DISTRIBUTE THE SOFTWARE TITLE IN A
SALES TERRITORY, THE WHOLESALE PRICE IS GOVERNED BY THE PRICE CHARGED BY THE
THIRD PARTY RATHER THAN THE TERMS OF THE EXCLUSIVE DISTRIBUTION AGREEMENT
BETWEEN PUBLISHER AND SUCH THIRD PARTY; AND (III) IF THE WHOLESALE PRICE VARIES
AMONG COUNTRIES IN A SINGLE SALES TERRITORY, THE HIGHEST WHOLESALE PRICE USED IN
THE SALES TERRITORY WILL BE USED TO DETERMINE THE APPROPRIATE ROYALTY FEES FOR
THE ENTIRE SALES TERRITORY.
2.30
"XBOX 360" MEANS THE SECOND VERSION OF MICROSOFT'S PROPRIETARY GAME
SYSTEM, SUCCESSOR TO THE XBOX GAME SYSTEM, INCLUDING OPERATING SYSTEM SOFTWARE
AND HARDWARE DESIGN SPECIFICATIONS.
2.31
"XBOX 360 PUBLISHER GUIDE" MEANS A DOCUMENT (IN PHYSICAL,
ELECTRONIC OR WEB SITE FORM) CREATED BY MICROSOFT THAT SUPPLEMENTS THIS
AGREEMENT AND PROVIDES DETAILED REQUIREMENTS REGARDING THE PRE-CERTIFICATION AND
CERTIFICATION APPROVAL PROCESS, BRANDING SPECIFICATIONS, REPLICATION
REQUIREMENTS, ROYALTY PAYMENT PROCESS, MARKETING GUIDELINES, TECHNICAL
SPECIFICATIONS AND CERTIFICATION REQUIREMENTS, DEMO VERSION REQUIREMENTS,
PACKAGING REQUIREMENTS AND OTHER OPERATIONAL ASPECTS OF THE XBOX 360 AND XBOX
LIVE.
MICROSOFT MAY SUPPLEMENT, REVISE OR UPDATE THE XBOX 360 PUBLISHER GUIDE
FROM TIME TO TIME IN ITS REASONABLE DISCRETION AS SET FORTH IN THIS AGREEMENT.
2.32
"XBOX LIVE" MEANS THE PROPRIETARY ONLINE SERVICE OFFERED BY
MICROSOFT TO XBOX LIVE USERS.
2.33
"XBOX LIVE USER" MEANS ANY INDIVIDUAL THAT ACCESSES AND USES XBOX
LIVE.
2.34
OTHER TERMS.
ALL OTHER CAPITALIZED TERMS HAVE THE DEFINITIONS SET
FORTH WITH THE FIRST USE OF SUCH TERM AS DESCRIBED IN THIS AGREEMENT.
3.
XBOX 360 DEVELOPMENT KIT LICENSE
Publisher shall enter into one or more development kit license(s) for the
applicable territory(ies) to which Xbox 360 game development kits will be
shipped for use by Publisher (each an "XDK License") pursuant to which Microsoft
or its affiliate may license to Publisher software development tools and
hardware to assist Publisher in the development and testing of
3
Software Titles, including redistributable code that Publisher must incorporate
into Software Titles pursuant to the terms and conditions contained in the XDK
License.
4.
APPROVAL PROCESS
4.1
STANDARD APPROVAL PROCESS.
THE STANDARD APPROVAL PROCESS FOR A
SOFTWARE TITLE IS DIVIDED INTO FOUR PHASES COMPRISED OF CONCEPT APPROVAL,
PRE-CERTIFICATION, CERTIFICATION, AND MARKETING MATERIALS APPROVAL.
UNLESS
PUBLISHER ELECTS THE EU APPROVAL OPTION FOR A EUROPEAN FPU (DESCRIBED BELOW),
PUBLISHER IS REQUIRED TO SUBMIT ITS SOFTWARE TITLE TO MICROSOFT FOR EVALUATION
AT ALL FOUR PHASES.
EACH PHASE IS IDENTIFIED BELOW AND FURTHER DESCRIBED IN THE
XBOX 360 PUBLISHER GUIDE.
ADDITIONAL OR ALTERNATE APPROVAL PROCESSES FOR ONLINE
CONTENT MAY BE FURTHER DESCRIBED IN THE XBOX 360 PUBLISHER GUIDE.
WITH RESPECT
TO ANY AND ALL APPROVALS REQUIRED BY MICROSOFT HEREUNDER, MICROSOFT SHALL
EXERCISE REASONABLE DISCRETION AND SHALL ACT IN GOOD FAITH.
4.1.1
CONCEPT.
FOR EACH SOFTWARE TITLE, PUBLISHER SHALL DELIVER TO
MICROSOFT A COMPLETED CONCEPT SUBMISSION FORM (IN THE FORM PROVIDED BY MICROSOFT
TO PUBLISHER) THAT DESCRIBES THE SOFTWARE TITLE.
IN THE EVENT THAT PUBLISHER
DESIRES TO HOST OR HAVE A THIRD PARTY HOST OR PROVIDE TO XBOX LIVE USERS ANY OF
PUBLISHER'S ONLINE GAME FEATURES, PUBLISHER SHALL SO INDICATE ON