Document/Exhibit Description Pages Size
1: 10-K Annual Report 75 394K
4: EX-2.10 Stock Purchase Agreement - Integra Sp Holdings 130 508K
Limited and Integra Sp Nominee Limited
2: EX-2.8 Stock Purchase Agreement - Golden Sands Investment 35 148K
Holdings, Ltd.
3: EX-2.9 Amended and Restated Stock Purchase Agreement - 59 376K
Integra Sp Holdings Limited and Integra
Sp Nominee Limited
11: EX-10.10 License Agreement - Northern Lights Software, Ltd. 24 101K
5: EX-10.4 2005 Incentive Plan 5 22K
6: EX-10.5 Employment Agreement - Michael W. Carrender 13 63K
7: EX-10.6 Employment Agreement - Carl Freer 13 64K
8: EX-10.7 Employment Agreement - Steve Carroll 10 55K
9: EX-10.8 Employment Agreement - Stefan Eriksson 13 64K
10: EX-10.9 License Agreement - Game Factory Publishing, Ltd. 36 127K
12: EX-14 Code of Business Conduct and of Ethics 5 25K
13: EX-21 List of Subsidiaries 1 7K
14: EX-31 Certification of Chief Executive and Financial 2± 11K
Officer
15: EX-32 Certification of Chief Executive and Financial 1 8K
Officer
EX-10.9 — License Agreement – Game Factory Publishing, Ltd.
Exhibit Table of Contents
Exhibit 10.9
DATED 4th August 2005
---------------------
(1) Gizmondo Europe Limited
(2) Game Factory Publishing Limited
________________________________________________________________________________
GAME CONCEPT LICENCE AGREEMENT
(WITH DEVELOPMENT SERVICES)
________________________________________________________________________________
MANCHES
Manches LLP
Aldwych House
81 Aldwych
London
WC2B 4RP
THIS AGREEMENT is made the 4th day of August 2005.
BETWEEN:
(1) GIZMONDO EUROPE LIMITED a company incorporated in England and Wales with
company registration number 04620348 and whose registered office is at 1
Meadow Gate Avenue, Farnborough Business Park, Farnborough, Hampshire,
GU14 6RG (the "Gizmondo"); and
(2) GAME FACTORY PUBLISHING LIMITED (a company registered in England and
Wales under company number 04470659), whose registered office is at 6
Albermarle Street, London W15 4HG ("Gamefactory").
RECITALS:
(A) Gizmondo is engaged in the business of, among other things, publishing,
developing, marketing, distributing and selling wireless interactive
entertainment software products.
(B) Gamefactory has produced the Concept (as defined in clause 1 below) and
the Concept Materials (as defined in clause 1 below).
(C) Gizmondo desires to obtain an exclusive licence of and the Gamefactory
desires so to grant such a licence of the Concept and Concept Materials
to Gizmondo on the terms and conditions of this Agreement.
(D) Gamefactory will provide Gizmondo with certain development services in
respect of certain of Games comprising the Concept, on the terms and
conditions set out herein.
IT IS AGREED:
1. DEFINITIONS
In this Agreement:
1.1. except where the context otherwise requires, the following
capitalised words shall have the following meanings:
2
"Agreement" means this agreement and any schedules attached to it;
"Business Day" means a day on which banks in England are generally open
for business, other than a Saturday and Sunday;
"Code" means both machine readable programming statements (commonly
referred to as object code, which can be directly executed by a computer
without translation by other computer programs) and human readable
programming statements (commonly referred to as source code, which is
computer code that is sufficient to enable a reasonably skilled person
to assess, analyse, review, complete, maintain and/or enhance the
program to which that code relates, without the help of any other person
or reference to any other program or materials), including without
limitation any and all code, other programs or materials which are
essential for enabling the use of the same on any Gizmondo Device;
"Commencement Date" means the date of this Agreement;
"Competing Game" means any Game which: (a) is the same or similar to the
Gizmondo Game Product; or (b) which uses or is related to, concerns,
embodies, derives from or is otherwise associated with the Concept, the
Concept IP and/or the Concept Materials;
"Concept" means Gamefactory's ideas (whether or not fully developed) for
a number of Games, as more particularly described and set out in
Schedule One to this Agreement;
"Concept IP" means any and all Intellectual Property Rights throughout
the Territory subsisting in the Concept and/or the Concept Materials;
"Concept Materials" means any and all Content, Documentation, Code and
other materials which use, relate to, concern, embody, derive from or
are otherwise associated with the Concept, including without limitation
all those matters set out in Schedule Two to this Agreement;
"Confidential Information" means information about Gizmondo and/or
Gizmondo's Affiliates' business or activities which it or they consider
proprietary and confidential, including without limitation, this
Agreement, the Licence of the Concept, the Concept IP, the Concept
Materials, any Gizmondo Game Product prior to its publication and issue
to the public with Gizmondo's consent, any Gizmondo Game Product Sequels
prior to their publication and issue to the public with Gizmondo's
consent, any Merchandise prior to its issue to the public with
Gizmondo's consent, any of Gizmondo's and/or Gizmondo's Affilites'
Intellectual Property Rights, and all related business, financial and
technical information, identities of customers, clients or licensees,
proprietary software code (whether object, source or otherwise) and any
other information whether oral or written which is not generally known
or available to the public;
"Content" means in whatever medium, and without limitation, any and all
artwork, drawings, sketches, text, sound, graphic and/or music files,
audio visual elements and/or displays, user interfaces, designs, brands,
trade dress, packaging, logos, trade and/or service marks, characters
and names, titles, scenes, settings and features, dialog, scripts,
themes, story and/or plot lines and any and all other data;
3
"Development Fee" means the development fee of one hundred and thirty
five thousand pounds sterling payable in accordance with Schedule Five
in respect of each Gizmondo Game Product to which the development
services in Schedule Four applies;
"Documentation" means in whatever medium, and without limitation, any
and all documentation, manuals, reports, papers, disks and other storage
devices, specifications, diagrams, tables, indices and other workings,
including without limitation any and all which relate to the Content
and/or the Code;
"End-Users" means any person or entity that purchases or licences for
its use a Gizmondo Game Product pursuant to a signed purchase order,
enduser license agreement or other similar agreement;
"Force Majeure Event" has the meaning given to it in clause 13.2; "Game"
means an entertainment and/or video game;
"Gamefactory's Associates" means, as the context shall require, any and
all directors, officers, employees, agents, servants and/or other
associates of the Gamefactory;
"Gamefactory's Software" means Gamefactory's generic modules,
algorithms, processes, methodologies, and games engines, including the
source code embodying the foregoing, that: (a) were independently
developed by or for the Developer without reference to or reliance on
any of Gizmondo's or Gizmondo's Affiliates' Intellectual Property
Rights; and (b) do not contain any of Gizmondo's or Gizmondo's
Affiliates' Intellectual Property Rights;
"Gizmondo Affiliates" means the company Gizmondo Europe Limited itself,
its Affiliates, and Gizmondo Europe Limited group (where such a term
"group" includes all worldwide holding and subsidiary companies in which
Gizmondo Europe Limited or a successor in interest (or one of its
holding or subsidiary companies) owns at least fifty percent (50%) or
more of the shares or over which Gizmondo EuropeLimited (or one of its
holding or subsidiary companies) exercises direct or indirect management
control, even though it may own less than fifty percent (50%) of the
shares and is prevented by law from owning a greater shareholding);
"Gizmondo Device" means the GIZMONDO handheld multi-entertainment gaming
device, and licensed or re-branded variants of the same, and any
adaptations, replacements or new versions thereof, and/or any of the
same manufactured or licensed for manufacture from Gizmondo or any
Gizmondo Affiliates;
"Gizmondo Game Product" means a Game created by or on behalf of Gizmondo
for use on a Gizmondo Device and which is directly developed and derived
from the Concept, the Concept Materials and the Concept IP, pursuant to
the operation of this Agreement;
"Gizmondo Game Product Sequel" means any Game created by or on behalf of
Gizmondo and which is developed and derived from the Gizmondo Game
Product and/or any Content of the Gizmondo Game product (including
without limitation any spin-off and/or tie-in).
4
"Intellectual Property Rights" means any and all rights in or to any
intellectual property rights, whether currently in existence or
otherwise and whether vested or contingent, in any and all medium
(whether in existence now or created in the future), including without
limitation copyright, rights in databases, database rights, moral and
publicity rights, design rights, registered designs, patents, trade
marks, service marks, trade names, trade dress, logos, signs, business
or trading names or other designations, domain names, confidential data
or information or trade secrets, utility models and mask works,
inventions, ideas, discoveries and know-how, and all similar and
associated rights, whether registered or which may be capable of
registration or otherwise (including without limitation any and all
applications for, rights to apply for and rights to sue for past
infringement of any of the foregoing, all whether vested now or arising
in the future), and in each case for their full term including without
limitation all extensions, reversions, revivals and renewals thereof,
throughout the world;
"Initial Term" means two years from the Commencement Date;
"Licence" means the exclusive licence and related rights to reproduce,
prepare derivative works, publicly display, publicly perform and
distribute the Game, including, without limitation, the Concept, Concept
IP, the Concept Materials and any Game name comprising any of the same,
and any improvements of any of the foregoing, in connection with the
development, manufacture, marketing, sale, lease, rental, licensing,
sublicensing, distribution, and other use or exploitation of any and all
versions of the same in such formats and/or media as are compatible with
any mobile, handheld, portable and/or wireless device or product (or any
successor or derivative product) throughout the Territory during the
term of this Agreement;
"Licence Fee" means the licence fee provisions set out in Schedule Three
to this Agreement;
"Merchandise" means any and all goods and/or services which uses or is
related to, concerns, embodies, derives from or is otherwise associated
with the Gizmondo Game Product and/or any Gizmondo Game Product Sequels
and/or any Intellectual Property Rights subsisting in either or both of
them, including without limitation: (a) stationary, books, magazines,
guides and other publications (in whatever medium), cartoons and other
animations or drawings, programmes, television or means of the
dissemination of material, films and motion pictures, video and other
recordings, audio, theatrical and/or other entertainment productions or
features; (b) toys, games, gift and novelty items, figures and figurines
and other playthings, trinkets, souvenirs, fabrics, furniture and
furnishings, clothing and apparel, headwear, footwear, jewellery and
fashion accessories, health and beauty aids, household and domestic
goods, food, drinks; and (c) goods relating to the Gizmondo Game Product
that are produced as give-away items or prizes in connection with
promotions, and in each case of (a) to (c) all their packaging, and all
goods other than those listed in (a) to (c) of a similar or dissimilar
nature;
"Net Receipts" means the gross revenue actually received in cleared
funds by Gizmondo from its exploitation (or exploitation which Gizmondo
has authorised) of the Gizmondo Game Product, to the extent only that
such a Gizmondo Game Product has been published and released to the
5
public with Gizmondo's consent, (excluding without limitation any funds
received from any exploitation of the Gizmondo Game Product by way of
Merchandise and/or any exploitation whatsoever of any Gizmondo Game
Product Sequels) after deducting: (a) the Payment; (b) any amounts
payable to any wireless network, transmission and/or communications
platform owner, provider and/or operator; (c) taxes and other
governmental charges and fees (including without limitation any
withholding tax and VAT); (d) any sums payable to any relevant third
party Gizmondo; (e) the development costs associated with the Gizmondo
Game Product; (f) the costs associated with marketing and otherwise
advertising the Gizmondo Game Product; (g) any returns and bad debts;
and (h) any other costs, fees and expenses which should reasonably be
deducted so as to derive the actual net receipts from the exploitation
of the Gizmondo Game Product, This definition shall not include any
funds derived or collected from the distribution of the Gizmondo Game
Product to End-Users by any third parties, but shall include only those
funds actually received by and cleared for use by Gizmondo from such
third parties after such third parties have retained, deducted or
otherwise withheld any mark-ups, revenue share amounts, or license or
other fees due to them pursuant to the terms of Gizmondo's agreements
with such third parties;
"Payment" means the sum of one million five hundred thousand pounds
sterling;
"Term" means that period of time from the Commencement Date until this
Agreement is terminated in accordance with clauses 11.3 or 11.5 of this
Agreement; and
"Territory" means the world.
1.2. the headings are for convenience only and shall not affect its
construction.
1.3. in the event of any inconsistency between the terms of this
Agreement and the schedules hereto, the terms of the body of
this Agreement shall take precedence.
1.4. references to any clause, sub-clause or schedules are to a
clause or subclause of, or schedule to, this Agreement and
references to the parties are to the parties of this Agreement
and shall, where relevant, be deemed to be references to or to
include, as appropriate, their respective successors, assignees
or transferees.
1.5. if any obligation, including an obligation to make payment,
falls to be performed on any day which is not a Business Day,
the obligation shall be performed on the next succeeding
Business Day.
1.6. references to any statutory provision shall be deemed to include
such provisions as amended from time to time whether before, on,
or (in the case of re-enactment or consolidation only) after the
date of this Agreement.
1.7. references to a "person" include any individual, company,
corporation, firm, partnership, association, organisation,
institution, trust or agency, whether or not having a separate
legal personality.
6
1.8. save where otherwise expressly stated, the words "company",
"subsidiary undertaking" and "holding company" have the meanings
given to them by the Companies Act 1985.
2. LICENCE OF RIGHTS
2.1. In consideration of the payment by Gizmondo to the Gamefactory
of the Payment (the sufficiency of which is hereby acknowledged
by the Gamefactory), to be paid in accordance with paragraph 6
of Schedule Three, the Gamefactory hereby grants a Licence to
Gizmondo of:
2.1.1. the Concept;
2.1.2. the Concept IP; and
2.1.3. the Concept Materials.
2.2. By virtue of the operation of clause 2.1 the Gamefactory hereby
acknowledges and agrees that:
2.2.1. all right, title and interest in and to the Concept, the
Concept IP and the Concept Materials is hereafter
licensed Gizmondo throughout the Territory on the terms
of the Licence;
2.2.2. it no any right to either itself or license others the
Concept, the Concept IP and the Concept Materials in any
manner contrary to the Licence and nothing in this
Agreement gives it any right (or any right to authorise
or procure third parties) to use, deal with and/or
exploit any of the same contrary to such a Licence or
any of Gizmondo's or Gizmondo's Affiliates' Intellectual
Property Rights. Without limitation, a breach of this
clause shall be considered to be a material breach of
this Agreement by the Gamefactory;
2.2.3. it shall execute and/or do such acts and shall cause
Gamefactory's Associates to execute and/or do such acts
as may be requested by Gizmondo to perfect and/or
evidence Gizmondo's right, title and interest as
referred to in clause 2.2.1; and
2.2.4. Gizmondo shall be free to use, deal with and exploit the
Licence in respect of the Concept, the Concept IP and
the Concept Materials as it sees fit (including without
limitation the matters set out in or envisaged by this
Agreement and the development, production, manufacture,
maintenance, localise, promotion, advertising,
marketing, publishing, sale, rental, lending,
distribution, issue to the public by whatever means
(whether in existence now or created in the future),
license and other exploitation of any Gizmondo Game
Product and/or any Gizmondo Game Product Sequel) without
reference to the Gamefactory and that nothing herein
shall or is intended to restrict any such use, dealings
or exploitation.
3. DELIVERY OF CONCEPT MATERIALS
7
3.1. On the execution of this Agreement (or to the extent not
reasonably possible, within two Business Days), Gamefactory
shall at its cost and expense deliver or cause to be delivered
to such address within the Territory as Gizmondo shall stipulate
all the Concept Materials.
4. FUTURE OPTIONS AND EXCLUSIVITY
4.1. During the Initial Term, Gamefactory shall offer Gizmondo first
refusal to obtain a licence on the same or similar terms of the
Licence over any and all Games and/or concepts for any such
Games, which Gamefactory and/or Gamefactory's Associates intend
to and/or may develop. In the event that any such Games and/or
concepts therefor are so developed, Gamefactory shall notify
Gizmondo immediately of the same (such a notice to be in such
detail as may be reasonably adequate to enable Gizmondo to
consider the same fully).
4.2. In the event that Gizmondo receives such a notice pursuant to
clause 4.1, it shall have three months from Gizmondo's receipt
of such a notice to consider the same. Should Gizmondo wish to
acquire any such Games and/or concepts therefor which are
specified in such a notice, then Gizmondo shall notify
Gamefactory within such a three month period and the parties
shall as soon as reasonably practicable enter into an agreement
in respect of the same on terms which are similar to those of
this Agreement.
4.3. Prior to notifying Gizmondo pursuant to clause 4.1 and during
Gizmondo's consideration of the subject matter of such
notification pursuant to clause 4.2, Gamefactory shall not
itself use, deal with or exploit, or disclose, notify, engage in
discussions with, enter into an agreement with or otherwise
transfer, sell, assign or licence to any third party any such
Games and/or concepts therefore, Without limitation, breach of
this clause shall be considered to be a material breach of this
Agreement by Gamefactory.
4.4. Notwithstanding clauses 4.1 to 4.3, during the Initial Term or,
should it occur, for one year from the date the Gizmondo Game
Product has been published and released to the public with
Gizmondo's consent in all its intended release territories
(whichever period is the shorter), the Gamefactory shall not
directly or indirectly market, sell or issue to the public any
Competing Game.
5. CONCEPT DEVELOPMENT
5.1. Gizmondo shall consider in good faith the Concept, the Concept
IP and the Concept Materials with a view to developing a
Gizmondo Game Product from the same (whether in whole or in
part) in its exclusive discretion and at its exclusive option,
and without (if Gizmondo so determines) any reference to or
input from whatsoever or howsoever from the Gamefactory.
5.2. Notwithstanding clauses 5.1 and 11.4, the Gamefactory
acknowledges and agrees that:
5.2.1. all right, title and interest in and to any Gizmondo
Game Product, Gizmondo Game Product Sequels and any
Merchandise shall, as between the parties, be owned by
Gizmondo
8
throughout the Territory and that as a consequence
nothing in this Agreement gives it any right (or any
right to authorise or procure third parties) to use,
deal with and/or exploit any of the same. Without
limitation, a breach of this clause shall be considered
to be a material breach of this Agreement by
Gamefactory; and
5.2.2. nothing in this clause 5 or this Agreement requires or
creates any obligation on or expectation for Gizmondo to
so create any such a Gizmondo Game Product (or any
Gizmondo Game Product Sequel or Merchandise) or to
expend any time, resources or funds in respect of the
same, or to publish and release to the public any of the
same.
5.3. Gamefactory shall provide certain development services to
Gizmondo for Gizmondo Game Products in respect of the matters
licensed to Gizmondo pursuant to clause 2.1 above, on the terms
of Schedule Four.
6. PRODUCTION, MARKETING, SALE AND PROMOTION
6.1. Gizmondo, as the licensee of the Concept, the Concept IP, the
Concept Materials on the terms of the Licence, the Gizmondo Game
Product (if any) and the Gizmondo Game Product Sequels shall
have the exclusive right, in its exclusive discretion and at its
exclusive option, and without (if Gizmondo so determines) any
reference to or input from whatsoever or howsoever from
Gamefactory, to:
6.1.1. without limitation, pursuant to Gizmondo's rights which
arise by virtue of the operation of clause 2.1, develop,
localise, produce, manufacture, maintain, promote,
advertise, market, publish, sell, rent, lend,
distribute, promote, communicate and issue to the public
by whatever means (whether in existence now or created
in the future), any Gizmondo Game Product and/or
Gizmondo Game Product Sequels; and
6.1.2. to develop, localise, produce, manufacture, maintain,
promote, advertise, market, publish, sell, rent, lend,
distribute, promote, communicate and issue to the public
by whatever means (whether in existence now or created
in the future), license and otherwise exploit any
Merchandise.
6.2. Notwithstanding clause 6.1, Gamefactory shall at its own cost
cooperate and provide Gizmondo with all reasonable prompt
assistance, on Gizmondo's request, in respect of the matters
referred to in that clause 6.1.
7. LICENCE FEE PAYMENTS
7.1. In the event that Gizmondo produces a Gizmondo Game Product
which is published and is communicated and issued to the public
with Gizmondo's consent, then, provided the Gamefactory has
complied and continues to comply in full with its obligations
under this Agreement, Gizmondo shall pay to the Gamefactory the
Licence Fee as calculated, at such times, with such statements
and maintaining such records and otherwise in accordance with
and as set out in Schedule Three.
9
7.2. Should Gizmondo decide to cease (in whole or in part) any of its
exploitation of the Concept, the Concept IP, Concept Materials,
Gizmondo Game Product, Gizmondo Game Product Sequels or
Merchandise in response to a third party claim, demand or legal
action brought, made or threatened, the subject matter of which,
if true, would constitute a breach by the Developer of any of
its warranties, representations, obligations and/or covenants
contained in this Agreement, then Gizmondo may (at its exclusive
option, without any recourse to Gamefactory), without waiving
any other legal rights and remedies which it may have, withhold
the payment to Gamefactory of any payments or other monies due
to Gamefactory (whether under this Agreement or otherwise),
pending resolution of the third party claim, demand or action.
7.3. Notwithstanding clause 7.1 Gamefactory acknowledges and agrees
that nothing in this clause 7 or this Agreement requires or
creates any obligation on or expectation for Gizmondo to so
create any such a Gizmondo Game Product (or any Gizmondo Game
Product Sequel or Merchandise) or to expend any time, resources
or funds in respect of the same, or to publish and release to
(or, once started, to continue to publish and release to) the
public any of the same, and that as a result no Licence Fee
whatsoever may be payable (and once commenced the Licence Fee
may cease to be payable) to Gamefactory by Gizmondo.
8. CONFIDENTIALITY
8.1. Gamefactory shall maintain the confidential status for such
Confidential Information, not use any such Confidential
Information for any purpose other than the purpose for which it
was originally disclosed to it and as specifically set out in
writing to it by Gizmondo on each occasion, and shall not to
disclose any of such Confidential Information to any third
party.
8.2. Notwithstanding the generality of clause 8.1, Gamefactory shall
not make any public statement or press release concerning any of
the Confidential Information, including without limitation the
negotiation or conclusion or terms of this Agreement, the
Licence of the the Concept, the Concept IP, the Concept
Materials, any Gizmondo Game Product, any Gizmondo Game Product
Sequels or any Merchandise.
8.3. Gamefactory acknowledges and agrees that, in the event of a
breach or threatened breach of this clause 8, Gizmondo (or any
Gizmondo Affiliate) may have no adequate remedy in money or
damages and, accordingly, shall be entitled to seek preliminary,
permanent and other injunctive relief.
9. WARRANTIES AND INDEMNITIES
9.1. Each party represents and warrants to the other party that:
9.1.1. it has full power and authority to enter into this
Agreement and to perform its obligations under this
Agreement;
9.1.2. it will comply in al material respects with all
applicable laws, statues and regulations in performing
its obligations under this Agreement; and
10
9.1.3. this Agreement constitutes a valid and binding agreement
enforceable in accordance with its terms.
9.2. Gamefactory hereby further represents and warrants to Gizmondo
that (Gamefactory acknowledging and agreeing that these
representations are a material inducement for Gizmondo to enter
into this Agreement):
9.2.1. it has the exclusive right, title and interest to enable
the licence to Gizmondo of all those rights, materials
and other matters set out in and in accordance with
clause 2.1 and that there is no legal obstacle to the
transfer, sale and assignment of such rights, materials
and other matters. Without limitation, a breach of this
clause shall be considered to be a material breach of
this Agreement by the Gamefactory;
9.2.2. there is no outstanding claim, or knowledge of a
potential claim, against any right, title or interest of
any kind whatsoever in and to the Concept, Concept IP or
Concept Materials. Without limitation, a breach of this
clause shall be considered to be a material breach of
this Agreement by the Gamefactory;
9.2.3. to the fullest extent permissible by applicable laws, it
hereby provides a full waiver of any and all moral
rights (or similar rights) in the Concept, Concept IP or
Concept Materials throughout the Territory;
9.2.4. to the fullest extent permissible by applicable laws, it
has obtained a full waiver of any and all moral rights
(or similar rights) throughout the Territory from all
those involved in the Concept, Concept IP or Concept
Materials (including without limitation the
Gamefactory's Associates);
9.2.5. it has not transferred, sold, assigned, licensed,
rented, lent, used as any security or otherwise
encumbered or otherwise impaired any right, title or
interest in or to the Concept, Concept IP or Concept
Materials in a manner that conflicts with the operation
of this Agreement (including without limitation the
operation of clause Z.1). Without limitation, a breach
of this clause shall be considered to be a material
breach of this Agreement by the Gamefactory;
9.2.6. subject to the operation of the provisions of clause
12.1, it will not hereafter attempt or purport to use,
deal with, exploit, transfer, sell, assign, license,
rent, lend, use as any security or encumber or otherwise
impair any right, title or interest in or to the
Concept, Concept IP or Concept Materials in a manner
that conflicts with the operation of this Agreement
(including without limitation the operation of clause
2.1);
9.2.7. save to the extent permitted by applicable law or
expressly permitted by Gizmondo or a Gizmondo Affiliate
(as appropriate), it will not hereafter attempt or
purport to use, deal with, exploit, transfer, sell,
assign, license, rent, lend, use as any security or
otherwise encumber or otherwise impair any right, title
or interest in or to any Gizmondo Game Product, any
Gizmondo Game Product Sequels, any Merchandise, any of
11
Gizmondo's and/or Gizmondo's Affilites' Intellectual
Property Rights;
9.2.8. the Concept, Concept IP or Concept Materials:
a) are original and do not and will not infringe or
misappropriate the Intellectual Property Rights or other
legal rights of any third parties anywhere in the
Territory. Without limitation, a breach of this clause
shall be considered to be a material breach of this
Agreement by Gamefactory; and
b) do not contain anything which is obscene, blasphemous,
defamatory and/or likely (by reason of their content) to
expose Gizmondo and/or any of Gizmondo's Affiliates to
any civil or criminal proceedings anywhere in the
Territory. Without limitation, a breach of this clause
shall be considered to be a material breach of this
Agreement by Gamefactory;
9.2.9. all Code forming part of the Concept Materials are free
from material programming bugs and/or defects. Gizmondo
is in breach or default of any term, representation,
warranty, covenant or obligation set out in this
Agreement; and
9.2.10. the Concept, the Concept IP and Concept Material are,
other than to the extent expressly set out in writing to
Gizmondo prior to the Commencement Date, accurate and
complete, and have been prepared using all the
reasonable skill and care expected at a level
commensurate with best industry practice and comply with
all applicable laws in the Territory.
9.3. Gamefactory hereby agrees to indemnify, defend and hold harmless
Gizmondo on demand from and against any and all suits, losses,
liabilities, damages, awards, claims, settlements, costs and
expenses, including reasonable legal fees, costs and other
expenses, arising out of or otherwise relating to a breach by
Gamefactory of its warranties, representations, obligations
and/or covenants contained in this Agreement. Such an indemnity
shall extend to Gizmondo's Affiliates.
9.4. Gizmondo's overall liability under or pursuant to this Agreement
and the matters envisaged by this Agreement, howsoever arising,
shall not exceed the sum of (pound)5,000 (five thousand pounds
sterling).
10. INFRINGEMENT
10.1. In the event that Gamefactory learns of any claim (whether
actual or threatened) alleging that the Concept, Concept IP,
Concept Materials, any Gizmondo Device, any Game produced for
any Gizmondo Device, any Gizmondo Game Product, any Gizmondo
Game Product Sequels, any Merchandise, any of Gizmondo's and/or
Gizmondo's Affilites' Intellectual Property Rights infringes or
misappropriates any third party's Intellectual Property Rights
or other rights, or that any of the same are being infringed or
misappropriated by any third party, then Gamefactory shall
promptly notify Gizmondo. Gamefactory shall not make any
admissions or other statement concerning any of the same without
Gizmondo's specific written consent.
12
10.2. Gizmondo shall have the exclusive right, in its exclusive
discretion and at its exclusive option, and without (if Gizmondo
so determines) any reference to or input from whatsoever or
howsoever from Gamefactory, to commence and/or defend a legal
action or negotiate a settlement relating to any alleged
infringement by the Concept, Concept IP, Concept Materials, any
Gizmondo Device, any Game produced for any Gizmondo Device, any
Gizmondo Game Product, any Gizmondo Game Product Sequels, any
Merchandise, any of Gizmondo's and/or Gizmondo's Affilites'
Intellectual Property Rights.
10.3. Notwithstanding clause 10.3, at its own cost Gamefactory shall
give Gizmondo assistance and cooperation in any such legal
action referred to in clause 10.2 where such an action concerns
(in whole or in part) the Concept, Concept IP, Concept
Materials, any Gizmondo Game Product, any Gizmondo Game Product
Sequels or any Merchandise, including without limitation, such
assistance and cooperation extends to providing and/or executing
necessary documents and evidence to enable Gizmondo, in its own
name and/or on behalf of Gamefactory or jointly, to bring or
defend the legal action. Gizmondo shall be entitled to retain
any recovery or damages collected as a result of such legal
action or negotiated settlement. No settlement by Gizmondo shall
impose a monetary liability on the Gamefactory without
Gamefactory's consent to such a settlement.
11. TERM AND TERMINATION
11.1. This Agreement shall continue for the Term.
11.2. Gizmondo may terminate this Agreement (in whole or in part)
immediately on written notice to Gamefactory, in which case the
terms of clause 12.12 shall apply, in the event that:
11.2.1. Gamefactory is in breach or default of any term,
representation, warranty, covenant or obligation set out
in this Agreement and such breach or default continues
uncured (in the event that they can be cured) for a
period of fourteen calendar days following the receipt
by Gamefactory from Gizmondo of a written notice
thereof;
11.2.2. Gamefactory is in breach or default of any material
term, representation, warranty, covenant or obligation
set out in this Agreement; or
11.2.3. Gamefactory becomes insolvent (or in the case of an
individual or any one of them), files or has filed
against it a petition under any bankruptcy law (which,
if involuntary, is unresolved after sixty calendar
days), proposes any dissolution, liquidation,
composition, financial reorganization, or
recapitalization with creditors, makes an assignment or
trust mortgage for the benefit of the creditors, or a
receiver trustee, custodian, or similar agent is
appointed or takes possession with respect to any
property or business of such party.
12. CONSEQUENCES OF TERMINATION
12.1. In the event of a notice coming within the terms of clause 11.2,
then Gizmondo shall notify the Gamefactory which clauses (if
any) of this
13
Agreement continue to apply or whether the Agreement as a whole
shall be terminated. Without limiting the foregoing, Gizmondo
may demand (at its option) the immediate return by the Gizmondo
of any and all Confidential Information.
13. GENERAL PROVISIONS
13.1. Assignment. Gamefactory may not assign this Agreement or any
portion thereof, to any third party unless Gizmondo expressly
consents to such assignment in writing.
13.2. Force Majeure. Neither party will be responsible for any failure
to perform its respective obligations under this Agreement due
to causes beyond its reasonable control (each a "Force Majeure
Event"), including, but not limited to, strikes, riots,
embargoes, war, acts of terrorism, acts of civil or military
authorities, fire, floods, explosion, earthquakes, accidents,
network catastrophes, acts of God, and ail other delays beyond
the party's reasonable control, provided that such party gives
prompt written notice of such Force Majeure Event to the other
party within five Business Days. The time for performance will
be extended for a period equal to the duration of the Force
Majeure Event, but in no case longer than thirty calendar days.
13.3. Severability, In the event that any provision in this Agreement
will he subject to an interpretation under which it would be
void or unenforceable, such provisions will be construed so as
to constitute it a valid and enforceable provision to the
fullest extent possible, and in the event that it cannot be so
construed, it will, to that extent, be deemed deleted and
separable from the other provisions of this Agreement, which
will remain in full force and effect and will be construed to
effectuate its purposes to the maximum legal extent.
13.4. Notice. Any notice herein required or permitted to be given will
be given in writing and may be delivered personally to any
officer of Gizmondo or Gamefactory, or as appropriate, by
express courier, registered or certified mail (postage and fees
prepaid, with return receipt requested), or by facsimile
transmission to the address set forth below. Either party may
from time to time specify or change the address for such notice
by giving written notice thereof to the other party in the
manner provided in this clause 13.4. A notice will be deemed
given three calendar days after deposit if by express courier,
five calendar days after deposit if by regular mail, or upon
transmission if by facsimile.
If to Gizmondo: to the address set out at the beginning of this
Agreement, addressed to the Managing Director with a copy to the
Company Secretary; and
If to the Gamefactory: to the address set out at the beginning
of this Agreement, addressed to the Managing Director with a
copy to the Company Secretary.
13.5. Independent Contractors. The parties hereto are independent
contractors. Gamefactory will not be entitled to any
compensation except as provided in the Agreement. Each party
shall be responsible for payment of its employees' compensation,
disability benefits, unemployment insurance, and for withholding
income taxes and social security. Neither party shall
14
be entitled to receive any benefits provided by the other party
to such party's employees. Neither Gizmondo nor Gamefactory
shall be deemed to be partners or agents of the other. In
addition to the parties' other indemnification obligations set
forth herein, each party agrees to indemnify and hold the other
and its directors, officers and employees harmless from and
against any claims, liabilities or obligations asserted against
any of them for not withholding taxes or making unemployment and
worker compensation payments and the like, as a result of such
party's independent contractor status. Such indemnification
shall include any penalties and interest assessed thereon as
well as the payment of reasonable legal fees, costs and other
expenses.
13.6. Governing Law and Venue. This Agreement shall be construed and
controlled by English law and the parties shall be subject to
the nonexclusive jurisdiction of the English Courts. In any
action or suit to enforce any right or remedy under this
Agreement or to interpret any provision of this Agreement, the
prevailing party shall be entitled to recover its reasonable
legal fees and expenses fees, costs and other expenses
13.7. Counterparts. This Agreement may be executed in counterparts,
each of which will be deemed an original Agreement for all
purposes and which collectively will constitute one and the same
Agreement.
13.8. Remedies. Unless expressly set forth to the contrary, either
party's election of any remedies provided for in this Agreement
will not be exclusive of any other remedies available hereunder
or otherwise at law or in equity.
13.9. Complete Agreement, Waiver, and Modification. This Agreement and
the Schedules attached hereto constitute the complete and
exclusive understanding between the parties with respect to the
subject matter hereof, superseding all prior negotiations,
preliminary agreements, correspondence, proposals or
understandings, both written or oral. No waiver or modification
of any provision of this Agreement will be binding unless it is
in writing and signed by authorised representatives of each of
the parties, No waiver of a breach hereof will be deemed to
constitute a waiver of a further breach, whether of a similar or
dissimilar nature.
13.10. Survival of terms on termination. In addition to those rights
specified elsewhere in this Agreement, the following rights and
obligations survive any expiration or termination of this
Agreement to the degree necessary to permit their complete
fulfilment or discharge:
13.10.1.the rights and obligations of the parties with respect
to any Gizmondo Game Product units that have been sold,
once the Gizmondo Game Product has been released and
issued to the public with Gizmondo's consent; and
13.10.2.any cause of action or claim of either party, accrued
or to accrue, because of any breach or default by the
other party.
13.11. Rights of third parties. This Agreement is not intended by the
parties to give rise to any right which is enforceable by virtue
of the Contracts (Rights of Third Parties) Act 1999, save to the
extent that such third parties are Gizmondo's Affiliates.
15
SCHEDULE ONE - CONCEPT
1. Anastasia
2. Cheerio's
3. Dominion Wars
4. The Silver Surfer
5. TinTin
6. DS9: The Fallen
7, M&M's
8. Miss Spider
9. New Millennium Encyclopaedia
10. Outlaw Golf
11. Outlaw Volleyball
12. Real War
13. Shattered Light
].4. Starship: BORG
15. Starship Creator
16. Starship Titanic
17. Typing Tutor
18. Weather Control
19. Wing Commander
17
SCHEDULE TWO -- CONCEPT MATERIALS
Any and all materials as may be reasonably requested by Gizmondo from
Gamefactory in respect of the rights granted to Gizmondo hereunder, including
without limitation:
1. all marketing and promotional materials for or in respect of the
Concept;
2. all original and other Content in respect of the Concept; and
3. all printed and other materials in respect of the Concept.
18
SCHEDULE THREE - LICENCE FEE PAYMENTS
4. Licence Fee currency
o L (Pounds sterling)
5. Licence Fee amount and calculation
o 25% of Net Receipts, which excludes always any and all
Commercial Setting Receipts
o The licence Fee shall be calculated within forty five (45)
calendar days after the end of each fiscal quarter after the
commercial launch of the Game by Gizmondo and shall notify
Developer of that amount, taking into account retentions and
adjustments calculated in accordance with paragraph 2.3 below.
o For the purposes of this paragraph, "Net Receipts" means:
the gross revenue actually received in cleared funds by Gizmondo
with respect to units of Gizmondo Game Product Sold by Gizmondo
(or any of its Affiliates) and/or sublicenses of the Licence and
related rights granted to it pursuant to this Agreement, save
for (without limitation) any of the same derived from Bundling
and/or Merchandise, after deducting:
a) the Payment;
b) any amounts payable to any wireless network, transmission
and/or communications platform owner, provider and/or
operator;
c) taxes and other governmental charges and fees (including
without limitation any withholding tax and VAT);
d) any sums payable to any relevant third-party licensor;
e) any costs associated with any development, manufacturing,
distribution, advertising, marketing and other costs
deriving from bringing any relevant product to market
(including without limitation costs of goods, which is
commonly referred to as COGS);
f) any returns and bad debts ; and
g) any other costs, fees and expenses which should reasonably
be deducted so as to derive Gizmondo's actual Net Receipts
from exercise of the Licence and related rights granted to
it hereunder; and
where this definition shall not include any funds derived or
collected from the distribution of any units of any version of
the Gizmondo Game Product to End-Users by any third parties, but
shall include only those funds actually received by and cleared
for use by Gizmondo from such third parties after such third
parties have retained, deducted or otherwise withheld any
mark-ups, revenue share amounts, or license or other fees due to
them pursuant to the terms of Gizmondo's agreements or
arrangements with such third parties.
19
o For the purposes of this paragraph, "Sold" means only those
units of the Gizmondo Game Product (whether physical or
electronic copies) sold and in respect of which revenue is
actually received in cleared funds by Gizmondo, and then only to
the extent that such a unit of the Gizmondo Game Product has
been published and released to the public with Gizmondo's
consent, after deducting: (a) the Payment; and (b) any returns
and bad debts. This definition shall not include either any
units provided to third parties or End-Users free of charge,
whether for reference, promotional purposes or as give-aways or
otherwise, or any units distributed by third-party licensees or
sublicensees to third parties or End-Users to the extent that
Gizmondo does not receive cleared funds.
o For the purposes of this Schedule, "End-Users" means any person
or entity that purchases or licences for its use a unit of the
Gizmondo Game Product pursuant to a signed purchase order,
end-user license agreement or other similar agreement.
o For the purposes of this paragraph, "Bundling" means any
arrangement whereby consumers are presented with an incentive to
purchase a unit of the Gizmondo Game Product in connection with
some other Gizmondo product or service. Such an expression shall
expressly include both hard bundling arrangements (namely the
packaging of a unit of the Gizmondo Game Product for sale as an
integrated unit with another Gizmondo product) and soft bundling
arrangements (namely a means by which consumers obtain a unit of
the Gizmondo Game Product at a reduced price, or without cost,
in connection with the purchase of another Gizmondo product or
service).
o For the purposes of this paragraph, "Commercial Setting
Receipts" means any and all revenue actually received by
Gizmondo from its exploitation (or exploitation which Gizmondo
has authorised) of the Licence and related rights granted to it
pursuant to this Agreement, through:
o devices in coin-activated commercial settings; and/or
o devices in non-coin-activated commercial settings, including
without limitation commercial airlines, cruise ships,
trains, buses and coaches, trains, hotels and other leisure
facilities, whereby consumers are charged on a per use or
other basis; and/or
o any rental and/or lending and/or similar programme or
arrangement operated by or on behalf of Gizmondo or any
Gizmondo Affiliate or any third party.
6. Retentions of licence fees and adjustments
o Gizmondo may maintain and withhold from each licence fee payment
a reasonable amount of licence fees accrued, as a reserve
against bad debt and returns (such reasonable amount not to
exceed 20% in each relevant fiscal quarter).
o Gizmondo will subsequently make adjustments in subsequent fiscal
quarter licence fee calculations based on the number of units
actually returned or for which there are bad debts, provided
that any unused
20
reserve shall be released within the second fiscal quarter
following that in which it was first established.
o The parties recognise that payments to Gamefactory by Gizmondo
under this Agreement may be subject to taxes imposed by
governments having taxing authority over this Agreement or any
payments to be made pursuant to this Agreement. To the extent
necessary Gizmondo may withhold, deduct or reduce any licence
fees or any other payments under this Agreement in respect of
the same and to the extent that is reasonable will provide
Gamefactory with copies of any relevant tax document evidencing
the same.
7. Time for payment of licence fees and adjustments
o Gizmondo shall pay to Gamefactory the amount calculated pursuant
to paragraphs 2.2 and 2.3 above, within fourteen Business Days
of its receipt from Gamefactory of an appropriate VAT invoice.
8. Licence Fee statements
o Together with each payment of a licence fee pursuant to
paragraph 2.4 above, Gizmondo shall provide Gamefactory with a
summary statement for the relevant period indicating to what the
relevant payment relates and how the relevant licence fee amount
was calculated.
9. Bank account details
o Those bank account details of Gamefactory as Gamefactory shall
notify to Gizmondo from time to time.
21
SCHEDULE FOUR - DEVELOPMENT SERVICES
1. DEVELOPMENT LICENCE
1.1. In consideration of Gamefactory complying with its obligations
set out in this Agreement, Gizmondo hereby grants the Gamefactory
a terminable, personal, non-transferable, non-assignable,
non-exclusive, royalty free, limited licence (without the right
to sub-license and/or sub-contract) to use the rights licensed to
Gizmondo by virtue of clause 2.1 of this Agreement and such other
Intellectual Property Rights as may be agreed with Gizmondo from
time to time ("Underlying Game Rights"):
1.1.1. in the Territory, only at Gamefactory's location (as
such as location is agreed from time to time with
Gizmondo) ("Gamefactory's Location");
1.1.2. only for the purpose of the Gamefactory's provision of,
and only whilst the Gamefactory is providing, its
services to Gizmondo as set out in paragraph 3 of this
Schedule Four, to bring about the design, development
and programming of the applicable Gizmondo Game Product
for the Concepts:
a) Anastasia
b) Silver Surfer
c) Tin Tin
d) Cheerios
e) Dominion Wars
f) D59: The fallen
g) M&Ms
h) Outlaw Golf
i) Real War
j) Weather Control; and
1.1.3. which does not include any right for the Gamefactory
either itself or through others to design, develop,
program, publish or distribute any product developed in
whole or in part on, using or concerning any such rights
(or any part thereof),
where such a limited licence is subject always to Gizmondo's own
licensors' restrictions (as may be communicated to Gamefactory
from time to time) and the right for Gizmondo to terminate such a
licence immediately on written notice to the Gamefactory (in
which case, notwithstanding any other provisions of this
Agreement, the relevant rights licensed to Gamefactory under this
paragraph and all copies thereof must be returned to Gizmondo
immediately and Gamefactory's limited licence thereof shall cease
immediately also).
1.2. In consideration of the payment by Gizmondo to Gamefactory of the
Development Fee (the sufficiency of which is hereby acknowledged
by the Gamefactory), to be paid in accordance with Schedule Six,
Gamefactory hereby transfers, sells and assigns to Gizmondo
absolutely with full title guarantee throughout the Territory
(where, to the extent necessary, this shall operate as a current
assignment of future rights):
1.2.1. any and all Code in the Gizmondo Game Product; and
22
1.2.2. any and all Intellectual Property Rights in the Gizmondo
Game Product,
which may arise pursuant to Gamefactory's provision of services
under this Schedule (or have arisen in contemplation of the
matters set out in this Schedule) save for any of Gamefactory's
Software (which shall be subject to the licence provisions in
paragraph 5.5 below).
1.3. Without limitation (and without prejudice to any of the
Gamefactory's obligations under this Agreement), by virtue of
such the matters set out in paragraph 1.2, Gizmondo (whether
itself, through Gizmondo's Affiliates or through any
sub-developers or sub-contractors) to, anywhere in and
throughout the world (and in whatever languages), without any
reference to the Gamefactory:
1.3.1. make such changes, adaptations and/or adjustments as
Gizmondo may consider necessary or desirable to render
the Gizmondo Game Product fully operable on or with the
Gizmondo Device and/or attractive to End-Users
(including without limitation whether such changes are
necessary or desirable to accommodate the capabilities
and requirements of the Device, any software therein or
therefore, or any relevant telecommunication
transmission networks on which or with which the Device
may be used or associated);
1.3.2. produce, localise, copy, manufacture, package, maintain,
promote, advertise, market, publish, sell, rent, lend,
distribute, issue or communicate to the public, all by
whatever means (whether in existence now or created in
the future), license (whether by way or sub-licensing,
sub-contracting or otherwise) and otherwise exploit the
Gizmondo Game Product for use on or with the Gizmondo
Device (including without limitation producing and/or
copying gold discs/gold masters of the applicable
Gizmondo Game Product); and
1.3.3. produce, localise, copy, manufacture, package, maintain,
promote, advertise, market, publish, sell, rent, lend,
distribute, issue to the public, all by whatever means
(whether in existence now or created in the future),
license (whether by way or sublicensing, sub-contracting
or otherwise) and otherwise exploit Merchandise.
1.4. Gamefactory agrees that all developers engaged by the
Gamefactory to develop any Gizmondo Game Product pursuant to the
operation of this Agreement shall be employees of the
Gamefactory, who must sign an 'Employee Agreement' substantially
in the form set out in Schedule Six, in each case prior to their
so working on the Gizmondo Game Product. All such `Employee
Agreements' shall be provided to Gizmondo on demand.
1.5. Notwithstanding all of the foregoing or anything else in this
Agreement, Gamefactory acknowledges and agrees that nothing
herein requires or creates any obligation on or expectation for
Gizmondo to exploit any rights provided it hereunder by
Gamefactory, to exploit any Gizmondo Game Product, or to expend
any time, resources or funds in respect of any of the same, or
to publish and release to the public any units of the Gizmondo
Game Product (or, once started, to continue to do any of the
same).
23
2. GAME DEVELOPMENT
2.1. Gamefactory shall design, develop and program the Gizmondo Game
Products referred to in paragraph 1.1.2 above in accordance with
the game design/technical requirement document as the parties
shall agree (the parties acting reasonably) ("Game
Design/Technical Requirement Document"), based on and using the
Underlying Game Rights, at Gamefactory's Location, for the Game
to be solely compatible with and playable on the Gizmondo Device
(including without limitation the version thereof as at the
Commencement Date as well as the forthcoming socalled widescreen
version thereof, in each case ensuring backwards compatibility),
including, but without limitation, making revisions requested by
Gizmondo throughout such a design, development and programming
process, all in accordance with the delivery dates set out in
Schedule Five, The parties hereby agree that the Gamefactory
shall be solely responsible for the purchase of any and all
development equipment and/or tools necessary to so develop the
applicable Gizmondo Game Products, save for the matters set out
in paragraph 3 below. Gamefactory shall also be responsible for
providing all labour necessary to so develop the same.
2.2. Gamefactory shall use the full-time efforts of all developers
engaged by the Gamefactory to develop the Game, and Gamefactory
may only so use such developers who have signed 'Employee
Agreement' pursuant to the operation of paragraph 1.4 above.
Such developersmay only be changed or substituted with
Gizmondo's prior written consent. Gamefactory represents and
warrants to Gizmondo that all such developers are employees of
the Gamefactory and that each of them has so signed an 'Employee
Agreement' Gamefactory may not use freelance developers,
consultants or any third party contractors to so develop the
Game without Gizmondo's prior written consent. Should Gizmondo
so consent, such consent shall be subject to any such use
freelance developers, consultants or any third party contractors
signing an agreement acceptable to Gizmondo which, without
limitation, will provide for all intellectual Property Rights
arising from their relevant work to be owned by the Gamefactory
(whereby it will be subject to the operation of paragraph 1.4
above), as well as imposing restrictions on them regarding the
use and disclosure of Gizmondo's Confidential Information.
2.3. Gamefactory shall keep Gizmondo fully and effectively informed
and advised of the development of the applicable Gizmondo Game
Products, including, without limitation:
2.3.1. providing to Gizmondo such matters and materials as are
required pursuant to the operation of Schedule Six, in
accordance with their relevant delivery dates;
2.3.2. providing Gizmondo with such copies of the applicable
Gizmondo Game Products at their relevant stage of
development, on a medium acceptable to Gizmondo, as may
be requested by Gizmondo;
2.3.3. informing Gizmondo of any developments or issues that
arise that may impact (a) Gamefactory's ability to
comply with any term of this Agreement or (b)
Gamefactory's ability to comply with the delivery of any
matters or materials or meet any requirement as set out
in Schedule Six, in accordance with their
24
relevant Delivery Dates or (c) the Gamefactory's ability
to comply with any of Gizmondo's requests hereunder.
2.4. Gizmondo shall have the right, at any time during the
development of the applicable Gizmondo Game Products, to visit
the Gamefactory's premises (including without limitation
Gamefactory's Location) for the purpose of inspecting and
evaluating the progress and quality of the applicable Gizmondo
Game Products, provided that Gamefactory is given at least one
Business Day's notice, and such a visit occurs during a Business
Day.
2.5. On or before each Delivery Date or within two Business Days of
Gizmondo's request (as applicable), the Gamefactory shall
deliver to the Gizmondo for Gizmondo's approval:
2.5.1. such matters and materials as are required pursuant to
the operation of Schedule Six or a Gizmondo request
pursuant to the operation of clause 2.3.2 above; and
2.5.2. a detailed projected development schedule for the
applicable Gizmondo Game Products for the entire period
following that relevant Delivery Date or Gizmondo
request pursuant to the operation of clause 2.3.2 above;
and
2.5.3. such other details and documentation as may be
reasonably requested by Gizmondo.
2.6. Following Gamefactory's compliance with paragraph 2.5, Gizmondo
will evaluate the relevant matters and materials within thirty
days from receipt of all such matters and materials, to
determine whether Gizmondo wishes to continue with the
development of the applicable Gizmondo Game Products or, at
Gizmondo's sole discretion, terminate this Agreement.
Notwithstanding any such termination (or anything else set out
in this Agreement):
2.6.1. all the matters and materials developed up until such
date of termination shall be subject to paragraph 1.2;
and
2.6.2. Gizmondo shall have the right (at its exclusive option)
to develop or have developed the applicable Gizmondo
Game Products, without further obligation to the
Gamefactory.
2.7. Upon Gamefactory's completion of the applicable Gizmondo Game
Products, Gamefactory shall submit to the Gizmondo by the final
Delivery Date final versions of the applicable Gizmondo Game
Products, in triplicate, on a medium acceptable to Gizmondo, for
Gizmondo's evaluation. Gamefactory shall promptly make such
revisions as requested by Gizmondo, whereby the Gamefactory
shall submit to the Gizmondo new versions of the applicable
Gizmondo Game Products, in triplicate, on a medium acceptable to
Gizmondo, for Gizmondo's evaluation, whereby this process will
continue until either Gizmondo approves the applicable Gizmondo
Game Products or Gizmondo rejects the applicable Gizmondo Game
Products as not being in compliance with this Agreement (in
which case the Gamefactory shall be deemed to be in breach of
this Agreement) Gizmondo will notify the Gamefactory in writing
when Gizmondo has so approved the applicable Gizmondo Came
Products (whereby such approval in no way reduces or obviates
any of Gamefactory's obligations under this Agreement).
25
2.8. Notwithstanding any of the foregoing or anything else in this
Agreement, the Gamefactory acknowledges that:
2.8.1. Gizmonodo has high standards of quality for games to be
played on the Gizmondo Device and that Gamefactory may
be required to submit revisions to the applicable
Gizmondo Game Products at Gizmondo`s sole discretion;
and
2.8.2. notwithstanding Gamefactory's requirement to comply with
the Game Design/Technical Requirement Document,
Gamefactory shall comply with Gizmondo's then current
standards and guidelines for game content, quality and
branding in developing (including, without limitation,
Gizmondo's game certification requirements for the
Gizmondo Device).
2.9. Notwithstanding any of the foregoing or anything else in this
Agreement, Gamefactory acknowledges and agrees that it must
deliver to the Gizmondo, on a medium acceptable to Gizmondo, a
final version of the applicable Gizmondo Game Products which
complied with (as a minimum, the Game Design/Technical
Requirement Document) that is fully developed, bug-tested and
ready for manufacturing by no later than 12 months from the
Commencement Date. Concurrently therewith, Gamefactory shall
deliver also to the Gizmondo a complete set of all materials
which embody and represent the Intellectual Property Rights and
Code in respect of the same, in a form acceptable to Gizmondo.
2.10. As requested by Gizmondo from time to time and in a format
requested by Gizmondo, Gamefactory shall provide to Gizmondo a
complete set of back-up tapes or disks for the applicable
Gizmondo Game Products during their development hereunder.
Notwithstanding the foregoing, Gamefactory shall implement and
maintain its own reliable and effective procedures for:
2.10.1. the reconstruction of lost or altered data or programs;
and
2.10.2. the back-up of data and programs on a frequent and
regular basis.
2.11. At Gizmondo's request (and at no additional cost to Gizmondo,
save for the Development Fee), Gamefactory shall:
2.11.1. convert the format of the applicable Gizmondo Game
Products for the purposes of compatibility with all
versions and variations of the Gizmondo Device;
2.11.2. convert any text displayed in the applicable Gizmondo
Game Products from one language into different languages
(provided that Gizmondo shall be responsible for
delivering to the Gamefactory the text for such
different languages); and
2.11.3. make such other version specific changes in the
applicable Gizmondo Game Products, including, but not
limited to audio changes, as my be requested by
Gizmondo, for the purpose of making the applicable
Gizmondo Game Products culturally and/or linguistically
acceptable in different countries.
26
2.12. When any applicable Gizmondo Game Products conversion referred
to under paragraph 2.11 above has been completed (where it shall
be so completed by Gamefactory promptly, but in any event within
20 Business Days from Gizmondo's written request for such
conversion), Gamefactory shall deliver to Gizmondo a final
version of such converted applicable Gizmondo Game Products, on
the medium as requested by Gizmondo, for Gizmondo's evaluation.
Gizmondo shall notify Gamefactory of any revisions which may be
required to any of such delivered converted applicable Gizmondo
Game Products.
2.13. Throughout Gamefactory's design, development and programming of
the Game pursuant to this paragraph 3, Gamefactory shall effect
and maintain adequate security measures to safeguard the product
of its work from unauthorised access, use or copying or
disclosure to third parties.
2,14. Gamefactory shall keep accurate and up-to-date written records
on Gamefactory's compliance with the matters set out in this
paragraph 2 as Gizmondo may from time to time reasonably require
or, in default of any specific requirement by Gizmondo, then in
accordance with good data development and data processing
practice and shall allow Gizmondo on request to inspect and take
copies of such records from time to time, pursuant to the
operation of paragraph 2.4 above.
2.15. Notwithstanding the provisions of paragraph 1,1 (and Gizmondo's
right to termination the limited licence thereunder in
accordance with its terms), following Gamefactory's completion
of the final version of the applicable Gizmondo Game Products as
referred to in and following its delivery to Gizmondo in
accordance with paragraph 2.9, and notwithstanding any other
provisions of this Agreement, the Underlying Game Rights and all
copies thereof Must be returned to Gizmondo immediately and
Gamefactory's limited licence thereof shall cease immediately
also.
3. GIZMONDO DEVELOPMENT TOOLS
3.1. Gamefactory acknowledges that its receipt, use and return of
Gizmondo's software and other development tools required to
enable a reasonably skilled programmer to develop an
entertainment game for use on the Gizmondo Device ("Gizmondo
Development Tools") shall be subject to the terms of Gizmondo's
'Standard Development Kit Licence Agreement'. Gamefactory must
enter into such an agreement with Gizmondo before it may receive
and use any such Gizmondo Development Tools, which (without
prejudice to the terms of such an agreement) may only be so used
for the purposes of this Agreement.
4. EXCLUSIVITY
4.1. Notwithstanding any other provision of this Agreement, whilst
providing its services pursuant to this Schedule Gamefactory
shall not directly or indirectly design, develop, programme,
distribute, market, advertise, sell or issue or communicate to
the public any Competing Game.
5. INTELLECTUAL PROPERTY RIGHTS AND CREDITS
5.1. As between the parties hereto, all of the Underlying Game
Rights, the Gizmondo Development Tools and the Gizmondo Device
provided by Gizmondo and (where permitted under the terms of
this Agreement) any copies of the made by Gamefactory, including
all Intellectual Property
27
Rights therein or relating thereto are and shall remain the
property of Gizmondo.
5.2. Gamefactory agrees that (notwithstanding the assignment
provisions in paragraph 1.2 above):
5.2.1. as between the parties hereto, all right title and
interest (including without limitation copyright and all
Intellectual Property Rights and other proprietary
rights) worldwide in and to the Underlying Game Rights,
the Gizmondo Development Tools and the Device, and all
improvements thereof, shall belong exclusively and
absolutely to Gizmondo (save that nothing herein shall
be taken to preclude Gamefactory from challenging the
validity of any Intellectual Property Rights of
Gizmondo) (and to the extent necessary this clause shall
operate as an assignment of such copyright and all
Intellectual Property Rights and other proprietary
rights in respect of the foregoing by Gamefactory to
Gizmondo, where this shall operate where required as a
current assignment of future rights); and
5.2.2. nothing in this Agreement shall be deemed to grant or
assign to Gamefactory any proprietary or ownership
interest in or to the Underlying Game Rights, the
Gizmondo Development Tools, the Device or any other
Intellectual Property Rights of Gizmondo or the
Gizmonodo Affiliates, other than the licensed rights
specifically set out in this Agreement, and the
Gamefactory hereby recognises that no such other grant
or assignment is given to it,
5.3. Gizmondo may in its exclusive discretion and at its exclusive
option, and without (if Gizmondo so determines) any reference to
or input from whatsoever or howsoever from Gamefactory, take all
such steps as it deems necessary and/or desirable to protect,
defend and exploit any other Intellectual Property Rights of
Gizmondo and/or any Gizmondo Affiliate.
5.4. Gamefactory will not at any time:
5.4.1. do or cause to be done any act or thing which contesting
or in any way imparing or intending to impair Gizmondo's
or any of Gizmondo's Affiliates' (or any of the
licensors') Intellectual Property Rights (including
without limitation any Intellectual Property Right which
may subsist in the Underlying Game Rights);
5.4.2. represent that it has any right, title or interest in or
to any of Gizmondo's or any of Gizmondo's Affiliates'
(or any of the licensors') Intellectual Property Rights
(including without limitation any Intellectual Property
Right which may subsist in the Underlying Game Rights);
5.4.3. directly or indirectly reverse engineer or aid or assist
or authorise or encourage others in the reverse
engineering of any party of Gizmondo's or any of
Gizmondo's Affiliates' (or any of the licensors')
Intellectual Property Rights in any Device, the
Underlying Game Rights, the Gizmondo Development Tools
or any element or part thereof (without limitation
'reverse
28
engineering' means (a) the x-ray electronic scanning,
and/or physical or chemical stripping of semiconductor
components; and/or (b) the disassembly, decompilation,
decryption, simulation, debugging or code tracing of
object code or executable code),
save that such restrictions shall only apply to the extent
permissible by applicable law and nothing herein shall be taken
to preclude the Gamefactory from challenging the validity of any
Intellectual Property Rights of Gizmondo or any of Gizmondo's
Affiliates.
5.5. Gamefactory hereby grants to Gizmondo, a perpetual,
non-exclusive, royalty free, worldwide licence and rights to
use, sub-license, reproduce and manufacture the Gamefactory
Software as Gizmondo may deem appropriate for the purpose of
producing, localising, copying, manufacturing, packaging,
maintaining, promoting, advertising, marketing, publishing,
selling, renting, lending, distributing, issuing or
communicating to the public, all by whatever means (whether in
existence now or created in the future), licensing (whether by
way or sub-licensing, sub-contracting or otherwise) and
otherwise exploiting the applicable Gizmondo Game Products, any
applicable Gizmondo Game Product Sequels or any other
Intellectual Property Rights of Gizmondo which are related
thereto.
6. INFRINGEMENT
6.1. In the event that Gamefactory learns of any claim (whether actual
or threatened) alleging that the Underlying Game Rights, the
Game, any Game Sequel, Game PI, Game Materials, any Device, any
game produced for any Device, any of Gizmondo's and/or Gizmondo's
Affiliates' and/or Gizmondo's Licensers' Intellectual Property
Rights infringes or misappropriates any third party's
Intellectual Property Rights or other rights, or that any of the
same are being infringed or misappropriated by any third party,
then the Gamefactory shall promptly notify Gizmondo. Fine
Gamefactory shall not make any admissions or other statement
concerning any of the same without Gizmondo's specific written
consent.
6.2. As between the parties, Gizmondo shall have the exclusive right,
in its exclusive discretion and at its exclusive option (whether
in its own name or that of the Gamefactory or both), and without
(if Gizmondo so determines) any reference to or input from
whatsoever or howsoever from the Gamefactory, to commence and/or
defend a legal action or negotiate a settlement relating to any
alleged infringement by or of the Underlying Game Rights, the
Game, any Game Sequel, Game PI, Game Materials, any Device, any
game produced for any Device, any of Gizmondo's and/or Gizmondo's
Affiliates' and/or Gizmondo's Licensers' Intellectual Property
Rights.
6.3. Notwithstanding anything else in this Agreement (and without
prejudice to the warranties provided under this Agreement to
Gizmondo), at Gizmondo's reasonable cost (provided the
Gamefactory has complied in full with its obligations under this
Agreement and continues to assist Gizmondo promptly pursuant to
the operation of this clause 7), the Gamefactory shall give
Gizmondo assistance and cooperation in any such legal action
referred to in clause 7.2, including without limitation, such
assistance and cooperation extends to providing and/or executing
necessary documents and evidence to enable Gizmondo, in its own
name
29
and/or on behalf of the Gamefactory or jointly, andor with or on
behalf of any of Gizmondo' Licensors' names, to bring or defend
the legal action. As between the parties, Gizmondo shall be
entitled to retain any recovery or damages collected as a result
of such legal action or negotiated settlement. No settlement by
Gizmondo shall impose a monetary liability on the Gamefactory
without the Gamefactory's consent to such a settlement.
7. WARRANTIES AND INDEMNITIES
7.1. Notwithstanding any other warranties or indemnities given under
this Agreement, Gamefactory hereby further represents and
warrants to Gizmondo that (Gamefactory acknowledging and
agreeing that these representations are a material inducement
for Gizmondo to enter into this Agreement):
7.1.1. it has the exclusive right, title and interest to enable
the transfer, sale and assignment to Gizmondo of all
those rights, materials and other matters set out in and
in accordance with paragraph 1.2 and the licence in
accordance with paragraph 5.5 and that there is no legal
obstacle to the dealing with such rights, materials and
other matters. Without limitation, a breach of this
clause shall be considered to be a material breach of
this Agreement by the Gamefactory;
7.1.2. there is no outstanding claim, or knowledge of a
potential claim, against any right, title or interest of
any kind whatsoever in and to any such rights assignment
to Gizmondo and/or to any of Gamefactory's Software.
Without limitation, a breach of this clause shall be
considered to be a material breach of this Agreement by
the Gamefactory;
7.1.3. to the fullest extent permissible by applicable laws, it
hereby provides a full waiver of any and all moral
rights (or similar rights) in the rights assigned to
Gizmondo under the operation hereof;
7.1.4. to the fullest extent permissible by applicable laws, it
has obtained a full waiver of any and all moral rights
(or similar rights) throughout the world from all those
involved in the the applicable Gizmondo Game Products
(including without limitation Gamefactory's developers
referred to in paragraph 1.4)
7.1.5. it has not transferred, sold, assigned, licensed,
rented, lent, used as any security or otherwise
encumbered or otherwise impaired any right, title or
interest in or to the rights assigned to Gizmondo
hereunder or Gamefactory's Software, in a manner that
conflicts with the operation of this Agreement
(including without limitation the operation of
paragraphs 1.2, 1.3 and/or 5.5 hereof). Without
limitation, a breach of this clause shall be considered
to be a material breach of this Agreement by the
Gamefactory;
7.1.6. it will not hereafter attempt or purport to use, deal
with, exploit, transfer, sell, assign, license, rent,
lend, use as any security or encumber or otherwise
impair any right, title or
30
interest in or to the rights assigned to Gizmondo
hereunder or the Gamefactory's Software, in a manner
that conflicts with the operation of this Agreement
(including without limitation the operation of
paragraphs 1.2, 1.3 and/or 5.5 hereof). Without
limitation, a breach of this clause shall be considered
to be a material breach of this Agreement by the
Gamefactory;
7.1.7. save to the extent permitted by applicable law or
expressly permitted by Gizmondo or a Gizmondo Affiliate
(as appropriate) (whether under this Agreement or
otherwise), it will not hereafter attempt or purport to
use, deal with, exploit, transfer, sell, assign,
license, rent, lend, use as any security or otherwise
encumber or otherwise impair any right, title or
interest in or to any of Gizmondo's and/or Gizmondo's
Affilites' Intellectual Property Rights
7.1.8. the rights assigned to Gizmondo hereunder, Gamefactory's
Software and the applicable Gizmondo Game Products:
a) are original and do not and will not infringe or
misappropriate the Intellectual Property Rights or other
legal rights of any third parties anywhere in the world.
Without limitation, a breach of this clause shall be
considered to be a material breach of this Agreement by
the Gamefactory;
b) do not contain anything which is obscene, blasphemous,
defamatory and/or likely (by reason of their content) to
expose Gizmondo and/or any of Gizmondo's Affiliates to
any civil or criminal proceedings anywhere in the world.
Without limitation, a breach of this clause shall be
considered to be a material breach of this Agreement by
the Gamefactory; and
c) are complete, are suitable for commercial production and
distribution and issue to the public (and other
exploitation pursuant the operation of paragraphs 1.2,
1.3 and/or 5.5 hereof) by Gizmondo for use on the
GizmondoDevice, conform to the Game Design/Technical
Requirements Document;
d) do not contain any Content or other content which is not
covered by the Game Design/Technical Requirements
Document, including, without limitation, subliminal
political, cultural, religious, or sexual messages or
meanings;
7.1.9. all Code forming part of the rights assigned to Gizmondo
hereunder, the applicable Gizmondo Game Products and
Gamefactory's Software are free from material
programming bugs and/or defects;
7.1.10. the rights assigned to Gizmondo hereunder, Gamefactory's
Software and the applicable Gizmondo Game Products, are
accurate and complete, and have been and will be
prepared using all the reasonable skill and care
expected at a level commensurate with best industry
practice and comply with all applicable laws in the
world; and
7.1.11. Gamefactory and Gamefactory's developers referred to in
paragraph 1.4 have the know-how, skill and experience to
31
design, develop and program the the rights assigned to
Gizmondo hereunder, Gamefactory's Software and the
applicable Gizmondo Game Products (all in accordance
with the terms of this Agreement, including without
limitation paragraph 3) and are otherwise fully capable
of performing its obligations under this Agreement, in
accordance with the terms and conditions of this
Agreement.
7.2. Gamefactory hereby agrees to indemnify, defend (subject always
to paragraph 6 above) and hold harmless Gizmondo on demand from
and against any and all suits, losses, liabilities, damages,
awards, claims, settlements, costs and expenses, including
reasonable legal fees, costs and other expenses, arising out of
or otherwise relating to a breach by Gamefactory of its
warranties, representations, obligations and/or covenants
contained in this Agreement. Such an indemnity shall extend to
Gizmondo's Affiliates and Gizmondo's licensors. This clause
shall survive the expiry or termination of this Agreement for
whatever reason.
8. TERMINATION OF ANY MATTER REFERRED TO IN THIS SCHEDULE
8.1. Without prejudice to anything else set out in this Agreement,
Gizmondo may terminate any particular development service
provided by Gamefactory immediately on written notice to
Gamefactory if at any time before the Gamefactory's delivery to
Gizmondo of the 'Gold Master' (as referred to in Schedule Six)
if Gizmondo is dissatisfied with the progress and/or quality of
the design, development and/or programming of the applicable
Gizmondo Game Product pursuant to paragraph 3. On such
termination the provisions of clause 8.2 shall apply,
8.2. In the event of a notice coming within the terms of paragraph
8.1 above (but without prejudice to any other rights or remedies
which Gizmondo may have against Gamefactory for the breach or
non-performance of any of the terms of this Agreement):
8.2.1. Gamefactory must deliver to Gizmondo, on a medium
acceptable to Gizmondo, the latest version of the
applicable Gizmondo Game Product together with a
complete set of the relevant materials therefor and any
other materials which embody and represent the Code
therefor and/or any Intellectual Property Rights
therein, in a form acceptable to Gizmondo, which are
then in existence; and
8.2.2. Gamefactory shall also return forthwith to Gizmondo, in
respect of the applicable Gizmondo Game Product, the
Underlying Game Rights (and copies thereof) and all
other materials and other matters embodying any
Intellectual Property Rights and any and all other
property (and all copies thereof) on any media belonging
to Gizmondo and/or Gizmondo's Affiliates and/or
Gizmondo's licensors or received from any third party on
behalf of them that was provided to Gamefactory under or
in contemplation of the matters referred to in the
Schedule, which is in the Gamefactory's possession or
under its control and the Gamefactory shall confirm
promptly in writing to Gizmondo that it has complied in
all respects with this paragraph 8.2.2 if requested to
do so by Gizmondo;
32
8.2.3. provide that all such materials referred to in
paragraphs 8,2.1 and 3.2.2 above have been delivered to
Gizmondo, Gizmondo shall pay to Gamefactory sums
properly due to the Gamefactory for work completed in
accordance with Agreement by the Gamefactory up until
that date of termination in respect of the applicable
Gizmondo Game Product, but only to the extent as is
reasonable taking into account any payments which
Gizmondo has already paid; and
8.2.4. that proportion of the applicable Development Fee which
remains to be paid shall no longer be due and payable to
Gamefactory by Gizmondo and that proportion of the
applicable Development Fee which has already been paid
to the Gamefactory by Gizmondo shall be repaid to
Gizmondo immediately (subject only to paragraph 8.2.3
above).
33
SCHEDULE FIVE - DEVELOPMENT FEE
The total Development Fee in respect of each Gizmondo Game Product will be paid
in accordance with the following milestones:
Payment number Payment amount Milestone Gamefactory's
-------------- -------------- --------- --------------
Delivery Date
-------------
1. 50% of relevant Commencement
Development Fee, Date
payable to the
relevant account
referred to in
paragraph 6 of
Schedule Three.
2. 50% of relevant Delivery to No more than 12
Development Fee, Gizmondo of the months from the
payable to the Gizmondo approved Commencement
relevant account 'Gold Master' for Date
referred to in relevant Gizmondo
paragraph 6 of Game Product
Schedule Three.
34
SCHEDULE SIX - EMPLOYEE AGREEMENT
(This is an important legal document - - read it carefully.)
THE THREE PARTIES TO THIS EMPLOYEE AGREEMENT ARE:
Gizmondo Europe Limited ("Gizmondo"), the undersigned developer ("Developer"),
and the undersigned employee of the Developer ("Employee").
AGREEMENT:
THE PARTIES HEREBY AGREE AS FOLLOWS:
Definitions:
(i) "Agreement" refers to the agreement between Gizmondo and the Developer
dated [] regarding the development of the video game currently with the working
title "[ ]" (the "Game").
(ii) "Intellectual Property Rights" means all legal rights pertaining to the
Game, as well as any Game prototypes or conversions, including, but without
limitation, the Game's source and object code, any and all intellectual and
industrial property rights of whatever nature, anywhere in the world, subsisting
in and to the Game, whether recorded or registered or registerable or applied
for in any manner or otherwise, whether currently in existence or otherwise and
whether vested or contingent, including without limitation, patents, registered
designs, trade marks, service marks, logos, signs, trade dress, business or
trading names or other designations, design rights, copyright, semiconductor
topography rights, utility models and mask works, database rights, rights in
databases, know-how, domain names, trade secrets, inventions, ideas, discoveries
and know-how, applications for and the right to apply for any of the foregoing,
together with any rights to sue for past infringement, and all other legal
rights anywhere in the world protecting such intangible property, in each case
for their full term (and all extensions, reversions, revivals and renewals
thereof);
(iii) "Gizmondo's Confidential Information" means the Game, together with any
and all technical, financial and/or other information relating to the business
or affairs of or emanating (directly or indirectly) from Gizmondo or concerning
the Game which is (a) either non public, confidential, proprietary in nature, or
comprises a compilation of the same which is otherwise public but which is in a
form not publicly known and/or (b) disclosed and/or made available to the
Developer and/or any employee of the Developer orally and/or in written, hard
copy and/or electronic form, on diskettes and/or on any other storage media
(whether known now or invented hereafter), where the foregoing:
(a) shall include, without limitation, any oral or written instructions
given to the Developer and/or any of its employees by Gizmondo and any
acts or omissions conducted by the Developer arising from instructions
given to the Developer; and
(b) shall include, without limitation, any and all analyses,
compilations, forecasts, studies and/or other documents prepared by
Developer and/or any of its employees which contain or otherwise reflect
any of the foregoing; and
35
(c) shall include, without limitation, any technical, commercial,
financial, marketing, business or other data, know-how, trade secrets
and other information of whatever nature given by Gizmondo to the
Developer (and/or its employees) (whether before or after the date of
the Agreement) in relation to the Agreement and relating to Gizmondo or
their respective businesses or affairs (whether written or oral, in any
form or medium, whether known now or invented hereafter); but
(d) shall not, however, include any of the foregoing which the Developer
can show (a) is already known to the Developer and/or any of its
employees otherwise than as a consequence of a breach of the Agreement
or any other agreement (whether or not made with Gizmondo), (b) is
generally available to the public other than as a result of a disclosure
or other default by the Developer and/or any of its employees, (c) is or
becomes available to the Developer and/or any of its employees from a
source other than Gizmondo, which source is not prohibited from
disclosing such information by any legal, contractual or fiduciary
obligation to Gizmondo or (d) is independently developed or acquired by
the Developer and/or any of its employees independently of any
Confidential Information provided by;
1. The Employee agrees that the Intellectual Property Rights are owned
solely by Gizmondo. To the fullest extent possible under applicable
laws, the Employee hereby waives any and all moral rights in and/or to
the Intellectual Property Rights. At the request of Gizmondo and at no
expense to the Employee, Employee shall sign all documents and take all
reasonable steps to assist Gizmondo in confirming that Gizmondo is the
sole owner of the Intellectual Property Rights and/or confirming such a
waiver.
2. At no time shall the Employee disclose or use any of Gizmondo's
Confidential Information or make any public statement or announcement
which concerns the Game or the Agreement, except the Employee may use
Gizmondo's Confidential Information in connection with the Employee's
development of the Game under the terms and conditions of the Agreement.
This shall not apply to information which is required to be disclosed by
an authorised governmental or judicial entity under a suitable
protective order, provided that Employee shall notify Gizmondo as soon
as possible prior to such disclosure.
3. Gizmondo may enforce this Employee Agreement including obtaining
injunctive relief or damages.
4. Gizmondo may assign this Employee Agreement (or any part of it). The
Employee shall not assign this Employee Agreement (or any part of it).
5. Both the Developer and the Employee represent to Gizmondo that the
Employee is an employee of the Developer and that he/she is not engaged
by the Developer on a freelance or consultancy basis. The Employee
represents that he/she is of legal age, has read the foregoing, and
understands its contents.
36
6. This Employee Agreement shall be governed by, subject to and construed
under the laws of England and Wales.
The undersigned parties have signed this Employee Agreement on the dates set
forth below.
GIZMONDO EUROPE LIMITED EMPLOYEE:
By: ______________________________ By: ______________________________
Printed Name: ____________________ Printed Name: ____________________
Title: ___________________________ Title: ___________________________
Date: ____________________________ Date: ____________________________
DEVELOPER:___________________
By: ______________________________
Printed Name: ____________________
Title: ___________________________
Date: ____________________________
37
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