Exhibit 10.1


 


CONFIDENTIAL LICENSE AGREEMENT


FOR NINTENDO GAMECUBE

(Asia)


 


THIS
LICENSE AGREEMENT (“Agreement”) is entered into between NINTENDO Co.,Ltd. (“Nintendo”) at 11-1
KAMITOBA-HOKOTATE-CHO MINAMI-KU KYOTO, 601-8501 JAPAN Attn: General Counsel
(Fax: 81-75-662-9603) and THQ Asia Pacific
Pty Ltd. (“LICENSEE”) at Level 8, 606 St Kilda Road, Melbourne,
Victoria 3004, Australia, Attn: Managing Director (Fax: 61-3-9510-8548).
Nintendo and LICENSEE agree as follows:


 


1.                                      RECITALS


 


1.1                                 Nintendo
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 Nintendo, which rights are only available for
use under the terms of a license agreement, to develop, have manufactured,
advertise, market and sell video game software for play on the NINTENDO
GAMECUBE system.


 


1.3                                 Nintendo
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 Nintendo 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, shrink-wrapped and boxed for delivery to LICENSEE by Nintendo


 


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”,
together with related guidelines.


 


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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
“Original 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 Nintendo and/or its subsidiary company,
Nintendo of America Inc. (“NOA”) and LICENSEE.


 


2.16                           “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 registered 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 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.


 


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


 


2.18                           “Printed
Materials” means a plastic disc storage case, title page, instruction booklet,
incorporating the Artwork, together with a precautions booklet in the form
specified by Nintendo.


 


2.19                           “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.


 


2.20                           “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.


 


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2.21                           “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.


 


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


 


2.23                           “Territory”
shall mean all countries within Taiwan, Hong Kong, Singapore, Malaysia,
Indonesia, Korea, Thailand and their respective territories and possessions.
Nintendo may add countries at its option.


 


3.                                      GRANT OF LICENSE; LICENSEE RESTRICTIONS


 


3.1                                 Limited
License Grant.  For the Term and for the
Territory, Nintendo 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 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,


 


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(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


 


(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.  Nintendo 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) 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. 
Nintendo 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, Nintendo makes 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 Nintendo such additional licenses as are necessary for the use of the
Proprietary Rights associated with such other Nintendo video game system.


 












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


 


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4.                                      SUBMISSION AND APPROVAL OF GAME AND ARTWORK 


 


4.1                                 Submission
of a Completed Game to Nintendo. 
Upon completion of a Game, LICENSEE shall deliver a prototype of the
Game to Nintendo 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 Nintendo, 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.  LICENSEE must establish that the Game and
any other content included on the Game Disc complies with  the any applicable laws, rules, ordinances
and guidelines prescribed by any legislative or administrative body or any
association of video game industry.


 


4.2                                 Testing
of a Completed Game. 
Upon submission of a completed Game, Nintendo 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, Nintendo shall approve or disapprove such Game.  If a Game is disapproved, Nintendo shall
specify in writing the reasons for such disapproval and state what corrections
are necessary.  After making the
necessary corrections, LICENSEE shall submit a revised Game to Nintendo for
testing.  Nintendo shall not
unreasonably withhold or delay its approval of any Game.  Neither the testing nor approval of a Game
by Nintendo shall relieve LICENSEE of its sole responsibility for the
development, quality and operation, including but not limited to compatibility
with the region code for the NINTENDO GAMECUBE sold in the Territory, of the
Game or in any way create any warranty for Licensed Product by Nintendo.


 


4.3                                 Production
of Check Discs.  By submission of a
completed Game to Nintendo in accordance with section 4.1, LICENSEE
authorizes Nintendo to proceed with production of Check Discs for such
Game.  If Nintendo 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, Nintendo 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 Nintendo 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 Nintendo in writing and may, after undertaking any
necessary changes or corrections, resubmit the Game to Nintendo 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. 
If LICENSEE (a) disapproves the Check Discs for any reason, or (b) fails
to order the minimum order quantity of any Game approved by Nintendo, LICENSEE
shall reimburse Nintendo (or its designee) for the reasonable estimated cost of
the production of the Check Discs, including the cost of the disc stamper.  The payment will be due upon the earlier of
(a) the subsequent submission by LICENSEE of a revised version of the Game to
Nintendo, or (b) six (6) months after the date the Game was first approved by
Nintendo.


 


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


 












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


 


5

















 


LICENSEE
of its sole responsibility for the development and quality of the Artwork or in
any way create any warranty for the Artwork or the Licensed Product by
Nintendo.  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 Nintendo in
accordance with Section 4.6 herein. 
No Printed Materials shall be produced by LICENSEE until such Artwork
has been approved by Nintendo.


 


5.                                      ORDER PROCESS, PURCHASE PRICE, PAYMENT AND DELIVERY 


 


5.1                                 Submission
of Orders by LICENSEE. 
After receipt of Nintendo’s approval for a Game and Artwork, LICENSEE
may at any time submit a written purchase order to Nintendo 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 Nintendo.


 


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 Nintendo’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
Nintendo’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 Nintendo at any time without
Notice. ****


 


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


 


5.4       Shipment and Delivery.  The Licensed Products shall be delivered
F.O.B. Japan or such other delivery point specified by Nintendo, with shipment
at LICENSEE’s direction and expense. 
Orders may be delivered by Nintendo in partial shipments, each directed
to not more than one (1) destinations designated by LICENSEE within the
Territory. Title to the Licensed Products shall vest in accordance with the
terms of the applicable letter of credit or, in the absence thereof, at the
point of delivery.


 


6.                                      MANUFACTURE OF THE LICENSED PRODUCT


 


6.1                                 Manufacturing.  Nintendo shall be the exclusive source for
the manufacture of the Game Discs and Check 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 Nintendo of a purchase order from LICENSEE and receipt of payment as
provided for at Section 5.3 herein, (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 


 












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


 


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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 Nintendo’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 Nintendo’s approval of any Independent
Contractors selected to perform the production and assembly operations.  LICENSEE shall provide Nintendo with the
names, addresses and all business documentation reasonably requested by
Nintendo for such Independent Contractors. 
Nintendo 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 Nintendo deems the
Independent Contractor to be unable to meet quality, security or performance
standards reasonably established by Nintendo, Nintendo 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 Nintendo’s concerns have been resolved to its
satisfaction or until LICENSEE has selected and received Nintendo’s approval of
another Independent Contractor. 
Nintendo may establish 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
Nintendo.


 


6.6                                 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 Nintendo with
(a)  **** samples of the fully assembled
Licensed Product, and (b) **** samples of the LICENSEE produced Printed
Materials (excluding the plastic disc storage case and precautions booklet) for
such Bulk Goods.


 


6.7                                 Retention
of Sample Licensed Products by Nintendo. 
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, but not for resale.


 


6.8                                 ****


 


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) all voluntary ESRB and/or ELSPA advertising, marketing or merchandising
guidelines, and/or its equivalent guidelines, 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 has been, ****,
observed by any law or regulation governing within the Territory. Prior to
actual use or distribution, LICENSEE shall submit to Nintendo for review
samples of all proposed Marketing Materials. 
Nintendo shall, within ten (10) business days of receipt, approve or
disapprove of 


 












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


 


7

















 


the
quality of such samples.  If any of the
samples are disapproved, Nintendo shall specify in writing the reasons for such
disapproval and state what corrections and/or improvements are necessary.  After making the necessary corrections
and/or improvements, LICENSEE shall submit revised samples for approval by
Nintendo.  No Marketing Materials shall
be used or distributed by LICENSEE without Nintendo’s prior written
approval.  Nintendo 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 Nintendo, or (b) any other
product or service where Nintendo’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 from the purchase date by the consumer and be responsible for
the cost in relation to such limited warranty. 
LICENSEE shall also provide reasonable product service, including
out-of-warranty service, for all Licensed Products.


 


7.4                                 No Sales
Outside the Territory. 
LICENSEE represents and warrants that it shall not market, sell, offer
to sell, export 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.


 


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


 


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 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 Nintendo at least **** business days prior to such disclosure.  LICENSEE shall use its best commercial
efforts to limit the disclosure to the greatest extent possible consistent with



 












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


 


8

















 


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


 


8.3                                 Disclosure
and Use.  Nintendo 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 Nintendo’s prior written consent. Each approved
Independent Contractor shall be required to enter into a written non-disclosure
agreement with Nintendo prior to receiving any access to or disclosure of such
materials from either LICENSEE or Nintendo.


 


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 or the release dates for
Games developed by LICENSEE under this Agreement shall be subject to Nintendo’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
Nintendo 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 Nintendo.


 


8.6                                 Notification
Obligations.  LICENSEE shall promptly
notify Nintendo of the unauthorized use or disclosure of any Confidential
Information of which LICENSEE becomes aware, 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 Nintendo 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
after expiration or termination of this Agreement.  In the event of a conflict between the terms of the NDA and this
Agreement, the terms 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


 












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


 


9

















 


(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                                 Nintendo’s
Representations and Warranties. 
Nintendo 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 Nintendo does not
conflict with any agreement or understanding to which Nintendo may be bound.


 


9.3                                 INTELLECTUAL
PROPERTY RIGHTS DISCLAIMER. 
NINTENDO (ON ITS OWN BEHALF. AND ITS AFFILIATES, LICENSORS, SUPPLIERS
AND SUBCONTRACTORS) EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES
CONCERNING THE SCOPE OR VALIDITY OF THE INTELLECTUAL PROPERTY RIGHTS.  NINTENDO (ON ITS OWN BEHALF. 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 ANY LAW OR REGULATION
GOVERNING COMMERCIAL ACTIVITY IS EXPRESSLY DISCLAIMED.  LICENSEE HEREBY ASSUMES THE RISK OF
INFRINGEMENT.


 


9.4                                 GENERAL
DISCLAIMER.  NINTENDO (ON ITS OWN
BEHALF. AND ITS AFFILIATES, LICENSORS, SUPPLIERS AND SUBCONTRACTORS) EXPRESSLY
DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE GAME DISCS AND THE
LICENSED PRODUCTS, INCLUDING, WITHOUT LIMITATION, THE SECURITY TECHNOLOGY.  LICENSEE PURCHASES AND ACCEPTS ALL GAME
DISCS AND LICENSED PRODUCTS ON AN “AS IS” AND “WHERE IS” BASIS.  NINTENDO (ON ITS OWN BEHALF. AND ITS
AFFILIATES, LICENSORS, SUPPLIERS AND SUBCONTRACTOR) EXPRESSLY DISCLAIMS ALL
WARRANTIES UNDER THE APPLICABLE LAWS OF ANY COUNTRY, EXPRESS OR IMPLIED,
INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A GENERAL OR
PARTICULAR PURPOSE.


 


9.5                                 LIMITATION
OF LIABILITY.  TO THE MAXIMUM EXTENT
PERMITTED BY LAW, NEITHER NINTENDO NOR 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 NINTENDO, 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 Nintendo (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 actual costs and any actual
expenses incurred in the settlement or avoidance of any such claim, which
result from or are in connection with:


 


10

















 


(a)                                  a
material 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, excluding claims
based solely upon the Intellectual Property Rights,


 


(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, compatibility with the region code for the NINTENDO
GAMECUBE sold in the Territory, 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.


 


Nintendo
and LICENSEE shall give prompt Notice to the other 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. 
Nintendo may, at its own expense, participate in such action or
proceeding with counsel of its own choice. 
LICENSEE shall not enter into any settlement of any matter in which (i)
Nintendo has been named as a party, or (ii) claims relating to the Intellectual
Property Rights have been asserted, without Nintendo’s prior written
consent.  Nintendo 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 satisfactory to Nindendo and shall
provide for adequate protection against any suits, claims, loss or damage by
the Licensed Products in the Territory. 
Such policy shall name Nintendo as additional insureds and shall specify
it may not be canceled without thirty (30) days’ prior written Notice to Nintendo.  If LICENSEE fails to maintain such insurance
at any time during the Term and for a period of two (2) years thereafter and
fails to cure within thirty (30) days of written notice from Nintendo, Nintendo
may secure such insurance at LICENSEE’s expense.


 


10.3                           Suspension
of Production.  In the event Nintendo
deems itself at risk with respect to any claim, action or proceeding under this
Section 10, Nintendo 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 Nintendo 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 Nintendo for their
respective reasonable attorneys’ fees and costs, pro  rata, and any remaining recovery shall be distributed to
LICENSEE and Nintendo, pro rata, based upon the fees and costs incurred in
bringing such action.


 


11.2                           Actions
by LICENSEE.  LICENSEE, without the
consent of Nintendo, 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 Nintendo 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

















 


11.3                           Actions
by Nintendo.  Nintendo, without the
consent of LICENSEE, may bring any action or proceeding relating to an
infringement or potential infringement of Nintendo’s Intellectual Property
Rights in the Licensed Products. 
Nintendo shall make reasonable, good faith efforts to inform LICENSEE of
such actions likely to affect LICENSEE’s rights in a timely manner.  Nintendo 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 Nintendo’s prior written consent, of which  may be withheld by Nintendo at its sole
discretion. In the event of an assignment or other disposition in violation of
this Agreement, Nintendo 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 Nintendo.  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 or
a merger of another business entity into LICENSEE, (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, Nintendo 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 Nintendo 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
LICENSEE is in default or commits a breach of this Agreement, which is not cured
within thirty (30) days after Notice thereof, then Nintendo may terminate this
Agreement at its discretion.


 


13.3                           Bankruptcy.  At Nintendo’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 one hundred eighty (180)
days to sell any unsold Licensed Products. 
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 Nintendo.


 


13.5                           Termination
by LICENSEE’s Breach. 
If this Agreement is terminated by Nintendo 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 


 


12

















 


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 Nintendo.


 


13.6                           Breach of
NDA or other Nintendo License Agreements. 
At Nintendo’s option, any breach by LICENSEE of (a) the NDA, or (b) any
other license agreement between Nintendo and LICENSEE relating to the
development of games for any Nintendo video game system, 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 Nintendo 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 Nintendo all Development Tools, and (b) return to
Nintendo or destroy all Guidelines, writings, drawings, models, data, tools and
other materials and things in relation to this Agreement and/or Nintendo 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 Nintendo.


 


13.8                           Termination
by Nintendo’s Breach. 
If this Agreement is terminated by LICENSEE as a result of a breach of
its terms or conditions by Nintendo, LICENSEE may, at its option, 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 Japan 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, Nintendo reserves the right
to allocate such resources among itself and its licensees.


 


14.3                           Records
and Audit.  During the Term and for
a period of two (2) years thereafter, LICENSEE agrees to keep reasonably
accurate, complete and detailed records relating to the use of the Confidential
Materials, the Development Tools and the Intellectual Property Rights.  Upon reasonable Notice to LICENSEE, Nintendo
may, at its expense, audit LICENSEE’s records, reports and other information
related to LICENSEE’s compliance with this Agreement; provided, however, that
Nintendo 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.


 


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 


 


13

















 


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 Japan, without regard to its conflict of laws
principles.  Any legal action (including
judicial and administrative proceedings) with respect to any matter arising
under or growing out of this Agreement, shall be brought to Kyoto District
Court exclusively.  Each party hereby
consents to the jurisdiction and venue of such courts for such purposes.


 


14.7                           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.


 


14.8                           Counterparts
and Signature.  This Agreement may be
signed in counterparts, which shall together constitute a complete Agreement.


 


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


 


 


	
  NINTENDO:

  	
   

  	
  LICENSEE:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  NINTENDO CO., LTD.

  	
   

  	
  THQ ASIA PACIFIC PTY LTD.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
  Date:

  	
   

  	
   

  
										



 


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