Exhibit 10.42
CONFIDENTIAL LICENSE AGREEMENT
FOR NINTENDO DS (Western Hemisphere)
THIS LICENSE AGREEMENT ("Agreement") is entered into between NINTENDO OF AMERICA
INC. ("NOA"), at 4820 150th Avenue N.E., Redmond, WA 98052 Attn: General Counsel
(Fax: 425-882-3585) and Activision Publishing, Inc., ("LICENSEE") at 3100 Ocean
Park Blvd, Santa Monica, CA 90405 Attn: General Counsel (Fax: (310) 255-2152).
NOA and LICENSEE agree as follows:
1.
RECITALS
1.1
NOA MARKETS AND SELLS ADVANCED DESIGN, HIGH-QUALITY VIDEO GAME
SYSTEMS, INCLUDING THE NINTENDO DS SYSTEM.
1.2
LICENSEE DESIRES A LICENSE TO USE HIGHLY PROPRIETARY PROGRAMMING
SPECIFICATIONS, DEVELOPMENT TOOLS, TRADEMARKS AND OTHER VALUABLE INTELLECTUAL
PROPERTY RIGHTS OF NOA AND ITS PARENT COMPANY, NINTENDO CO., LTD. (COLLECTIVELY
"NINTENDO"), TO DEVELOP, HAVE MANUFACTURED, ADVERTISE, MARKET AND SELL VIDEO
GAME SOFTWARE FOR PLAY ON THE NINTENDO DS SYSTEM.
1.3
NOA IS WILLING TO GRANT A LICENSE TO LICENSEE ON THE TERMS AND
CONDITIONS SET FORTH IN THIS AGREEMENT.
2.
DEFINITIONS
2.1
"ARTWORK" MEANS THE DESIGN SPECIFICATIONS FOR THE GAME CARD LABEL
AND PRINTED MATERIALS IN THE FORMAT SPECIFIED BY NOA IN THE GUIDELINES.
2.2
"BULK GOODS" MEANS THE GAME CARDS WITH GAME CARD LABELS AFFIXED.
2.3
"DEVELOPMENT TOOLS" MEANS THE DEVELOPMENT KITS, PROGRAMMING TOOLS,
EMULATORS AND OTHER MATERIALS THAT MAY BE USED IN THE DEVELOPMENT OF GAMES UNDER
THIS AGREEMENT.
2.4
"EFFECTIVE DATE" MEANS OCTOBER 11, 2004.
2.5
"FINISHED PRODUCT(S)" MEANS THE FULLY ASSEMBLED AND SHRINK-WRAPPED
LICENSED PRODUCTS, EACH INCLUDING A GAME CARD, GAME CARD LABEL AND PRINTED
MATERIALS.
2.6
"GAME CARD(S)" MEANS CUSTOM CARD MEDIA SPECIFICALLY MANUFACTURED
UNDER THE TERMS OF THIS AGREEMENT FOR PLAY ON THE NINTENDO DS SYSTEM,
INCORPORATING SEMICONDUCTOR COMPONENTS IN WHICH A GAME HAS BEEN STORED.
2.7
"GAME(S)" MEANS THE NINTENDO DS VERSION OF AN INTERACTIVE VIDEO
GAME PROGRAM, OR OTHER APPLICATIONS APPROVED BY NINTENDO (INCLUDING SOURCE AND
OBJECT/BINARY CODE) DEVELOPED FOR THE NINTENDO DS SYSTEM.
[***]
The portions of this document marked with three asterisks represent
confidential portions omitted and filed separately with the Securities and
Exchange Commission.
2.8
"GUIDELINES" MEANS THE CURRENT VERSION OR ANY FUTURE REVISION OF
THE "NINTENDO DS PACKAGING GUIDELINES", "NINTENDO DS DEVELOPMENT MANUAL" AND
RELATED GUIDELINES PROVIDED BY NOA.
2.9
"INDEPENDENT CONTRACTOR" MEANS ANY INDIVIDUAL OR ENTITY THAT IS
NOT AN EMPLOYEE OF LICENSEE, INCLUDING ANY INDEPENDENT PROGRAMMER, CONSULTANT,
CONTRACTOR, BOARD MEMBER OR ADVISOR.
2.10
"INTELLECTUAL PROPERTY RIGHTS" MEANS INDIVIDUALLY, COLLECTIVELY OR
IN ANY COMBINATION, PROPRIETARY RIGHTS OWNED, LICENSED OR OTHERWISE HELD BY
NINTENDO THAT ARE ASSOCIATED WITH THE DEVELOPMENT, MANUFACTURING, ADVERTISING,
MARKETING OR SALE OF THE LICENSED PRODUCTS, INCLUDING, WITHOUT LIMITATION,
(A) REGISTERED AND UNREGISTERED TRADEMARKS AND TRADEMARK APPLICATIONS USED IN
CONNECTION WITH GAMES FOR THE NINTENDO DS SYSTEM INCLUDING "NINTENDO®",
"NINTENDO DSTM", "DSTM AND THE "OFFICIAL NINTENDO SEAL®", (B) SELECT TRADE DRESS
ASSOCIATED WITH THE NINTENDO DS SYSTEM AND LICENSED GAMES FOR PLAY THEREON,
(C) PROPRIETARY RIGHTS IN THE SECURITY TECHNOLOGY INCORPORATED INTO THE GAME
CARDS, (D) RIGHTS IN THE DEVELOPMENT TOOLS FOR USE IN DEVELOPING THE GAMES,
(E) PATENTS OR DESIGN REGISTRATIONS
Nintendo in the Confidential Information.
2.11
"LICENSED PRODUCTS" MEANS (A) FINISHED