OR SUBSTANTIALLY ALL OF ITS ASSETS IS TO BE DEEMED TO
BE AN ASSIGNMENT.
THIS AGREEMENT WILL INURE TO THE BENEFIT OF AND BE BINDING
UPON THE PARTIES, THEIR SUCCESSORS, ADMINISTRATORS, HEIRS, AND PERMITTED
ASSIGNS.
18.5
NO PARTNERSHIP.
MICROSOFT AND PUBLISHER ARE ENTERING INTO A
LICENSE PURSUANT TO THIS AGREEMENT AND NOTHING IN THIS AGREEMENT IS TO BE
CONSTRUED AS CREATING AN EMPLOYER-EMPLOYEE RELATIONSHIP, A PARTNERSHIP, A
FRANCHISE, OR A JOINT VENTURE BETWEEN THE PARTIES.
18.6
SEVERABILITY.
IF ANY PROVISION OF THIS AGREEMENT IS FOUND INVALID
OR UNENFORCEABLE PURSUANT TO JUDICIAL DECREE OR DECISION, THE REMAINDER OF THIS
AGREEMENT SHALL REMAIN VALID AND ENFORCEABLE ACCORDING TO ITS TERMS.
THE
PARTIES INTEND THAT THE PROVISIONS OF THIS AGREEMENT BE ENFORCED TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW.
ACCORDINGLY, THE PARTIES
* Confidential portion omitted and filed separately with the Securities and
Exchange Commission.
16
AGREE THAT IF ANY PROVISIONS ARE DEEMED NOT ENFORCEABLE, THEY ARE TO BE DEEMED
MODIFIED TO THE EXTENT NECESSARY TO MAKE THEM ENFORCEABLE.
18.7
INJUNCTIVE RELIEF.
THE PARTIES AGREE THAT PUBLISHER'S THREATENED
OR ACTUAL UNAUTHORIZED USE OF THE LICENSED TRADEMARKS OR OTHER MICROSOFT
PROPRIETARY RIGHTS WHETHER IN WHOLE OR IN PART, MAY RESULT IN IMMEDIATE AND
IRREPARABLE DAMAGE TO MICROSOFT FOR WHICH THERE MAY BE NO ADEQUATE REMEDY AT
LAW.
EITHER PARTY'S THREATENED OR ACTUAL BREACH OF THE CONFIDENTIALITY
PROVISIONS MAY CAUSE DAMAGE TO THE NON-BREACHING PARTY, AND IN SUCH EVENT THE
NON-BREACHING PARTY IS ENTITLED TO SEEK APPROPRIATE INJUNCTIVE RELIEF FROM ANY
COURT OF COMPETENT JURISDICTION WITHOUT THE NECESSITY OF POSTING BOND OR OTHER
SECURITY.
18.8
ENTIRE AGREEMENT; MODIFICATION; NO OFFER.
THIS AGREEMENT
(INCLUDING THE CONCEPT, THE NON-DISCLOSURE AGREEMENT, THE XBOX 360 PUBLISHER
GUIDE, WRITTEN AMENDMENTS THERETO, AND OTHER INCORPORATED DOCUMENTS) AND THE XDK
LICENSE CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE
SUBJECT MATTER HEREOF AND MERGES ALL PRIOR AND CONTEMPORANEOUS COMMUNICATIONS.
THIS AGREEMENT SHALL NOT BE MODIFIED EXCEPT BY A WRITTEN AGREEMENT DATED
SUBSEQUENT HERETO SIGNED ON BEHALF OF PUBLISHER AND MICROSOFT BY THEIR DULY
AUTHORIZED REPRESENTATIVES.
NEITHER THIS AGREEMENT NOR ANY WRITTEN OR ORAL
STATEMENTS RELATED HERETO CONSTITUTE AN OFFER, AND THIS AGREEMENT IS NOT LEGALLY
BINDING UNTIL EXECUTED BY BOTH PARTIES HERETO.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the Effective Date on the dates indicated below.
MICROSOFT LICENSING, GP
THQ Inc.
By (sign)
By (sign)
Name (Print)
Name (Print)
Title
Title
Date
Date
17
EXHIBIT 1
PAYMENTS
1.
PLATFORM ROYALTY
A.
FOR EACH FPU MANUFACTURED DURING THE TERM OF THIS AGREEMENT,
PUBLISHER SHALL PAY MICROSOFT NONREFUNDABLE ROYALTIES IN ACCORDANCE WITH THE
ROYALTY TABLES SET FORTH BELOW (TABLES 1 AND 2) AND THE "UNIT DISCOUNT" TABLE
SET FORTH IN SECTION 1.D OF THIS EXHIBIT 1 (TABLE 3).
B.
THE ROYALTY FEE IS DETERMINED BY THE "THRESHOLD PRICE" (WHICH IS
THE WHOLESALE PRICE (WSP) OR SUGGESTED RETAIL PRICE (SRP) AT WHICH PUBLISHER
INTENDS TO SELL THE SOFTWARE TITLE IN THE APPLICABLE SALES TERRITORY).
TO
DETERMINE THE APPLICABLE ROYALTY RATE