MEAN AN FPU THAT
IS SIGNED FOR USE ON A CERTAIN DEFINED RANGE OF XBOX 360 HARDWARE, REGARDLESS OF
THE NUMBER OF LANGUAGES OR PRODUCT SKUS CONTAINED THEREON.
THE MOQS PER
SOFTWARE TITLE ARE CUMULATIVE PER SALES TERRITORY.
FOR EXAMPLE, IF AN FPU IS
RELEASED IN BOTH THE NORTH AMERICAN SALES TERRITORY AND THE EUROPEAN SALES
TERRITORY, THE CUMULATIVE MOQ PER SOFTWARE TITLE WOULD BE ****.
THE MOQ PER
SOFTWARE TITLE AND THE MOQ PER DISC, HOWEVER, ARE NOT CUMULATIVE.
FOR EXAMPLE,
A SINGLE DISC FPU RELEASED ONLY IN THE NORTH AMERICA SALES TERRITORY WILL HAVE A
TOTAL MINIMUM ORDER QUANTITY OF ****, WHICH WOULD COVER THE **** MOQ PER
SOFTWARE TITLE AND THE **** MOQ PER DISC (RATHER THAN **** WHICH WOULD HAVE BEEN
THE TOTAL MINIMUM ORDER QUANTITY IF THE MOQ PER SOFTWARE TITLE AND THE MOQ PER
DISC HAD BEEN CUMULATIVE).
7.5.3
IF PUBLISHER FAILS TO PLACE ORDERS TO MEET ANY APPLICABLE MINIMUM
ORDER QUANTITY WITHIN **** OF RELEASE TO MANUFACTURE, PUBLISHER SHALL
IMMEDIATELY PAY MICROSOFT THE APPLICABLE ROYALTY FEE FOR THE NUMBER OF FPUS
REPRESENTED BY THE DIFFERENCE BETWEEN THE APPLICABLE MOQ AND THE NUMBER OF FPUS
OF THE SOFTWARE TITLE ACTUALLY ORDERED BY PUBLISHER.
7.6
MANUFACTURING REPORTS.
FOR PURPOSES OF ASSISTING IN THE
SCHEDULING OF MANUFACTURING RESOURCES, ON A **** BASIS, OR AS OTHERWISE
REQUESTED BY MICROSOFT IN WRITING IN ITS REASONABLE DISCRETION,
PUBLISHER SHALL
PROVIDE MICROSOFT WITH FORECASTS SHOWING MANUFACTURING PROJECTIONS BY SALES
TERRITORY **** OUT FOR EACH SOFTWARE TITLE.
SUCH FORECASTS SHALL NOT BE
BINDING.
PUBLISHER WILL USE COMMERCIALLY REASONABLE EFFORTS TO CAUSE THE
AUTHORIZED REPLICATOR TO DELIVER TO MICROSOFT TRUE AND ACCURATE **** STATEMENTS
OF FPUS MANUFACTURED IN EACH ****, ON A SOFTWARE TITLE-BY-SOFTWARE TITLE BASIS
AND IN SUFFICIENT DETAIL TO SATISFY MICROSOFT, WITHIN ****.
MICROSOFT WILL HAVE
REASONABLE AUDIT RIGHTS TO EXAMINE THE RECORDS OF THE AUTHORIZED REPLICATOR
REGARDING THE NUMBER OF FPUS MANUFACTURED UPON TEN (10) DAYS ADVANCE WRITTEN
NOTICE TO PUBLISHER; PROVIDED, THAT ANY REPRESENTATIVE(S) OF MICROSOFT
CONDUCTING SUCH EXAMINATION SHALL BE REQUIRED TO PRESERVE SUCH RECORDS AS
STRICTLY CONFIDENTIAL AND MAY BE REQUIRED TO EXECUTE A NONDISCLOSURE AGREEMENT
IN A FORM REASONABLY SUITABLE TO PUBLISHER AND MICROSOFT.
7.7
NEW AUTHORIZED REPLICATOR.
IF PUBLISHER REQUESTS THAT MICROSOFT
CERTIFY AND APPROVE A THIRD PARTY REPLICATOR THAT IS NOT THEN AN AUTHORIZED
REPLICATOR, MICROSOFT WILL CONSIDER SUCH REQUEST IN GOOD FAITH.
PUBLISHER
ACKNOWLEDGES AND AGREES THAT MICROSOFT MAY CONDITION CERTIFICATION AND APPROVAL
OF SUCH THIRD PARTY ON THE EXECUTION OF AN AGREEMENT IN A FORM SATISFACTORY TO
MICROSOFT PURSUANT TO WHICH SUCH THIRD PARTY AGREES TO STRICT QUALITY STANDARDS,
NON-DISCLOSURE REQUIREMENTS, LICENSE FEES FOR USE OF MICROSOFT INTELLECTUAL
PROPERTY AND TRADE SECRETS, AND PROCEDURES TO PROTECT MICROSOFT'S INTELLECTUAL
PROPERTY AND TRADE SECRETS.
NOTWITHSTANDING ANYTHING CONTAINED HEREIN,
PUBLISHER ACKNOWLEDGES THAT MICROSOFT IS NOT REQUIRED TO CERTIFY, MAINTAIN THE
CERTIFICATION OR APPROVE ANY PARTICULAR THIRD PARTY AS AN AUTHORIZED REPLICATOR,
AND THAT THE CERTIFICATION AND APPROVAL PROCESS MAY BE TIME-CONSUMING.
7.8
ALTERNATE MANUFACTURING IN EUROPE.
PUBLISHER MAY, SOLELY WITH
RESPECT TO FPUS MANUFACTURED