Exhibit 10.38
AMENDMENT TO THE
XBOX 360 PUBLISHER LICENSE AGREEMENT
(Russian Incentive Program; Hits Program Revisions)
This Amendment to the Xbox 360 Publisher License Agreement (this "Amendment") is
entered into and effective as of the later of the 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").
Microsoft Corporation, a
Washington corporation, is a party to this Amendment only with respect to its
acknowledgement of Section 6.2 and Exhibit 1, Section 6 of 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 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.
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.
EXHIBITS.
EXHIBITS 1, 6 AND 8 OF THE XBOX 360 PLA ARE HEREBY AMENDED AND RESTATED IN THEIR
ENTIRETY AS ATTACHED HERETO.
3.
LOANED EQUIPMENT.
MICROSOFT MAY FROM TIME-TO-TIME AGREE TO LOAN PUBLISHER CERTAIN MICROSOFT ASSETS
IN CONNECTION WITH PUBLISHER'S MARKETING AND PROMOTIONAL ACTIVITIES FOR THE
SOFTWARE TITLES. SUCH LOANED ASSETS MAY INCLUDE WITHOUT LIMITATION XBOX 360
KIOSKS, XBOX 360 CONSOLES AND ACCESSORIES (THE "LOANED EQUIPMENT"). WITH RESPECT
TO ALL LOANED EQUIPMENT PROVIDED TO PUBLISHER HEREUNDER, PUBLISHER AGREES THAT:
(I) PUBLISHER SHALL NOT PROVIDE THE LOANED EQUIPMENT TO ANY THIRD PARTY UNLESS
SUCH THIRD PARTY IS APPROVED BY MICROSOFT IN ADVANCE ("APPROVED THIRD PARTY")
AND, IF SO APPROVED, PUBLISHER SHALL BE RESPONSIBLE FOR ENSURING THAT THE
APPROVED THIRD PARTY COMPLIES WITH THE TERMS OF THIS SECTION 3; (II) PUBLISHER
SHALL ASSUME ALL RESPONSIBILITY FOR THEFT, DAMAGE, LOSS OR INJURIES TO PEOPLE OR
PROPERTY THAT OCCUR WHILE SUCH LOANED EQUIPMENT IS IN PUBLISHER'S AND/OR AN
APPROVED THIRD PARTY'S POSSESSION, CONTROL OR USE; (III) PUBLISHER'S INSURANCE
POLICY SET FORTH IN SECTION 16.4 OF THE XBOX 360 PLA SHALL COVER ALL
THEFT,
DAMAGE, LOSS OR INJURIES TO PEOPLE OR PROPERTY IN CONNECTION WITH PUBLISHER'S OR
AN APPROVED THIRD PARTY'S USE OR POSSESSION OF THE LOANED EQUIPMENT;
(IV) PUBLISHER (AND ANY APPROVED THIRD PARTY) SHALL ONLY USE POWER SUPPLIES,
POWER CORDS, CABLES, AND OTHER PARTS AND ACCESSORIES PROVIDED BY MICROSOFT IN
CONNECTION WITH THE LOANED EQUIPMENT; AND (V) PUBLISHER SHALL, AT ITS EXPENSE,
RETURN THE LOANED EQUIPMENT TO MICROSOFT BY THE DATE REQUESTED BY MICROSOFT AND
IN ACCORDANCE WITH ANY SHIPPING INSTRUCTIONS PROVIDED BY MICROSOFT.
4.
CONTENT RATING.
SECTION 4.4 OF THE XBOX
360 PLA IS HEREBY AMENDED AND RESTATED IN ITS