following year).
B.
PUBLISHER MAY, FROM TIME TO TIME, SUBMIT
ONLINE CONTENT TO MICROSOFT FOR MICROSOFT TO DISTRIBUTE VIA XBOX LIVE.
****.
FOR EACH PREMIUM ONLINE CONTENT ITEM, MICROSOFT WILL PAY PUBLISHER A ROYALTY
CALCULATED AS FOLLOWS (THE "ROYALTY FEE").
C.
FOR PREMIUM ONLINE CONTENT MADE
AVAILABLE FOR REDEMPTION WITH MS POINTS, THE ROYALTY FEE WILL EQUAL ****.
D.
FOR ALL OTHER PREMIUM ONLINE CONTENT,
THE ROYALTY FEE WILL EQUAL ****.
E.
THE ROYALTY PERCENTAGE FOR PREMIUM
ONLINE CONTENT IS **** PERCENT.
MICROSOFT MAY ASSIGN A ROYALTY PERCENTAGE FOR
OTHER CATEGORIES OF PREMIUM ONLINE CONTENT, FROM TIME TO TIME, AS SET FORTH IN
THE XBOX 360 PUBLISHER GUIDE.
F.
NOTWITHSTANDING SUBSECTIONS C. - E.
ABOVE, ****.
G.
WITHIN **** AFTER THE END OF **** WITH
RESPECT TO WHICH MICROSOFT OWES PUBLISHER ANY ROYALTY FEES, MICROSOFT SHALL
FURNISH PUBLISHER WITH A STATEMENT, TOGETHER WITH PAYMENT FOR ANY AMOUNT SHOWN
THEREBY TO BE DUE TO PUBLISHER.
THE STATEMENT WILL CONTAIN INFORMATION
SUFFICIENT TO DISCERN HOW THE ROYALTY FEES WERE COMPUTED.
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.
THIRD PARTY ROYALTIES AND OTHER PAYMENTS
PUBLISHER ACKNOWLEDGES AND UNDERSTANDS THAT UNDER SECTION 15 OF THE XBOX 360
PLA, PUBLISHER WARRANTS AND REPRESENTS THAT PUBLISHER HAS OBTAINED AND WILL
MAINTAIN ALL THIRD-PARTY RIGHTS, CONSENTS AND LICENSES NECESSARY FOR THE
PERMITTED EXPLOITATION OF SOFTWARE TITLE CONTENT AND ONLINE CONTENT UNDER THIS
AGREEMENT, INCLUDING WITHOUT LIMITATION PAYMENT OF: (I) ALL SO-CALLED "RECORD"
ROYALTIES PAYABLE TO ARTISTS, PRODUCERS, ENGINEERS, MIXERS, A&R EXECUTIVES AND
OTHER ROYALTY PARTICIPANTS ARISING FROM OR RELATED TO THE SALES OF SOFTWARE
TITLES; (II) ALL MECHANICAL ROYALTIES PAYABLE TO PUBLISHERS OF COPYRIGHTED
MUSICAL COMPOSITIONS EMBODIED IN SOFTWARE TITLE CONTENT AND ONLINE CONTENT;
(III) ALL SYNCHRONIZATION ROYALTIES PAYABLE TO PUBLISHERS OF COPYRIGHTED MUSICAL
COMPOSITIONS EMBODIED IN SOFTWARE TITLE CONTENT AND ONLINE CONTENT; (IV) ALL
PAYMENTS THAT MAY BE REQUIRED UNDER COLLECTIVE BARGAINING AGREEMENTS APPLICABLE
TO PUBLISHER OR ITS AFFILIATES; AND (V) ANY AND ALL OTHER ROYALTIES, FEES OR
OTHER AMOUNTS REQUIRED TO BE PAID.
* Confidential portion omitted and filed separately with the Securities and
Exchange Commission.
9.
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