MANUFACTURE OF THE FPUS INCLUDING, WITHOUT LIMITATION, THE
SECURITY TECHNOLOGY (AS DEFINED IN SECTION 7.9 BELOW).
PUBLISHER IS RESPONSIBLE
FOR PREPARING AND DELIVERING TO THE AUTHORIZED REPLICATOR ALL OTHER ITEMS
REQUIRED FOR MANUFACTURING FPUS INCLUDING APPROVED PACKAGING MATERIALS
ASSOCIATED WITH THE FPUS.
SUBJECT TO THE APPROVAL OF PUBLISHER (WHICH APPROVAL
SHALL NOT BE UNREASONABLY WITHHELD), MICROSOFT HAS THE RIGHT TO HAVE INCLUDED IN
THE PACKAGING OF FPUS SUCH PROMOTIONAL MATERIALS FOR XBOX, XBOX 360, XBOX LIVE,
AND/OR OTHER XBOX OR XBOX 360 PRODUCTS OR SERVICES AS MICROSOFT MAY DETERMINE IN
ITS REASONABLE DISCRETION.
MICROSOFT WILL BE RESPONSIBLE FOR DELIVERING TO THE
AUTHORIZED REPLICATOR ALL SUCH PROMOTIONAL MATERIALS AS IT DESIRES TO INCLUDE
WITH FPUS, AND, UNLESS OTHERWISE AGREED BY THE PARTIES, ANY INCREMENTAL
INSERTION COSTS RELATING TO SUCH MARKETING MATERIALS WILL BE BORNE BY MICROSOFT.
7.3
VERIFICATION VERSIONS.
PUBLISHER SHALL CAUSE THE AUTHORIZED
REPLICATOR TO CREATE SEVERAL TEST VERSIONS OF EACH FPU ("VERIFICATION
VERSION(S)") THAT WILL BE PROVIDED TO BOTH MICROSOFT AND PUBLISHER FOR
EVALUATION.
PRIOR TO FULL MANUFACTURE OF A FPU BY THE AUTHORIZED REPLICATOR,
BOTH PUBLISHER AND MICROSOFT MUST APPROVE THE APPLICABLE VERIFICATION VERSION.
THROUGHOUT THE MANUFACTURING PROCESS AND UPON THE REASONABLE WRITTEN REQUEST OF
MICROSOFT, PUBLISHER SHALL CAUSE THE AUTHORIZED REPLICATOR TO PROVIDE ADDITIONAL
VERIFICATION VERSIONS OF THE FPU FOR EVALUATION BY MICROSOFT.
MICROSOFT'S
APPROVAL IS A CONDITION PRECEDENT TO MANUFACTURE, HOWEVER PUBLISHER SHALL GRANT
THE FINAL APPROVAL AND SHALL WORK DIRECTLY WITH THE AUTHORIZED REPLICATOR
REGARDING THE PRODUCTION RUN.
PUBLISHER AGREES THAT ALL FPUS MUST BE REPLICATED
IN CONFORMITY WITH ALL OF THE QUALITY STANDARDS AND MANUFACTURING
SPECIFICATIONS, POLICIES AND PROCEDURES THAT MICROSOFT REQUIRES OF ITS
AUTHORIZED REPLICATORS, AND THAT ALL PACKAGING MATERIALS MUST BE APPROVED BY
MICROSOFT PRIOR TO PACKAGING.
PUBLISHER SHALL CAUSE THE AUTHORIZED REPLICATOR
TO INCLUDE THE BTS ON EACH FPU.
7.4
SAMPLES.
FOR EACH SOFTWARE TITLE SKU, AT PUBLISHER'S COST,
PUBLISHER SHALL PROVIDE MICROSOFT WITH **** FPUS AND ACCOMPANYING MARKETING
MATERIALS PER SALES TERRITORY IN WHICH THE FPU WILL BE RELEASED.
SUCH UNITS MAY
BE USED IN MARKETING, AS PRODUCT SAMPLES, FOR CUSTOMER SUPPORT, TESTING AND FOR
ARCHIVAL PURPOSES ONLY AND NOT FOR RESALE.
PUBLISHER WILL NOT HAVE TO PAY A
ROYALTY FEE FOR SUCH SAMPLES NOR WILL SUCH SAMPLES COUNT TOWARDS THE UNIT
DISCOUNTS UNDER EXHIBIT 1.
7.5
MINIMUM ORDER QUANTITIES
7.5.1
WITHIN **** AFTER THE DATE ON WHICH BOTH MICROSOFT AND PUBLISHER
HAVE AUTHORIZED THE AUTHORIZED REPLICATOR TO BEGIN REPLICATION OF FPUS FOR
DISTRIBUTION TO A SPECIFIED SALES TERRITORY, (RECEIPT OF BOTH APPROVALS IS
REFERRED TO AS "RELEASE TO MANUFACTURE"), PUBLISHER MUST PLACE ORDERS TO
MANUFACTURE THE MINIMUM ORDER QUANTITIES ("MOQS") AS DESCRIBED IN THE XBOX 360
PUBLISHER GUIDE.
MICROSOFT MAY UPDATE AND REVISE THE MOQS **** WHICH WILL BE
EFFECTIVE STARTING THE FOLLOWING ****.
CURRENTLY, THE MOQS ARE AS FOLLOWS:
****
****
****
****
****
****
****
****
****
****
****
****
****
****
* Confidential portion omitted and filed separately with the Securities and
Exchange Commission.
7
7.5.2
FOR THE PURPOSES OF THIS SECTION, A "DISC" SHALL