AND REMEDIES PROVIDED BY LAW OR THIS AGREEMENT.
IF
THE UNCURED DEFAULT IS RELATED TO A PARTICULAR SOFTWARE TITLE OR PARTICULAR
ONLINE CONTENT, THEN THE PARTY NOT IN DEFAULT HAS THE RIGHT, IN ITS DISCRETION,
TO TERMINATE THIS AGREEMENT ITS ENTIRETY OR WITH RESPECT TO THE APPLICABLE
SOFTWARE TITLE OR THE PARTICULAR ONLINE CONTENT.
IF MICROSOFT DETERMINES, AT
ANY TIME PRIOR TO THE COMMERCIAL RELEASE OF A SOFTWARE TITLE OR ONLINE CONTENT,
THAT SUCH SOFTWARE TITLE OR ONLINE CONTENT DOES NOT MATERIALLY COMPLY WITH THE
REQUIREMENTS SET FORTH IN THE XBOX 360 PUBLISHER GUIDE OR TO ANY APPLICABLE
LAWS, THEN MICROSOFT HAS THE RIGHT, IN MICROSOFT'S SOLE DISCRETION AND
NOTWITHSTANDING ANY PRIOR APPROVALS GIVEN BY MICROSOFT, TO TERMINATE THIS
AGREEMENT WITHOUT COST OR PENALTY, AS A WHOLE OR ON A SOFTWARE TITLE BY SOFTWARE
TITLE, OR SALES TERRITORY BY SALES TERRITORY BASIS UPON WRITTEN NOTICE TO
PUBLISHER WITH RESPECT TO SUCH SOFTWARE TITLE OR SALES TERRITORY.
17.3
EFFECT OF TERMINATION; SELL-OFF RIGHTS.
UPON TERMINATION OR
EXPIRATION OF THIS AGREEMENT, PUBLISHER HAS NO FURTHER RIGHT TO EXERCISE THE
RIGHTS LICENSED HEREUNDER OR WITHIN THE XDK LICENSE AND SHALL PROMPTLY CEASE ALL
MANUFACTURING OF FPU THROUGH ITS AUTHORIZED REPLICATORS AND, OTHER THAN AS
PROVIDED BELOW, CEASE USE OF THE LICENSED TRADEMARKS.
PUBLISHER SHALL HAVE A
PERIOD OF ****, TO SELL-OFF ITS INVENTORY OF FPUS EXISTING AS OF THE DATE OF
TERMINATION OR EXPIRATION, AFTER WHICH SELL-OFF PERIOD PUBLISHER SHALL
IMMEDIATELY RETURN ALL FPUS TO AN AUTHORIZED REPLICATOR FOR DESTRUCTION.
PUBLISHER SHALL CAUSE THE AUTHORIZED REPLICATOR TO DESTROY ALL FPUS AND ISSUE TO
MICROSOFT WRITTEN CERTIFICATION BY AN AUTHORIZED REPRESENTATIVE OF THE
AUTHORIZED REPLICATOR CONFIRMING THE DESTRUCTION OF FPUS REQUIRED HEREUNDER.
ALL OF PUBLISHER'S OBLIGATIONS UNDER THIS AGREEMENT SHALL CONTINUE TO APPLY
DURING SUCH **** SELL-OFF PERIOD.
IF THIS AGREEMENT IS TERMINATED DUE TO
PUBLISHER'S BREACH, AT MICROSOFT'S OPTION, MICROSOFT MAY REQUIRE PUBLISHER TO
IMMEDIATELY DESTROY ALL FPUS NOT YET DISTRIBUTED TO PUBLISHER'S DISTRIBUTORS,
DEALERS AND/OR END USERS AND SHALL REQUIRE ALL THOSE DISTRIBUTING THE FPU OVER
WHICH IT HAS CONTROL TO CEASE DISTRIBUTION.
UPON TERMINATION OR EXPIRATION OF
THIS AGREEMENT, PUBLISHER SHALL CONTINUE TO SUPPORT EXISTING ONLINE GAME
FEATURES FOR FPUS THAT HAVE ALREADY BEEN SOLD UNTIL THE END OF THE MINIMUM
COMMITMENT TERM.
17.4
CROSS-DEFAULT.
IF MICROSOFT HAS THE RIGHT TO TERMINATE THIS
AGREEMENT, THEN MICROSOFT MAY, AT ITS SOLE DISCRETION ALSO TERMINATE THE XDK
LICENSE.
IF MICROSOFT TERMINATES THE XDK LICENSE DUE TO A BREACH BY PUBLISHER,
THEN MICROSOFT MAY, AT ITS SOLE DISCRETION ALSO TERMINATE THIS AGREEMENT.
* Confidential portion omitted and filed separately with the Securities and
Exchange Commission.
15
17.5
SURVIVAL.
THE FOLLOWING PROVISIONS SHALL SURVIVE EXPIRATION OR
TERMINATION OF THIS AGREEMENT: SECTIONS 2, 6.2.2 (AS TO THE MINIMUM COMMITMENT),
6.2.3, 8 AND SECTIONS 1, 2 AND 5 OF EXHIBIT 1, 9.1-9.3, 10.3, 10.4, 11, 13.1,
14, 15, 16, 17.3, 17.5 AND 18.
18.
GENERAL
18.1
GOVERNING LAW; VENUE; ATTORNEYS FEES.
THIS AGREEMENT IS TO BE
CONSTRUED AND CONTROLLED BY THE LAWS OF THE STATE OF