THE FOREGOING SHALL NOT APPLY TO ANY PUBLISHER AFFILIATE WHICH PAYS
OR INTENDS TO PAY ROYALTIES FROM A EUROPEAN BILLING ADDRESS.
ANY SUCH EUROPEAN
AFFILIATE SHALL INSTEAD EXECUTE AN XBOX 360 PUBLISHER ENROLLMENT WITH MIOL, A
COPY OF WHICH IS ATTACHED HERETO AS EXHIBIT 3.
11.
USAGE DATA
Publisher acknowledges that the operation of the Xbox Live service requires that
Microsoft collect and store Xbox Live User usage data, including, without
limitation, Xbox Live User statistics, scores, ratings, and rankings
(collectively, "Xbox Live User Data"), as well as personally-identifiable Xbox
Live User data (e.g., name, email address) ("Personal Data").
Microsoft
reserves the right, in its discretion, to use such Xbox Live User Data for any
purpose, including without limitation, posting the Xbox Live User Data on
Xbox.com or other Microsoft Web sites.
Microsoft agrees to use commercially
reasonable efforts to periodically make certain Xbox Live User Data and Personal
Data available to Publisher; provided that Publisher's use of such data is in
accordance with the then-current Xbox Live Privacy Statement and such other
reasonable restrictions as Microsoft may require.
Without limiting the
foregoing, Publisher agrees that any disclosure of Personal Data to Publisher is
only used by Publisher and may not be shared with any other third parties, and
any permitted email communications with Xbox Live Users includes instructions
for opting out of receiving any further communications from Publisher.
12.
TRADEMARK RIGHTS AND RESTRICTIONS
12.1
LICENSED TRADEMARKS LICENSE.
IN EACH SOFTWARE TITLE, FPU, ONLINE
CONTENT AND ON ALL MARKETING MATERIALS, PUBLISHER SHALL INCORPORATE THE LICENSED
TRADEMARKS AND INCLUDE CREDIT AND ACKNOWLEDGEMENT TO MICROSOFT AS SET FORTH IN
THE XBOX 360 PUBLISHER GUIDE.
MICROSOFT GRANTS TO PUBLISHER A NON-EXCLUSIVE,
NON-TRANSFERABLE, PERSONAL LICENSE TO
* Confidential portion omitted and filed separately with the Securities and
Exchange Commission.
11
USE THE LICENSED TRADEMARKS IN CONNECTION WITH SOFTWARE TITLES, FPUS, ONLINE
CONTENT AND MARKETING MATERIALS ACCORDING TO THE XBOX 360 PUBLISHER GUIDE AND
OTHER CONDITIONS HEREIN, AND SOLELY IN CONNECTION WITH MARKETING, SALE,
MANUFACTURING AND DISTRIBUTION IN THE APPROVED SALES TERRITORIES OR VIA XBOX
LIVE.
12.2
LIMITATIONS.
PUBLISHER IS GRANTED NO RIGHT, AND SHALL NOT PURPORT,
TO PERMIT ANY THIRD PARTY TO USE THE LICENSED TRADEMARKS IN ANY MANNER WITHOUT
MICROSOFT'S PRIOR WRITTEN CONSENT.
PUBLISHER'S LICENSE TO USE LICENSED
TRADEMARKS IN CONNECTION WITH THE SOFTWARE TITLE, FPUS AND/OR ONLINE CONTENT
DOES NOT EXTEND TO THE MERCHANDISING OR SALE OF RELATED OR PROMOTIONAL PRODUCTS.
12.3
BRANDING SPECIFICATIONS.
PUBLISHER'S USE OF THE LICENSED
TRADEMARKS (INCLUDING WITHOUT LIMITATION IN FPUS, ONLINE CONTENT AND MARKETING
MATERIALS) MUST COMPLY WITH THE BRANDING SPECIFICATIONS SET FORTH IN THE XBOX
360 PUBLISHER GUIDE.
PUBLISHER SHALL NOT USE LICENSED TRADEMARKS IN ASSOCIATION
WITH ANY THIRD PARTY TRADEMARKS IN A MANNER THAT MIGHT SUGGEST CO-BRANDING OR
OTHERWISE CREATE POTENTIAL CONFUSION AS TO SOURCE OR SPONSORSHIP OF THE SOFTWARE
TITLE, ONLINE CONTENT OR FPUS OR OWNERSHIP OF THE LICENSED TRADEMARKS, UNLESS
MICROSOFT HAS OTHERWISE APPROVED SUCH USE IN WRITING.
UPON NOTICE OR OTHER
DISCOVERY OF ANY NON-CONFORMANCE WITH THE REQUIREMENTS OR PROHIBITIONS OF