Exhibit
10.59


[***]
DENOTES CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT


	
  September 12, 2005

  	
  CONFIDENTIAL

  



 


FIRST RENEWAL LICENSE AGREEMENT FOR

THE NINTENDO GAMECUBE SYSTEM (EEA)


THIS LICENSE AGREEMENT (“Agreement”)
is entered into between NINTENDO CO., LTD. (“NCL”) at 11-1 Kamitoba
Hokotate-cho, Minami-ku, Kyoto, Japan 601-8501
(Fax:  81.75.662.9619), Attn: General Manager, International Business
Administrative Department; and ACTIVISION, INC., a corporation of Delaware, and
its subsidiaries (Activision Publishing, Inc., a corporation of Delaware,
Activision UK, Ltd., a limited company of the United Kingdom; ATVI France,
S.A.S., a corporation of France; Activision GmbH, a corporation of Germany, and
Activision Pty., Ltd., a limited company of Australia) (jointly and severally “LICENSEE”)
at 3100 Ocean Park Blvd., Santa Monica, CA 90405, Attn: Mr. George Rose (Fax:
310.255.2152).  NCL and LICENSEE agree as
follows:


1.             RECITALS


1.1           NCL designs, develops, manufactures, 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 NCL, 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           NCL is willing to grant a license to LICENSEE
on the terms and conditions set forth in this Agreement.


1.4           By a prior agreement between the parties
effective June 5, 2002 (hereinafter the “Initial Agreement”), NCL granted to
LICENSEE the right to develop video game software compatible with the NINTENDO
GAMECUBE System, embodying and using the Licensed Intellectual Properties.  Although the Initial Agreement has expired,
the parties have continued to operate thereunder.  The parties desire to enter into a renewal
agreement (hereinafter the “Agreement”) effective as of the expiration date of
the Initial Agreement, to continue the relationship between the parties without
interruption, with the Agreement consisting of the terms and conditions set
forth herein.












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 NCL 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 NCL.


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, protective wrapped and boxed
for delivery to LICENSEE by NCL.  The
Finished Goods may also include the Optional Printed Materials.


2.8           “Game Disc(s)” means custom optical discs for
play on the NINTENDO GAMECIJBE 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” pertaining to the layout, trademark usage and the requirements of the
Game Disc label, instruction manual and Game Disc packaging, Marketing
Materials “Nintendo Trademark Guidelines,” “NINTENDO GAMECUBE Software
Submission Requirements,” and “Guidelines on Ethical Content,” together with
related guidelines that may be provided by NCL to LICENSEE from time to
time.  The Guidelines on Ethical Content
are attached as Annex A, and the remainder of the Guidelines have been, or may
be, provided to LICENSEE independent of this Agreement.  The Guidelines may be changed or updated by
Nintendo from time to time without notice.



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2.11         “Independent Function/Use” means a derivative
work that has one or more functions/uses that are independent of and separate
from the applicable Intellectual Property Right.


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


2.13         “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 “NintendoTM”, “NINTENDO GAMECUBETM,” “GCN”, “NGC” and “Official
Nintendo Seal of QualityTM”, (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 NCL,
(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, patent applications, design registrations, utility
models, or copyrights which may be associated with the Game Discs or Printed
Materials, (f) copyrights in the Guidelines, and (g) other Proprietary Rights
of NCL in the Confidential Information.


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


2.15         “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.


2.16         “NDA” means the non-disclosure agreement
related to the NINTENDO GAMECUBE system previously entered into between NCL and
LICENSEE or between one of NCL’s subsidiaries and LICENSEE.



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2.17         “Nintendo” means NCL individually or collectively with its subsidiary.


2.18         “NOA” means NCL’s subsidiary, Nintendo of
America Inc. of Redmond, Washington, USA.


2.19         “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
air mail, or (c) deposited, carriage 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, or (d) transmitted by
e-mail with an express written acknowledgement of receipt sent personally by or
on behalf of the recipient (which shall include any automated reply).  Notice shall be deemed effective upon the
earlier of actual receipt or three (3) business days after transmittal by
facsimile (with an original sent concurrently by registered air mail) or
deposit with a guaranteed air courier service.


2.20         “Optional Printed Materials” means other
optional printed materials such as a warranty card and poster incorporating the
Artwork.


2.21         “Price Schedules” mean the then current
version(s) of Nintendo’s schedules of purchase prices and minimum order
quantities for the Licensed Products, the Printed Materials and the Optional
Printed Materials.  The Price Schedules
have been, or will be, provided to LICENSEE independent of this Agreement and
may be changed or updated by Nintendo from time to time without notice.


2.22         “Printed Materials” means a plastic disc
storage case, title page, and instruction booklet, together with a precautions
booklet in the form specified by NCL.


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


2.24         “Proprietary Rights” means any rights or
applications for rights to the extent recognized in the Territory relating or
applicable to the NINTENDO GAMECUBE system and owned, licensed or otherwise
held in patents, trademarks, service marks, copyrights, semiconductor chip
layout or masks, trade secrets, trade dress, moral rights and publicity rights,
together with all inventions, discoveries, ideas, know-how, data, information,
processes, methods, procedures, formulas, drawings and designs, computer
programs, software source code and object code, and all amendments,
modifications, and improvements thereto for which such patent, trademark,
service mark, copyright, semiconductor chip layout or masks, trade secrets,
trade dress, moral rights or publicity rights may exist or may be sought and
obtained in the future.



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


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


2.27         “Security Technology” means the highly
proprietary security features incorporated by NCL 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, encryption,
Digital Rights management status, or any feature that obstructs piracy, limits
unlawful, unsafe or unauthorized use or facilitates or limits compatibility
with other hardware, software, or accessories or other peripherals outside of
the Territory or on a different video game system.


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


2.29         “Territory” means any and all countries
within the European Economic Areas; namely Austria, Belgium, Bulgaria, Cyprus,
Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary,
Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg,  Malta, 
the Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia,
Spain, Sweden and the United Kingdom. 
The Territory also includes Australia, New Zealand, Switzerland, and
Turkey.  NCL may add additional countries
to the Territory upon written notice to LICENSEE.


2.30         “TM” means trademark of NCL, whether
registered or not.


3.             GRANT OF LICENSE; LICENSEE
RESTRICTIONS


3.1           Limited License Grant.  For
the Term and for the Territory, NCL grants to LICENSEE a nonexclusive,
nontransferable, limited license to use the Intellectual Property Rights for
the purpose of and to the extent necessary to develop (or have developed on its behalf) Games for manufacture,
advertising, marketing and sale as Licensed Products, subject to the terms and
conditions of this Agreement.  This
license is royalty free.



 5
 








3.2           LICENSEE Acknowledgment. 
LICENSEE’s use of the Intellectual Property Rights shall not create any
right, title or interest of LICENSEE therein. 
In the event that LICENSEE challenges NCL’s ownership or the validity of
the Intellectual Property Rights, NCL may terminate this Agreement without any
notice or procedure.


3.3           Restrictions on License Grant.  NCL
does not guarantee that the hardware for the NINTENDO GAMECUBE System is
distributed throughout the Territory. 
Moreover, present limited license to LICENSEE does not extend to the use
of the Intellectual Property Rights for the following purposes:


(a)           granting access to, distributing,
transmitting or broadcasting 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)           authorizing or permitting any online
activities involving a Game, including, without limitation, multiplayer,
peer-to-peer or online play,


(c)           modifying, installing or operating 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)           emulating, interoperating, interfacing or
linking a Game for operation or use with any hardware platform, software
program, accessory, computer language, computer environment, chip instruction
set, consumer electronics device, telephone, cell phone, PDA, or other device
for purposes of data interchange, password usage or interactive video game
play, other than the NINTENDO GAMECUBE system, an application approved by
Nintendo or the Development Tools,


(e)           emulate any past, current, or future NCL
brand video game system or any portion thereof in software or hardware or any
combination thereof,



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(f)            embedding, incorporating, or storing 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,


(g)           designing, implementing or undertaking any
process, procedure, program or act designed to disable, obstruct, circumvent or
otherwise diminish the effectiveness or operation of the Security Technology,


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


(i)            manufacturing or reproducing a Game developed
under this Agreement, except through Nintendo, or


(j)            Reverse Engineering or assisting in Reverse
Engineering all or any part of the NINTENDO GAMECUBE system, including the
hardware, software (embedded or not) or the Security Technology, except as
specifically permitted under the laws and regulations applicable in the
Territory.


3.4           NCL Development Tools.  NCL
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 NCL 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.  Any license to LICENSEE to use the
Development Tools does not extend to: (a) use of the Development Tools for any
purpose except the design and development of Games under this Agreement, (b)
reproduction or creation of derivatives of the Development Tools, except in
association with the development of Games under this Agreement, (c) Reverse
Engineering of the Development Tools, except as specifically permitted by the
laws and regulations applicable in the Territory, or (d) selling, leasing,
assigning, lending, licensing, 
encumbering or otherwise transferring 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.  Unless LICENSEE can
demonstrate that such derivative work has Independent Functions/Uses, it shall
be deemed to have granted NCL an indefinite, worldwide, royalty-free,
transferable and exclusive license (including the right to sub-license) to such
derivative work.  To the extent that
LICENSEE can demonstrate one or more Independent Functions/Uses, LICENSEE shall
be deemed to have granted to NCL a royalty-free and transferable non-exclusive
license (including the right to sub-license) in relation to such Independent
Functions/Uses for the Term and an indefinite, worldwide, royalty-free,
transferable and exclusive license (including the right to sub-license) in
relation to all other functions/uses.



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3.5           Third Party Development Tools.  NCL
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, NCL 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 of NCL’s Proprietary Rights contained in or derived from such
Development Tools shall remain owned by NCL.


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 NCL video game system, LICENSEE shall be required to
acquire and maintain with NCL such additional licenses as are necessary for the
use of the Proprietary Rights associated with such other NCL video game system.


4.             SUBMISSION AND APPROVAL OF
GAME AND ARTWORK


4.1           Development and Sale of the Games. 
LICENSEE may develop Games and have manufactured, advertise, market and
sell Licensed Products for play on the NINTENDO GAMECUBE system only in
accordance with this Agreement.


4.2           Submission of a Completed Game to NCL.  Upon
completion of a Game, LICENSEE shall deliver a prototype of the Game to NCL 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 NCL,
including, without limitation, a complete set of written user instructions, a
complete description of any security holes, backdoors, time bombs, cheats, safe
files, “Easter eggs” or other hidden features or characters in the Game
[***].  LICENSEE must establish that the
Game and any other content included on the Game Cartridge complies with the
guidelines of the Pan European Game Information System (PEGI), the
Unterhaltungssoftware Selbstkontrolle (USK), the Office of Film and Literature
Classification (OFLC), or any other national or regional game rating system
that NCL may accept, as applicable. 
LICENSEE shall be responsible for the submission of the Game to the
appropriate national or regional game rating organization and shall provide NCL
with a statement or certificate in writing from the relevant organization,
confirming the rating



 8
 








for the Game.  Where any such game has been rated as being
suitable only for players aged 18 and over (or an equivalent rating),  LICENSEE must submit a certificate in writing
that confirms the game is rated as no higher than “M” (mature) by the
Entertainment Software Rating Board (ESRB) of the U.S.  In addition, NCL reserves the right to
require LICENSEE to provide NCL with such additional written indemnification
for damages, claims, loss, liability, fine or penalty resulting from the
marketing, distribution or sale of a Game with such an age rating, as NCL, in
its sole discretion, may request.  If any
such age rating is subsequently changed by the relevant organization, LICENSEE
shall inform NCL forthwith in writing of that fact and LICENSEE shall then
comply with the above provisions in relation to such new age rating.


4.3           Testing of a Completed Game.  Upon
submission of a completed Game, NCL 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, NCL shall approve or disapprove such Game.  If a Game is disapproved, NCL 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 NCL for testing.  NCL shall not unreasonably withhold or delay
its approval of any Game.  Neither the
testing nor approval of a Game by NCL shall relieve LICENSEE of its sole
responsibility for the development, quality and operation of the Game or in any
way create any warranty for the Licensed Product by NCL.


4.4           Production of Check Discs.  By
submission of a completed Game to NCL in accordance with Section 4.1, LICENSEE
authorizes NCL to proceed with production of Check Discs for such Game.  If NCL 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, NCL shall deliver to LICENSEE approximately ten (10) Check Discs for content
verification, testing and final approval by LICENSEE.


4.5           Approval or Disapproval of Check Discs by
LICENSEE.  If, after review and testing, LICENSEE
approves the Check Discs, it shall promptly transmit to NCL 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 NCL in writing and may, after
undertaking any necessary changes or corrections, resubmit the Game to NCL 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.



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4.6           Cost of Check Disc Production. 
[***]  The payment will be due
upon the earlier of (a) the subsequent submission by LICENSEE of a revised
version of the Game to NCL, or (b) six (6) months after the date the Game was
first approved by NCL.


4.7           Submission and Approval of Artwork. 
Prior to submitting a completed Game to NCL under Section 4.1, LICENSEE
shall submit to NCL all Artwork for the proposed Licensed Product.  Within ten (10) business days of receipt, NCL
shall approve or disapprove the Artwork. 
If any Artwork is disapproved, NCL 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 NCL for approval.  NCL shall not unreasonably withhold or delay
its approval of any Artwork.  The
approval of the Artwork by NCL shall not relieve 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 NCL.  All Artwork must be approved prior to
submitting an order for the Licensed Product.


4.8           Artwork for Bulk Goods.  If
LICENSEE intends to submit an order for Bulk Goods, all Artwork and other
materials to be included with the Licensed Product shall be submitted to NCL in
accordance with Section 4.7 herein.  No
Printed Materials shall be produced by LICENSEE until such Artwork has been
approved by NCL.


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


5.             ORDER PROCESS,
PURCHASE PRICE, PAYMENT AND DELIVERY


5.1           Submission of Orders by LICENSEE. 
After receipt of NCL’s approval for a Game and Artwork, LICENSEE may at
any time submit a written purchase order to NCL for such Game.   The purchase order shall specify whether the
order is for Finished Goods or Bulk Goods, and for Finished Goods the purchase
order may also specify any Optional Printed Materials.   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 NCL or its designee.



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5.2           Purchase Price and Minimum Order Quantities.  The
purchase price and minimum initial order and re-order quantities for the
Licensed Products (both Finished Goods and Bulk Goods) and Printed Materials
and Optional Printed Materials shall be as set forth in Nintendo’s then current
Price Schedules.  Unless otherwise
specifically provided for, the purchase price includes the cost of
manufacturing the Game Disc(s).  Current
Price Schedules have been, or will be, provided to LICENSEE independent of this
Agreement.  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 NCL’s income) are
included in the Purchase Price and all such impositions are the responsibility
of LICENSEE.  The Price Schedules are
subject to change by Nintendo at any time without Notice.  However, any price increase shall be
applicable only to purchase orders submitted, paid for, and accepted by NCL
after the effective date of the price increase.


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


5.4           Shipment and Delivery.  NCL
shall deliver the Finished Goods or Bulk Goods ordered by LICENSEE to LICENSEE,
CIP LICENSEE’s delivery location for destinations in Europe and F.O.B.
Grossostheim, Germany, with shipment at LICENSEE’s direction and expense, or
such other delivery point as may be specified by Nintendo.  Upon mutual consent of NCL and LICENSEE,
orders may be delivered in partial shipments [***].  Such orders shall be delivered only to
countries within the Territory.


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



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6.             MANUFACTURE OF THE
LICENSED PRODUCT


6.1           Manufacturing.  NCL
(including through its subcontractors and licensees) shall be the exclusive
source for the manufacture the Game Discs, Check Discs and Promotional Discs,
and shall control 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 NCL of a purchase order
from LICENSEE and receipt of payment as provided for at Section 5.3 herein, NCL
shall (through its suppliers and subcontractors) arrange for the manufacture of
the Licensed Product.  In this regard,
LICENSEE shall submit to NCL certain technical information as set forth in a
questionnaire entitled “Software Submission Requirements” which has been
provided to LICENSEE by NCL.


6.2           Security Features.  The
final release version of the Game, the Game Disc and the Printed Materials
shall include such Security Technology as NCL, in its sole discretion, deems
necessary or appropriate to (a) reduce the risk of unlawful copying or other
unlawful, unsafe or unauthorized uses, (b) protect the Proprietary Rights of
NCL 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.  Bulk Goods may be sold or
distributed by LICENSEE only when fully assembled in accordance with the
Guidelines.  NCL may establish quality
standards with regard to some or all of the Printed Materials and may identify
to LICENSEE certain named suppliers within the Territory who NCL believes can
meet such quality standards.  LICENSEE
may choose its own suppliers of such Printed Materials but shall comply with
all such quality standards as may be notified to LICENSEE by NCL from time to
time.


6.5           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 NCL with (a) two
(2) samples of the fully assembled Licensed Product, and (b) [***] samples of the
LICENSEE-produced Printed Materials (excluding the plastic disc storage case,
warranty card, poster and precautions booklet) for such Bulk Goods.



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6.6           Retention of Sample Licensed Products by NCL.  NCL
may, at its own expense, manufacture reasonable quantities of the Game Discs,
the Printed Materials or the Licensed Products not to exceed fifty (50) copies,
to be used for archival purposes, legal proceedings against infringers of the
Intellectual Property Rights and for other lawful purposes, not to include
sales of the copies.


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 the Guidelines, as
well as the guidelines of the PEGI, and shall comply with all applicable laws,
regulations, orders, and official codes of practice in those jurisdictions in
the Territory where they will be used or distributed.  All LICENSEE-controlled web sites featuring
the Games shall adopt a privacy policy that complies [***].  Prior to actual use or distribution, LICENSEE
shall submit to NCL for review samples of all proposed Marketing
Materials.  NCL shall, within ten (10)
business days of receipt, approve or disapprove of the quality of such
samples.  If any of the samples are
disapproved, NCL shall specify 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 NCL.  No Marketing Materials shall be used or
distributed by LICENSEE without NCL’s prior written approval. NCL shall not
unreasonably withhold or delay its approval of any proposed Marketing
Materials.


7.2           Bundling.  In order to avoid use of the
licensed Intellectual Property Rights giving rise to any implication of NCL’s
sponsorship, association, approval or endorsement where this is not the case,
LICENSEE shall not, without NCL’s prior written approval, 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 NCL, or (b) any other product or service where NCL’s
association or endorsement might be suggested by bundling the material, item,
products or services.


7.3           Warranty and Repair. 
LICENSEE shall provide the original consumer with a minimum one hundred
eighty (180) day (or such longer minimum period as may be required by
applicable law) limited warranty on all Licensed Products.  LICENSEE shall also provide reasonable product service, including
out-of-warranty service, for all Licensed Products.  LICENSEE shall make such warranty and repair
information available to consumers as required by applicable law.



 13
 








7.4           Business Facilities. 
LICENSEE agrees to develop and maintain sufficient customer service,
either directly or through a third party, to adequately support the Licensed
Products.


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


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


7.7           NCL Promotional Materials, Publications and
Events.  With a view to improving the competitiveness
of the video game products consisting of NCL video game systems and services
and compatible software published by LICENSEE, at its option, NCL may:  (a) insert in the Printed Materials for the
Licensed Products promotional materials concerning, publications about, and
promotions for such video game products; (b) utilize screen shots, Artwork and
information regarding the Licensed Products in NCL published magazines or other
publications, or in other advertising, promotional or marketing media which
promotes such video game products; and (c) exercise public performance rights
in the Games and use related trademarks and Artwork in connection with NCL
sponsored contests, tours, conventions, trade shows, press briefings and
similar events which promote such video game products.  NCL shall submit to LICENSEE for review
printed materials and related art for the Game that NCL intends to use in
publications or media or marketing programs.


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



 14














8.             CONFIDENTIAL
INFORMATION


8.1           Definition.  Confidential Information means
information provided to LICENSEE by NCL or any third party working with NCL
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 any
inventions, 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 that contain or manifest, in any
form, the above listed information. 
Confidential Information shall not include (i) data and information that
was in the public domain prior to LICENSEE’s receipt of the same hereunder, or
that subsequently becomes part of the public domain by publication or
otherwise, except by LICENSEE’s wrongful act or omission, (ii) data and
information that 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 NCL under an obligation of confidentiality which is
still in force, and (iii) data and information that LICENSEE can show was
received by it from a third party who did not acquire the same directly or
indirectly from NCL 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 NCL at least thirty (30) days prior to such
disclosure.  LICENSEE shall use its best
efforts to limit the disclosure to the greatest extent possible consistent with
LICENSEE’s legal obligations and, if required by NCL, shall cooperate in the
preparation and entry of appropriate court orders limiting the persons to whom
Confidential Information may be disclosed and the extent of disclosure of such
Confidential Information.


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 



 15
 








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


At
LICENSEE’s option, the written non-disclosure agreement may be with LICENSEE
rather than with NCL, in which case the form and substance of the
non-disclosure agreement must be acceptable to NCL.  Also, in such case LICENSEE shall provide to
NCL on a continuing basis a listing of all Independent Contractors who have
received or been granted access to Confidential Information along with copies
of the applicable written non-disclosure agreements.  In addition, LICENSEE shall take all
reasonable measures to ensure that its Independent Contractors fulfill the
requirements of the applicable written non-disclosure agreements.


LICENSEE
shall use its best efforts to ensure that its employees and Independent
Contractors working with or otherwise having access to Confidential Information
shall not disclose or make unauthorized use of the Confidential
Information.  LICENSEE agrees to
indemnify NCL against all loss or damage, including consequential economic
loss, for breach of these obligations by the LICENSEE, its employees and
Independent Contractors.


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 NCL’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 



 16
 








enforcement
of this Agreement, (c) as required by the regulations of the government agency
in the Territory that regulates publicly funded securities, provided that all
Confidential Information regarding NCL shall be omitted from such disclosures
to the maximum extent allowed by such government agency, (d) in response to lawful
process, subject to a court order limiting the persons to whom Confidential
Information may be disclosed and the extent of disclosure of such Confidential
Information, approved in advance by NCL, and (e) to a third party proposing to
enter into a business transaction with LICENSEE or with NCL, but only to the
extent reasonably necessary for carrying out the proposed transaction and only
under terms of mutual confidentiality.


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


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


9.             REPRESENTATIONS
AND WARRANTIES


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


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


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


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



 17
 








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


9.3           [***]


9.4           [***]



 18
 








9.5           LIMITATION OF LIABILITY.  TO
THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER NCL NOR ITS AFFILIATES, LICENSORS,
SUPPLIERS OR SUB-CONTRACTORS 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 NCL, THE MANUFACTURE OF THE
LICENSED PRODUCTS OR THE USE OF THE LICENSED PRODUCTS ON ANY NCL VIDEO GAME
SYSTEM BY LICENSEE OR BY ANY END USER.


10.          INDEMNIFICATION


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


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


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


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


(d)           any applicable civil or criminal actions
relating to the design, development, advertising, marketing, sale or use of any
aspect of the Licensed Products, Marketing Materials or any other promotional
materials.


NCL
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. 
NCL 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)
NCL has been named as a party, or (ii) claims relating to the Intellectual
Property Rights have been asserted, without NCL’s prior written consent.  NCL shall provide reasonable assistance to
LICENSEE in its defense of any such claim.



 19
 








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


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


11.2         Actions by LICENSEE. 
LICENSEE, without the consent of NCL, 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 NCL of such
actions in a timely manner.  LICENSEE
will have the right to retain all proceeds it may derive from an recovery in
connection with such actions.


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



 20
 








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 NCL’s prior written consent, [***]. 
In the event of an assignment or other transfer in violation of this
Agreement, NCL 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 NCL. 
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 proprietary
rights that 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, NCL 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 NCL’s Confidential
Information prior to or upon the occurrence of an assignment, whether by
operation of law or otherwise, unless and until NCL gives its written consent
to such disclosure.


13.          TERM AND TERMINATION


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


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



 21
 








13.3         Bankruptcy.  At NCL’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
(a) the expiration of this Agreement, (b) its termination other than by
LICENSEE’s breach, or (c) termination of this Agreement by NCL after one
hundred twenty (120) days, notice to LICENSEE in the event NCL reasonably
believes that LICENSEE has developed, marketed, or sold a product that infringes
any intellectual property right of NCL or NOA anywhere in the world (provided
that if the parties are able to resolve such alleged infringement within such
120-day period, such termination shall not take effect), LICENSEE shall have a
period of [***] 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 NCL.


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


13.6         Breach of NDA or other NCL License Agreements.  At
NCL’s option, any breach by LICENSEE of (a) the NDA, or (b) any other license
agreement between NCL and LICENSEE relating to the development of games for any
NCL 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 NCL 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



 22
 








thereafter, (a) return to
NCL all Development Tools, and (b) return to NCL or destroy all Guidelines,
writings, drawings, models, data, tools and other materials and things in
LICENSEE’s possession or in the possession of any past or present employee,
agent or contractor receiving the information through LICENSEE, which
constitute or relate to or disclose any Confidential Information, without
making copies or otherwise retaining any such information.  Proof of such return or destruction shall be
certified by an officer of LICENSEE and promptly provided to NCL.


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


14.          GENERAL PROVISIONS


14.1         Compliance with Applicable Laws and Regulations. 
LICENSEE shall at all times comply with applicable laws, regulations,
orders, and official codes of practice in the countries of the Territory
relating to or in any way affecting this Agreement and LICENSEE’s performance
under this Agreement, including, without limitation, the export laws and
regulations of any country with jurisdiction over the Licensed Products and/or
either party.  LICENSEE shall not market,
distribute, or sell the Game(s) and/or Game Disc(s) in any country in the
Territory in which such marketing, distribution or sale would violate any
applicable laws, regulations, orders, or official codes of practice of such
country.  NCL may from time to time give
notice to LICENSEE of laws, regulations, orders, and official codes of practice
whether existing, new or revised, applicable to this Agreement.


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, NCL 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 [***] thereafter, LICENSEE agrees to
keep accurate, complete and detailed records relating to the use of the
Confidential Information, the Development Tools and the Intellectual Property
Rights.  Upon [***] Notice to LICENSEE,
NCL may, at its expense, arrange for a third



 23
 








party audit of LICENSEE’s
records, reports and other information related to LICENSEE’s compliance with
this Agreement; provided, however, that NCL 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 NCL’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 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 that may be reasonably interpreted or
construed as surviving, the rights and obligations set forth in Sections 3, 8,
9, 10, 11, 12, 13, and 14 shall survive any expiration or termination of this
Agreement to the degree necessary to permit their complete fulfillment or
discharge.


14.6         Governing Law and Venue.  This
Agreement shall be governed by the laws of Japan.  Any legal actions (including judicial and
administrative proceedings) with respect to any matter arising under or growing
out of this Agreement, shall be brought only in Kyoto District Court, Kyoto,
Japan.  Each party hereby consents to the
jurisdiction and venue of such courts for such purposes.


14.7         Injunctive Relief. 
LICENSEE acknowledges that in the event of its breach of this Agreement,
NCL shall be entitled to seek injunctive or other similar relief in addition to
any additional relief that may be available.


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



 24
 








14.9         Expansion of Rights.  NCL
may expand the rights granted to LICENSEE under this Agreement by providing
written notice of such expansion of rights to LICENSEE and without having to
enter into a written addendum to the present Agreement with LICENSEE.


14.10       Delegation of Duties.  NCL,
at its option. may delegate its duties under the present Agreement to a wholly
owned subsidiary.  To the extent
necessary for the parties to carry out their duties under this Agreement, NCL
shall provide notice to LICENSEE of any such delegation, including to whom at
NCL’s wholly owned subsidiary communications from LICENSEE under this Agreement
may be directed.  Also in the event of a
delegation by NCL, the provisions of this Agreement shall continue to govern
the relationship between NCL and LICENSEE and shall govern the relationship
between NCL’s subsidiary and LICENSEE, subject to any amendments or
modifications to this Agreement which such subsidiary and LICENSEE may agree to
in their relationship.  NCL shall remain
obligated under the present Agreement for the performance of NCL’s duties by
NCL’s subsidiary.


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


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


	
  NCL:

  	
   

  	
  LICENSEE:

  
	
  Nintendo
  Co., Ltd.

  	
   

  	
  Activision,
  Inc.

  
	
   

  	
   

  	
   

  	
   

  
	
  By: 

  	
  /s/ Satoru Iwata

  	
   

  	
  By: 

  	
  /s/ George Rose

  
	
   

  	
   

  	
   

  	
  George Rose

  
	
   

  	
  President

  	
   

  	
  General Counsel

  
	
   

  	
   

  	
   

  
	
  Date: 

  	
  June 20, 2006

  	
   

  	
  Date: 

  	
   April 1, 2006

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  LICENSEE:

  
	
   

  	
   

  	
  Activision
  Publishing, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By: 

  	
  /s/ George Rose

  
	
   

  	
   

  	
  George Rose

  
	
   

  	
   

  	
        Title:

  	
   SVP and GC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Date: 

  	
  April 1, 2006

  
								



 



 25
 








 


	
  

  	
   

  	
  LICENSEE:

  
	
   

  	
   

  	
  Activision
  UK, Ltd.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By: 

  	
  /s/ George Rose

  
	
   

  	
   

  	
    George Rose

  
	
   

  	
   

  	
    Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Date: 

  	
  April 1, 2006

  
	
   

  	
   

  	
   

  
	
  

  	
   

  	
  LICENSEE:

  
	
   

  	
   

  	
  ATVI
  France, S.A.S.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By: 

  	
  /s/ George Rose

  
	
   

  	
   

  	
    George Rose

  
	
   

  	
   

  	
    Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Date: 

  	
  April 1, 2006

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  LICENSEE:

  
	
   

  	
   

  	
  Activision
  GmbH

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By: 

  	
  /s/ George Rose

  
	
   

  	
   

  	
    George Rose

  
	
   

  	
   

  	
    Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Date: 

  	
  April 1, 2006

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  LICENSEE:

  
	
   

  	
   

  	
  Activision Pty, Ltd.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By: 

  	
  /s/ George Rose

  
	
   

  	
   

  	
    George Rose

  
	
   

  	
   

  	
    Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Date: 

  	
  April 1, 2006

  
						



 


Attachment:

                Annex A – Guidelines on Ethical Content



 26
 








ANNEX A


Guidelines on Ethical
Content


The
following Guidelines on Ethical Content are presented for assistance in the
development of Games by defining the types of the theme inconsistent with NCL’s
corporate philosophy.  Exceptions may be
made when necessary to maintain the integrity of the Game or the Game’s
theme.  Games shall not:


(a)           contain
sexually explicit content including but not limited to nudity, rape, sexual
intercourse and sexual touching; for instance, NCL does not allow bare-breasted
women in Games, however, mild displays of affection such as kissing or hugging
are acceptable;


(b)           contain
language or depictions which specifically denigrate members of any race,
gender, ethnicity, religion or political group;


(c)           depict
gratuitous or excessive blood or violence. 
NCL does not permit depictions of animal cruelty or torture;


(d)           depict
verbal or physical spousal or child abuse;


(e)           permit
racial, gender, ethnic, religious or political stereotypes; for example,
religious symbols such as crosses will be acceptable when fitting into the
theme of the Game and not promoting a specific religious denomination;


(f)            use
profanity, obscenity or incorporate language or gestures that are offensive by
prevailing public standards and tastes; and


(g)           promote
the use of illegal drugs, smoking materials, tobacco and/or alcohol; for
example NCL does not allow an unnecessary beer or cigarette advertisement
anywhere in a Game; however, Sherlock Holmes smoking a pipe would be acceptable
as it fits the theme of the Game.


 



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