Exhibit 10.1


 


DP# 543787


 


AMENDMENT NO. 2 TO
THE


XBOX 360 PUBLISHER
LICENSE AGREEMENT


(2008
Renewal; Tier C; Hits Program Revisions; Expansion Packs; New Xbox 360 Live and
PDLC Incentive Program; 

XLSP; Japan Volume Rebate Revision; Token Promotions; Joint Promotions)


 


This Amendment to
the Xbox 360 Publisher License Agreement (this “Amendment”) is entered into and
effective as of the later of the two signature dates below (the “Amendment
Effective Date”) by and between Microsoft Licensing, GP,  a
Nevada general partnership (“Microsoft”), and THQ, INC. (“Publisher”),
and supplements that certain Xbox 360 Publisher License Agreement  between the
parties dated as of October 31, 2005, as amended (the “Xbox 360 PLA”).


 


RECITALS


 


A.                                   Microsoft
and Publisher entered into the Xbox 360 PLA to establish the terms under which
Publisher may publish video games for Microsoft’s Xbox 360 video game system.


 


B.                                     The
parties now wish to extend the term and otherwise amend certain terms of the
Xbox 360 PLA as set forth below.


 


Accordingly, for and in consideration of the mutual
covenants and conditions contained herein, and for other good and valuable
consideration, receipt of which each party hereby acknowledges, Microsoft and
Publisher agree as follows:


 


1.                                      Definitions


 


1.1                                 The definitions of “Asian
Manufacturing Region”, “North American
Manufacturing Region”, “European Manufacturing
Region” and “Manufacturing Region”
are hereby deleted from the Xbox 360 PLA.


 


1.2                                 The definition of “Online
Content” is hereby amended and restated in its entirety as follows:


 


“Online Content” means any content, feature, or access to
software or online service that is distributed by Microsoft pursuant to this
Agreement.  Online Content includes, but
is not limited to, Online Game Features, Title Updates, Demo Versions, Xbox
LIVE Arcade games, trailers, “themes,” “gamer pictures” or any other category
of online content or service approved by Microsoft from time to time.  Trailers, “themes,” “gamer pictures” and any other
approved Online Content is further described in the Xbox 360 Publisher Guide.


 


1.3                                 The definition of “Software
Title” is hereby expanded to include Expansion Pack(s).


 


1.4                                 The following definitions are hereby added to
Section 2 of the Xbox 360 PLA.


 


1.4.1                         “Expansion Pack” means an FPU that is an add-on, mission
pack, game expansion, incremental content, and/or other addition to a Software
Title that (i) would not be generally considered in the console game
industry to be a next full version release (e.g., a version 1.0 to 1.5); (ii) requires
another full version video game in order to operate, (iii) is derived from
the content, story, characters or other intellectual property of the full
version video game required to play it, and (iv) has a WSP (defined below)
that is equal to or below the Threshold Price (defined below) listed for the
royalty tiers applicable to Expansion Packs in Section 1 b. of Exhibit 1
attached hereto.  In order to meet this
definition of Expansion Pack, such addition to a Software Title must be
approved by Microsoft as an Expansion Pack.


 


1.4.2                        “Family Hit” means any Hits Software Title that  (i) received an “E,” or an “E10” rating
from the ESRB; a “PEGI 3+” or “PEGI 7+” rating in Europe, an “A: All Ages”
rating from CERO in Japan and/or an equivalent rating in the applicable Sales
Territory (to the extent Software Titles are rated by regulatory boards within
the applicable Sales Territory); and (ii) is character based and/or
appeals, as determined by Microsoft in its sole good faith discretion, to
children 12 years of age and younger. 
Notwithstanding the foregoing, annual sports titles will not qualify as
a Family Hit.


 


MICROSOFT CONFIDENTIAL


 


1













 


1.4.3                         “Hit(s) FPU” means each unit of a Software Title that is
qualified and participating in a Hits Program.


 


1.4.4                         “Hits Program(s)” mean Xbox 360 Platinum or Classic Hits
and/or the Xbox 360 Family Hits programs.


 


1.4.5                        “Hits Software Title” means any Software Title that
qualifies to participate in the Hits Program pursuant to Section 2 of Exhibit 1
attached hereto.


 


1.4.6                         “Standard FPU” means an FPU of a Software Title that is not a
Hits FPU.


 


1.4.7                        “Standard Software Title” means any Software Title that is
not a Hits Software Title or an Expansion Pack.


 


1.4.8                         “Threshold Price” means the Wholesale Price (WSP) in the case
of the North American, European, and Asian Sales Territories, or Suggested
Retail Price (SRP) in the Japan Sales Territory at which Publisher intends to
sell the Software Title.  If the Software
Title is bundled with any other product or service that is not another Software
Title, the Threshold Price will be the applicable WSP or SRP for the entire
bundle.


 


1.5                                 Except as expressly provided otherwise in
this Amendment, capitalized terms shall have the same meanings as those
ascribed to them in the Xbox 360 PLA.


 


2.                                      Term


 


Section 17.1 of the Xbox 360 PLA is hereby amended and
restated in its entirety as follows:


 


“17.1                Term.  The
term of this Agreement shall commence on the Effective Date and shall continue until
six (6) years after such date that the Xbox 360 is first commercially
released by Microsoft in the United States. 
Unless one party gives the other notice of non-renewal within sixty (60)
days of the end of the then-current term, this Agreement shall automatically
renew for successive one-year terms.”


 


3.                                      Pre-Certification


 


Section 4.1.2 of the Xbox 360 PLA is hereby amended
and restated in its entirety as follows:


 


“4.1.2  Pre-Certification.  If the Concept is approved, Publisher may, at Publisher’s option,
deliver to Microsoft a code-complete version of the Software Title or Online
Content that includes all current features of the Software Title and such other
content as may be required under the Xbox 360 Publisher Guide.  Upon receipt thereof and payment by Publisher
of the applicable Pre-Certification fee as set forth in the Xbox 360 Publisher
Guide, Microsoft shall conduct technical screen and/or other testing of the
Software Title or Online Content consistent with the Xbox 360 Publisher Guide
and will subsequently provide Publisher with advisory feedback regarding such
testing.”


 


4.                                      Exhibits


 


4.1                                 Exhibits 1, 2 and 3 of the Xbox 360 PLA are
hereby amended and restated in their entirety as attached hereto. Exhibit 6
(Japan/Asian Royalty Incentive Program) of the Xbox 360 PLA has expired. 
Exhibits 6, 8 and 9 attached hereto are hereby added to the Xbox 360
PLA.


 


4.2                                 The term of the Xbox 360 Live Incentive
Program attached as Exhibit 7 of the Xbox 360 PLA (the “Original
Live Incentive Program”) is hereby extended until December 31, 2008.  Effective January 1, 2009, the Original
Live Incentive Program is replaced by the Xbox Live and PDLC Incentive Program
attached as Exhibit 7 to this Amendment.


 


5.                                      Non-Disclosure


 


Section 13.1
of the Xbox 360 PLA is hereby deleted and replaced by the following:


 


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“13.1                     “Non-Disclosure Agreement.  The information, materials and software
exchanged by the parties hereunder or under an XDK License, including the terms
and conditions hereof and of the XDK License, are subject to the Non-Disclosure
Agreement between the parties attached hereto as Exhibit 5 (the “Non-Disclosure
Agreement”), which is incorporated herein by reference; provided, however, that
for purposes of the foregoing, any time limitation in the Non-Disclosure
Agreement on the parties’ obligations to refrain from disclosing information
protected under the Non-Disclosure Agreement (“Confidential Information”) shall
be extended so that any Confidential Information provided in relation to this
Agreement or by way of the XDK License in whatever form (e.g. information,
materials, tools and/or software exchanged by the parties hereunder or under an
XDK License), including the terms and conditions hereof and of the XDK License,
unless otherwise specifically stated, will be protected from disclosure for as
long as it remains confidential.”


 


6.                                      Promotions


 


6.1                                 Token Promotions.  In
the event Publisher desires to distribute password-protected codes representing
“tokens” (a “Token Promotion”) that are redeemable by users for Online Content
downloads from Xbox Live (“Content Tokens”) as part of promotional activities
related to a Software Title using Xbox Live Marketplace, Publisher shall submit
to Microsoft a Content Token Request form available in the Xbox 360 Publisher
Guide (“Token Form”) for approval by Microsoft. 
Upon approval by Microsoft, Publisher will pre-pay all applicable fees
as set forth in the Xbox 360 Publisher Guide, or Microsoft may****.  As soon as ****, Microsoft shall create
Content Tokens and deliver them to Publisher. 
Publisher may distribute the Content Tokens for the Content download
solely as part of the Token Promotion within the Sales Territory and during the
term of the Token Promotion specified on the Token Form.  No other payments under the Xbox 360 PLA (MS
Points or otherwise) will be paid with respect to the Content Tokens. Publisher
shall be solely responsible for all aspects of marketing and fulfillment of the
Token Promotion, including without limitation all advertising and other
promotional materials related to the Token Promotion which shall be deemed
Marketing Materials.


 


6.2                                 Joint  Promotions. 
Microsoft and Publisher may from time to time agree to develop, execute,
and administer promotions involving the Software Title(s) (e.g., Play and
Win weekends for the Software Titles on Xbox LIVE, promotional sweepstakes
involving the Software Titles, etc.) (each, a “Promotion”).  In connection therewith, Microsoft and
Publisher shall mutually agree upon and execute a promotion schedule to this
Agreement in the form set forth in the Xbox 360 Publisher Guide (each, a “Promotion
Schedule”).  The parties agree that the
following additional terms and conditions shall apply to each Promotion for
which a Promotion Schedule has been fully executed: ****.


 


7.                                      Online Content Samples.


 


7.1                                 Xbox LIVE Arcade.  For
each piece of Online Content that is an Xbox LIVE Arcade game, Microsoft will
be entitled to create **** Content Tokens, **** of which Microsoft will provide
to the Publisher and **** of which Microsoft may use in marketing, as product
samples, for customer support, testing and archival purposes.  Publisher shall not be entitled to any
Royalty Fee or other compensation with respect to Microsoft’s distribution of
Content Tokens as authorized under this Section 7.1.


 


7.2                                 Premium Online Content.  For
each piece of Premium Online Content, Microsoft will be entitled to create up
to **** Content Tokens, which Publisher and Microsoft may use in marketing, as
product samples, for customer support, testing and archival purposes (the
Content Tokens will be split approximately **** between Publisher and Microsoft
respectively).  Publisher shall not be
entitled to any Royalty Fee or other compensation with respect to Microsoft’s
distribution of Content Tokens as authorized under this Section 7.2


 


8.                                      Online Content


 


Notwithstanding any
termination or expiration of Microsoft’s license to distribute Online Content,
Publisher acknowledges and agrees that Microsoft will retain a copy of Online
Content, and Publisher hereby grants Microsoft the license to redistribute the
final version of any Online Content to Xbox Live Users who have previously
purchased it, directly or indirectly, from Microsoft.


 


 


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

  



 


3













 


9.                                      Minimum Order Quantities


 


9.1                                 The MOQ per Software Title set forth in Section 7.5.1
of the Xbox 360 PLA for the North American Sales Territory is hereby increased
to ****.


 


9.2                                 Section 7.5.2 of the Xbox 360 PLA is
hereby amended and restated as follows:


 


“7.5.2                                          For the
purposes of this section, a “Disc” shall mean an FPU that is signed for use on
a certain defined range of Xbox 360 hardware, regardless of the number of
languages or product skus contained thereon. 
Publisher must meet the MOQs independently for each Sales
Territory.  For example, if an FPU is
released in both the North American Sales Territory and the European Sales Territory,
then the Publisher must place orders to manufacture (i) at least **** FPUs
for sale in the North American Sales Territory, including a minimum of **** per
Disc included in such FPUs, and (ii) **** FPUs for the European Sales
Territory, including a minimum of **** per Disc included in such FPUs.”


 


10.                                 Except and to the extent
expressly modified by this Amendment No. 2, the Xbox 360 PLA shall remain
in full force and effect and is hereby ratified and confirmed.   In the event of any conflict between this
Amendment No. 2 and the Xbox 360 PLA the terms of this Amendment shall
control.


 


IN WITNESS WHEREOF, the parties hereto have caused
this Amendment to be executed as of the Amendment Effective Date.


 


 


	
  MICROSOFT LICENSING, GP

  	
   

  	
  THQ, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By (sign)

  	
   

  	
  By (sign)

  
	
   

  	
   

  	
   

  
	
  Name (Print)

  	
   

  	
  Name (Print)

  
	
   

  	
   

  	
   

  
	
  Title

  	
   

  	
  Title

  
	
   

  	
   

  	
   

  
	
  Date (Print mm/dd/yy)

  	
   

  	
  Date (Print mm/dd/yy)

  



 


 


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

  



 


4













 


EXHIBIT 1


 


PAYMENTS


 


1.                                      Platform Royalty


 


a.                                       For each FPU manufactured during the term of
this Agreement, Publisher shall pay Microsoft nonrefundable royalties in
accordance with the royalty tables set forth below (Tables 1 and 2) and the “Unit
Discount” table set forth in Section 1.d of this Exhibit 1
(Table 3).


 


b.                                      To determine the applicable royalty rate for
a particular Software Title that will be sold in a particular Sales Territory,
the applicable Threshold Price from Table 1 below for the category of Software
Title (Standard Software Title, Hits Software Title and Expansion Pack) will
determine the correct royalty “Tier” (except with respect to the first
Commercial Release of Hits Software Titles as described further in (ii) below).  The royalty rate is then as set forth in
Table 2 based on such Tier and the Sales Territory in which the FPUs will be
sold.  For example, assume the Wholesale
Price of a Standard Software Title to be sold in the European Sales Territory
is ****.  According to Table 1, ****
royalty rates will apply to that Software Title and the royalty rate for each
FPU as set forth in Table 2 is ****.


 


 




	
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* ****.


 




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

  



 


5













 


c.                                       Setting the Royalty.


 


(i)                                     Standard Software Titles and Expansion Packs. Publisher shall submit to Microsoft, at
least **** before placing the first manufacturing order for a Standard Software
Title or an Expansion Pack, a completed and signed “Xbox 360 Royalty Tier
Selection Form” in the form attached to this Agreement as Exhibit 2
for each Sales Territory.  The selection
indicated in the Xbox 360 Royalty Tier Selection Form will only be
effective once it has been approved by Microsoft.  If a Standard Software Title or Expansion
Pack does not have an approved Xbox 360 Royalty Tier Selection Form as
required hereunder (e.g. as a result of the Publisher not providing a Xbox 360
Royalty Tier Selection Form or because Microsoft has not approved the Xbox
360 Royalty Tier Selection Form), the royalty rate for such Standard Software
Title will default to **** or for such Expansion Pack will default to ****,
regardless of the actual Threshold Price (i.e., if Microsoft does not approve
an Xbox 360 Royalty Tier Selection Form because it is filled out
incorrectly, the royalty rate will default to ****).  Except as set forth in Section 2 (Hits
Programs), the selection of a royalty tier for a Standard Software Title or
Expansion Pack in a Sales Territory is binding for the life of that Software
Title or Expansion Pack even if the Threshold Price is reduced following the
Software Title’s Commercial Release.


 


(ii)                                  Hits
Software Title.  Publisher shall
submit to Microsoft, at least **** prior to the targeted Commercial Release of
the Hits Software Title a completed and signed Hits Programs Election Form in
the form attached hereto as Exhibit 6 for each Sales
Territory.  The Hits Programs Election Form will
only be effective once it has been approved by Microsoft.  If a Hits Software Title does not have an
approved Hits Programs Election Form as required hereunder (e.g. as a
result of the Publisher not providing a Hits Programs Election Form or
because Microsoft has not approved the Hits Programs Election Form), the
royalty rate for such Hits Software Title will default to **** (i.e., if
Microsoft does not approve a Hits Programs Election Form because it is
filled out incorrectly, the royalty rate will default to ****).  Unless the Software Title is a Family Hits
Title, the first time a Software Title is Commercially Released as a Hits
Software Title, the **** royalty rate will apply.  However, if the Software Title is a Family
Hits Title and meets the WSP requirements set forth in Table 1 above, Publisher
may select the **** royalty rate.  For
the avoidance of doubt, all Hits Software Titles for the European Sales
Territory shall default to the **** royalty rate.


 


Beginning ****
after the Commercial Release of a Hits Software Title at the **** royalty rate,
Publisher may elect to change the previously elected royalty rate for such Hits
Software Title to **** in a specific Sales Territory provided that the Hits
Software Title has a WSP or SRP that meets the requirements for **** royalty
rate in Table 1 above. Publisher must submit to Microsoft, at least **** before
placing the first manufacturing order for the applicable Hits Software Title, a
completed Xbox 360 Royalty Tier Migration Form  (a “Tier Migration Form”)
set forth in Exhibit 8 for each Sales Territory. The change in
royalty rate will only apply to manufacturing orders for such Hits Software
Title placed after the relevant Tier Migration Form has been approved by
Microsoft.


 


(iii)                             Cross Territory Sales. 
Except for FPUs manufactured pursuant to Section 5 below (Asia
Simship Program), Publisher may not sell FPUs in a certain Sales Territory that
were manufactured for a different Sales Territory.  For example, if Publisher were to manufacture
and pay royalties on FPUs designated for sale in the Asian Sales Territory,
Publisher could not sell those FPUs in the European Sales Territory.


 


d.                                      Unit Discounts.   Publisher is eligible for a
discount to FPUs manufactured for a particular Sales Territory (a “Unit
Discount”) based on the number of FPUs that have been manufactured for sale in
that Sales Territory as described in Table 3 below.   Except as provided in Section 5 below,
units manufactured for sale in a Sales Territory are aggregated only towards a
discount on FPUs manufactured for that Sales Territory; there is no worldwide
or cross-territorial aggregation of units for a particular Software
Title.  The discount will be rounded up to the nearest Cent, Yen or
hundredth of a Euro.


 


	
  Table
  3: Unit Discounts

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

  



 


6













 


*
The revised Unit Discounts for the Japan Sales Territory will only be effective
for Software Titles that are initially manufactured for the Japan Sales
Territory after the Amendment Effective Date. 
All Software Titles initially manufactured prior to the Amendment
Effective Date are subject to the Unit Discounts set forth in the Xbox 360 PLA
prior to this Amendment.


 


2.                                      Hits Programs


 


a.                                       If a Software Title meets the criteria set
forth below and the applicable participation criteria in a particular Sales
Territory at the time of the targeted Commercial Release date of the Hits FPU
and Microsoft receives the Hits Programs Election Form within the time
period set forth in Section 2.a.iv below, Publisher is authorized to
manufacture and distribute Hits FPUs in such Sales Territory and at the royalty
rate in Table 2 of Section 1 above applicable to Hits FPUs.  In order for a Software Title to qualify as a
Hits FPU in a Sales Territory, the following conditions, as applicable per Hits
Program, must be satisfied:


 


i.                                          the
Software Title must have been commercially available as a Standard FPU in the
applicable Sales Territory for at least **** but not more than **** at the time
of Commercial Release of the Hits FPU.


 


ii.                                       In
any calendar year in a Sales Territory, Publisher may not publish more than
**** Software Titles as a Family Hit.


 


iii.                                    The
Threshold Price for the Hits FPU must not exceed a maximum Threshold Price for
the relevant Sales Territory (**** for the North American Sales Territory, **** in the European Sales Territory, **** in
the Japan Sales Territory, or the equivalent of **** for the Asian Sales
Territory).


 


iv.                                 Publisher
must provide notice to Microsoft, at least **** prior to the targeted
Commercial Release, of its intent to have a certain Software Title participate
in the Hits Program by providing Microsoft with a completed Hits Program
Election Form.


 


b.                                      As
of the date Publisher wishes to Commercially Release the Software Title as a
Hits FPU, Publisher must have manufactured the following minimum FPUs of the
Software Title as a Standard Software Title for the applicable time period,
Sales Territory and Hits Program.


 


	
  Table
  1: Manufacturing Requirements

  
	
  From the
  Amendment Effective Date to March 31, 2009

  
	
   

  	
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c.                                       All Marketing Materials for a Hits Software
Title must comply with all Microsoft branding requirements as may be required
in each Sales Territory, and Publisher shall submit all such Marketing
Materials to Microsoft for its approval in accordance with the Xbox 360
PLA.  Notwithstanding the foregoing, all
Hit FPUs must comply with the basic branding and other requirements for
Marketing Materials set forth in the Xbox 360 Publisher Guide.


 


d.                                      The Hit FPU version must be the same or
substantially equivalent to the Standard FPU version of the Software
Title.  Publisher may modify or add
additional content or features to the Hit FPU version of the Software Title
(e.g., demos or game play changes) subject to Microsoft’s review and approval,
and Publisher acknowledges that any such modifications or additions may require
the Software Title to be re-Certified at Publisher’s expense.


 


e.                                       Publisher acknowledges that Microsoft may
change any of the qualifications for participation in a Hit Program upon ****
advanced written notice to Publisher.


 


 


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

  



 


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3.                                      Payment Process


 


Publisher will pre-pay all royalties owed to
Microsoft for all FPUs manufactured by its Authorized Replicator, in United
States dollars for all FPUs manufactured for sale in the North American Sales
Territory, in Euros for all FPUs manufactured for sale in the European Sales
Territory and in Yen for all FPUs manufactured for sale in the Japan and Asian
Sales Territories.  Publisher shall not
authorize its Authorized Replicators to begin production until such time as
****.  Depending upon Publisher’s credit
worthiness, Microsoft may, but is not obligated to, offer Publisher credit
terms for the payment of royalties due under this Agreement within **** from
invoice creation.   All
payments will be made by wire transfer only, in accordance with the payment
instructions set forth in the Xbox 360 Publisher Guide.


 


4.                                      Billing Address


 


a.                                       Publisher may have only two “bill to”
addresses for the payment of royalties under this Agreement, one for FPUs
manufactured by Authorized Replicators located in the North American Sales Territory
and one for FPUs manufactured by Authorized Replicators located in the Japan
Sales Territory and Asian Sales Territory. 
If Publisher desires to have a “bill-to” address in a European country,
Publisher (or a Publisher Affiliate) must execute an Xbox 360 Publisher
Enrollment Form with MIOL within ten (10) business days prior to
establishing a billing address in a European country in the form attached to
this Agreement as Exhibit 3.


 


Publisher’s
billing address(es) is as follows:


 


	
  North American Sales
  Territory:

  	
  Japan and Asian Sales
  Territory (if different than the North American billing address):

  
	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attention:

  	
   

  	
   

  	
  Attention:

  	
   

  	
   

  
	
  Email address: 

  	
   

  	
   

  	
  Email address: 

  	
   

  	
   

  
	
  Fax:

  	
   

  	
   

  	
  Fax:

  	
   

  	
   

  
	
  Phone:

  	
   

  	
   

  	
  Phone:

  	
   

  	
   

  



 


5.                                      Asia Simship Program


 


The
purpose of this program is to encourage Publisher to release Japanese, North
American or European FPUs, that have been multi-region signed to run on NTSC-J
boxes (hereinafter collectively referred to as “Simship Titles”), in Hong Kong,
Singapore, Korea and Taiwan (referred to as “Simship Territory”) at the same
time as Publisher releases the Software Title in the Japan, European and/or
North American Sales Territories.  In
order for a Software Title to qualify as a Simship Title, Publisher must
Commercially Release the Software Title in the Simship Territory on the same
date as the Commercial Release date of such Software Title in the Japan,
European and/or North American Sales Territories, wherever the Software Title was
first Commercially Released (referred to as “Original Territory”).  To the extent that a Software Title qualifies
as a Simship Title, the applicable royalty tier (under Section 1.b of this
Exhibit 1 above) and Unit Discount (under Section 1.d of this Exhibit 1
above) is determined as if all FPUs of such Software Title manufactured for
distribution in both the Original Territory and the Simship Territory were
manufactured for distribution in the Original Territory.  For example, if a Publisher initially manufactures
**** FPUs of a Software Title for the Japan Sales Territory and simships ****
of those units to the Simship Territory, the royalty rate for all of the FPUs
is determined by ****.  In this example,
Publisher would also receive a **** Unit Discount on **** units for having
exceeded the Unit Discount level specified in Section 1.d. of this Exhibit 1
above applicable to the Japan Sales Territory. 
Publisher must provide Microsoft with written notice of its intention to
participate in the Asian Simship Program with respect to a particular Software
Title at least **** prior to manufacturing any FPUs it intends to qualify for
the program.  In its notice, Publisher
shall provide all relevant information, including total number of FPUs to be
manufactured, number of FPUs to be simshipped into the Simship Territory, date
of simship, etc.  Publisher remains
responsible for complying with all relevant import, distribution and packaging
requirements as well as any other applicable requirements set forth in the Xbox
360 Publisher Guide.


 


 


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

  



 


8













 


6.                                      Online Content


 


a.                                       For
the purpose of this Section 6, the following capitalized terms have the
following meanings:


 


****


 


****


 


b.                                      Publisher may, from time to time, submit
Online Content to Microsoft for Microsoft to distribute via Xbox Live.  ****


 


c.                                       ****


 


d.                                      ****


 


e.                                       ****


 


f.                                         ****


 


g.                                    ****


 


7.                                      Xbox Live Billing and Collection


 


Microsoft
is responsible for billing and collecting all fees associated with Xbox Live,
including fees for subscriptions and/or any Online Content for which an Xbox
Live User may be charged.  ****


 


8.                                      Taxes


 


a.                                       The amounts to be paid by either party to the
other do not include any foreign, U.S. federal, state, local, municipal or
other governmental taxes, duties, levies, fees, excises or tariffs, arising as
a result of or in connection with the transactions contemplated under this
Agreement including, without limitation, (i) any state or local sales or
use taxes or any value added tax or business transfer tax now or hereafter
imposed on the provision of any services to the other  party under this Agreement, (ii) taxes
imposed or based on or with respect to or measured by any net or gross income
or receipts of either party, (iii) any franchise taxes, taxes on doing
business, gross receipts taxes or capital stock taxes (including any minimum
taxes and taxes measured by any item of tax preference), (iv) any taxes
imposed or assessed after the date upon which this Agreement is terminated, (v) taxes
based upon or imposed with reference to either parties’ real and/or personal
property ownership and (vi) any taxes similar to or in the nature of those
taxes described in (i), (ii), (iii), (iv) or (v) above, now or
hereafter imposed on either party (or any third parties with which either party
is permitted to enter into agreements relating to its undertakings hereunder)
(all such amounts, together with any penalties, interest or any additions
thereto, collectively “Taxes”).   Neither
party is liable for any of the other party’s Taxes incurred in connection with
or related to the sale of goods and services under this Agreement, and all such
Taxes are the financial responsibility of the party obligated to pay such taxes
as determined by the applicable law, provided that both parties shall pay to
the other the appropriate Collected Taxes in accordance with subsection b
below. Each party agrees to indemnify, defend and hold the other party harmless
from any Taxes (other than Collected Taxes, defined below) or claims, causes of
action, costs (including, without limitation, reasonable attorneys’ fees) and
any other liabilities of any nature whatsoever related to such Taxes to the
extent such Taxes relate to amounts paid under this Amendment.


 


b.                                      Any sales or use  taxes described in a. above that (i) are
owed by either party solely as a result of entering into this Agreement and the
payment of the fees hereunder, (ii) are required to be collected from that
party under applicable law, and (iii) are based solely upon the amounts
payable under this Agreement (such taxes the “Collected Taxes”), will be stated
separately as applicable on payee’s invoices and will be remitted by the other
party to the payee, upon request payee shall remit to the other party official
tax receipts indicating that such Collected Taxes have been collected and paid
by the payee.  Either party may provide
the other party an exemption certificate acceptable to the relevant taxing
authority (including without limitation a resale certificate) in which case
payee shall not collect the taxes covered by such certificate.  Each party agrees to take such commercially
reasonable steps as are requested by the other party to minimize such Collected
Taxes in accordance with all relevant laws and to cooperate with and assist the
other party, in challenging the validity of any


 


 


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

  



 


9













 


Collected
Taxes or taxes otherwise paid by the payor party.  Each party shall indemnify and hold the other
party harmless from any Collected Taxes, penalties, interest, or additions to
tax arising from amounts paid by one party to the other under this Agreement,
that are asserted or assessed against one party to the extent such amounts
relate to amounts that are paid to or collected by one party from the other
under this section. If any taxing authority refunds any tax to a party that the
other party originally paid, or a party otherwise becomes aware that any tax
was incorrectly and/or erroneously collected from the other party, then that
party shall promptly remit to the other party an amount equal to such refund,
or incorrect collection as the case may be plus any interest thereon.


 


c.                                       If taxes are required to be withheld on any
amounts otherwise to be paid by one party to the other, the paying party shall
deduct such taxes from the amount otherwise owed and pay them to the
appropriate taxing authority.  At a party’s
written request and expense, the parties shall use reasonable efforts to
cooperate with and assist each other in obtaining tax certificates or other
appropriate documentation evidencing such payment, provided, however, that the
responsibility for such documentation shall remain with the payee party.  If Publisher is required by any non-U.S.A.
government to withhold income taxes on payments to Microsoft, then Publisher
may deduct such taxes from the amount owed Microsoft and shall pay them to the
appropriate tax authority, provided that within **** of such payment, Publisher
delivers to Microsoft an official receipt for any such taxes withheld or other
documents necessary to enable Microsoft to claim a U.S.A. foreign tax credit.


 


b.                                      This Section 7 shall govern the
treatment of all taxes arising as a result of or in connection with this
Agreement notwithstanding any other section of this Agreement.


 


9.                                      Audit


 


During
the term of this Agreement and for **** thereafter each party shall keep all
usual and proper records related to its performance under this Agreement,
including but not limited to audited financial statements and support for all
transactions related to the ordering, production, inventory, distribution and
billing/invoicing information.  Such
records, books of account, and entries will be kept in accordance with
generally accepted accounting principles. 
Either party (the “Auditing Party”) may audit and/or inspect the other
party’s (the “Audited Party”) records no more than **** in any **** period in
order to verify compliance with the terms of this Agreement.  The Auditing Party may, upon reasonable
advance notice, audit the Audited Party’s records and consult with the Audited
Party’s accountants for the purpose of verifying the Audited Party’s compliance
with the terms of this Agreement and for a period of ****.  Any such audit will be conducted during
regular business hours at the Audited Party’s offices.  Any such audit will be paid for by Auditing
Party unless Material discrepancies are disclosed.  As used in this section, “Material” means
****.  If Material discrepancies are
disclosed, the Audited Party agrees to pay the Auditing Party for ****.


 


 


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

  



 


10












 


EXHIBIT 2


 


XBOX 360
ROYALTY TIER SELECTION FORM


 


PLEASE
COMPLETE THE BELOW INFORMATION, SIGN THE FORM, AND FAX IT TO MICROSOFT AT +1
(425) 708-2300 TO THE ATTENTION OF MICROSOFT LICENSING, GP (MSLI) AND YOUR
ACCOUNT MANAGER.


 


NOTES:


1.         THIS
FORM MUST BE SUBMITTED AT LEAST **** PRIOR TO THE FIRST MANUFACTURING
ORDER BEING PLACED FOR THE SOFTWARE TITLE FOR EACH RESPECTIVE SALES
TERRITORY.  IF THIS FORM IS NOT
SUBMITTED ON TIME OR IS REJECTED BY MICROSOFT, THE ROYALTY RATE WILL DEFAULT TO
**** FOR THE APPLICABLE SALES TERRITORY.


 


2.         A
SEPARATE FORM MUST BE SUBMITTED FOR EACH SALES TERRITORY.


 


 


	
  1.   Publisher Name:

  	
   

  	
   

  



 


	
  2.   Xbox 360 Software Title Name:

  	
   

  	
   

  



 


	
  3.   XeMID Number:

  



 


	
   

  	
   

  	
   

  



 


	
  4.   Sales Territory (check one):

  	
   

  	
   

  



 


	
   

  	
   

  	
   

  	
  North American Sales Territory

  	
   

  
	
   

  	
   

  	
   

  	
  Japan Sales Territory

  	
   

  
	
   

  	
   

  	
   

  	
  European Sales Territory

  	
   

  
	
   

  	
   

  	
   

  	
  Asian Sales Territory

  	
   

  



 


	
  5.   Final Certification Date:

  	
   

  	
   

  



 


	
  6.   Select Royalty Tier: (check one):  ****

  



 


 


The undersigned
represents that he/she has authority to submit this form on behalf of the above
Publisher, and that the information contained herein is true and accurate.


 


	
   

  	
   

  	
   

  
	
   

  	
  By (sign)

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name, Title (Print)

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  E-Mail Address (for
  confirmation of receipt)

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Date (Print mm/dd/yy)

  	
   

  



 


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

  



 


11













 


EXHIBIT 3


 


XBOX 360
PUBLISHER ENROLLMENT FORM


 


PLEASE
COMPLETE THIS FORM, SIGN IT, AND FAX IT TO MICROSOFT AT +1 (425) 708-2300 TO
THE ATTENTION OF YOUR ACCOUNT MANAGER.


 


NOTE:  PUBLISHER MUST COMPLETE, SIGN AND SUBMIT THIS
ENROLLMENT FORM ****.


 


This
Xbox 360 Publisher Enrollment Form (“Enrollment”) is entered into between
Microsoft Ireland Operations Ltd. (“MIOL”) and the following publisher (“Publisher”):


 


	
  Publisher:

  	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Attention:

  	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
   

  	
   

  
	
  Phone:

  	
   

  	
   

  	
   

  
	
  Email:

  	
   

  	
   

  	
   

  
	
  VAT number:

  	
   

  	
   

  	
   

  
									



 


and is effective as of
the latter of the two signatures identified below.   The terms of that certain Xbox 360 Publisher
License Agreement signed by Microsoft Licensing, GP and ____________________ dated __________________ (the
“Xbox 360 PLA”) are incorporated herein by reference.


 


1.                                     Term.  This Enrollment will expire on the date on
which the Xbox 360 PLA expires, unless it is terminated earlier as provided for
in the Xbox 360 PLA.


 


2.                                     Representations
and Warranties.  By signing this
Enrollment, the parties agree to be bound by the terms of this Enrollment, and
Publisher represents and warrants that: (i) it has read and understands
the Xbox 360 PLA, including any amendments thereto, and agrees to be bound by
those; (ii) it is either the entity that signed the Xbox 360 PLA or its
affiliate; and (iii) the information that it has provided herein is
accurate.


 


3.                                     Notices;
Requests.  All notices and requests
in connection with this Enrollment are deemed given on (i) the **** after
they are deposited in the applicable country’s mail system (**** if sent
internationally), postage prepaid, certified or registered, return receipt
requested; or (ii) **** after they are sent by overnight courier, charges
prepaid, with a confirming fax; and addressed to the Publisher as set forth
above and to MIOL as follows:


 


	
  Microsoft:

  	
  MICROSOFT IRELAND OPERATIONS LTD.

  
	
   

  	
  Microsoft European
  Operations Centre,

  
	
   

  	
  Atrium Building Block
  B,

  
	
   

  	
  Carmenhall Road,

  
	
   

  	
  Sandyford Industrial
  Estate

  
	
   

  	
  Dublin 18

  
	
   

  	
  Ireland

  
	
   

  	
   

  
	
   

  	
  Fax: 353 1 706 4110

  
	
   

  	
   

  
	
  Attention:

  	
  MIOL Xbox Accounting
  Services

  
	
   

  	
   

  
	
  with a cc to:

  	
  MICROSOFT CORPORATION

  
	
   

  	
  One Microsoft Way

  
	
   

  	
  Redmond, WA 98052-6399

  



 


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

  



 


MICROSOFT CONFIDENTIAL


 


1













 


	
  Attention:

  	
  Legal &
  Corporate Affairs Department

  
	
   

  	
  Legal Group, E&D
  (Xbox)

  
	
   

  	
  Fax: +1  (425) 706-7329

  



 


or to such other address
as the party to receive the notice or request so designates by written notice
to the other.


 


 


4.                                     Billing
Address.  For purposes of the Xbox
360 PLA, Exhibit 1, Section 4, Publisher’s billing address for FPUs
manufactured by Authorized Replicators located in the European Sales Territory
is as follows:


 


	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Email address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Fax:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Phone:

  	
   

  	
   

  



 


 


	
  MICROSOFT IRELAND OPERATIONS
  LTD.

  	
   

  	
  PUBLISHER:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By (sign)

  	
   

  	
  By (sign)

  
	
   

  	
   

  	
   

  
	
  Name (Print)

  	
   

  	
  Name (Print)

  
	
   

  	
   

  	
   

  
	
  Title

  	
   

  	
  Title

  
	
   

  	
   

  	
   

  
	
  Date (Print mm/dd/yy)

  	
   

  	
  Date (Print mm/dd/yy)

  



 


2













 


EXHIBIT 6


 


XBOX 360
HITS PROGRAMS ELECTION FORM


 


PLEASE
COMPLETE THE BELOW INFORMATION, SIGN THE FORM, AND FAX IT TO MICROSOFT AT +1
(425) 708-2300 TO THE ATTENTION OF MICROSOFT LICENSING, GP (MSLI) AND YOUR
ACCOUNT MANAGER.


 


NOTES:


	
  ·

  	
   

  	
  THIS FORM MUST
  BE SUBMITTED BY A PUBLISHER AT LEAST **** PRIOR TO THE TARGET COMMERCIAL
  RELEASE DATE FOR A SOFTWARE TITLE IN A HITS PROGRAM IN ANY SALES TERRITORY.

  
	
  ·

  	
   

  	
  A
  SEPARATE FORM MUST BE SUBMITTED FOR EACH SALES TERRITORY IN WHICH THE
  PUBLISHER WISHES TO PUBLISH A SOFTWARE TITLE AS PART OF A HITS PROGRAM
  AND FOR EACH HITS PROGRAM.

  



 


	
  1)

  	
   

  	
  Publisher Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2)

  	
   

  	
  Xbox 360 Software Title Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  3)

  	
   

  	
  XMID Number:

  	
   

  	
   

  
							



 


4)              Hits Program (circle one)


 


	
   

  	
   

  	
   

  	
   

  	
  Platinum Hits

  	
   

  	
   

  	
   

  	
  Platinum Family Hits

  
	
   

  	
   

  	
   

  	
   

  	
  Classic Hits

  	
   

  	
   

  	
   

  	
  Classic Family Hits

  



 


5)              Royalty Tier if Family Hits (select one; ****
not available in the European Sales Territory):


 


****


 


6)              Sales Territory for which Publisher wants to
publish the Software Title as a Hit FPU (check one):


 


	
   

  	
   

  	
   

  	
   

  	
  North American Sales Territory

  	
   

  	
   

  	
   

  	
  Japan Sales Territory

  
	
   

  	
   

  	
   

  	
   

  	
  European Sales Territory

  	
   

  	
   

  	
   

  	
  Asian Sales Territory

  



 


7)          Date of Commercial Release of Software Title
in applicable Sales Territory: ______________________


 


8)          Number of Standard FPUs manufactured to date
for the Software Title in the applicable Sales Territory: _____________


 


9)          Projected Commercial Release date of Software
Title in the applicable Sales Territory as part of Hits Program:


	
   

  	
   

  	
   

  	
   

  



 


The undersigned
represents that he/she has authority to submit this form on behalf of the above
publisher, and that the information contained herein is true and accurate.


 


	
   

  	
   

  	
   

  
	
   

  	
  By (sign)

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name, Title (Print)

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  E-Mail Address (for
  confirmation of receipt)

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Date (Print mm/dd/yy)

  	
   

  



 


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

  



 


3













 


EXHIBIT 7


 


XBOX 360
LIVE AND PDLC INCENTIVE PROGRAM


 


1.                                      Xbox 360 Live and PDLC Incentive Program


 


To
encourage Publisher to support functionality for Xbox Live in its Xbox 360
Software Titles, to drive increased usage of Xbox Live via Xbox 360 and to
increase support of Premium Downloadable Content, Publisher may qualify for
certain payments based on the amount of Xbox Live Market Share (defined in Section 2.a.
of this Exhibit 7 below) created by Publisher’s Multiplayer
Software Titles (defined in Section 2.c. of this Exhibit 7
below).  Each Accounting Period (defined
in Section 2.j. of this Exhibit 7 below), Microsoft will
calculate Publisher’s Xbox Live Market Share. 
If Publisher is ranked in the **** in the applicable Accounting Period
and ****, then Microsoft will pay Publisher the applicable Incentive set forth
in the table in Section 3 of this Exhibit 7 based on **** in
the applicable Accounting Period.


 


Notwithstanding
anything herein to the contrary, use of or revenue derived from online games
for which an end user pays a subscription separate from any account established
for basic use of Xbox Live, are excluded from this Xbox 360 Live and PDLC
Incentive Program.


 


2.                                      Definitions


 


a.                                       “Accounting Period” means ****, within the
Term (defined in Section 5 below); provided that if the Effective Date of
this Agreement or the expiration date of this program falls within such ****,
then the applicable payment calculation set forth below shall be made for a
partial Accounting Period, as appropriate.


 


b.                                       “Monthly Unique User Market
Share” means ****.


 


c.                                       “Multiplayer Software Titles” means a Software Title for Xbox 360 that
supports real-time multiplayer game play.


 


d.                                      “Monthly Unique Users” means ****.


 


e.                                        “New Subscriber Market Share” means ****.


 


f.                                         “New Subscriber” means a Paying Subscriber who pays for an
Xbox Live account for the first time.  A New Subscriber is attributed to
the first Multiplayer Software Title he or she plays, even if such play was
during a free-trial period which was later converted into a paying
subscription.  Each Paying Subscriber can
only be counted as a New Subscriber once, provided that each New Subscriber
that is located in the European Sales Territory (according to Microsoft’s
records) will be counted as three New Subscribers for the purposes of
calculating Publisher’s Xbox Live Market Share under this Exhibit 7.


 


g.                                      “Paying Subscriber” means ****.


 


h.                                       “PDLC Revenue”
means ****.


 


i.                                          “PDLC Revenue Market Share”
means ****.


 


j.                                          “Subscription Revenue” means ****.


 


k.                                        “Xbox Live Market Share” = ****.


 


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

  



 


4













 


3.                                      Incentive Table


 


Publisher’s “Incentive” shall
be determined
pursuant to the following table:


 


	
   

  	
   

  ****

   

  
	
  ****



  	
  ****

  	
  ****

  	
  ****

  
	
  ****

  	
  ****

  	
  ****

  	
  ****

  
	
  ****

  	
  ****

  	
  ****

  	
  ****

  
	
  ****

  	
  ****

  	
  ****

  	
  ****

  



 


4.                                      Example


 


****


 


5.                                      Term


 


This
Xbox 360 Live and PDLC Incentive Program will commence ****.  Microsoft reserves the right to change the
Xbox Live Market Share upon written notice to Publisher, but no more frequently
than ****.


 


6.                                      Payments


 


In the
event Publisher qualifies for a payment under this program during an Accounting
Period, Microsoft shall furnish Publisher with a statement, together with
payment for any amount shown thereby to be due to Publisher, within ****.


 


7.                                      Modifications to Xbox 360 Live and PDLC
Incentive Program


 


In
the event that Microsoft changes the Xbox Live subscription model in a way that
impacts the Subscription Revenue on a per Paying Subscriber basis by more than
****, Microsoft may change or discontinue the Xbox Live and PDLC Incentive
Program by providing Publisher with **** advance notice.


 


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

  



 


5













 


EXHIBIT 8


 


XBOX 360
HITS ROYALTY TIER MIGRATION FORM


 


PLEASE COMPLETE THE BELOW
INFORMATION, SIGN THE FORM, AND FAX IT TO MICROSOFT AT +1 (425) 708-2300 TO
THE ATTENTION OF MICROSOFT LICENSING, GP (MSLI) AND YOUR ACCOUNT MANAGER.


 


NOTES:


·             THIS FORM MUST
BE SUBMITTED AT LEAST **** PRIOR TO THE FIRST MANUFACTURING ORDER TO WHICH
PUBLISHER DESIRES THE NEW BASE ROYALTY TO APPLY FOR EACH RESPECTIVE SALES
TERRITORY.


·             A HITS
SOFTWARE TITLE MAY NOT CHANGE ROYALTIES TIERS UNTIL AFTER IT HAS BEEN IN
THE HITS PROGRAM FOR AT LEAST ****.


·             A
SEPARATE FORM MUST BE SUBMITTED FOR EACH SALES TERRITORY IN WHICH
PUBLISHER DESIRES TO CHANGE THE APPLICABLE BASE ROYALTY.


 


	
  1.

  	
   

  	
  Publisher Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Xbox 360 Software Title Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  XMID Number:

  	
   

  	
   

  
							



 


4.  Sales Territory (check one; Hits Tier 2 not
available in the European Sales Territory):


 


	
   

  	
   

  	
   

  	
  North American Sales Territory

  	
   

  
	
   

  	
   

  	
   

  	
  Japan Sales Territory

  	
   

  
	
   

  	
   

  	
   

  	
  Asia Sales Territory

  	
   

  



 


5.  Date of First Commercial Release:


 


	
   

  	
   

  



 


7.  Current royalty tier:  ****


 


8.  Select New Royalty Tier:  ****


 


The undersigned
represents that he/she has authority to submit this form on behalf of the above
publisher, and that the information contained herein is true and accurate.


	
   

  	
   

  	
   

  
	
   

  	
  By (sign)

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name, Title (Print)

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  E-Mail Address (for
  confirmation of receipt)

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Date (Print mm/dd/yy)

  	
   

  



 


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

  



 


6


 


 












 


EXHIBIT 9


 


XLSP Terms


 


The following terms and conditions apply to
Publisher’s use of the Xbox Live Server Platform (“XLSP Terms”):


 


1.                                      Definitions


 


1.1                                 “Publisher Hosted Online Content”
means any content, including
without limitation any Online Content, that is hosted and served through the
Publisher Hosting Services.


 


1.2                                 “Publisher Hosting Services” means Publisher’s hosting of Publisher Hosted
Online Content pursuant to these XLSP Terms, whether performed by Publisher or
a Third Party Host, including operating, maintaining and controlling the
servers necessary for the provision of Publisher Hosted Online Content.


 


1.3                                 “Third Party Host” means a third party providing Publisher
Hosting Services on behalf of Publisher.


 


1.4                                 “Xbox Live Server Platform” or “XLSP”
means Microsoft’s platform
and/or server architecture which enables the Publisher Hosting Services to
function as an expansion to the features available from the Xbox Live service.


 


1.5                                 “Xbox Live User Content” means any content that originates from Xbox
Live Users in any format and that is published through or as part of any
Publisher Hosted Online Content, but excluding Xbox Live User Communications.


 


1.6                                 “Xbox Live User Communications” means transient voice and text
communications sent from an Xbox Live User to one or more Xbox Live Users
(e.g., voice chat).


 


2.                                      Approval and Certification


 


All proposed Publisher Hosting Services and Publisher
Hosted Online Content must go through the same approval process as set forth in
the Xbox 360 PLA (i.e., the stages for Concept approval, pre-Certification,
Certification and Marketing Materials approvals that apply to all aspects of
the Software Title). All Publisher Hosting Services and Publisher Hosted Online
Content is subject to the same terms to which any Software Title and/or Online
Content is subject per the Xbox 360 PLA. In order to pass a Software Title
using XLSP through Certification, Publisher may be required to submit
additional information about its server architecture and access to its server
environment sufficient to enable Microsoft to conduct testing of the Publisher
Hosting Services. In addition to the requirements under these XLSP Terms,
Publisher acknowledges and agrees that it will be bound by all XLSP policies
set forth in the Xbox 360 Publisher Guide.


 


3.                                      Privacy


 


As a condition for Certification, Microsoft may
require Publisher to have a separate terms of use or privacy policy under
Publisher’s name and implemented in a manner that is acceptable to Microsoft. Microsoft
must expressly consent to any collection of Xbox Live User’s personally
identifiable information and in such event, Publisher may collect only what
user data that is legitimately necessary for the intended purpose and may not
use any such user data relating to the Xbox 360 and the Xbox Live service in
any manner outside of the Publisher Hosting Services. In the event Microsoft
requires that Publisher use a separate terms of use or privacy policy for the
Publisher Hosting Services, then such policies will clearly state that (i) that
the Xbox Live User’s personal information will be shared with Microsoft, and (ii) that
the Xbox Live User will be subject to the terms and conditions of the Microsoft
Privacy Statement and the Xbox Terms of Use. Such notice must contain
hyperlinks to the Xbox Live terms of use, privacy statement, and code of
conduct currently located at http://www.xbox.com/en-US/xboxlive. Publisher
agrees that any separate terms of use or privacy policy will be in addition to
and not conflicting with the Xbox Live terms of use, privacy statement and code
of conduct.


 


4.                                      Beta Trials


 


At any time prior to Certification of the Software
Title, Microsoft may require that internal or public beta testing be conducted
by or on behalf of Microsoft (the “Beta Trials”). Microsoft’s prior written
approval, which may be withheld in Microsoft’s sole discretion, is required for
any Beta Trials. All feedback provided by Microsoft to Publisher as a result of
the Beta Trials is advisory in nature, and satisfactory feedback from the Beta
Trials is not an indication that the Publisher Hosted


 


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Online Content will be approved following the
Certification submission. Likewise, Beta Trial feedback may include information
regarding violations of technical Certification requirements that could, if not
addressed by Publisher, result in Certification failure.


 


5.                                      Publisher Hosting Services


 


5.1                                 Publisher Responsibility. Publisher is responsible for hosting the
Publisher Hosted Online Content and providing the Publisher Hosting Services. Publisher
shall operate the Publisher Hosting Services in a manner that meets or exceeds
standards of quality, performance, stability, and security generally accepted
in the industry, and those specific requirements set forth below in this
section and in the Xbox 360 Publisher Guide.


 


5.2                                 Third Party Host. If Publisher is using a Third Party Host to
provide the Publisher Hosting Services, Publisher may provide the Third Party
Host with access to only those portions of the XDK that are necessary for the
Third Party Host to perform the Publisher Hosting Services. Prior to using the
services of any Third Party Host, the Third Party Host and Publisher must sign
a Third Party Hosting Agreement substantially and materially in the form set
forth in the Xbox 360 Publisher Guide, and Microsoft must accept and approve
such agreement in writing. Publisher hereby  unconditionally
and irrevocably guarantees the Third Party Host’s performance of the applicable
obligations and restrictions imposed by these XLSP Terms and the Third Party
Hosting Agreement.


 


5.3                                 Publisher Hosting Service
Requirements. Publisher
shall adhere to the following requirements and upon request from Microsoft,
Publisher shall provide Microsoft with sufficient information to verify
compliance with these requirements:


 


5.3.1                        Operation. Publisher shall monitor the operation and performance of
the Publisher Hosting Services, respond to technical and Xbox Live User
inquiries, and have rules, policies, and procedures for the Publisher Hosting
Services that are consistent with the standards defined below or as otherwise
provided by Microsoft from time to time in the event Microsoft reasonably
determines that the standards need to be updated in light of industry standards.


 


5.3.2                        Reporting
and Technical Policies. The parties
shall follow the communication processes for sharing and updating each other’s
technical teams set forth in the Xbox 360 Publisher Guide. In addition,
Publisher shall follow the technical processes, policies, rules, and detailed
procedures for notification, escalation and reporting of scheduled and
unscheduled maintenance, and problems that might occur with the Publisher
Hosting Services as set forth in the Xbox 360 Publisher Guide. Each party is
responsible for notifying the other in the event that it discovers a technical
problem with the service of the other party. Publisher shall provide Microsoft
**** advanced written notice of Publisher’s scheduled downtimes, and Publisher
shall use commercially reasonable efforts to schedule maintenance downtimes for
the Publisher Hosting Services at the same time as Microsoft’s scheduled
downtimes for Xbox Live. Upon notification of a scheduled downtime for the
Publisher Hosting Services, Microsoft may at its option request an alternate
time for such scheduled maintenance and Publisher shall use commercially
reasonable efforts to accommodate Microsoft’s request.


 


5.3.3                        Server Capacity and Load. 
 Publisher shall
use commercially reasonable efforts to support all users of its Publisher
Hosting Services, including operating sufficient computing resources for user
traffic, and shall immediately inform Microsoft of the failure of relevant
Publisher Hosting Services.  Publisher shall ensure that load on the
Publisher Hosting Services system does not exceed **** of the measured capacity
of the system, where “capacity” is defined as the maximum load which can be
sustained by the system. Publisher must describe in writing the tools and
techniques to be used in measuring system capacity and load, which tools and
techniques must be recognizable as industry standard practices and which must
be agreed to in advance by Microsoft. Publisher shall measure the load on the
Publisher Hosting Services at intervals of no more than ****. Publisher shall
retain records of load measurements for ****, and shall make such records
accessible to Microsoft upon request. Should changes to the system occur which
necessitate changes in the tools and techniques used to measure capacity and
load, or should the capacity of the system materially increase or decrease,
Publisher shall inform Microsoft within ****.


 


5.3.4                        Uptime. 
The Publisher Hosting Services shall have uptime of **** per month, where
uptime is defined as the portion of time when the system is accessible and
available to Xbox Live Users.  Uptime will be calculated on a monthly
basis assuming conformance with the industry standard of monitoring uptime
every ****.  Publisher will report the uptime statistics to Microsoft upon
request.  Scheduled maintenance done pursuant to Section 5.3.2 above
may be deducted when calculating uptime.


 




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





 


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5.3.5                        Server Location.
Publisher must locate all servers used to operate the Publisher Hosting
Services in approved territories as provided for in the Xbox 360 Publisher
Guide.


 


5.3.6                        Troubleshooting;
Notice to Users. If the Publisher Hosting Services are unable to
establish a connection to Xbox Live, then Publisher will work with Microsoft to
troubleshoot the cause of the problem and diligently work to fix any such
problem. During any time in which a Software Title or any Publisher Hosted
Online Content using the Publisher Hosting Services are unable to establish a
connection to the Publisher Hosting Services, then Publisher will display the
appropriate message to the Xbox Live User in accordance with the Xbox 360
Publisher Guide.


 


5.4                                 Customer Support. As set forth in the Xbox 360 PLA, as
between Microsoft and Publisher, Publisher is solely responsible for providing
customer support to Xbox Live Users for Publisher Hosted Online Content and
Publisher Hosting Services. Except as expressly set forth herein, Publisher
acknowledges and agrees that Microsoft has no support responsibilities
whatsoever to Xbox Live Users for the Publisher Hosted Online Content and
Publisher Hosting Services.


 


5.5                                 Xbox Live Family Settings
Features. Publisher Hosting
Services and Publisher Hosted Online Content shall at all times comply with the
requirements of the Xbox 360 Publisher Guide and the technical Certification
requirements related to the family settings features of the Xbox 360 and Xbox
Live..


 


5.6                                 Law Enforcement and Regulatory
Requirements. Publisher is
responsible for ensuring that the Publisher Hosting Services and Publisher
Hosted Online Content comply with all legal and regulatory requirements that
apply in the jurisdictions in which such services or content are made available.
Publisher may be required to provide Microsoft with information including legal
opinions to verify that the Publisher Hosting Services and Publisher Hosted
Online Content comply with applicable laws. In addition, Publisher agrees that
it will promptly reply to and comply with any requests by any law enforcement
officials regarding the Publisher Hosting Services or Publisher Hosted Online
Content.


 


5.7                                 Publisher Contact. As provided in the Xbox 360 Publisher Guide,
Publisher shall designate at least one full-time employee as a product or
program manager to the services contemplated under these XLSP Terms,
responsible for serving as Microsoft’s liaison, performing Publisher’s
obligations under this Agreement, and serving as primary contact to Microsoft.


 


6.                                      Xbox Live User Content


 


6.1                                 Microsoft Approval. Publisher may not allow Xbox Live Users to
create, share or otherwise provide Xbox Live User Content in connection with a
Software Title without Microsoft’s express approval. If Publisher wants to make
Xbox Live User Content available as part of Publisher Hosted Online Content,
Publisher will provide to Microsoft a detailed description of the process and
procedures Publisher will have in place regarding such Xbox Live User Content.


 


6.2                                 Claim of Infringement. If Microsoft has approved Publisher
allowing Xbox Live User Content, Publisher shall maintain a procedure for
removing Xbox Live User Content in the event of a claim of infringement, which
procedure shall comply with all applicable laws and regulations. Microsoft may
notify Publisher of any complaints Microsoft receives related to Xbox Live User
Content. Publisher shall remove allegedly infringing Xbox Live User Content
upon receipt of a third party claim or notice from Microsoft, but in any event
no later than forty-eight (48) hours after receipt of such claim. Publisher
agrees to notify Microsoft as soon as commercially reasonable (and in any event
no later than forty-eight (48) hours after receipt) of any such claims of
infringement and to update Microsoft as to steps taken in response thereto. In
order to mitigate escalation of any such claims, Microsoft may in its good
faith discretion and, in consultation with Publisher, take control over any
such claim and be the sole source of communications to the claimant.


 


6.3                                 Additional Circumstances for
Removal of Xbox Live User Content. Microsoft may in its discretion request that
Xbox Live User Content be removed by Publisher pursuant to the procedures
described above for Xbox Live User violations of the Xbox Terms of Use and/or
Code of Conduct.


 


7.                                      Action by Microsoft


 


In the event Publisher fails to perform any of its
obligations under these XLSP Terms, including failure to conform to the
approved Concept for the Software Title and/or Publisher Hosting Services, Microsoft
has the right, without limiting any of its other rights and remedies under the
Agreement, to restrict access to the Publisher Hosted Online Content and
disconnect Publisher Hosting Services from Xbox Live. Microsoft, in its
discretion, may restrict the uploading of Xbox Live User 


 


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Content to, or require Publisher to remove Xbox Live
User Content from, Xbox Live in accordance with the Xbox Live Terms of Use, the
Xbox Live Privacy Policy and the Xbox Live Code of Conduct.


 


8.                                      Termination


 


8.1                                 Termination. In addition to the termination provisions
of the Xbox 360 PLA, Microsoft may terminate Publisher’s use of XLSP at any
time for Publisher’s failure to comply with these XLSP Terms.


 


8.2                                 Effect of Termination. Upon termination or expiration of the Xbox
360 PLA Publisher shall continue to support existing Publisher Hosted Online
Content until the earlier of (1) the end of the FPU sell-off period as set
forth in the Xbox 360 PLA, or (2) the end of the Minimum Commitment term
for Online Content (as defined in the Xbox 360 PLA). Additionally, Publisher
shall continue to support any event-based Publisher Hosted Online Content that
started before termination or expiration. To the extent Publisher has support
obligations pursuant to this Section 8.2 following termination or
expiration, all of Publisher’s obligations under these XLSP Terms will continue
to apply. If Publisher’s use of XLSP is terminated due to Publisher’s failure
to comply with these XLSP Terms or Publisher’s breach of the Xbox 360 PLA, then
Microsoft has the right to immediately terminate the availability of the
Publisher Hosted Online Content and require that the operation of Publisher
Hosting Services immediately cease, and all Microsoft software or materials be
immediately returned to Microsoft.


 


8.3                                 Survival. The following Sections of these XLSP Terms
shall survive expiration or termination of these XLSP Terms:  9 and 10. Other sections shall survive in
accordance with their terms.


 


9.                                      Warranties


 


In addition to the warranties set forth in the Xbox
360 PLA, Publisher additionally warrants and represents that:


 


9.1                                 Any and all information, data, logos,
software or other materials provided to Microsoft and/or made available to Xbox
Live Users via Publisher Hosted Online Content or the Publisher Hosting
Services complies with all laws and regulations and  does
not and will not infringe upon or misappropriate any third party trade secrets,
copyrights, trademarks, patents, publicity, privacy or other proprietary
rights.


 


9.2                                 The Publisher Hosted Online Content and the
Publisher Hosting Services do not and will not contain any messages, data,
images or programs which are, by law, defamatory, obscene or pornographic, or
in any way violate any applicable laws (including without limitation laws of
privacy) of the territory where the Publisher Hosted Online Content is
distributed or hosted.


 


9.3                                 The Publisher Hosted Online Content and the
Publisher Hosting Services do not harvest or otherwise collect information
about Xbox Live Users, including e-mail addresses, and the Publisher Hosted
Online Content and the Publisher Hosting Services do not link to any
unsolicited communication sent to any third party.


 


9.4                                 Publisher will not serve any Publisher Hosted
Online Content that is not approved in the Software Title’s Concept.


 


9.5                                 Publisher has obtained all necessary rights
and permissions for its and Microsoft’s use of the Xbox Live User Content and
the Xbox Live User Content does not infringe the intellectual property rights
of any third party.


 


10.                               Indemnification


 


The indemnification obligations of the parties under
the Xbox 360 PLA extends to any breach by either party of its warranties,
representations or covenants set forth in these XLSP Terms. With regard to the
Publisher Hosting Services, Publisher’s warranties, representation, covenants
and indemnification obligations apply regardless of whether or not Publisher
has engaged a Third Party Host to perform all or any of the Publisher Hosting
Services. Publisher’s indemnity obligation applies to any third party claims
arising out of Microsoft’s use of the Xbox Live User Content as authorized by
Publisher.


 


11.                               Sub-Publishing


 


Publisher may enter into sub-publishing arrangements
as provided for in the Xbox 360 PLA with respect to Software Titles subject to
these XLSP Terms, provided that Publisher remains in control of and responsible
for the operations of all Publisher 


 


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Hosted Online Content and Publisher Online Services.
If Publisher desires to transfer the ownership and operation of Publisher
Online Services to its sub-publishing partner, then the sub-publisher must be
treated as a Third Party Host hereunder or Publisher must get confirmation in
writing that the sub-publisher has its own XLSP Addendum in place with
Microsoft.


 


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