Subversion Repositories Kolibri OS

COMMERCIAL EXPLOITATION LICENSE AGREEMENT FOR QUAKE

        This Commercial Exploitation License Agreement for QUAKE

(the "Agreement") is between Id Software, Inc., a Texas

Corporation, (hereinafter "Id Software") and Licensee (as described

on the signature page hereof) and is made effective beginning on

the date of last signature hereto (the "Effective Date").

        R E C I T A L S

        WHEREAS, Id Software is the owner and developer of the

computer software game entitled QUAKE;

        WHEREAS, Id Software desires to license certain

non-exclusive rights regarding QUAKE to Licensee; and

        WHEREAS, Licensee desires to receive a license for such

rights.

        T E R M S    A N D    C O N D I T I O N S

        NOW, THEREFORE, for and in consideration of the mutual

premises contained herein and for other good and valuable

consideration, the receipt and sufficiency of which is hereby

acknowledged, the undersigned parties do hereby agree as follows:

        1.      DEFINITIONS.  As used in this Agreement, the parties

hereto agree the words set forth below shall have the specified

meanings:

        a.      "Authorized Copy" shall mean one (1) copy of the

                Subject Game actually purchased by Licensee from an

                Id Software approved retailer; and

        b.      "Subject Game" shall mean the full registered

                version of QUAKE on a CD-ROM and shall not mean the

                shareware or any other version.

        2.      GRANT OF RIGHTS.  Id Software hereby grants to

Licensee and Licensee hereby accepts, subject to the provisions and

conditions hereof, a world-wide (except as otherwise provided

herein), non-exclusive, non-transferable, and non-assignable

license to:

        a.      publicly display an Authorized Copy in exchange for

                rental payment;

        b.      run the Authorized Copy so that it will accept

                network/modem connections in exchange for payments

                from end-users who also must have actually purchased

                an Authorized Copy; and

        c.      otherwise commercially exploit an Authorized Copy,

                except that Licensee shall not copy, reproduce,

                manufacture or distribute the Authorized Copy.

        3.      RESERVATION OF RIGHTS AND PROHIBITIONS.  Id Software

expressly reserves all rights not granted herein.  Under no

circumstances shall Licensee copy, reproduce, manufacture or

distribute (free of charge or otherwise) the Authorized Copy or the

Subject Game.  Licensee shall not reverse engineer, decompile,

disassemble, modify or alter the Authorized Copy.  Licensee is not

receiving any rights hereunder regarding the Trademark or any

artwork, sound, music or other element of the Subject Game.

        4.      OWNERSHIP.  Title to and all ownership rights in and

to the Subject Game, and the QUAKE Trademark (the "Trademark") and

the copyrights, trademarks, patents and other intellectual property

rights related thereto shall remain with Id Software which shall have

the exclusive right to protect the same  by copyright or otherwise.

Licensee shall have no ownership rights in or to the Subject Game or

the Trademark and Licensee shall not own any intellectual property

rights regarding the Authorized Copy, including, without limitation,

the copyright regarding the Authorized Copy. Licensee acknowledges

that it only has a limited license to use the Authorized Copy, as

specified in that certain QUAKE Enduser License contained within the

Authorized Copy and as specified in this Agreement.

        5.      TERM AND TERMINATION.

        a.      The term of this Agreement and the license granted

herein begins on the Effective Date and shall expire on a date one

(1) calendar year from the Effective Date.

        b.      Either party may terminate this Agreement, for any

reason or no reason, on thirty (30) days written notice to the

other party.  Termination will be effective on the thirtieth (30th)

day following delivery of the described notice.  Notwithstanding

anything to the contrary herein, this Agreement shall immediately

terminate, without the requirement of any notice from Id Software

to Licensee, upon the occurrence of any of the following:  (a) if

Licensee shall file a petition in bankruptcy or make an assignment

for the benefit of creditors, or if any bankruptcy proceeding or

assignment for benefit of creditors, shall be commenced against

Licensee and not be dismissed within sixty (60) days after the date

of its commencement; (b) the insolvency of Licensee; (c) the

cessation by Licensee of its business; or (d) the cessation by

Licensee, without the prior written consent of Id Software of the

distribution, manufacture, and sale responsibilities embodied

herein.  Further, Id Software may elect to terminate this Agreement

upon the occurrence of any of the following:  (1) if Licensee's

business operations are interrupted for forty (40) consecutive

calendar days; or (2) if each of two Id Software audit inspections

during any eighteen (18) month period demonstrates an

understatement by Licensee of Royalty payments due Id Software for

the six (6) month period immediately preceding each such inspection

of five percent (5%) or more.  Upon the occurrence of such

terminating event, and the election of Id Software, if necessary,

to cause such termination, this Agreement and any and all rights

thereunder shall terminate without prejudice to any rights or

claims Id Software may have, and all rights hereunder shall

thereupon terminate, revert to and be vested in Id Software.

        6.      EFFECT OF TERMINATION OR EXPIRATION.  Termination or

expiration of this Agreement, either by Id Software or

automatically, shall not create any liability against Id Software.

Upon expiration or earlier termination of this Agreement, Licensee

shall have no further right to exercise the rights licensed

hereunder or otherwise acquired in relation to this Agreement.

        7.      INDEMNIFICATION.  Licensee hereby agrees to

indemnify, hold harmless and defend Id Software and Id Software's

predecessors, successors, assigns, officers, directors,

shareholders, employees, agents, representatives, licensees,

sublicensees, distributors, attorneys and accountants

(collectively, the "Id Related Parties") from and against any and

all damages, claims, losses, causes of action, liabilities,

lawsuits, judgments and expenses (including, without limitation,

reasonable attorneys' fees and expenses) arising from, relating to

or in connection with a breach of this Agreement by Licensee and

arising from, relating to or in connection with the Licensee's use

or non-use of the Authorized Copy (collectively, the "Claims").  Id

Software agrees to notify Licensee of any such Claims within a

reasonable time after Id Software learns of same.  Licensee, at its

own expense, shall defend Id Software and the Id Related Parties

from any and all Claims.  Id Software and the Id Related Parties

reserve the right to participate in any defense of the Claims with

counsel of their choice, and at their own expense.  In the event

Licensee fails to provide a defense, then Licensee shall be

responsible for paying the attorneys' fees and expenses incurred by

Id Software and the Id Related Parties regarding the defense of the

Claims.  Id Software and the Id Related Parties, as applicable,

agree to reasonably assist in the defense of the Claims.  No

settlement by Licensee of any Claims shall be valid unless Licensee

receives the prior written consent of Id Software and the Id

Related Parties, as applicable, to any such settlement.

        8.      CONFIDENTIALITY.  It is understood and agreed that

any proprietary information of Id Software that may from time to

time be made available or become known to Licensee is to be treated

as confidential, is to be used solely in connection with Licensee's

performance under this Agreement, and is to be disclosed only to

employees of Licensee who have a need for access.  Such proprietary

information shall include, but not be limited to, trade secrets,

release information, financial information, personnel information,

and the like.  Reasonable measures shall be taken by Licensee to

protect the confidentiality of Id Software's proprietary

information and any memoranda or papers containing proprietary

information of Id Software's that Licensee may receive are to be

returned to Id Software upon request.  Licensee's obligations and

duties under this paragraph shall survive expiration or earlier

termination of this Agreement.  Licensee shall obtain from its

employees an undertaking in a form which may be supplied by Id

Software, and which is subject to Id Software's prior written

approval, not to use or disclose to any third party any information

or knowledge concerning the business of Id Software which may be

communicated to such employees.

        9.      LIMITATION OF LIABILITY.  ID SOFTWARE EXPRESSLY

DISCLAIMS ALL WARRANTIES NOT PROVIDED BY ID SOFTWARE HEREUNDER.

UNDER NO CIRCUMSTANCES SHALL ID SOFTWARE BE LIABLE TO LICENSEE FOR

ACTUAL, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR

ANY OTHER DAMAGES, WHETHER OR NOT ID SOFTWARE RECEIVES NOTICE OF

ANY SUCH DAMAGES.

        10.     COMPLIANCE WITH APPLICABLE LAWS.  In performing

under this Agreement, Licensee agrees to comply with all applicable

laws, [including, without limitation, 22 U.S.C., 2778 and 22

U.S.C. C.F.R. Parts 120-130 (1995)] regulations, ordinances and

statutes, including, but not limited to, the import/export laws and

regulations of the United States and its governmental and

regulatory agencies (including, without limitation, the Bureau of

Export Administration and the U.S. Department of Commerce) and all

applicable international treaties and laws.  Further, Licensee

shall defend, indemnify and hold harmless Id Software from any and

all sales tax, tariffs and/or duties in connection with Licensee's

performance hereunder.

        11.     SPECIFIC UNDERTAKINGS BY LICENSEE.  In addition to

the obligations of Licensee otherwise set forth in this Agreement,

during the term of this Agreement, and thereafter where specified,

Licensee agrees that:

        a.      It will not attack the title of Id Software to the

Subject Game or the Trademark and any copyright, patent or

trademark or other intellectual property right related thereto and

it will not attack the validity of the license granted hereunder

during the term hereof or thereafter; and

        b.      It will promptly inform Id Software of any

unauthorized use of the Authorized Copy, the Subject Game and the

Trademark and any portions thereof and reasonably assist Id

Software in the enforcement of any rights Id Software may have

against such unauthorized users.

        12.     FINANCIAL OBLIGATIONS AND ACCOUNTING.

        a.      Payment of Royalties.  Licensee agrees to pay Id

Software a royalty ("Royalty") at the rate of twelve and one-half

percent (12.5%) of Net Income.  The term "Net Income" shall mean

all revenue received by Licensee from the commercial use of the

Authorized Copy, less only Licensee's actual, documented costs

relating directly to such use.  A Royalty shall only be due for

those months in which Licensee's gross revenue from QUAKE

distribution exceeds U.S. Five Thousand Dollars ($5,000.00) and in

such months Licensee shall pay a full Royalty on all revenue

received.

        b.      Rendition of Statements.  Licensee shall account to

Id Software with regard to transactions hereunder within forty-five

(45) days following the conclusion of each calendar quarter.

Licensee hereby represents and warrants that such statements of

account to be prepared shall be true and correct.  The accounts

shall show in summary form the appropriate calculations relating to

the computation of Royalties, if any.  The statements shall also

show the gross revenue received by Licensee per month.  The

Royalties payable to Id Software hereunder shall be remitted with

the particular statement indicating such amount to be due.  All

statements hereunder shall be deemed rendered when deposited,

postage prepaid, in the United States mail, addressed to Id

Software at Id Software's address set forth on the signature page

hereof.

        c.      Books of Account and Audits.  Licensee shall keep

books of account relating to the commercial use of the Authorized

Copy on the basis of generally accepted accounting principles and

shall maintain such books of account for a period of at least two

(2) years after the expiration or earlier termination of this

Agreement; provided, however, that Licensee shall not be required

to keep such records longer than seven (7) years from their date of

origination.  Id Software may, upon reasonable notice and at its

own expense, audit the applicable records at Licensee's office, in

order to verify statements rendered hereunder.  Any such audit

shall take place during reasonable business hours and in such

manner so as not to interfere with Licensee's normal business

activities.  Id Software agrees that such information inspected

and/or copied on behalf of Id Software hereunder shall be used only

for the purpose of determining the accuracy of the statements, and

shall be revealed only to such officers, directors, employees,

agents and/or representatives of Id Software as necessary to verify

the accuracy of the statements.  If in an audit of Licensee's books

and records it is determined that there is a short fall of ten

percent (10%) or more in Royalties reported for any calendar

quarter, in addition to payment of such short fall and interest as

may be due, as provided herein, Licensee shall reimburse Id

Software for the full out-of-pocket costs of the audit including

reasonable travel costs and expenses; provided, however, that the

amount of reimbursement paid by Licensee shall not exceed U.S.

Fifteen Thousand Dollars ($15,000.00) for any audit.

        d.      Payment of the Royalty.  Licensee assumes all risks

associated with fluctuations in foreign currency exchange rates.

Licensee shall pay and agrees to pay all sums due Id Software in

United States Dollars.  With respect to Royalties due for

commercial use outside the United States, other currencies shall be

exchanged at the expense of Licensee into United States Dollars

using the bid price quoted at the Citibank, N.A. of New York, New

York, for the purchase of United States Dollars at the close of

business on the last day of the calendar quarter during which any

amounts accrue. Payment of the Royalties shall be made in Dallas

County, Texas.

        e.      Interest.  If Id Software does not receive the

applicable Royalty payment on or before the due date of such

payment, Licensee agrees to pay and shall pay interest on Royalties

owed to Id Software from such date as specified in the following

sentence at a rate per annum equal to the Index Rate.  For purposes

of clarification, the interest will begin to accrue on the first

(1st) day following the due date of the Royalty payment, unless the

Royalty payment is paid timely.  The "Index Rate" shall be the

prime rate as published in The Wall Street Journal's "Money Rates"

table.  If multiple prime rates are quoted in the table, then the

highest prime rate will be the Index Rate.  In the event that the

prime rate is no longer published in the "Money Rates" table, then

Id Software will choose a substitute Index Rate which is based upon

comparable information.  The applicable interest rate will be

determined and take effect on the first day of each month.

        NOTHING HEREIN SHALL BE CONSTRUED AS A REQUEST OR DEMAND BY

ID SOFTWARE OF INTEREST AT A RATE HIGHER THAN ALLOWED BY APPLICABLE

LAW.  IT IS THE INTENT OF THE PARTIES HERETO THAT NO INTEREST BE

CHARGED HEREUNDER WHICH EXCEEDS THE MAXIMUM RATE ALLOWED BY

APPLICABLE LAW.  IF THE RATE REFERENCED ABOVE EXCEEDS THE MAXIMUM

RATE ALLOWED BY APPLICABLE LAW, THEN THE INTEREST RATE MADE

APPLICABLE HEREIN SHALL BE THE MAXIMUM RATE ALLOWED BY APPLICABLE

LAW.

        13.     SUBLICENSE.  Licensee shall not be entitled to

sublicense any of its rights under this Agreement.

        14.     GOODWILL.  Licensee recognizes the great value of

the goodwill associated with the Subject Game and the Trademark,

and acknowledges that such goodwill, now existing and hereafter

created, exclusively belongs to Id Software and that the Trademark

has acquired a secondary meaning in the mind of the public.

        15.     REMEDIES.  In the event of a breach of this

Agreement by Id Software, Licensee's sole remedy shall be to

terminate this Agreement.  In the event of a breach by Licensee of

this Agreement, Id Software may pursue the remedies to which it is

entitled under applicable law, including, but not limited to,

termination of this Agreement.  Licensee agrees that its failure to

comply with the terms of this Agreement upon expiration or earlier

termination hereof or Licensee's unauthorized use of the Authorized

Copy may result in immediate and irreparable damage to Id Software

for which there is no adequate remedy at law, and in the event of

such failure by Licensee, Id Software shall be entitled to

injunctive relief.  Pursuit of any remedy by Id Software shall not

constitute a waiver of any other right or remedy of Id Software

under this Agreement or under applicable law.  Termination of this

Agreement shall not be a pre-condition to Id Software pursuing its

other remedies for breach.

        16.     LICENSEE'S WARRANTIES.  Licensee warrants and

represents that it has full legal rights to enter into this

Agreement and to perform its obligations hereunder and that it will

comply, at all times during the terms of this Agreement, with all

applicable laws, as set forth hereinabove.

        17.     BANKRUPTCY.  If Licensee's liabilities exceed its

assets, or if Licensee becomes unable to pay its debts as they

become due or if Licensee files for voluntary bankruptcy, or is

placed in bankruptcy which is not dissolved or dismissed after

thirty (30) days from the petition filing date, or if Licensee

becomes insolvent, or makes an assignment for the benefit of its

creditors or an arrangement pursuant to any bankruptcy laws or if

Licensee discontinues its business or if a receiver is appointed

for its business, this Agreement shall automatically terminate,

without notice, and become null and void; provided, however, all

duties of Licensee upon termination or expiration of this Agreement

shall continue in full force and effect.

        18.     ENTIRE AGREEMENT AND ASSIGNMENT.  This Agreement

constitutes the entire understanding between Licensee and Id

Software regarding the Subject Game.  Each and every clause of this

Agreement is severable from the whole and shall survive unless the

entire Agreement is declared unenforceable.  No prior or present

agreements or representations shall be binding upon any of the

parties hereto unless incorporated in this Agreement.  No

modification or change in this Agreement shall be valid or binding

upon the parties unless in writing, executed by the parties to be

bound thereby.  This Agreement shall bind and inure to the benefit

of Id Software, its successors and assigns, and Id Software may

assign its rights hereunder, in Id Software's sole discretion.

This Agreement is personal to Licensee, and Licensee shall not

sublicense, assign, transfer, convey nor franchise its rights

granted hereunder.

        19.     CHOICE OF LAW, VENUE AND SERVICE OF PROCESS.  This

Agreement shall be construed in accordance with the laws of the

State of Texas and applicable U.S. federal law and all claims

and/or lawsuits in connection with this Agreement must be brought

in Dallas County, Texas. Licensee hereby agrees that service of

process by certified mail to the address set forth below, with

return receipt requested, shall constitute valid service of process

upon Licensee.  If for any reason Licensee has moved or cannot be

validly served, then Licensee appoints the Secretary of State of

the state of Texas to accept service of process on Licensee's

behalf.

        20.     EXCUSED PERFORMANCE.  Neither party shall be deemed

to be in default of any provision of this Agreement nor be liable

for any delay, failure in performance or interruption of service,

resulting directly or indirectly from acts of God, civil or

military authority, civil disturbance, military action, war,

strikes, other catastrophes or any other similar cause beyond its

reasonable control. Written notice to the non-affected party of any

such condition shall be given by the affected party within ten (10)

days of the event.

        21.     DELIVERY OF NOTICES, AND DELIVERY OF PAYMENTS.

Unless otherwise directed in writing by the parties, all notices

given hereunder and all payments made hereunder shall be sent to

the addresses set forth on the signature page hereof.   All

notices, requests, consents and other communications under this

Agreement shall be in writing and shall be deemed to have been

delivered on the date personally delivered or on the date deposited

in the United States Postal Service, postage prepaid, by certified

mail, return receipt requested, or telegraphed and confirmed, or

delivered by electronic facsimile and confirmed.  Any notice to Id

Software shall also be sent to its counsel: D. Wade Cloud, Jr.,

Hiersche, Martens, Hayward, Drakeley & Urbach, P.C., 15303 Dallas

Parkway, Suite 700, LB 17, Dallas, Texas  75248.

        22.     NO PARTNERSHIP, ETC.  This Agreement does not

constitute and shall not be construed as constituting a partnership

or joint venture between Id Software and Licensee.  Neither party

shall have any right to obligate or bind the other party in any

manner whatsoever, and nothing herein contained shall give, or is

intended to give, any rights of any kind to any third persons.

        23.     COUNTERPARTS.  This Agreement may be executed in

several counterparts, each of which will be deemed to be an

original, and each of which alone and all of which together, shall

constitute one and the same instrument, but in making proof of this

Agreement it shall not be necessary to produce or account for each

copy of any counterpart other than the counterpart signed by the

party against whom this Agreement is to be enforced.  This

Agreement may be transmitted by facsimile, and it is the intent of

the parties for the facsimile of any autograph printed by a

receiving facsimile machine to be an original signature and for the

facsimile and any complete photocopy of the Agreement to be deemed

an original counterpart.

        24.     MEDIATION.  If a dispute arises out of or relates to

this Agreement, or a breach of this Agreement, and if the dispute

cannot be settled through direct discussion, then the parties agree

to endeavor to settle the dispute in an amicable manner by

mediation, under the applicable provisions of Section 154.00 et

seq., Texas Civil Practices and Remedies Code, as supplemented by

the rules of the Association of Attorney Mediators.

        25.     SURVIVAL.  The following provisions shall survive

the expiration or earlier termination of this Agreement:

paragraphs 4., 7., 8., and the audit rights of Id Software in

paragraph 12.c.

        26.     MISCELLANEOUS.

        a.      All captions in this Agreement are intended solely

for the convenience of the parties, and none shall effect the

meaning or construction of any provision.

        b.      The terms and conditions of this Agreement have been

negotiated fully and freely among the parties.  Accordingly, the

preparation of this Agreement by counsel for a given party will not

be material to the construction hereof, and the terms of this

Agreement shall not be strictly construed against such party.

        By signing in the spaces provided below, the parties have

agreed to all of the terms and conditions set forth in this

Agreement.

AGREED:

LICENSEE:

Signed:_______________________________

Printed Name:_________________________

Title:________________________________

Address:______________________________

______________________________________

______________________________________

Telephone #: _________________________

Fax #:________________________________

E-Mail Address:_______________________

Date: ________________________________

AGREED:

ID SOFTWARE, INC.

Signed:_______________________________

Printed Name:_________________________

Title:________________________________

Address:______________________________

______________________________________

______________________________________

Telephone #: _________________________

Fax #:________________________________

E-Mail Address:_______________________

Date: ________________________________

June 10, 1996

COMMERCIAL EXPLOITATION LICENSE AGREEMENT FOR QUAKE

(DWC:dw:3406.0299:dwc\doc:5017)