s license rights do not includeany license, right, power or authority to subject Microsoft’s software or derivative works thereofor intellectual property associated therewith in whole or in part to any of the terms of anExcluded License. “Excluded License” means any license that requires as a condition of use,modification and/or distribution of software subject to the Excluded License, that such software orother software combined and/or distributed with such software be (a) disclosed or distributed insource code form; (b) licensed for the purpose of making derivative works; or (c) redistributableat no charge.     10.2 **No Distribution Outside the Sales Territory**. Publisher shall distribute FPUs only inSales Territories for which the Software Title has been approved by Microsoft. Publisher shall notdirectly or indirectly export any FPUs from an authorized Sales Territory to an unauthorizedterritory nor shall Publisher knowingly permit or assist any third party in doing so, nor shallPublisher distribute FPUs to any person or entity that it has reason to believe may re-distributeor sell such FPUs outside authorized Sales Territories.     10.3 **Online Features**. In consideration of the royalty payments as described in Exhibit1, Publisher grants to Microsoft (i) a worldwide, transferable, sublicensable license tobroadcast, transmit, distribute, host, publicly display, reproduce, and license Online Content foruse on Xbox 360s, and (ii) a worldwide, transferable license solely to distribute to end users andpermit end users to download and store Online Content (and, at Publisher’s discretion, to makefurther copies). Publisher agrees that the license grants set forth in this section applicable toOnline Content are exclusive, meaning that except as expressly permitted under this Agreement, theXbox 360 Publisher Guide and/or as agreed by the Parties, Publisher shall not directly orindirectly permit or enable access to Online Content by any means, methods, platforms or servicesother than through Xbox Live, or as otherwise set forth in this Agreement. Notwithstanding theforegoing, this Section 10.3 does not prevent Publisher from making other platform versions of itsSoftware Titles or Online Content available via other platform-specific online services. ThisSection 10.3 shall survive expiration or termination of this Agreement solely to the extent and forthe duration necessary to effectuate Section 17.3 below.     10.4 **No Reverse Engineering**. Publisher may utilize and study the design, performance andoperation of Xbox 360 or Xbox Live solely for the purposes of developing the Software Title orOnline Content. Notwithstanding the foregoing, Publisher shall not, directly or indirectly,reverse engineer or aid or assist in the reverse engineering of all or any
10***Microsoft Confidential***

 
part of Xbox 360 or Xbox Live except and only to the extent that such activity is expresslypermitted by applicable law notwithstanding this limitation. In the event applicable law grantsPublisher the right to reverse engineer the Xbox 360 or Xbox Live notwithstanding this limitation,Publisher shall provide Microsoft with written notice prior to such reverse engineering activity,information regarding Publisher’s intended method of reverse engineering, its purpose and the legalauthority for such activity and shall afford Microsoft a reasonable period of time beforeinitiating such activity in order to evaluate the activity and/or challenge the reverse engineeringactivity with the appropriate legal authorities. Publisher shall refrain from such reverseengineering activity until such time as any legal challenge is resolved in Publisher’s favor.Reverse engineering includes, without limitation, decompiling, disassembly, sniffing, peelingsemiconductor components, or otherwise deriving source code. In addition to any other rights andremedies that Microsoft may have under the circumstances, Publisher shall be required in all casesto pay royalties to Microsoft in accordance with Exhibit 1 with respect to any games orother products that are developed, marketed or distributed by Publisher, and derived in whole or inpart from the reverse engineering of Xbox 360, Xbox Live or any Microsoft data, code or othermaterial.     10.5 **Reservation of Rights.**Microsoft reserves all rights not explicitly granted herein.     10.6 **Ownership of the Software Titles**. Except for the intellectual property supplied byMicrosoft to Publisher (including without limitation the Licensed Trademarks hereunder and thelicenses in certain software and hardware granted by an XDK License), ownership of which isretained by Microsoft, insofar as Microsoft is concerned, Publisher will own all rights in and tothe Software Titles and Online Content.     10.7 **Sub-Publishing.**Notwithstanding Section 10.1, Publisher may enter into independentagreements with other publishers to distribute Software Titles in multiple approved SalesTerritories (a “Sub-Publishing Relationship”), so long as:          10.7.1 Publisher provides written notice to Microsoft, at least (****) prior to authorizing aSub-Publisher to manufacture any Software Title(s), of the Sub-Publishing relationship, along with(i) a summary of the scope and nature of the Sub-Publishing relationship including, withoutlimitation, as between Publisher and Sub-Publisher, (ii) which party will be responsible forCertification of the Software Title(s) and/or any Online Content, (iii) a list of the SoftwareTitle(s) for which Sub-Publisher has acquired publishing rights, (iv) the geographic territory(ies)for which such rights were granted, and (v) the term of Publisher’s agreement with Sub-Publisher;and          10.7.2 The Sub-Publisher has signed an Xbox 360 publisher license agreement (“Xbox 360 PLA”)and both Publisher and Sub-Publisher are and remain at all times in good standing under each oftheir respective Xbox 360 PLAs. Publisher is responsible for making applicable royalty paymentsfor the FPUs for which it places manufacturing orders, and Sub-Publisher is responsible for makingroyalty payments for the FPUs for which it places manufacturing orders.     10.8 **Authorized Affiliates**. If Publisher and an affiliate execute the “Publisher AffiliateAgreement” provided in Exhibit 4, then Publisher’s authorized affiliate may exercise therights granted to Publisher under this Agreement. The foregoing shall not apply to any Publisheraffiliate which pays or intends to pay royalties from a European billing address. Any suchEuropean affiliate shall instead execute an Xbox 360 Publisher Enrollment with MIOL, a copy ofwhich is attached hereto as Exhibit 3.**11. Usage Data**     Publisher acknowledges that the operation of the Xbox Live service requires that Microsoft collectand store Xbox Live User usage data, including, without limitation, Xbox Live User statistics,scores, ratings, and rankings (collectively, “Xbox Live User Data”), as well aspersonally-identifiable Xbox Live User data (e.g., name, email address) (“Personal Data”).Microsoft reserves the right, in its discretion, to use such Xbox Live User Data for any purpose,including without limitation, posting the Xbox Live User Data on Xbox.com or other Microsoft Websites. Microsoft agrees to use commercially reasonable efforts to periodically make certain XboxLive User Data and Personal Data available to Publisher; provided that Publisher’s use of such datais in accordance with the then-current Xbox Live Privacy Statement and such other reasonablerestrictions as Microsoft may require. Without limiting the foregoing, Publisher agrees that anydisclosure of Personal Data to Publisher is only used by Publisher and may not be shared with anyother third parties, and any permitted email communications with Xbox Live Users includesinstructions for opting out of receiving any further communications from Publisher.
11***Microsoft Confidential***

 
**12. Trademark Rights and Restrictions**     12.1 **Licensed Trademarks License**. In each Software Title, FPU, Online Content and on allMarketing Materials, Publisher shall incorporate the Licensed Trademarks and include credit andacknowledgement to Microsoft as set forth in the Xbox 360 Publisher Guide. Microsoft grants toPublisher a non-exclusive, non-transferable, personal license to use the Licensed Trademarks inconnection with Software Titles, FPUs, Online Content and Marketing Materials according to the Xbox360 Publisher Guide and other conditions herein, and solely in connection with marketing, sale, anddistribution in the approved Sales Territories or via Xbox Live.     12.2 **Limitations**. Publisher is granted no right, and shall not purport, to permit any thirdparty to use the Licensed Trademarks in any manner without Microsoft’s prior written consent.Publisher’s license to use Licensed Trademarks in connection with the Software Title, FPUs and/orOnline Content does not extend to the merchandising or sale of related or promotional products.     12.3 **Branding Specifications**. Publisher’s use of the Licensed Trademarks (including withoutlimitation in FPUs, Online Content and Marketing Materials) must comply with the BrandingSpecifications set forth in the Xbox 360 Publisher Guide. Publisher shall not use LicensedTrademarks in association with any third party trademarks in a manner that might suggestco-branding or otherwise create potential confusion as to source or sponsorship of the SoftwareTitle, Online Content or FPUs or ownership of the Licensed Trademarks, unless Microsoft hasotherwise approved such use in writing. Upon notice or other discovery of any non-conformance withthe requirements or prohibitions of this section, Publisher shall promptly remedy suchnon-conformance and notify Microsoft of the non-conformance and remedial steps taken.     12.4 **Protection of Licensed Trademarks**. Publisher shall assist Microsoft in protecting andmaintaining Microsoft’s rights in the Licensed Trademarks, including preparation and execution ofdocuments necessary to register the Licensed Trademarks or record this Agreement, and givingimmediate notice to Microsoft of potential infringement of the Licensed Trademarks. Microsoftshall have the sole right to and in its sole discretion may, commence, prosecute or defend, andcontrol any action concerning the Licensed Trademarks, either in its own name or by joiningPublisher as a party thereto. Publisher shall not during the term of this Agreement contest thevalidity of, by act or omission jeopardize, or take any action inconsistent with, Microsoft’srights or goodwill in the Licensed Trademarks in any country, including attempted registration ofany Licensed Trademark, or use or attempted registration of any mark confusingly similar thereto.     12.5 **Ownership and Goodwill**. Publisher acknowledges Microsoft’s ownership of all LicensedTrademarks, and all goodwill associated with the Licensed Trademarks. Use of the LicensedTrademarks shall not create any right, title or interest therein in Publisher’s favor. Publisher’suse of the Licensed Trademarks shall inure solely to the benefit of Microsoft.**13. Non-Disclosure; Announcements**     13.1 **Non-Disclosure Agreement**. The information, materials and software exchanged by theparties hereunder or under an XDK License, including the terms and conditions hereof and of the XDKLicense, are subject to the Non-Disclosure Agreement between the parties attached hereto asExhibit 5 (the “Non-Disclosure Agreement”), which is incorporated herein by reference;provided, however, that for purposes of the foregoing, Section 2(a)(i) of the Non-DisclosureAgreement shall hereinafter read, “The Receiving Party shall: (i)] Refrain from disclosingConfidential Information of the Disclosing Party to any third parties for as long as such remainsundisclosed under 1(b) above except as expressly provided in Sections 2(b) and 2(c) of this[Non-Disclosure] Agreement.” In this way, all Confidential Information provided hereunder or byway of the XDK License in whatever form (e.g. information, materials, tools and/or softwareexchanged by the parties hereunder or under an XDK License), including the terms and conditionshereof and of the XDK License, unless otherwise specifically stated, will be protected fromdisclosure for as long as it remains Confidential.     13.2 **Public Announcements**. Neither party shall issue any such press release or make any suchpublic announcement(s) related to the subject matter of this Agreement or any XDK License withoutthe express prior consent of the other party, which consent will not be unreasonably withheld ordelayed. Nothing contained in this Section 13.2 will relieve
12***Microsoft Confidential***

 
Publisher of any other obligations it may have under this Agreement, including withoutlimitation its obligations to seek and obtain Microsoft approval of Marketing Materials.     13.3 **Required Public Filings**. Notwithstanding Sections 13.1 and 13.2, the parties acknowledgethat this Agreement, or portions thereof, may be required under applicable law to be disclosed, aspart of or an exhibit to a party’s required public disclosure documents. If either party isadvised by its legal counsel that such disclosure is required, it will notify the other in writingand the parties will jointly seek confidential treatment of this Agreement to the maximum extentreasonably possible, in documents approved by both parties and filed with the applicablegovernmental or regulatory authorities, and/or Microsoft will prepare a redacted version of thisAgreement for filing.**14. Protection of Proprietary Rights**     14.1 **Microsoft Intellectual Property**. If Publisher learns of any infringement or imitation ofthe Licensed Trademarks, a Software Title, Online Content or FPU, or the proprietary rights in orrelated to any of them, it will promptly notify Microsoft thereof. Microsoft may take such actionas it deems advisable for the protection of its rights in and to such proprietary rights, andPublisher shall, if requested by Microsoft, cooperate in all reasonable respects therein atMicrosoft’s expense. In no event, however, shall Microsoft be required to take any action if itdeems it inadvisable to do so. Microsoft will have the right to retain all proceeds it may derivefrom any recovery in connection with such actions.     14.2 **Publisher Intellectual Property**. Publisher, without the express written permission ofMicrosoft, may bring any action or proceeding relating to infringement or potential infringement ofa Software Title, Online Content or FPU, to the extent such infringement involves any proprietaryrights of Publisher (provided that Publisher will not have the right to bring any such action orproceeding involving Microsoft’s intellectual property). Publisher shall make reasonable effortsto inform Microsoft regarding such actions in a timely manner. Publisher will have the right toretain all proceeds it may derive from any recovery in connection with such actions. Publisheragrees to use all commercially reasonable efforts to protect and enforce its proprietary rights inthe Software Title or Online Content.     14.3 **Joint Actions**. Publisher and Microsoft may agree to jointly pursue cases of infringementinvolving the Software Titles or Online Content (since such products will contain intellectualproperty owned by each of them). Unless the parties otherwise agree, or unless the recovery isexpressly allocated between them by the court (in which case the terms of Sections 14.1 and 14.2will apply), in the event Publisher and Microsoft jointly prosecute an infringement lawsuit underthis provision, any recovery will be used first to reimburse Publisher and Microsoft for theirrespective reasonable attorneys’ fees and expenses, *pro rata,*and any remaining recovery shall alsobe given to Publisher and Microsoft *pro rata*based upon the fees and expenses incurred in bringingsuch action.**15. Warranties**     15.1 **Publisher**. Publisher warrants and represents that:          15.1.1 It has the full power to enter into this Agreement;          15.1.2 It has obtained and will maintain all necessary rights and permissions for its andMicrosoft’s use of the Software Title, FPUs, Marketing Materials, Online Content, all information,data, logos, and software or other materials provided to Microsoft and/or made available to XboxLive Users via Xbox Live (excluding those portions that consist of the Licensed Trademarks,Security Technology and redistributable components of the so-called “XDK” in the form as deliveredto Publisher by Microsoft pursuant to an XDK License) (collectively, the “Publisher Content”), andthat all Publisher Content complies with all laws and regulations, and does not and will notinfringe upon or misappropriate any third party trade secrets, copyrights, trademarks, patents,publicity, privacy or other proprietary rights.          15.1.3 It shall comply with all laws, regulations, industry content rating requirements andadministrative orders and requirements within any applicable Sales Territory relating to thedistribution, sale and marketing of the Software Title, and shall keep in force all necessarylicenses, permits, registrations, approvals and/or exemptions throughout the term
13***Microsoft Confidential***

 
of this Agreement and for so long as it is distributing, selling or marketing the SoftwareTitle in any applicable Sales Territory.          15.1.4 The Software Title, Online Content and/or information, data, logos and software orother materials provided to Microsoft and /or made available to Xbox Live Users via Xbox Live, donot and shall not contain any messages, data, images or programs that are, by law, defamatory,obscene or pornographic, or in any way violate any applicable laws or industry content ratingrequirements (including without limitation laws of privacy) of the applicable Sales Territory(ies)where the Software Title is marketed and/or distributed.          15.1.5 The Online Content shall not harvest or otherwise collect information about Xbox LiveUsers, including e-mail addresses, without the Xbox Live Users’ express consent; and the OnlineContent shall not link to any unsolicited communication sent to any third party.     15.2 **Microsoft**. Microsoft warrants and represents that it has the full power to enter intothis Agreement and it has not previously and will not grant any rights to any third party that areinconsistent with the rights granted to Publisher herein.     15.3 **DISCLAIMER**. **EXCEPT AS EXPRESSLY STATED IN THIS SECTION 15, MICROSOFT PROVIDES ALLMATERIALS (INCLUDING WITHOUT LIMITATION THE SECURITY TECHNOLOGY) AND SERVICES HEREUNDER ON AN “ASIS” BASIS, AND MICROSOFT DISCLAIMS ALL OTHER WARRANTIES UNDER THE APPLICABLE LAWS OF ANY COUNTRY,EXPRESS OR IMPLIED, REGARDING THE MATERIALS AND SERVICES IT PROVIDES HEREUNDER, INCLUDING ANYIMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTY OF FREEDOMFROM COMPUTER VIRUSES. WITHOUT LIMITATION, MICROSOFT PROVIDES NO WARRANTY OF NON-INFRINGEMENT.**     15.4 **EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES**. **TO THE MAXIMUM EXTENTPERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MICROSOFT, ITS AFFILIATES, LICENSORS OR ITSSUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ORNATURE WHATSOEVER, RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDINGWITHOUT LIMITATION, LOST PROFITS OR LOST GOODWILL AND WHETHER BASED ON BREACH OF ANY EXPRESS ORIMPLIED WARRANTY, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR STRICT LIABILITY, REGARDLESSOF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR IF SUCH DAMAGE COULDHAVE BEEN REASONABLY FORESEEN.**     15.5 **LIMITATION OF LIABILITY**. **THE MAXIMUM LIABILITY OF MICROSOFT TO PUBLISHER OR TO ANY THIRDPARTY ARISING OUT OF THIS AGREEMENT WILL BE (****). FURTHERMORE, UNDER NO CIRCUMSTANCES SHALL MICROSOFTBE LIABLE TO PUBLISHER FOR ANY DAMAGES WHATSOEVER WITH RESPECT TO ANY CLAIMS RELATING TO THESECURITY TECHNOLOGY AND/OR ITS EFFECT ON ANY SOFTWARE TITLE OR FOR ANY STATEMENTS OR CLAIMS MADE BYPUBLISHER, WHETHER IN PUBLISHER’S MARKETING MATERIALS OR OTHERWISE, REGARDING THE AVAILABILITY OROPERATION OF ANY ONLINE FEATURES.****16. Indemnity; Insurance**. A claim for which indemnity may be sought hereunder is referred to as a “Claim.”     16.1 **Mutual Indemnification**. Each party hereby agrees to indemnify, defend, and hold theother party harmless from any and all third party claims, demands, costs, liabilities, losses,expenses and damages (including reasonable attorneys’ fees, costs, and expert witnesses’ fees)arising out of or in connection with any claim that, taking the claimant’s allegations to be true,would result in a breach by the indemnifying party of any of its representations, warranties orcovenants set forth in Section 15.     16.2 **Additional Publisher Indemnification Obligation**. Publisher further agrees to indemnify,defend, and hold Microsoft harmless from any and all third party claims, demands, costs,liabilities, losses, expenses and damages
14***Microsoft Confidential***

 
(including reasonable attorneys’ fees, costs, and expert witnesses’ fees) arising out of or inconnection with any claim regarding any Software Title or FPU including without limitation anyclaim relating to quality, performance, safety thereof, or arising out of Publisher’s use of theLicensed Trademarks in breach of this Agreement.     16.3 **Notice and Assistance**. The indemnified party shall: (i) provide the indemnifying partyreasonably prompt notice in writing of any Claim and permit the indemnifying party to answer anddefend such Claim through counsel chosen and paid by the indemnifying party; and (ii) provideinformation, assistance and authority to help the indemnifying party defend such Claim. Theindemnified party may participate in the defense of any Claim at its own expense. The indemnifyingparty will not be responsible for any settlement made by the indemnified party without theindemnifying party’s written permission, which will not be unreasonably withheld or delayed. Inthe event the indemnifying party and the indemnified party agree to settle a Claim, the indemnifiedparty agrees not to publicize the settlement without first obtaining the indemnifying party’swritten permission.     16.4 **Insurance**. Publisher shall maintain sufficient and appropriate insurance coverage toenable it to meet its obligations under this Agreement and by law (whether Products Liability,General Liability or some other type of insurance). For FPUs distributed in the Japan SalesTerritory, Publisher’s coverage will have minimum limits of theJapanese yen equivalent of (****) peroccurrence, with a deductible of not more than the Japanese yenequivalent of (****). For FPUsdistributed in the Asian Sales Territory, Publisher’s coveragewill have minimum limits of (****) peroccurrence (or its equivalent value in local currency as of the date of issuance), with adeductible of not more than (****) (or its equivalent value in local currency as of the date ofissuance). For FPUs distributed outside of Japan and the Asian Sales Territories, Publisher shallmaintain Professional Liability and Errors & Omissions Liability Insurance (E&O) with policy limitsof not less than (****) per occurrence (or its equivalent value in local currency as of the date ofissuance), each claim with a deductible of not more than (****) (or its equivalent value in localcurrency as of the date of issuance). Such insurance shall include coverage for infringement ofany proprietary right of any third party, including without limitation copyright and trademarkinfringement as related to Publisher’s performance under this Agreement. The E&O insuranceretroactive coverage date will be no later than (****). Publisher shall maintain an active policy, orpurchase an extended reporting period providing coverage for claims first made and reported to theinsurance company within (****) after (****). Upon request, Publisher shall deliver to Microsoft proof of suchcoverage. In the event that Publisher’s proof evidences coverage that Microsoft reasonablydetermines to be less than that required to meet Publisher’s obligations created by this Agreement,then Publisher agrees that it shall promptly acquire such coverage and notify Microsoft in writingthereof.**17. Term and Termination**     17.1 **Term**. The term of this Agreement shall commence on the Effective Date and shall continueuntil three (3) years after such date that the Xbox 360 isfirst commercially released by Microsoft in the United States. Unless one party gives the other notice of non-renewal within (****) of the end of thethen-current term, this Agreement shall automatically renew forsuccessive (****) terms.     17.2 **Termination for Breach**. If either party materially fails to perform or comply with thisAgreement or any provision thereof, and fails to remedy the defaultwithin (****) after the receipt ofnotice to that effect, then the other party has the right, at its sole option and upon writtennotice to the defaulting party, to terminate this Agreement upon written notice; provided that ifPublisher is the party that has materially failed to perform or comply with this Agreement, thenMicrosoft has the right, but not the obligation, to suspend availability of the Online Contentduring such (****) period. Any notice of default hereunder must be prominently labeled “NOTICE OFDEFAULT”; provided, however, that if the default is of Sections 10, 12 or Sections 1 or 2 ofExhibit 1**,**the Non-Disclosure Agreement, or an XDK License**,**then the non-defaulting partymay terminate this Agreement immediately upon written notice, withoutbeing obligated to provide a (****)cure period. The rights and remedies provided in this section are not exclusive and are inaddition to any other rights and remedies provided by law or this Agreement. If the uncureddefault is related to a particular Software Title or particular Online Content, then the party notin default has the right, in its discretion, to terminate this Agreement its entirety or withrespect to the applicable Software Title or the particular Online Content. If Microsoftdetermines, at any time prior to the Commercial Release of a Software Title or Online Content, thatsuch Software Title or Online Content does not materially comply with the requirements set forth inthe Xbox 360 Publisher Guide or to any applicable laws, then Microsoft has the right, inMicrosoft’s sole discretion and notwithstanding any prior approvals given by Microsoft, toterminate this Agreement without cost or penalty, as a whole or on a Software Title by SoftwareTitle, or Sales Territory by Sales Territory basis upon written notice to Publisher with respect tosuch Software Title or Sales Territory.
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     17.3 **Effect of Termination; Sell-off Rights**. Upon termination or expiration of thisAgreement, Publisher has no further right to exercise the rights licensed hereunder or within theXDK License and shall promptly cease all manufacturing of FPU through its Authorized Replicatorsand, other than as provided below, cease use of the Licensed Trademarks. Publisher shall have aperiod of (****), to sell-off its inventory of FPUs existing as of the date of termination or expiration,after which sell-off period Publisher shall immediately return all FPUs to an Authorized Replicatorfor destruction. Publisher shall cause the Authorized Replicator to destroy all FPUs and issue toMicrosoft written certification by an authorized representative of the Authorized Replicatorconfirming the destruction of FPUs required hereunder. All of Publisher’s obligations under thisAgreement shall continue to apply during such (****) sell-off period. If this Agreement is terminated dueto Publisher’s breach, at Microsoft’s option, Microsoft may require Publisher to immediatelydestroy all FPUs not yet distributed to Publisher’s distributors, dealers and/or end users andshall require all those distributing the FPU over which it has control to cease distribution. Upontermination or expiration of this Agreement, Publisher shall continue to support existing OnlineGame Features for FPUs that have already been sold until the end of the Minimum Commitment term.     17.4 **Cross-Default.**If Microsoft has the right to terminate this Agreement, then Microsoftmay, at its sole discretion also terminate the XDK License. If Microsoft terminates the XDKLicense due to a breach by Publisher, then Microsoft may, at its sole discretion also terminatethis Agreement.     17.5 **Survival**. The following provisions shall survive expiration or termination of thisAgreement: Sections 2, 6.2.2 (as to the Minimum Commitment), 6.2.3, 8 and Sections 1, 2 and 5 ofExhibit 1, 9.1-9.3, 10.3, 10.4, 11, 13.1, 14, 15, 16, 17.3, 17.5 and 18.**18. General**     18.1 **Governing Law; Venue; Attorneys Fees**. This Agreement is to be construed and controlledby the laws of the State of Washington, U.S.A., and Publisher consents to exclusive jurisdictionand venue in the federal courts sitting in King County, Washington, U.S.A., unless no federaljurisdiction exists, in which case Publisher consents to exclusive jurisdiction and venue in theSuperior Court of King County, Washington, U.S.A. Publisher waives all defenses of lack ofpersonal jurisdiction and forum non conveniens. Process may be served on either party in themanner authorized by applicable law or court rule. The English version of this Agreement isdeterminative over any translations thereof. If either party employs attorneys to enforce anyrights arising out of or relating to this Agreement, the prevailing party is entitled to recoverits reasonable attorneys’ fees, costs and other expenses. This choice of jurisdiction provisiondoes not prevent Microsoft from seeking injunctive relief with respect to a violation ofintellectual property rights or confidentiality obligations in any appropriate jurisdiction.     18.2 **Notices; Requests**. All notices and requests in connection with this Agreement are deemedgiven on the (****) after they are deposited in the applicable country’s mail system ((****)), postage prepaid,certified or registered, return receipt requested; or (****) sent by overnight courier, charges prepaid,with a confirming fax; and addressed as follows:      Publisher:Atari Inc. Microsoft: MICROSOFT LICENSING, GP 41755th Avenue   6100 Neil Road, Suite 100 New York, NY 10016   Reno, NV 89511-1137     Attention:Kristina Pappa, Vice President & GeneralCounselAttention: Xbox Accounting ServicesFax:(212) 252-8603   Phone:(212) 726-4242 with a cc to: MICROSOFT CORPORATIONEmail:Kristina.pappa@atari.com   One Microsoft Way     Redmond, WA 98052-6399        Attention: Law & Corporate Affairs Department     Assoc. General Counsel, ConsumerLegal Group(H&ED)     Fax: (425) 936-7329
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or to such other address as the party to receive the notice or request so designates by writtennotice to the other.     18.3 **No Delay or Waiver**. No delay or failure of either party at any time to exercise orenforce any right or remedy available to it under this Agreement, and no course of dealing orperformance with respect thereto, will constitute a waiver of any such right or remedy with respectto any other breach or failure by the other party. The express waiver by a party of any right orremedy in a particular instance will not constitute a waiver of any such right or remedy in anyother instance. All rights and remedies will be cumulative and not exclusive of any other rightsor remedies.     18.4 **Assignment**. Publisher may not assign this Agreement or any portion thereof, to any thirdparty unless Microsoft expressly consents to such assignment in writing. Microsoft will have theright to assign this Agreement and/or any portion thereof as Microsoft may deem appropriate and/orauthorize its affiliates or partners to perform this Agreement in whole or part on its behalf. Forthe purposes of this Agreement, a merger, consolidation, or other corporate reorganization, or atransfer or sale of a controlling interest in a party’s stock, or of all or substantially all ofits assets is to be deemed to be an assignment. This Agreement will inure to the benefit of and bebinding upon the parties, their successors, administrators, heirs, and permitted assigns.     18.5 **No Partnership**. Microsoft and Publisher are entering into a license pursuant to thisAgreement and nothing in this Agreement is to be construed as creating an employer-employeerelationship, a partnership, a franchise, or a joint venture between the parties.     18.6 **Severability**. if any provision of this Agreement is found invalid or unenforceablepursuant to judicial decree or decision, the remainder of this Agreement shall remain valid andenforceable according to its terms. The parties intend that the provisions of this Agreement beenforced to the fullest extent permitted by applicable law. Accordingly, the parties agree that ifany provisions are deemed not enforceable, they are to be deemed modified to the extent necessaryto make them enforceable.     18.7 **Injunctive Relief**. The parties agree that Publisher’s threatened or actual unauthorizeduse of the Licensed Trademarks or other Microsoft proprietary rights whether in whole or in part,may result in immediate and irreparable damage to Microsoft for which there is no adequate remedyat law. Either party’s threatened or actual breach of the confidentiality provisions may causedamage to the non-breaching party, and in such event the non-breaching party is entitled toappropriate injunctive relief from any court of competent jurisdiction without the necessity ofposting bond or other security.     18.8 **Entire Agreement; Modification; No Offer**. This Agreement (including the Concept, theNon-Disclosure Agreement, the Xbox 360 Publisher Guide, written amendments thereto, and otherincorporated documents) and the XDK License constitute the entire agreement between the partieswith respect to the subject matter hereof and merges all prior and contemporaneous communications.This Agreement shall not be modified except by a written agreement dated subsequent hereto signedon behalf of Publisher and Microsoft by their duly authorized representatives. Neither thisAgreement nor any written or oral statements related hereto constitute an offer, and this Agreementis not legally binding until executed by both parties hereto.     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of theEffective Date on the dates indicated below.     **MICROSOFT LICENSING, GP**   ATARI, INC     /s/ RoxanneSpring   /s/ Diane P.Baker     By (sign)   By (sign)     RoxanneSpring    Diane P. Baker     Name(Print)    Name (Print)     Sr. ProgramManager    EVP/CFO      Title   Title     17-Feb-2006   2/8/06      Date   Date
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**EXHIBIT 1****PAYMENTS****1. Platform Royalty**     a. For each FPU manufactured during the term of this Agreement, Publisher shall pay Microsoftnonrefundable royalties in accordance with the royalty tables set forth below (Tables 1 and 2) andthe “Unit Discount” table set forth in Section 1.d of this Exhibit 1 (Table 3).     b. The royalty fee is determined by the “Threshold Price” (which is the Wholesale Price (WSP)or Suggested Retail Price (SRP) at which Publisher intends to sell the Software Title in theapplicable Sales Territory). To determine the applicable royalty rate for a particular SoftwareTitle in a particular Sales Territory, the applicable Threshold Price from Table 1 below willdetermine the correct royalty “Tier.” The royalty fee is then as set forth in Table 2 based on theManufacturing Region in which the FPUs will be manufactured. For example, assume the WholesalePrice of a Software Title to be sold in the European Sales Territory is (****). According to Table 1,(****) royalty rates will apply to that Software Title and the royalty rate is determined in Table 2 bythe Manufacturing Region. If the Software Title were manufactured in the European ManufacturingRegion, the royalty fee would be per FPU. If the Software Title were manufactured in AsianManufacturing Region, the royalty fee would be (****) per FPU.**Table 1: Threshold Price per Sales Territory**                    (****)  (****)  (****)  (****)  (****)  (****)  (****)  (****)  (****)  (****)  (****)  (****)  (****)  (****)  **Table 2: Royalty Rate per Manufacturing Region**                 (****)  (****)  (****)  (****)  (****)  (****)  (****) (****)  (****)  (****)  (****)       c. Setting the Royalty. Publisher shall submit to Microsoft, at least (****) for a SoftwareTitle, a completed and signed “Royalty Tier Selection Form” in the form attached to this Agreementas Exhibit 2 for each Sales Territory. The selection indicated in the Royalty TierSelection Form will only be effective once the Royalty Tier Selection Form has been accepted byMicrosoft. If Publisher does not submit a Royalty Tier Selection Form as required hereunder, theroyalty fee for such Software Title will default to (****), regardless of the actual Threshold Price. Theselection of a royalty tier for a Software Title in a Sales Territory is binding for the life ofthat Software Title even if the Threshold Price is reduced following the Software Title’sCommercial Release.     d. Unit Discounts. Publisher is eligible for a discount to FPUs manufactured for aparticular Sales Territory (a “Unit Discount”) based on the number of FPUs that have beenmanufactured for sale in that Sales Territory as described in Table 3 below. Except as providedin Section 4 below, units manufactured for sale in a Sales Territory are aggregated only towards adiscount on FPUs manufactured for that Sales Territory; there is no worldwide or cross-territorialaggregation of units for a particular Software Title. The discount will be rounded up to thenearest Cent, Yen or hundredth of a Euro.
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**Table 3: Unit Discounts**                 (****)  (****)  (****)  (****)  (****)  (****)  (****)  (****)  (****)  (****)  (****)  (****)  (****)  (****)  (****)  (****)  (****)  (****)  (****)  (****)  (****)  (****)  (****)  (****)  (****)  (****)  (****)  (****)  (****)  (****)  ***Example:***Publisher manufactures (****) FPUs of a Software Title in the North AmericanManufacturing Region for sale in the North American Sales Territory with a Wholesale Priceof (****). Publisher then manufactures (****) FPUs in the European Manufacturing Region for sale in theNorth American Sales Territory with that same Wholesale Price (total FPUs for North AmericanSales Territory: (****)). Finally, Publisher manufactures FPUs of the same Software Title in theEuropean Manufacturing Region for sale in the Japan Sales Territory at a Suggested RetailPrice below (****). The actual applied royalty rates for this Software Title would be: i. For North American Sales Territory:   (****)  ii. For Japan Sales Territory:   (****) **2. Payment Process**     a. (****) Publisher shall not authorize its Authorized Replicators to begin production until suchtime as (****). Depending upon Publisher’s credit worthiness, Microsoft may, but is not obligated to,offer Publisher credit terms for the payment of royalties due under this Agreement within (****) ofreceipt of invoice. All payments will be made by wire transfer only, in accordance with thepayment instructions set forth in the Xbox 360 Publisher Guide.     b. Publisher will pay royalties for FPUs manufactured in the North American ManufacturingRegion in US Dollars, for FPUs manufactured in the Asian Manufacturing Region in Japanese Yen andfor FPUs manufactured in the European Manufacturing Region in Euros.**3. Billing Address**     a. Publisher may have only two “bill to” addresses for the payment of royalties under thisAgreement, one for the North American Manufacturing Region and one for the Asian ManufacturingRegion. If Publisher desires to have a “bill-to” address in a European country, Publisher (or aPublisher Affiliate) must execute an MIOL Enrollment Form in the form attached to this Agreement asExhibit 3.Publisher’s billing address(es) is as follows:         North America Manufacturing Region:   Asian Manufacturing Region (if different):         Name:     Name:         Address:     Address:                                                  Attention:     Attention:         Email address:     Email address:         Fax:     Fax:         Phone:     Phone:         
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**4. Asia Simship Program**The purpose of this program is to encourage Publisher to release Japanese FPUs or North AmericanFPUs, that have been multi-region signed to run on NTSC-J boxes (hereinafter collectively referredto as “Simship Titles”), in Hong Kong, Singapore and Taiwan (referred to as “Simship Territory”) atthe same time as Publisher releases the Software Title in the Japan and/or North American SalesTerritories. In order for a Software Title to qualify as a Simship Title, Publisher must releasethe Software Title in the Simship Territory on the same date as the Commercial Release date of suchSoftware Title in the Japan and/or North American Sales Territories, wherever the Software Titlewas first Commercially Released (referred to as “Original Territory”). To the extent that aSoftware Title qualifies as a Simship Title, the applicable royalty tier (under Section 1.b of thisExhibit 1 above) and Unit Discount (under Section 1.d of this Exhibit 1 above) isdetermined as if all FPUs of such Software Title manufactured for distribution in both the OriginalTerritory and the Simship Territory were manufactured for distribution in the Original Territory.For example, if a Publisher initially manufactures (****) FPUs of a Software Title for the Japan SalesTerritory and simships (****) of those units to the Simship Territory, the royalty fee for all of the FPUsis determined by (****). In this example, Publisher would also receive a (****) Unit Discount on (****) units forhaving exceeded the Unit Discount level specified in Section 1. d of this Exhibit 1 aboveapplicable to the Japan Sales Territory. Publisher must provide Microsoft with written notice ofits intention to participate in the Asian Simship Program with respect to a particular SoftwareTitle at least (****) prior to manufacturing any FPUs it intends to qualify for the program. In itsnotice, Publisher shall provide all relevant information, including total number of FPUs to bemanufactured, number of FPUs to be simshipped into the Simship Territory, date of simship, etc.Publisher remains responsible for complying with all relevant import, distribution and packagingrequirements as well as any other applicable requirements set forth in the Xbox 360 PublisherGuide.**5. Online Content**     a. For the purpose of this Section 5, the following capitalized terms have the followingmeanings:          **“MS Point”**means a proprietary form of virtual currency that Microsoft makes available toconsumers to redeem for goods or services from Microsoft or its partners that are distributedonline. Microsoft reserves all rights to determine rates, value and policies applicable to theuse of MS Points.          **“MS Points Remittance Rate”**means a rate based on which Microsoft will calculate the RoyaltyFee due Publisher for Premium Online Content redeemed for MS Points via Xbox Live. (****), effective, (****)Microsoft will publish the Points Remittance Rate in the Xbox 360 Publisher Guide. Notwithstandingthe foregoing, from the Effective Date of this Agreement until (****), the Points Remittance Rate willequal (****).  Microsoft may publish a different Points Remittance Rate for the period from , andthereafter will publish an updated MS Points Remittance Rate that will apply prospectively for eachsale of Premium Online Content during the (****) ((****) of the following).     b. Publisher may, from time to time, submit Online Content to Microsoft for Microsoft todistribute via Xbox Live. Microsoft may choose to offer such Online Content to Xbox Live Users fora fee, which Online Content may be offered for sale in currency or through redemption of MS Points(Online Content offered for sale and not distributed for free is referred to as “Premium OnlineContent”), as determined by Microsoft. Microsoft also reserves the right to charge Publisher areasonable fee for delivering free content via Xbox Live. For each Premium Online Content item,Microsoft will pay Publisher a royalty calculated as follows (the “Royalty Fee”).     c. For Premium Online Content made available for redemption with MS Points, the Royalty Feewill equal (****). For example, if a certain unit of Premium Online Content were sold for (****) MS Points (****) andthe current Points Remittance Rate were (****) per MS Point, the Royalty Fee would equal (****).     d. For all other Premium Online Content, the Royalty Fee will equal (****)     e. Within (****) after the end of (****) with respect to which Microsoft owes Publisher any Royalty Fees,Microsoft shall furnish Publisher with a statement, together with payment for any amount shownthereby to be due to Publisher. The statement will contain information sufficient to discern howthe Royalty Fees were computed.**6. Xbox Live Billing and Collection**Microsoft is responsible for billing and collecting all fees associated with Xbox Live, includingfees for subscriptions and/or any Online Content for which a Xbox Live User may be charged.Microsoft has the sole discretion to determine the fees charged for Xbox Live or Online Contentsold to Xbox Live Users.
3***Microsoft Confidential***

 
**7. Taxes**     a. The amounts to be paid by either party to the other do not include any foreign, U.S.federal, state, local, municipal or other governmental taxes, duties, levies, fees, excises ortariffs, arising as a result of or in connection with the transactions contemplated under thisAgreement including, without limitation, (i) any state or local sales or use taxes or any valueadded tax or business transfer tax now or hereafter imposed on the provision of any services to theother party under this Agreement, (ii) taxes imposed or based on or with respect to or measured byany net or gross income or receipts of either party, (iii) any franchise taxes, taxes on doingbusiness, gross receipts taxes or capital stock taxes (including any minimum taxes and taxesmeasured by any item of tax preference), (iv) any taxes imposed or assessed after the date uponwhich this Agreement is terminated, (v) taxes based upon or imposed with reference to eitherparties’ real and/or personal property ownership and (vi) any taxes similar to or in the nature ofthose taxes described in (i), (ii), (iii), (iv) or (v) above, now or hereafter imposed on eitherparty (or any third parties with which either party is permitted to enter into agreements relatingto its undertakings hereunder) (all such amounts, together with any penalties, interest or anyadditions thereto, collectively “Taxes”). Neither party is liable for any of the other party’sTaxes incurred in connection with or related to the sale of goods and services under thisAgreement, and all such Taxes are the financial responsibility of the party obligated to pay suchtaxes as determined by the applicable law, provided that both parties shall pay to the other theappropriate Collected Taxes in accordance with subsection 7.b below. Each party agrees toindemnify, defend and hold the other party harmless from any Taxes (other than Collected Taxes,defined below) or claims, causes of action, costs (including, without limitation, reasonableattorneys’ fees) and any other liabilities of any nature whatsoever related to such Taxes to theextent such Taxes relate to amounts paid under this Amendment.     b. Any sales or use taxes described in 7.a above that (i) are owed by either party solely asa result of entering into this Agreement and the payment of the fees hereunder, (ii) are requiredto be collected from that party under applicable law, and (iii) are based solely upon the amountspayable under this Agreement (such taxes the “Collected Taxes”), will be stated separately asapplicable on payee’s invoices and will be remitted by the other party to the payee, upon requestpayee shall remit to the other party official tax receipts indicating that such Collected Taxeshave been collected and paid by the payee. Either party may provide the other party an exemptioncertificate acceptable to the relevant taxing authority (including without limitation a resalecertificate) in which case payee shall not collect the taxes covered by such certificate. Eachparty agrees to take such commercially reasonable steps as are requested by the other party tominimize such Collected Taxes in accordance with all relevant laws and to cooperate with and assistthe other party, in challenging the validity of any Collected Taxes or taxes otherwise paid by thepayor party. Each party shall indemnify and hold the other party harmless from any CollectedTaxes, penalties, interest, or additions to tax arising from amounts paid by one party to the otherunder this Agreement, that are asserted or assessed against one party to the extent such amountsrelate to amounts that are paid to or collected by one party from the other under this section. Ifany taxing authority refunds any tax to a party that the other party originally paid, or a partyotherwise becomes aware that any tax was incorrectly and/or erroneously collected from the otherparty, then that party shall promptly remit to the other party an amount equal to such refund, orincorrect collection as the case may be plus any interest thereon.     c. If taxes are required to be withheld on any amounts otherwise to be paid by one party tothe other, the paying party shall deduct such taxes from the amount otherwise owed and pay them tothe appropriate taxing authority. At a party’s written request and expense, the parties shall usereasonable efforts to cooperate with and assist each other in obtaining tax certificates or otherappropriate documentation evidencing such payment, provided, however, that the responsibility forsuch documentation shall remain with the payee party. If Publisher is required by any non-U.S.A.government to withhold income taxes on payments to Microsoft, then Publisher may deduct such taxesfrom the amount owed Microsoft and shall pay them to the appropriate tax authority, provided thatwithin (****) of such payment, Publisher delivers to Microsoft an official receipt for any such taxeswithheld or other documents necessary to enable Microsoft to claim a U.S.A. Foreign Tax Credit.     d. This Section 7 shall govern the treatment of all taxes arising as a result of or inconnection with this Agreement notwithstanding any other section of this Agreement.**8. Audit**During theterm of this Agreement and for (****)  each party shall keep all usual and proper recordsrelated to its performance under this Agreement, including but not limited to audited financialstatements and support for all transactions related to the ordering, production, inventory,distribution and billing/invoicing information. Such records, books of account, and entries willbe kept in accordance with generally accepted accounting principles. Either party (the “AuditingParty”) may audit
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and/orinspect the other party’s (the “Audited Party”) records no more than (****) in any  (****) period in orderto verify compliance with the terms of this Agreement. The Auditing Party may, upon reasonableadvance notice, audit the Audited Party’s records and consult with the Audited Party’s accountantsfor the purpose of verifying the Audited Party’s compliance with the terms of this Agreement andfor a period of (****). Any such audit will be conducted during regular business hours at the AuditedParty’s offices. Any such audit will be paid for by Auditing Party unless Material discrepanciesare disclosed. As used in this section, “Material” means (****). If Material discrepancies aredisclosed, the Audited Party agrees to pay the Auditing Party for (****).
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**EXHIBIT 2****XBOX 360 ROYALTY TIER SELECTION FORM****PLEASE COMPLETE THE BELOW INFORMATION, SIGN THE FORM, AND FAX IT TO MICROSOFT AT**