| 0,0 → 1,487 |
|---|
| 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) |
| |
| |