EXHIBIT 10.7


 


ALL SECTIONS MARKED WITH ASTERISKS REFLECT PORTIONS
WHICH HAVE BEEN REDACTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION BY THQ INC. AS PART OF A REQUEST FOR CONFIDENTIAL TREATMENT.


 


CONFIDENTIAL LICENSE AGREEMENT


FOR NINTENDO GAMECUBE


(Western Hemisphere)


 


THIS LICENSE AGREEMENT (“Agreement”) is entered into
between NINTENDO OF AMERICA INC. (“NOA”) at 4820 150th Avenue N.E., Redmond, WA
98052 Attn: General Counsel (Fax: 425-882-3585) and THQ Inc. (“LICENSEE”) at
27001 Agoura Road, Suite 325, Calabasas Hills, CA 91301 Attn: Brian J. Farrell
(Fax: (818)-871-7400). NOA and LICENSEE agree as follows:


 


1.          RECITALS


 


1.1 NOA markets and sells advanced design, high-quality
video game systems, including the “NINTENDO GAMECUBETM” system.


 


1.2 LICENSEE desires use of the highly proprietary
programming specifications, unique and valuable security technology,
trademarks, copyrights and other valuable intellectual property rights of NOA
and its parent company, Nintendo Co., Ltd., which rights are only available for
use under the terms of a license agreement, to develop, have developed, have
manufactured, advertise, market and sell video game software for play on the
NINTENDO GAMECUBE system.


 


1.3 NOA is willing to grant a license to LICENSEE on the
terms and conditions set forth in this Agreement.


 


2.          DEFINITIONS


 


2.1 “Artwork” means the text and design specifications
for the Game Disc label and the Printed Materials in the format specified by
NOA in the Guidelines.


 


2.2 “Bulk Goods” means Game Discs that have been printed
with the Game Disc label Artwork for delivery to LICENSEE without Printed
Materials or other packaging.


 


2.3 “Check Disc(s)” means the pre-production Game Discs
to be produced by Nintendo.


 


2.4 “Confidential Information” means the information
described in Section 8.1.


 


2.5 “Development Tools” means the development kits,
programming tools, emulators and other materials that may be used in the
development of Games under this Agreement.


 


2.6 “Effective Date” means the last date on which all
parties shall have signed this Agreement.


 


2.7 “Finished Goods” means Game Discs that have been
fully assembled with the Printed Materials, cellophane wrapped and boxed for
delivery to LICENSEE by NOA


 

















 


2.8 “Game Discs(s)” means custom optical discs for play
on the NINTENDO GAMECUBE system on which a Game has been stored.


 


2.9 “Game(s)” means interactive video game programs
(including source and object/binary code) developed for play on the NINTENDO
GAMECUBE system.


 


2.10 “Guidelines” means the then current version of the
“NINTENDO GAMECUBE Development Manual,” “NINTENDO GAMECUBE Packaging
Guidelines,” “Nintendo Trademark Guidelines” and the “Nintendo Game Content
Guidelines”, together with related guidelines provided by NOA to LICENSEE from
time to time.


 


2.11 “Independent Contractor” means any individual or
entity that is not an employee of LICENSEE, including any independent
programmer, consultant, contractor, board member or advisor.


 


2.12 “Intellectual Property Rights” means individually,
collectively or in any combination, Proprietary Rights owned, licensed or
otherwise held by Nintendo that are associated with the development,
manufacturing, advertising, marketing or sale of the Licensed Products,
including, without limitation, (a) registered and unregistered trademarks and
trademark applications used in connection with the NINTENDO GAMECUBE system
including “Nintendo®”, “NINTENDO GAMECUBETM,” “GCN” and “Official Nintendo Seal
of Quality®”, and (b) select trade dress associated with the NINTENDO GAMECUBE
system and licensed video games for play thereon, (c) Proprietary Rights in the
Security Technology employed in the Games or Game Discs by Nintendo, (d) rights
in the Development Tools for use in developing the Games, excluding, however, rights
to use, incorporate or duplicate select libraries, protocols and/or sound or
graphic files associated with the Development Tools which belong to any third
party, without obtaining any necessary licenses or consents, (e) patents,
design registrations or copyrights which may be associated with the Game Discs
or Printed Materials, (f) copyrights in the Guidelines, and (g) other
Proprietary Rights of Nintendo in the Confidential Information.


 


2.13 “Licensed Products” means (a) Finished Goods, or
(b) Bulk Goods after being assembled with the Printed Materials in accordance
with the Guidelines by LICENSEE.


 


2.14 “Marketing Materials” means marketing, advertising
or promotional materials developed by or for LICENSEE (or subject to LICENSEE’s
approval) that promote the sale of the Licensed Products, including but not
limited to, television, radio and on-line advertising, point-of-sale materials
(e.g., posters, counter-cards), package advertising, print media and all audio
or video media other than the Game that is to be included on the Game Disc.


 


2.15 “NDA” means the non-disclosure agreement related to
the NINTENDO GAMECUBE system previously entered into between NOA and LICENSEE.


 


2.16 “Nintendo” means NOA’s parent company, Nintendo
Co., Ltd., of Kyoto, Japan, individually or collectively with NOA.


 


2.17 “Notice” means any notice permitted or required
under this Agreement. All notices shall be sufficiently given when (a)
personally served or delivered, or (b) transmitted by facsimile, with an
original sent concurrently by first class U.S. mail, or (c) deposited, postage
prepaid, with a guaranteed air courier service, in each case addressed as
stated herein, or addressed to such other person or address


 


2

















 


either party may designate in a Notice. Notice shall be
deemed effective upon the earlier of actual receipt or two (2) business days
after transmittal.


 


2.18 “Price Schedule” means the then current version of
NOA’s schedule of purchase prices and minimum order quantities for the Licensed
Products.


 


2.19 “Printed Materials” means a plastic disc storage
case, title page, instruction booklet, warranty card and poster incorporating
the Artwork, together with a precautions booklet in the form specified by NOA.


 


2.20 “Promotional Disc(s)” means custom optical discs
compatible with the NINTENDO GAMECUBE system that incorporate select game
promotional or supplemental materials, as may be specified or permitted in the
Guidelines.


 


2.21 “Proprietary Rights” means any rights or
applications for rights owned, licensed or otherwise held in patents,
trademarks, service marks, copyrights, mask works, trade secrets, trade dress,
moral rights and publicity rights, together with all inventions, discoveries,
ideas, technology, know-how, data, information, processes, formulas, drawings
and designs, licenses, computer programs, software source code and object code,
and all amendments, modifications, and improvements thereto for which such
patent, trademark, service mark, copyright mask work, trade secrets, trade
dress, moral rights or publicity rights may exist or may be sought and obtained
in the future.


 


2.22 “Rebate Program” means any then current version of
NOA’s optional rebate program, establishing select terms for price rebates under
this Agreement.


 


2.23 “Reverse Engineer(ing)” means, without limitation,
(a) the x-ray, electronic scanning or physical or chemical stripping of
semiconductor components, (b) the disassembly, decompilation, decryption or
simulation of object code or executable code, or (c) any other technique
designed to extract source code or facilitate the duplication of a program or
product.


 


2.24 “Security Technology” means the highly proprietary
security features incorporated by Nintendo into the Licensed Products to
minimize the risk of unlawful copying and other unauthorized or unsafe usage,
including, without limitation, any security signature, bios, data scrambling,
password, hardware security apparatus, watermark, hologram, copyright
management information system, proprietary manufacturing process or any feature
which obstructs piracy, limits unlawful, unsafe or unauthorized use or
facilitates or limits compatibility with other hardware or software outside of
the Territory or on a different video game system.


 


2.25 “Term” means three (3) years from the Effective
Date.


 


2.26 “Territory” shall mean all countries within the
Western Hemisphere and their respective territories and possessions.


 


3.          GRANT
OF LICENSE; LICENSEE RESTRICTIONS


 


3.1 Limited License Grant. For the Term and for the
Territory, NOA grants to LICENSEE a nonexclusive, nontransferable, limited
license to use the Intellectual Property Rights to develop (or have developed
on their behalf) Games for manufacture, advertising, marketing and sale as Licensed
Products, subject to the terms and conditions of this Agreement. Except as
permitted under a separate


 


3

















 


written authorization from Nintendo, LICENSEE shall not
use the Intellectual Property Rights for any other purpose.


 


3.2 LICENSEE Acknowledgement. LICENSEE acknowledges (a)
the value of the Intellectual Property Rights, (b) the right, title and
interest of Nintendo in and to the Intellectual Property Rights, and (c) the
right, title, and interest of Nintendo in and to the Proprietary Rights
associated with all aspects of the NINTENDO GAMECUBE system. LICENSEE
recognizes that the Games, Game Discs and Licensed Products will embody
valuable rights of Nintendo and Nintendo’s licensors. LICENSEE represents and
warrants that it will not undertake any act or thing which in any way impairs
or is intended to impair any part of the right, title, interest or goodwill of
Nintendo in the Intellectual Property Rights. LICENSEE’s use of the
Intellectual Property Rights shall not create any right, title or interest of
LICENSEE therein. ******


 


3.3 LICENSEE Restrictions and Prohibitions. LICENSEE
represents and warrants that it will not at any time, directly or indirectly,
do or cause to be done any of the following:


 


(a) grant access to, distribute, transmit or broadcast a
Game by electronic means or by any other means known or hereafter devised,
including, without limitation, by wireless, cable, fiber optic, telephone
lines, microwave, radiowave, computer or other device network; provided,
however, that limited transmissions may be made for the sole purpose of
facilitating development under the terms of this Agreement, but no right of
retransmission shall attach to any such authorized transmission and reasonable
security measures, customary within the high technology industry, shall be
utilized to reduce the risk of unauthorized interception or retransmission of
any such authorized transmission,


 


(b) authorize or permit any online activities involving
a Game, including, without limitation, multiplayer, peer-to-peer or online
play,


 


(c) modify, install or operate a Game on any server or
computing device for the purpose of or resulting in the rental, lease, loan or
other grant of remote access to the Game,


 


(d) emulate, interoperate, interface or link a Game for
operation or use with any hardware or software platform, accessory, computer
language, computer environment, chip instruction set, consumer electronics
device or device other than the NINTENDO GAMECUBE system or the Development
Tools,


 


(e) embed, incorporate, or store a Game in any media or
format except the optical disc format utilized by the NINTENDO GAMECUBE system,
except as may be necessary as a part of the Game development process under this
Agreement,


 


(f) design, implement or undertake any process,
procedure, program or act designed to disable, obstruct, circumvent or
otherwise diminish the effectiveness or operation of the Security Technology,


 


(g) utilize the Intellectual Property Rights to design
or develop any interactive video game program, except as authorized under this
Agreement,


 


(h) manufacture or reproduce a Game developed under this
Agreement, except through Nintendo, or


 












[*]  Confidential
portion omitted and filed separately with the Securities and Exchange
Commission.


 


4

















 


(i) Reverse Engineer or assist in Reverse Engineering
all or any part of the NINTENDO GAMECUBE system, including the hardware,
software (embedded or not) or the Security Technology.


 


******


 


3.4 Nintendo Development Tools. NOA and Nintendo Co.,
Ltd. may lease, loan or sell Development Tools to LICENSEE to assist in the
development of Games under this Agreement. LICENSEE acknowledges the exclusive
interest of Nintendo in and to the Proprietary Rights associated with the
Development Tools. LICENSEE’s use of the Development Tools shall not create any
right, title or interest of LICENSEE therein. LICENSEE shall not, directly or
indirectly, (a) use the Development Tools for any purpose except the design and
development of Games under this Agreement, (b) reproduce or create derivatives
of the Development Tools, except in association with the development of Games
under this Agreement, (c) Reverse Engineer the Development Tools, or (d) without
NOA’s prior written approval, sell, lease, assign, lend, license, encumber or
otherwise transfer the Development Tools. Any tools developed or derived by
LICENSEE as a result of a study of the performance, design or operation of the
Development Tools shall be considered a derivative work of the Intellectual
Property Rights, but may be retained and utilized by LICENSEE in connection
with this Agreement. In no event shall LICENSEE (i) seek, claim or file for any
patent, copyright or other Proprietary Right with regard to any such derivative
work, (ii) make available any such derivative work to any third party, or (iii)
use any such derivative work except in connection with the design and
development of Games under this Agreement.


 


3.5 Third Party Development Tools. NOA and Nintendo Co.,
Ltd. may authorize third parties to develop and market Development Tools to
authorized developers of Games. 
Notwithstanding any referral or information provided or posted regarding
such Development Tools, NOA and Nintendo Co., Ltd. make no representations or
warranties with regard to any such third party Development Tools. Licensee
acquires and utilizes such Development Tools at its own risk. LICENSEE shall
not, directly or indirectly, use such Development Tools for any purpose except
the design and development of Games under this Agreement. All Nintendo
Proprietary Rights contained in or derived from such Development Tools shall
remain owned by Nintendo.


 


3.6 Games Developed for Linked Play on Two Systems. In
the event the Guidelines permit LICENSEE to develop a Game for simultaneous or
linked play on the NINTENDO GAMECUBE system and on another Nintendo video game
system, LICENSEE shall be required to acquire and maintain with NOA such
additional licenses as are necessary for the use of the Proprietary Rights
associated with such other Nintendo video game system.


 


4.          SUBMISSION
AND APPROVAL OF GAME AND ARTWORK


 


4.1 Submission of a Completed Game to NOA. Upon
completion of a Game, LICENSEE shall deliver a prototype of the Game to NOA in
a format specified in the Guidelines. Delivery shall be made in accordance with
the methods approved in the Guidelines. Each Submission shall include such
other information or documentation deemed necessary by NOA, including, without
limitation, a complete set of written user instructions, a complete description
of any security holes, backdoors, time bombs, cheats, “easter eggs” or other
hidden features or characters in the Game ****** and a complete screen text
script. 


 












[*]  Confidential
portion omitted and filed separately with the Securities and Exchange
Commission.


[*]  Confidential
portion omitted and filed separately with the Securities and Exchange
Commission.


 


5

















 


LICENSEE must establish that the Game and any other
content included on the Game Disc complies with the Advertising Code of Conduct
of the Entertainment Software Ratings Board (“ESRB”) and has been rated EC, E,
M or T by the ESRB.


 


4.2 Testing of a Completed Game. Upon submission of a
completed Game, NOA and Nintendo Co, Ltd. shall promptly test the Game with
regard to its technical compatibility with and error-free operation on the
NINTENDO GAMECUBE system utilizing the lot check process. Within a reasonable
period of time after receipt, NOA shall approve or disapprove such Game in
writing. If a Game is disapproved, NOA shall specify in writing the reasons for
such disapproval and state what corrections are necessary to receive approval
from NOA. After making the necessary corrections, LICENSEE shall submit a
revised Game to NOA for testing. NOA shall not unreasonably withhold or delay
its approval of any Game. Neither the testing nor approval of a Game by NOA or
Nintendo Co., Ltd. shall relieve LICENSEE of its sole responsibility for the
development, quality and operation of the Game or in any way create any
warranty for Licensed Product by NOA or Nintendo Co., Ltd.


 


4.3 Production of Check Discs. By submission of a
completed Game to NOA in accordance with section 4.1, LICENSEE authorizes
Nintendo to proceed with production of Check Discs for such Game. If NOA
approves a Game, it shall promptly, and without further notification to or
instruction from LICENSEE, submit such Game for the production of Check Discs.
Unless otherwise advised by LICENSEE, following production of the Check Discs,
NOA shall deliver to LICENSEE approximately ten (10) Check Discs for content
verification, testing and final approval by LICENSEE.


 


4.4 Approval or Disapproval of Check Discs by LICENSEE.
If, after review and testing, LICENSEE approves the Check Discs, it shall
promptly transmit to NOA a signed authorization for production in the form
specified in the Guidelines. If LICENSEE does not approve the sample Check
Discs for any reason, LICENSEE shall advise NOA in writing and may, after
undertaking any necessary changes or corrections, resubmit the Game to NOA for
approval in accordance with the procedures set forth in this Section 4. The
absence of a signed authorization form from LICENSEE within five (5) days after
delivery of the Check Discs to LICENSEE shall be deemed disapproval of such
Check Discs. Production of any order for Licensed Product shall not proceed
without LICENSEE’s signed authorization.


 


4.5 Cost of Disc Stamper Production. ******


 


The payment will be due upon the earlier of (a) the
subsequent submission by LICENSEE of a revised version of the Game to NOA, or
(b) six (6) months after the date the Game was first approved by NOA.


 


4.6 Submission and Approval of Artwork. Prior to
submitting a completed Game to NOA under Section 4.1, LICENSEE shall submit to
NOA all Artwork for the proposed Licensed Product. Within ten (10) business
days of receipt, NOA shall approve or disapprove the Artwork in writing. If any
Artwork is disapproved, NOA shall specify in writing the reasons for such
disapproval and state what corrections or improvements are necessary to receive
approval from NOA. After making the necessary corrections or improvements,
LICENSEE shall submit revised Artwork to NOA for approval. NOA shall not
unreasonably withhold or delay its approval of any Artwork. The approval of the
Artwork by NOA shall not relieve LICENSEE of its sole responsibility for the
development and quality of the Artwork or in


 












[*]  Confidential
portion omitted and filed separately with the Securities and Exchange
Commission.


 


6

















 


 any way create
any warranty for the Artwork or the Licensed Product by NOA. All Artwork must
be approved prior to submitting an order for the Licensed Product.


 


4.7 Artwork for Bulk Goods. If LICENSEE intends to
submit an order for Bulk Goods, all Artwork shall be submitted to NOA in
accordance with Section 4.6 herein. No Printed Materials shall be produced by
LICENSEE until such Artwork has been approved by NOA.


 


4.8 Promotional Discs. In the event NOA issues
Guidelines in the future that permit LICENSEE to develop and distribute
Promotional Discs, either separately or as a part of the Licensed Product, the
content and specifications of such Promotional Disc shall be subject to all of
the terms and conditions of this Agreement, including, without limitation, the
Guidelines, the Price Schedule and the submission and approval procedures
provided for in this Section 4.


 


5.          ORDER
PROCESS, PURCHASE PRICE, PAYMENT AND DELIVERY


 


5.1 Submission of Orders by LICENSEE. After receipt of
NOA’s approval for a Game and Artwork, LICENSEE may at any time submit a
written purchase order to NOA for such Game. The purchase order shall specify
whether the order is for Finished Goods or Bulk Goods. The terms and conditions
of this Agreement shall control over any contrary terms of such purchase order
or any other written documentation or verbal instruction from LICENSEE. All
orders shall be subject to acceptance by NOA in Redmond, WA.


 


5.2 Purchase Price and Minimum Order Quantities. The
purchase price and minimum order quantities for the Licensed Products (both
Finished Goods and Bulk Goods) shall be set forth in NOA’s then current Price
Schedule. Unless otherwise specifically provided for, the purchase price
includes the cost of manufacturing a single Game Disc, together with a royalty
for the use of the Intellectual Property Rights. No taxes, duties, import fees
or other tariffs related to the development, manufacture, import, marketing or
sale of the Licensed Products (except for taxes imposed on NOA’s income) are
included in the Purchase Price and all such taxes are the responsibility of
LICENSEE. The Price Schedule is subject to change by NOA at any time without
Notice. ******


 


5.3 Payment. Upon placement of an order with NOA,
LICENSEE shall pay the full purchase price either (a) by tender of an
irrevocable letter of credit in favor of NOA (or its designee) and payable at
sight, issued by a bank acceptable to NOA and confirmed, if requested by NOA,
at LICENSEE’s expense, or (b) in cash, by wire transfer to an account
designated by NOA. All letters of credit shall comply with NOA’s written
instructions and all associated banking charges shall be for LICENSEE’s
account.


 


5.4 Delivery of Finished Goods. Finished Goods shall be
delivered to LICENSEE FCA North Bend, Washington USA, or such other delivery
point within the continental United States as may be specified by NOA. Orders
may be delivered in partial shipments, at NOA’s option. Title to Finished Goods
shall vest in LICENSEE ******.


 


5.5 Delivery of Bulk Goods. Bulk Goods shall be
delivered to LICENSEE FCA Torrance, California USA, or such other delivery
point within the continental United States as may be specified by NOA. Orders
may be delivered in partial shipments, at NOA’s option. Title to Bulk Goods
shall vest in LICENSEE ******.


 












[*]  Confidential
portion omitted and filed separately with the Securities and Exchange
Commission.


 


7

















 


 


5.6 Rebate Program. NOA, at its sole option, may elect
to offer LICENSEE a Rebate Program. The terms and conditions of any rebate
program shall be subject to NOA’s sole discretion. LICENSEE shall not be
entitled to offset any claimed rebate amount against other amounts owing NOA.
No interest shall be payable by NOA to LICENSEE on any claimed rebate. The
Rebate Program is subject to change or cancellation by NOA at any time without
Notice.


 


6.          MANUFACTURE
OF THE LICENSED PRODUCT


 


6.1 Manufacturing. Nintendo Co. Ltd. shall be the
exclusive source for the manufacture of the Game Discs, Check Discs and
Promotional Discs, with responsibility for all aspects of the manufacturing
process, including the selection of the locations and specifications for any
manufacturing facilities, determination of materials and processes, appointment
of suppliers and subcontractors and management of all work-in-progress.  Upon acceptance by NOA of a purchase order
from LICENSEE and receipt of payment as provided for at Section 5.3 herein, NOA
shall place the order with Nintendo Co., Ltd. who shall (through its suppliers
and subcontractors) arrange for the manufacture of the Licensed Product.


 


6.2 Security Features. The final release version of the
Game, the Game Disc and the Printed Materials shall include such Security
Technology as Nintendo, in its sole discretion, deems necessary or appropriate
to (a) reduce the risk of unlawful copying or other unlawful, unsafe or
unauthorized uses, (b) protect the Proprietary Rights of Nintendo and of the
LICENSEE, (c) promote consumer confidence, and (d) increase the quality,
reliability or operation of the NINTENDO GAMECUBE system.


 


6.3 Bulk Goods Orders. LICENSEE may elect to order Bulk
Goods under the terms of this Agreement, in which event LICENSEE shall arrange
and pay for the production of the Printed Materials and the final assembly of
the Licensed Product in accordance with the Guidelines.


 


6.4 Printed Materials for Bulk Goods. Upon delivery to
LICENSEE of Bulk Goods, LICENSEE shall assemble the Printed Materials and Game
Discs into the Licensed Products in accordance with the Guidelines. No other
materials, items, products or packaging may be included in the assembled Bulk
Goods without NOA’s prior written consent ******. Bulk Goods may be sold or distributed by LICENSEE only when fully
assembled in accordance with the Guidelines.


 


6.5 Prior Approval of LICENSEE’s Independent
Contractors. Prior to the placement of a purchase order for Bulk Goods,
LICENSEE shall obtain NOA’s approval of any Independent Contractors selected to
perform the production and assembly operations. LICENSEE shall provide NOA with
the names, addresses and all business documentation reasonably requested by NOA
for such Independent Contractors. NOA may, prior to approval and at reasonable
intervals thereafter, (a) require submission of additional business or
financial information regarding the Independent Contractors, (b) inspect
applicable facilities of the Independent Contractors ******. and (c) be present to supervise any work on the
Licensed Products to be done by the Independent Contractors. If at any time NOA
deems the Independent Contractor to be unable to meet quality, security or
performance standards reasonably established by NOA, NOA may refuse to grant
its approval or withdraw its approval upon Notice to LICENSEE. LICENSEE may not
proceed with the production of the Printed Materials or assembly of the
Licensed Product until NOA’s concerns have been resolved to its satisfaction or
until LICENSEE has selected and received NOA’s approval of another Independent
Contractor. NOA may establish


 












[*]  Confidential
portion omitted and filed separately with the Securities and Exchange
Commission.


 


8

















 


preferred or required supply sources for select
components of the Printed Materials, which sources shall be deemed preapproved
in accordance with this Section 6.5. LICENSEE shall comply with all sourcing
requirements established by NOA.


 


6.6 NOA Inserts for Bulk Goods. NOA, at its option, may
provide LICENSEE with NOA promotional materials (as provided for at Section
7.7(a) herein) ****** which
LICENSEE agrees to include in the assembly of the Bulk Goods.


 


6.7 Sample Printed Materials for Bulk Goods. Within a reasonable
period of time after LICENSEE’s assembly of an initial order for a Bulk Goods
title, LICENSEE shall provide NOA with (a) six (6) samples of the fully
assembled Licensed Product, and (b) seventy (70) samples of the LICENSEE
produced Printed Materials (excluding the plastic disc storage case, warranty
card, poster and precautions booklet) for such Bulk Goods.


 


6.8 Retention of Sample Licensed Products by NOA. NOA or
Nintendo may, at their own expense, manufacture reasonable quantities of the
Game Discs, the Printed Materials or the Licensed Products to be used for
archival purposes, legal proceedings against infringers of the Intellectual
Property Rights and for other lawful purposes******.


 


7.          MARKETING
AND ADVERTISING


 


7.1 Approval of Marketing Materials. LICENSEE represents
and warrants that the Printed Materials and the Marketing Materials shall be of
high quality and comply with (a) the Guidelines, (b) the Advertising Code of
Conduct and the Principles and Guidelines for Responsible Advertising of the
ESRB, and (c) ****** all
applicable laws and regulations in those jurisdictions in the Territory where
they will be used or distributed. All LICENSEE controlled websites featuring
the Games shall adopt a privacy policy that ****** comply with the Children’s Online Privacy
Protection Act. Prior to actual use or distribution, LICENSEE shall submit to
NOA for review samples of all proposed Marketing Materials. NOA shall, within
ten (10) business days of receipt, approve or disapprove of the quality of such
samples. If any of the samples are disapproved, NOA shall specify in writing
the reasons for such disapproval and state what corrections and/or improvements
are necessary to receive approval from NOA. After making the necessary
corrections and/or improvements, LICENSEE shall submit revised samples for
approval by NOA. No Marketing Materials shall be used or distributed by
LICENSEE without NOA’s prior written approval. NOA shall not unreasonably
withhold or delay its approval of any proposed Marketing Materials.


 


7.2 No Bundling. LICENSEE shall not market or distribute
any Finished Goods or Bulk Goods that have been bundled with (a) any peripheral
designed for use with the NINTENDO GAMECUBE system that has not been licensed
or approved in writing by NOA, or (b) any other product or service where NOA’s
association or endorsement might be suggested by bundling the products or
services ******.


 


7.3 Warranty and Repair. LICENSEE shall provide the
original consumer with a minimum ninety (90) day limited warranty on all
Licensed Products. LICENSEE shall also provide reasonable product service,
including out-of-warranty service, for all Licensed Products. LICENSEE shall
make such warranty and repair information available to consumers as required by
applicable federal and state law.******


 












[*]  Confidential
portion omitted and filed separately with the Securities and Exchange
Commission.


 


9

















 


7.4 Business Facilities. LICENSEE agrees to develop and
maintain (a) suitable office facilities within the United States, adequately
staffed to enable LICENSEE to fulfill all responsibilities under this
Agreement, (b) necessary warehouse, distribution, marketing, sales, collection
and credit operations to facilitate proper handling of the Licensed Product,
and (c) customer service and game counseling, including telephone service, to
adequately support the Licensed Products.


 


7.5 No Sales Outside the Territory. LICENSEE represents
and warrants that it shall not ****** market, sell, offer to sell, import or
distribute the Licensed Products outside the Territory, or within the Territory
when with actual or constructive knowledge that a subsequent destination of the
Licensed Product is outside the Territory.


 


7.6 Defects and Recall. In the event of a material
programming defect in a Licensed Product that would, in NOA’s reasonable
judgment, significantly impair the ability of a consumer to play the Game, NOA
may, after consultation with LICENSEE, require the LICENSEE to recall the Licensed
Product and undertake suitable repairs or replacements.


 


7.7 NOA Promotional Materials, Publications and Events.
At its option, NOA may (a) insert in the Printed Materials for the Licensed
Products promotional materials concerning Nintendo Power magazine or other NOA
products, services or programs ****** (b) utilize screen shots, Artwork and
information regarding the Licensed Products in Nintendo Power, Nintendo Power
Source or other advertising, promotional or marketing media, which promotes NOA
products, services or programs, and (c) exercise public performance rights in
the Games and use related trademarks and Artwork in connection with NOA
sponsored contests, tours, conventions, trade shows, press briefings and
similar events which promote the NINTENDO GAMECUBE system. ******.  ******.


 


7.8 Nintendo Gateway System. To promote and increase
demand for games on Nintendo video game systems, NOA licenses select games in
various non-coin activated commercial settings such as commercial airlines,
cruise ships, rail systems and hotels, where customers play games on specially
adapted Nintendo video game hardware referred to as the “Nintendo Gateway
System”. If NOA identifies a Game for possible license on the Nintendo Gateway
System, the parties agree to conduct good faith negotiations to determine
commercially reasonable terms for such participation.


 


8.          CONFIDENTIAL
INFORMATION


 


8.1 Definition. Confidential Information means
information provided to LICENSEE by Nintendo or any third party working with
Nintendo relating to the hardware and software for the NINTENDO GAMECUBE system
or the Development Tools, including, but not limited to, (a) all current or
future information, know-how, techniques, methods, information, tools, emulator
hardware or software, software development specifications, proprietary
manufacturing processes and/or trade secrets, (b) any information on patents or
patent applications, (c) any business, legal, marketing or sales data or
information, and (d) any other information or data relating to development,
design, operation, manufacturing, marketing or sales. Confidential Information
shall include all confidential information disclosed, whether in writing,
orally, visually, or in the form of drawings, technical specifications,
software, samples, pictures, models, recordings, or other tangible items which
contain or manifest, in any form, the above listed information. Confidential
Information shall not include (i) data and information which was in the public
domain prior to LICENSEE’s receipt of the same hereunder, or 


 












[*]  Confidential
portion omitted and filed separately with the Securities and Exchange
Commission.


 


10

















 


which subsequently becomes part of the public domain by
publication or otherwise, except by LICENSEE’s wrongful act or omission, (ii)
data and information which LICENSEE can demonstrate, through written records
kept in the ordinary course of business, was in its possession without
restriction on use or disclosure, prior to its receipt of the same hereunder
and was not acquired directly or indirectly from Nintendo under an obligation
of confidentiality which is still in force, and (iii) data and information
which LICENSEE can show was received by it from a third party who did not acquire
the same directly or indirectly from Nintendo and to whom LICENSEE has no
obligation of confidentiality.


 


8.2 Disclosures Required by Law. LICENSEE shall be
permitted to disclose Confidential Information if such disclosure is required
by an authorized governmental or judicial entity, provided that LICENSEE shall
notify NOA at least ten (10) business days prior to such disclosure. LICENSEE
shall use its best commercial efforts to limit the disclosure to the greatest
extent possible consistent with


 


LICENSEE’s legal obligations, and if required by NOA,
shall cooperate in the preparation and entry of appropriate protective orders.


 


8.3 Disclosure and Use. NOA may provide LICENSEE with
highly confidential development information, Guidelines, Development Tools,
systems, specifications and related resources and information constituting and
incorporating the Confidential Information to assist LICENSEE in the
development of Games. LICENSEE agrees to maintain all Confidential Information
as strictly confidential and to use such Confidential Information only in
accordance with this Agreement. LICENSEE shall limit access to the Confidential
Information to LICENSEE’s employees having a strict need to know and shall
advise such employees of their obligation of confidentiality as provided
herein. LICENSEE shall require each such employee to retain in confidence the
Confidential Information pursuant to a written non-disclosure agreement between
LICENSEE and such employee. LICENSEE shall use its best commercial efforts to
ensure that its employees working with or otherwise having access to
Confidential Information shall not disclose or make any unauthorized use of the
Confidential Information.


 


8.4 Independent Contractor Use. LICENSEE shall not
disclose the Confidential Information, the Guidelines or the Intellectual
Property Rights to any Independent Contractor, nor permit any Independent
Contractor to perform or assist in development work for a Game, nor utilize any
Development Tools without NOA’s prior written consent. Each approved
Independent Contractor shall be required to enter into a written non-disclosure
agreement with NOA prior to receiving any access to or disclosure of such
materials from either LICENSEE or NOA.


 


8.5 Agreement Confidentiality. LICENSEE agrees that the
terms, conditions and contents of this Agreement shall be treated as
Confidential Information. Any public announcement or press release regarding
this Agreement shall be subject to NOA’s prior written approval******.  ******. 
The parties may disclose this Agreement (a) to accountants, banks,
financing sources, lawyers, parent companies and related parties under
substantially equivalent confidentiality obligations, (b) in connection with
any formal legal proceeding for the enforcement of this Agreement, (c) as
required by the regulations of the Securities and Exchange Commission (“SEC”),
provided that all Confidential Information regarding NOA shall be redacted from
such disclosures to the maximum extent allowed by the SEC, and (d) in response
to lawful process, subject to a written protective order approved in advance by
NOA.


 












[*]  Confidential
portion omitted and filed separately with the Securities and Exchange
Commission.


 


11

















 


8.6 Notification Obligations. LICENSEE shall promptly
notify NOA of the unauthorized use or disclosure of any Confidential
Information ****** and shall promptly act to recover any such information and
prevent further breach of the obligations herein. The obligations of LICENSEE
set forth herein are in addition to and not in lieu of any other legal remedy
that may be available to NOA under this Agreement or applicable law.


 


8.7 Continuing Effect of the NDA. The terms of this
Section 8 supplement the terms of the NDA, which shall remain in effect. In the
event of a conflict between the terms of the NDA and this Agreement, the
provisions of this Agreement shall control.


 


9.          REPRESENTATIONS
AND WARRANTIES


 


9.1 LICENSEE’s Representations and Warranties. LICENSEE
represents and warrants that:


 


(a) it is a duly organized and validly existing
corporation and has full authority to enter into this Agreement and to carry
out the provisions hereof,


 


(b) the execution, delivery and performance of this
Agreement by LICENSEE does not conflict with any agreement or understanding to
which LICENSEE may be bound, and


 


(c) excluding the Intellectual Property Rights, LICENSEE
is either (i) the sole owner of all right, title and interest in and to the
trademarks, copyrights and all other Proprietary Rights incorporated into the
Game or the Artwork or used in the development, advertising, marketing and sale
of the Licensed Products or the Marketing Materials, or (ii) the holder of such
rights, including trademarks, copyrights and all other Proprietary Rights which
belong to any third party but have been licensed from such third party by
LICENSEE, as are necessary for incorporation into the Game or the Artwork or as
are used in the development, advertising, marketing and sale of the Licensed
Products or the Marketing Materials under this Agreement.


 


9.2 NOA’s Representations and Warranties. NOA represents
and warrants that:


 


(a) it is a duly organized and validly existing
corporation and has full authority to enter into this Agreement and to carry
out the provisions hereof, and


 


(b) the execution, delivery and performance of this
Agreement by NOA does not conflict with any agreement or understanding to which
NOA may be bound.


 


9.3 INTELLECTUAL PROPERTY RIGHTS DISCLAIMER. NOA (ON ITS
OWN BEHALF AND ON BEHALF OF NINTENDO CO., LTD. AND ITS AFFILIATES, LICENSORS,
SUPPLIERS AND SUBCONTRACTORS) EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND
WARRANTIES CONCERNING THE SCOPE OR VALIDITY OF THE INTELLECTUAL PROPERTY
RIGHTS. NOA (ON ITS OWN BEHALF AND ON BEHALF OF NINTENDO CO., LTD. AND ITS
AFFILIATES, LICENSORS, SUPPLIERS AND SUBCONTRACTORS) EXPRESSLY DISCLAIMS ANY
WARRANTY THAT THE DESIGN, DEVELOPMENT, ADVERTISING, MARKETING OR SALE OF THE
LICENSED PRODUCTS OR THE USE OF THE INTELLECTUAL PROPERTY RIGHTS BY LICENSEE WILL
NOT INFRINGE UPON ANY PATENT, COPYRIGHT, TRADEMARK OR OTHER PROPRIETARY RIGHTS
OF A THIRD PARTY. ANY WARRANTY THAT MAY BE PROVIDED IN ANY APPLICABLE PROVISION
OF


 


12

















 


THE UNIFORM COMMERCIAL CODE OR ANY OTHER COMPARABLE LAW
OR STATUTE IS EXPRESSLY DISCLAIMED. LICENSEE HEREBY ASSUMES THE RISK OF
INFRINGEMENT.


 


9.4 ******


 


9.5 LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT
PERMITTED BY LAW, NEITHER NOA NOR NINTENDO CO., LTD. (NOR THEIR AFFILIATES,
LICENSORS, SUPPLIERS OR SUBCONTRACTORS) SHALL BE LIABLE FOR LOSS OF PROFITS, OR
FOR ANY SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF LICENSEE OR
ITS CUSTOMERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING, WITHOUT
LIMITATION, THE BREACH OF THIS AGREEMENT BY NOA, THE MANUFACTURE OF THE
LICENSED PRODUCTS OR THE USE OF THE LICENSED PRODUCTS ON ANY NINTENDO VIDEO
GAME SYSTEM BY LICENSEE OR BY ANY END USER.


 


******


 


10.       INDEMNIFICATION


 


10.1 LICENSEE’s Indemnification. LICENSEE shall
indemnify and hold harmless NOA and Nintendo Co., Ltd. (and any of their
respective affiliates, subsidiaries, licensors, suppliers, officers, directors,
employees or agents) from any claims, losses, liabilities, damages, expenses
and costs, including, without limitation, reasonable attorneys’ fees and ******
costs and any ****** expenses
incurred in the settlement or avoidance of any such claim, which result from or
are in connection with:


 


(a) a ****** breach of any of the provisions,
representations or warranties undertaken by LICENSEE in this Agreement,


 


(b) any infringement of a third party’s Proprietary
Rights as a result of the design, development, advertising, marketing, sale or
use of any aspect of the Licensed Products, Promotional Materials or the
Marketing Materials, ******


 


(c) any claims alleging a defect, failure to warn,
bodily injury (including death) or other personal or property damage arising
out of, or in connection with, the design, development, advertising, marketing,
sale or use of any of any aspect of the Licensed Products, and


 


(d) any federal, state or foreign civil or criminal
actions relating to the design, development, advertising, marketing, sale or
use of any aspect of the Licensed Products, Promotional Materials or the
Marketing Materials.


 


NOA shall give prompt Notice to LICENSEE of any claim
which is or which may be subject to indemnification under this Section 10.1.
With respect to any such third party claim, LICENSEE, as indemnitor, shall have
the right to select counsel and to control the defense and/or settlement
thereof. NOA may, at its own expense, participate in such action or proceeding
with counsel of its own choice.


 












[*]  Confidential
portion omitted and filed separately with the Securities and Exchange
Commission.


 


[*]  Confidential
portion omitted and filed separately with the Securities and Exchange
Commission.


 


13

















 


LICENSEE shall not enter into any settlement of any
matter in which (i) NOA or Nintendo Co., Ltd. has been named as a party, or
(ii) claims relating to the Intellectual Property Rights have been asserted,
without NOA’s prior written consent. NOA shall provide reasonable assistance to
LICENSEE in its defense of any such claim.


 


10.2 LICENSEE’s Insurance. LICENSEE shall, at its own
expense, obtain a comprehensive policy of general liability insurance
(including coverage for advertising injury and product liability claims) from a
recognized insurance company. Such policy of insurance shall be in an amount of
not less than ***** on a per
occurrence basis and shall provide for adequate protection against any suits,
claims, loss or damage by the Licensed Products. Such policy shall name NOA and
Nintendo Co., Ltd. as additional insureds and shall specify it may not be
canceled without thirty (30) days’ prior written Notice to NOA. If LICENSEE
fails to maintain such insurance at any time during the Term and for a period
of two (2) years thereafter ******
NOA may secure such insurance at LICENSEE’s expense.


 


10.3 Suspension of Production. In the event NOA
******  deems itself at risk with
respect to any claim, action or proceeding under this Section 10, NOA may, at
its sole option, suspend production, delivery or order acceptance for any
Licensed Products, in whole or in part, pending resolution of such claim,
action or proceeding.


 


11.       PROTECTION
OF PROPRIETARY RIGHTS


 


11.1 Joint Actions against Infringers. LICENSEE and NOA
may agree to jointly pursue cases of infringement involving of the Licensed
Products, as such Licensed Products will contain Proprietary Rights owned by
each of them. Unless the parties otherwise agree, or unless the recovery is
expressly allocated between them by the court, in the event of such an action,
any recovery shall be used first to reimburse LICENSEE and NOA for their
respective reasonable attorneys’ fees and costs, pro rata, and any remaining
recovery shall be distributed to LICENSEE and NOA, pro rata, based upon the
fees and costs incurred in bringing such action.


 


11.2 Actions by LICENSEE. LICENSEE, without the consent
of NOA, may bring any action or proceeding relating to an infringement or
potential infringement of LICENSEE’s Proprietary Rights in the Licensed
Products. LICENSEE shall make reasonable good faith efforts to inform NOA of
such actions in a timely manner. LICENSEE will have the right to retain all
proceeds it may derive from any recovery in connection with such actions.


 


11.3 Actions by NOA. NOA, without the consent of
LICENSEE, may bring any action or proceeding relating to an infringement or
potential infringement of NOA’s Intellectual Property Rights in the Licensed
Products. NOA shall make reasonable, good faith efforts to inform LICENSEE in
writing of such actions likely to affect LICENSEE’s rights in a timely manner.
NOA will have the right to retain all proceeds it may derive from any recovery
in connection with such actions.


 


 


12.       ASSIGNMENT


 


12.1 No Assignment by LICENSEE. This Agreement is
personal to LICENSEE and may not be sold, assigned, delegated, sublicensed or
otherwise transferred or encumbered, in whole or in part, without


 












[*]  Confidential
portion omitted and filed separately with the Securities and Exchange
Commission.


 


14

















 


NOA’s prior written consent, which consent may be withheld
by NOA in its sole discretionIn the event of an assignment or other transfer in
violation of this Agreement, NOA shall have the unqualified right to
immediately terminate this Agreement without further obligation to LICENSEE.


 


12.2 Assignment by Operation of Law. In the event of an
assignment by operation of law which purports to affect this Agreement,
LICENSEE shall, not later than thirty (30) days thereafter, give Notice and
seek consent thereto from NOA. Such Notice shall disclose the name of the assignee,
the effective date and the nature and extent of the assignment. An assignment
by operation of law includes, but is not limited to (a) a merger of LICENSEE
into another business entity, (b) the sale, assignment or transfer of all or
substantially all of the assets of LICENSEE to a third party, (c) the sale,
assignment or transfer to a third party of any of the LICENSEE’s intellectual
property rights which are used in the development of or are otherwise
incorporated into any Licensed Products, or (d) the sale, assignment or
transfer of any of LICENSEE’s stock resulting in the acquirer having management
power over or voting control of LICENSEE. Following the later of (i) an
assignment by operation of law, or (ii) receipt of Notice of an assignment by operation
of law, NOA shall have the unqualified right for a period of ninety (90) days
to immediately terminate this Agreement without further obligation to LICENSEE.


 


12.3 Non-Disclosure Obligation. In no event shall
LICENSEE disclose or allow access to Nintendo’s Confidential Information prior
to or upon the occurrence of an assignment, whether by operation of law or
otherwise, unless and until NOA gives its written consent to such disclosure.


 


13.       TERM
AND TERMINATION


 


13.1 Term. This Agreement shall commence on the
Effective Date and continue for the Term, unless earlier terminated as provided
for herein.


 


13.2 Default or Breach. In the event that either party
is in default or commits a breach of this Agreement, which is not cured within
thirty (30) days after Notice thereof, then this Agreement shall automatically
terminate on the date specified in such Notice.


 


13.3 Bankruptcy. At NOA’s option, this Agreement may be
terminated immediately and without Notice in the event that LICENSEE (a) makes
an assignment for the benefit of creditors, (b) becomes insolvent, (c) files a
voluntary petition for bankruptcy, (d) acquiesces to any involuntary bankruptcy
petition, (e) is adjudicated as a bankrupt, or (f) ceases to do business.


 


13.4 Termination Other Than by Breach. Upon the
expiration of this Agreement or its termination other than by LICENSEE’s
breach, LICENSEE shall have a period of ****** to sell any unsold Licensed
Products in inventory or in process. All Licensed Products in LICENSEE’s
control following the expiration of such sell-off period shall be destroyed by
LICENSEE within ten (10) days and Notice of such destruction (with proof
certified by an officer of LICENSEE) shall be delivered to NOA.


 


13.5 Termination by LICENSEE’s Breach. If this Agreement
is terminated by NOA as a result of a breach of its terms and conditions by
LICENSEE, LICENSEE shall immediately cease all distribution, advertising,
marketing or sale of any Licensed Products. All Licensed Products in LICENSEE’s
control as of the date of such termination shall be destroyed by LICENSEE
within ten (10) days and Notice of such destruction (with proof certified by an
officer of LICENSEE) shall be delivered to NOA.


 












[*]  Confidential
portion omitted and filed separately with the Securities and Exchange
Commission.


 


15

















 


13.6 Breach of NDA. At NOA’s option, any breach by
LICENSEE of the NDA, which breach is not cured within the time period for cure
allowed under the applicable agreement, shall be considered a material breach
of this Agreement entitling NOA to terminate this Agreement in accordance with
Section 13.5 herein.


 


13.7 No Further Use of the Intellectual Property Rights.
Upon expiration and/or termination of this Agreement, LICENSEE shall cease all
use of the Intellectual Property Rights for any purpose, except as may be
required in connection with the sale of the Licensed Products authorized under
Section 13.4 herein. LICENSEE shall, within thirty (30) days thereafter, (a)
return to NOA all Development Tools, and (b) return to NOA or destroy all
Guidelines, writings, drawings, models, data, tools and other materials and
things in LICENSEE’s possession or in the possession of any past or present
employee, agent or contractor receiving the information through LICENSEE, which
constitute or relate to or disclose any Confidential Information, without
making copies or otherwise retaining any such information. Proof of such return
or destruction shall be certified by an officer of LICENSEE and promptly
provided to NOA.


 


13.8 Termination by NOA’s Breach. If this Agreement is
terminated by LICENSEE as a result of a breach of its terms or conditions by
NOA, LICENSEE may, ******continue to sell the Licensed Products in the
Territory until the expiration of the Term, at which time the provisions of
Section 13.4 shall apply.


 


14.       GENERAL
PROVISIONS


 


14.1 Export Control. LICENSEE agrees to comply with the
export laws and regulations of the United States and any other country with
jurisdiction over the Licensed Products or the Development Tools.


 


14.2 Force Majeure. Neither party shall be liable for
any breach of this Agreement occasioned by any cause beyond the reasonable
control of such party, including governmental action, war, riot or civil
commotion, fire, natural disaster, labor disputes, restraints affecting
shipping or credit, delay of carriers, inadequate supply of suitable materials,
or any other cause which could not with reasonable diligence be controlled or
prevented by the parties. In the event of material shortages, including
shortages of materials or production facilities necessary for production of the
Licensed Products, NOA reserves the right to allocate such resources among
itself and its licensees, including LICENSEE hereunder.


 


14.3 Records and Audit. During the Term and for a period
of ******, LICENSEE agrees to keep
reasonably accurate, complete and detailed records in accordance with
LICENSEE’s standard business practices, relating to the use of the Confidential
Materials, the Development Tools and the Intellectual Property Rights. Upon at
least ******  prior written Notice to
LICENSEE, NOA may, at its expense, audit LICENSEE’s records, reports and other
information related solely to LICENSEE’s compliance with this Agreement;
provided, however, that NOA shall not, during the course of the audit, access
LICENSEE’s source code, development plans, marketing plans, internal business
plans or other items deemed confidential by LICENSEE, except to the extent such
materials incorporate, disclose or reference Nintendo’s Confidential
Information or Intellectual Property Rights.


 












[*]  Confidential
portion omitted and filed separately with the Securities and Exchange
Commission.


 


[*]  Confidential
portion omitted and filed separately with the Securities and Exchange
Commission.


 


16

















 


14.4 Waiver, Severability, Integration, and Amendment.
The failure of a party to enforce any provision of this Agreement shall not be
construed to be a waiver of such provision or of the right of such party to
thereafter enforce such provision. In the event that any term, clause or
provision of this Agreement shall be construed to be or adjudged invalid, void
or unenforceable, such term, clause or provision shall be construed as severed
from this Agreement, and the remaining terms, clauses and provisions shall
remain in effect. Together with the NDA, this Agreement constitutes the entire
agreement between the parties relating to the subject matter hereof. All prior
negotiations, representations, agreements and understandings are merged into,
extinguished by and completely expressed by this Agreement and the NDA. Any
amendment to this Agreement shall be in writing, signed by both parties.


 


14.5 Survival. In addition to those rights specified
elsewhere in this Agreement, the rights and obligations set forth in Sections
3, 8, 9, 10, 11, 12 and 13 shall survive any expiration or termination of this
Agreement to the degree necessary to permit their complete fulfilment or
discharge.


 


14.6 Governing Law and Venue. This Agreement shall be
governed by the laws of the State of Washington, without regard to its conflict
of laws principles. Any legal actions (including judicial and administrative
proceedings) with respect to any matter arising under or growing out of this
Agreement, shall be brought in a court of competent jurisdiction in King
County, Washington. Each party hereby consents to the jurisdiction and venue of
such courts for such purposes.


 


14.7 Equitable Relief. LICENSEE acknowledges that in the
event of its breach of this Agreement, no adequate remedy at law may be
available to NOA and that NOA shall be entitled to seek injunctive or other
equitable relief in addition to any relief available at law.


 


14.8 Attorneys’ Fees. In the event it is necessary for
either party to this Agreement to undertake legal action to enforce or defend
any action arising out of or relating to this Agreement, the prevailing party
in such action shall be entitled to recover from the other party all reasonable
attorneys’ fees, costs and expenses relating to such legal action or any appeal
therefrom.


 


14.9 Counterparts and Signature by Facsimile. This
Agreement may be signed in counterparts, which shall together constitute a
complete Agreement. A signature transmitted by facsimile shall be considered an
original for purposes of this Agreement.


 


IN WITNESS WHEREOF, the parties have entered into this
Agreement on the dates set forth below.


 


	
  NOA:

  	
  LICENSEE:

  
	
  NINTENDO OF AMERICA INC.

  	
  THQ INC.

  
	
   

  	
   

  
	
  By:

  	
  /s/ John Bauer

  	
   

  	
  By:

  	
  /s/ Leslie Brown

  	
   

  
	
  Title: 

  	
  Executive VP, Administration

  	
  Title:

  	
  Vice President and Chief Legal Counsel

  
	
  Date: 

  	
  April 5, 2002

  	
  Date:

  	
  April 4, 2002

  
								



 


17