Exhibit 10.2
COVER SHEET
to
COPYRIGHT AND TRADEMARK LICENSE
AND DISTRIBUTION AGREEMENT, dated as of
September 30, 1999 between Licensor (defined below)
and Licensee (defined below)
(this cover sheet, together with such
Agreement, collectively, this "Agreement")
"IN-FLIGHT TETRIS"
1. LICENSOR: THE TETRIS COMPANY, L.L.C., a Delaware limited liability
company whose registered address in 103 Foulk Road,
Suite 202, Wilmington, Delaware 19803, USA.
2. LICENSEE: ISES CORPORATION, an Iowa Corporation, with offices at
2600 72nd Street, Suite C, Des Moines, Iowa 50322, USA.
3. Effective Date: September 30, 1999.
4. Licensed Title: "IN-FLIGHT TETRIS"
5. Licensed
System: In-Flight Entertainment System
6. Adapted Game: The game program created and/or adapted by Licensee
under license from Licensor to permit play of the Game
(as defined herein) on the licensed System only.
7. Licensed
Territory: Air Flights
8. Compensation: In consideration of the rights granted herein, Licensee
shall pay Licensor as follows:
(a) Royalty Payments. Licensee shall pay to Licensor royalties of
[Confidential treatment has been requested for this portion of
this Exhibit] for each Unity (defined herein) of the Adapted Game
that has been installed or which, pursuant to one or more
executed agreements, is to be installed by Licensee or any
sublicense of Licensee. No costs incurred in the manufacture,
sale, advertisement, shipment or distribution of the Adapted Game
shall be deducted.
(b) Advance Royalty. Licensee shall pay to Licensor, as an advance
against the Royalties described in paragraph 8(a) of this Cover
Sheet, [Confidential treatment has been requested for this
portion of this Exhibit] Such Advance Royalty payment is not
refundable under any circumstances and constitutes a minimum
guaranteed royalty to be paid to Licensor by Licensee during the
terms of this Agreement for the rights granted to Licensee
hereunder. The advance royalty described herein shall be credited
against all continuing royalty payments due hereunder by Licensee
to Licensor until the advance is exhausted.
(c) Minimum Volume Guarantee. Licensee guarantees that by the first
anniversary of the Effective Date [Confidential treatment has
been requested for this portion of this Exhibit].
(d) Payment Account. All payments to Licensor by Licensee shall be
made by wire transfer in U.S. Dollars into Licensor's bank
account, at Key Bank, 201 South Warren Street, Syracuse, New York
13202, Account Number 320900052400, Routing Number (ABA No.):
0213000777. All expenses connected with transferring the payments
shall be borne by the Licensee.
9. Term: Unless terminated earlier in accordance with the
provisions set forth herein, this Agreement shall remain
in effect for one (1) year from the date of execution
hereof and shall be automatically renewed for up to an
additional three (3) one (1) year terms, unless (a)
Licensee has ceased distribution of the Adapted Game, or
(b) either party notifies the other party, in writing,
at least sixty (60) days prior to the end of any such
term, of such party's intention that the same be
terminated.
10. Licensor's
Representative: BLUE PLANET SOFTWARE, INC., a Hawaii corporation with
its business and post office address located at P.O. Box
1809, Keaau, HI 96749, is the exclusive representative
of Licensor for the purposes of this Agreement.
LICENSEE SHALL COORDINATE ANY AND ALL REQUIRED APPROVALS
THROUGH LICENSOR'S REPRESENTATIVE. LICENSOR'S
REPRESENTATIVE IS TO RECEIVE COPIES OF ALL
COMMUNICATIONS BETWEEN THE PARTIES.
11. Notices: All notices required or permitted to be given under this
Agreement shall be deemed given upon receipt from
express air courier services or upon transmission by
electronic mail, facsimile, receipt confirmed, or one
(1) month after being sent by certified mail, return
receipt requested, or upon personal delivery, to the
address set forth below, or to such other addresses as
the parties shall notify each other of from time to
time.
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If to Licensor: THE TETRIS COMPANY, L.L.C
103 Foulk Road, Suite 202
Wilmington, Delaware 19803
USA
cc: Henk B. Rogers
By Mail: Blue Planet Software, Inc.
P.O. Box 1809
Keaau, HI 96749
USA
Fax: (808) 966-6306
E-mail: henk@blueplanetsoftware.com
By express mail
(courier services): Blue Planet Software, Inc.
17-196 Meaulu Street
Keaau, HI 96749
USA
Telephone: (818) 966-7225
All matters pertaining to product management/licensing shall be sent as follows:
Edward Rogers, Product manager
Blue Planet Software, Inc.
77 Geary Street, Suite 500
San Francisco, CA 94108
USA
Telephone: (415) 788-5550, Ext. 525
Fax: (415) 477-0616
All matters pertaining to product/marketing approvals shall be sent as follows:
Marketing Manager
Blue Planet Software, Inc.
77 Geary Street, Suite 500
San Francisco, CA 94108
USA
Telephone: (415) 788-5550
Fax: (415) 477-0616
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cc: Nikolai E. Belikov
c/o LeBoeuf, Lamb, Greene & MacRae, L.L.P.
Nikitsky Pereulok, 5
123007 Moscow
Russian Federation
Fax: 7-095-737-50-50
cc: John I. Huhs, Esq.
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
125 West 55th Street
New York, New York 10019
USA
Telephone: (212) 424-8182
Fax: (212) 424-8500
If to Licensee: Dean R. Grewell III
ISES Corporation
2600 72nd Street, Suite C
Des Moines, Iowa 50322
USA
Telephone: (515) 331-0560
Fax: (515) 331-3901
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COPYRIGHT AND TRADEMARK LICENSE
AND DISTRIBUTION AGREEMENT
"IN-FLIGHT TETRIS"
This Copyright and Trademark License and Distribution Agreement is made and
entered into as of this 1st day of August, 1999 (the "Effective Date"), by and
between Licensor and Licensee (as such terms are defined in the cover sheet to
which this Agreement is attached).
RECITALS
WHEREAS, Licensor holds the exclusive right and license to use, display and
exploit the trademark "Tetris," used alone or in combination with a design or
logo or other terminology on all countries of the world where the trademark
"Tetris" has been registered in its name.
WHEREAS, Licensor holds the exclusive right and license to use and exploit
the copyright for a certain computer software game known as "Tetris" in all
countries of the world that are members of, and pursuant to the terms of, the
applicable international copyright conventions.
WHEREAS, Licensee desires to license, on a limited, non-exclusive basis
only, the trademark, copyright and certain other rights incident to the game
known as "Tetris," pursuant to the terms, conditions and limitations contained
herein.
NOW, THEREFORE, in light of the foregoing, and in consideration of the
mutual covenants and conditions herein set forth, the parties agree as follows:
1. INCORPORATION OF COVER SHEET
The terms and provisions (including, without limitation, capitalized terms
defined therein) of the Cover Sheet (the "Cover Sheet") to which this
Agreement is attached are hereby incorporated herein by reference and made
a part of this Agreement.
2. DEFINITIONS
"Game" shall mean the Original Game known as "TETRIS."
"Licensed Properties" shall mean the Game, the Adapted Game, the Tetris
logo, and any programs, software, design script, audiovisual works, source
and object codes therefor, and Licensor's trademarks, copyrights and other
rights related thereto.
"Sublicense," as used herein, refers to a sublicense, approved in writing
by Licensor, from Licensee to a third party, of a portion of the rights
granted in this Agreement.
"Unit" shall mean one software copy of the Adapted Game that is operated in
conjunction with the Licensed System.
3. GRANT OF RIGHTS
Under the terms and conditions of this Agreement, Licensor hereby grants to
Licensee a non-exclusive right and license to:
(a) Create the Adapted Game.
(b) Manufacture, use, sell, reproduce, market and distribute the Adapted
Games in the Licensed Territory. Only Licensee shall publish the
Adapted Game, unless Licensee has received approval to grant a
sublicense to publish the Adapted Game under Section 6 hereof.
(c) Use and display the names "TETRIS" and "IN-FLIGHT TETRIS" in the
manufacture, use, sale, marketing and distribution of the Adapted Game
pursuant to Section 3(b) hereof.
4. RECORDS AND PAYMENT
4.1 Payment Deadline. Licensee shall make royalty payments to Licensor for
sales in such Licensed Territory on a quarterly basis within thirty
(30) days after the last day of each calendar quarter
4.2 Delay of Royalty Payment. In case of delay of a royalty payment due to
Licensor beyond such thirty (30) day period, Licensee will pay to the
Licensor, as liquidated damages, interest on such unpaid amount
calculated at a rate per annum of twenty-one percent (21%) for actual
days elapsed between the date such amount is due and the date so paid
(subject to any applicable usury restrictions).
4.3 Quarterly Royalty Report. Within thirty (30) days after the end of
each calendar quarter, Licensee shall furnish to Licensor written
reports separately setting forth the number of Units sold by Licensee
and any Sublicensees of Licensee, the monetary amount of sales by
Licensee and its Sublicensees during each quarter, and the amount due
to Licensor. However, the first royalty report shall cover the time
period between the signing of this Agreement and the end of the then
current calendar quarter. Royalties paid for the Units that are
returned by Licensee's customers may be credited against future
royalty payments.
4.4 Taxes. Licensee is hereby authorized by Licensor to withhold and make
payment of, on behalf and for the benefit of Licensor, all taxes,
duties or levies the withholding of which may from time to time be
required by the government of certain countries, or any agencies
thereof, on the royalties due Licensor under this Agreement. Such
taxes,
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duties or levies shall be deducted from payments due Licensor, and
Licensee shall, not later than fourteen (14) business days after
Licensee's receipt for all such payments made by them on behalf of and
for the benefit of Licensor sufficient for Licensor to obtain a tax
credit from the tax authorities in the country to which the royalty
was paid. Any delay by Licensee in providing such tax receipts to
Licensor shall require Licensee to pay Licensor the liquidated damages
set forth in Section 4.2 based on the royalty amount involved.
4.5 Records. In conjunction with this Agreement, Licensee shall keep and
maintain full and accurate books and records during the terms of this
Agreement and for two (2) years thereafter. These books and records
shall include, but not be limited to:
(a) The number of Units of the Adapted Game produced by Licensee and,
if applicable, its Sublicensees;
(b) The number of Units of the Adapted Game sold by Licensee and, if
applicable, its Sublicensees;
(c) The number of Units of the Adapted Game returned to Licensee and,
if applicable, its Sublicensees, for credit or exchange; and
(d) The total sales amounts of the Adapted Game, including any
amounts received or entitled to be received by Licensee, and
including total sales by and amounts received or entitled to be
received by Licensee from any Sublicensee of Licensee.
Such documentation shall be in sufficient detail to enable the
payments due Licensor to be determined and to permit Licensor to audit
such books and records. Licensee shall also require its Sublicensees,
if applicable, to maintain books and records with the information
listed herein, to permit inspection of such books and records on the
same terms as set forth in Section 4.6 herein, and to provide
statements to Licensee setting forth the above information for their
respective sales, which records are to be preserved by Licensee as
part of the books and records to b kept as provided herein.
4.6 Audit. For the purpose of verifying the correctness of the royalties
paid or to be paid by Licensee, Licensor may, not more than once each
six (6) month period and once within one (1) year following any
breach, expiration or termination of this Agreement, retain on
independent certified public accountant to audit those business
records of Licensee that relate to the sale, shipment, distribution
and approved sublicense, if any, of the Adapted Game, provided that
Licensor givens fifteen (15) days written notice prior to an audit
following a breach and further provided that all audits are conducted
during regular business hours and on Licensee's premises. If any audit
uncovers a shortfall in royalties owed to Licensor, Licensee shall
immediately pay such shortfall to Licensor plus liquidated damages
pursuant to Section 4.2 hereof on the amount
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past due. if such shortfall exceeds five percent (5%) o the royalties paid
to Licensor during the royalty period(s) in which the shortfall occurred,
Licensee shall, in addition, immediately reimburse Licensor the reasonable
costs of the audit, including, without limitation, accountants and
attorneys fees.
5. REVERSION OF RIGHTS
Any sublicense granted under Sections 2.3 and 6 shall provide for automatic
termination upon the earlier of the expiration or termination of this
Agreement, or twelve (12) months after Licensee and its Sublicensees have
discontinued distribution of the Adapted Game. Upon the expiration or
termination of this Agreement, all rights granted by Licensor herein shall
automatically revert to Licensor, subject to the provisions of Section 12
hereof.
6. SUBLICENSES
In the event that it is necessary for Licensee to grant a sublicense to
enable it to maximize sales of the Adapted Game, Licensee shall required
approval thereof by Licensor by sending a notice of request to Licensor
along with a copy of the proposed sublicense agreement and all information
about the proposed sublicense that may be relevant to Licensor's evaluation
thereof. Licensor's consent, disapproval or request for additional
information shall be provided in writing. Each approved sublicense
agreement shall provide that the Sublicensee expressly accepts all of
Licensee's non-monetary obligations under this Agreement. Licensor shall be
provided with a copy of each sublicense agreement as executed, which shall
not deviate in any material respect from the proposed draft approved by
Licensor. The grant of sublicenses hereunder shall not change any
obligations of Licensee hereunder. Consent will not be granted for a third
party to publish the Adapted Game. All referenced to and obligations of
Licensee in this Agreement shall be deemed applicable to Sublicensees of
Licensee. Any agreements with sublicensees not appointed in accordance with
the provisions for this Section shall be deemed null and void. Licensee
shall be responsible for enforcing its Sublicensees' compliance with all
the provisions hereof. Licensee shall indemnify Licensor and hold it
harmless from any against any and all losses, damages, costs and expenses,
including attorneys fees, arising out of any claims by Licensee's
sublicensees against Licensor based on this Agreement or a sublicense.
Notwithstanding the foregoing, and without limitation thereof, the Licensee
may enter into distributorship agreements for the distribution of the
Adapted Game published by Licensee.
7. QUALITY AND APPROVAL OF ADAPTED GAME
7.1 Quality. Each and every Adapted Game shall meet the Licensor's
standard of quality as determined solely by the Licensor. Licensee
shall not sell or distribute any Adapted Game unless and until the
same has been submitted to and approved in writing by the Licensor.
Licensee shall not knowingly violate any laws or government standards
in the manufacture or sale of the Adapted Game.
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7.2 Approval by Licensor. Licensee shall promptly provide to Licensor
copies of the Adapted Game in a format mutually agreed upon and any
and all creative packaging, marketing and promotional materials for
the Adapted Game prior to dissemination. Licensor may specify in
writing specific objections it may have to such materials and specify
specific changes required. Licensor shall not unreasonably delay the
review or evaluation procedures for the Adapted Games or delay or
withhold the approval and acceptance of the Adapted Game and all other
materials submitted by Licensee.
7.3 Inspection by Licensor. Licensor shall have the absolute and
unqualified right, at any time, to request samples of and inspect the
Adapted Game (including any promotional materials) to ensure they meet
Licensor's standard of quality.
8. RIGHTS
8.1 Ownership. Licensee acknowledged that Licensor and Licensor's
licensors have the exclusive right, title and interest in the Game and
the Adapted Game, including all copyrights thereto, and to the
trademarks "TETRIS" and "IN-FLIGHT TETRIS," and all rights thereto,
and it agreed that it will not at any time do or cause to be done any
act or thing contesting or in any way impairing or intending to impair
any part of such right, title and interest of Licensor and Licensor's
licensors. Other than as provided in this Agreement, Licensee shall
not in any manner represent that it has any ownership or interest in
the Game. Notwithstanding anything to the contrary contained herein,
the Licensor acknowledges that any and all animated or other type of
characters appearing in or around the Adapted Game, as well as all
original music and other original elements (collectively the
"Licensee's Original Elements") incorporated into the Adapted Game by
Licensee, or that otherwise appear on any packaging for the Adapted
Game (other than the Tetris logo and other Licensed properties),
including the source code and all object code containing and
displaying the Licensee's Original Elements, shall remain the property
of Licensee and its licensors, when displayed separately from the
Adapted Game. Licensee acknowledges that the source code and the
object code for the Adapted Game containing and displaying the Game
and the other Licensed Properties shall remain the property of
Licensor and the Licensor's licensors.
Nothing contained herein shall be construed as an assignment or grant
of any right, title or interest in or to the Game or the Adapted Game,
or the trademarks "TETRIS" and "IN-FLIGHT TETRIS," or the goodwill
attached thereto, it being specifically understood that all rights
with respect thereto are reserved by Licensor. Licensee recognizes
that the licensed Properties communicate to the public a reputation
for high standards of quality and service. Licensee shall not use the
Licensed Properties in connection with any illegal, illicit or immoral
activity, or in any manner that would be inconsistent with or damaging
to Licensor's name and reputation.
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8.2 Trademarks
(a) Licensee agrees to affix or apply to all Adapted Games offered
for sale pursuant to this License Agreement, on all disks or
other media, initial screen displays packages, written
advertisements, promotional items and other materials, the
trademark "IN-FLIGHT TETRIS" and a trademark notice in the form
set forth in Appendix A hereto.
(b) Licensee agrees not to use the trademarks "TETRIS," "IN-FLIGHT
TETRIS" or any name confusingly similar thereto in any way except
in connection with the Adapted Game or in the promotion thereof,
except that fair reference may be made to "TETRIS" and "IN-FLIGHT
TETRIS" in informational materials about Licensee or its
business, provided that such reference is in the same type-face
as the surrounding text, and provided that "(R)" follows each
reference to "TETRIS" and a "(TM)" follows each reference to
"IN-FLIGHT TETRIS" unless Licensor gives its written consent to
any other use.
(c) Nothing contained in this Agreement shall in any way be deemed to
apply to any trademarks held by Licensor other than the marks
"TETRIS" "IN-FLIGHT TETRIS." Licensor expressly retains the
exclusive right in and to all of its trademarks as against
Licensee and any other persons.
(d) Licensee agrees that it has or will acquire no right in
Licensor's trademarks, or in the trademarks "TETRIS" or
"IN-FLIGHT TETRIS," by virtue of its performance under this
Agreement, except for the limited rights of use as provided by
this Agreement. nothing in this Agreement shall limit Licensee's
rights in any names or marks created or used by Licensee in
connection with marketing the Adapted Game. Licensee agrees not
to use marks or names that infringe any of Licensor's rights in
any marks or names.
9. REPRESENTATIONS AND WARRANTIES
9.1 Authorization. Each party hereby represents and warrants to the other
that it is duly existing under applicable laws, is duly authorized to
execute this Agreement, has taken all proper corporate action
necessary to render this Agreement binding and enforceable and has
full powers and authorities to enter into this Agreement and to
perform its obligations under this Agreement. Each party further
represents and warrants to the other that its proper authorized
agents, officers and/or directors have reviewed, understood, approved
and ratified this Agreement, including all of its terms and
conditions, and that its duly authorized representatives have executed
this Agreement.
9.2 Rights. Licensor hereby represents and warrants: (a) that it has the
sole right to grant licenses in and to the Adapted Game (except for
all portions of the Adapted Game not originating from the Original
Game known as "TETRIS" and developed or acquired
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by Licensee) throughout the Licensed Territory; (b) that it has not
assigned or impaired the Adapted game (except for all portions of the
Adapted Game not originating from the Original Game known as "TETRIS"
and developed or acquired by Licensee); (c) that it has not licensed
the Adapted Game to any third party for use on the Licensed System in
the Licensed Territory; (d) that it has the sole and exclusive rights
to grant each and every right herein granted; and (e) that the Adapted
Game (except for all portions of the Adapted Game not originating from
the Original Game known as "TETRIS" and developed or acquired by
Licensee) does not infringe any rights of third parties.
9.3 No Infringement of Third Parties. Licensee and/or its Sublicensee(s)
represent and warrant that all portions of the Adapted Game not
originating from the Original Game known as "TETRIS" and developed or
acquired by Licensee and/or its Sublicensee(s) shall not infringe any
rights of any third parties.
9.4 Exceptions. Licensor's representations and warranties in Section 9.2
shall not apply: (a) in countries where Licensor's licensors do not
possess a registration of the trademark "TETRIS" in the trademark
class including the Licensed System and the Adapted game; and (b) in
countries that are not members of the applicable international
copyright conventions.
9.5 Mutual Indemnification. Each party hereby agrees to indemnify and hold
the other party harmless against any and all losses, claims, damages,
liabilities, costs and expenses, including legal expenses and
reasonable attorneys fees, arising out of any breach by such party of
any obligation, representation or warranty in this Agreement.
9.6 Infringement by Adapted Game. If any claim is asserted against
Licensor or Licensee alleging that the Adapted Game constitutes an
infringement of another's alleged rights, then the party with
knowledge of such a claim shall promptly notify the other party.
Licensor has the initial right to defend such an action at its own
expense. If Licensor chooses not to defend, Licensee may, at its
option, defend the action at its own expense. Each party shall give
the other reasonable assistance and cooperation in any such legal
action.
10. INFRINGEMENT
10.1 Notice. Licensee shall notify Licensor immediately of any infringement
or counterfeit of the Licensed Properties that becomes known to
Licensee. Licensor shall advise Licensee in writing within thirty (30)
days of receipt of notice thereof whether Licensor desires to proceed
with respect to each such infringement or counterfeit at Licensor's
own expense.
10.2 Prosecution of Infringement Claims. If Licensor chooses to proceed, it
shall bear the costs and expenses thereof and retain all recoveries.
Licensee agrees to cooperate fully with Licensor in the prosecution of
any infringement claims and, at Licensor's
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expense, will supply Licensor with such documents and other
information as it may reasonably request. All recoveries obtained by
Licensor in such action shall be retained by Licensor.
10.3 Option of Licensee to Prosecute. If Licensor chooses not to proceed or
does not respond within the thirty (30) day period, Licensee shall
have the right to prosecute any infringement of the Adapted game
occurring in the Licensed Territory, provided that Licensee shall
notify Licensor of its intention to bring any action at least fifteen
(15) days before bringing the action. Licensee shall bear the costs
and expenses of prosecuting the action. All recoveries obtained by
Licensee in such action shall be retained by Licensee. Licensor agrees
to cooperate fully with Licensee in the prosecution of any
infringement claims and, at Licensee's expense, will supply Licensee
with all documents and other information as it may reasonably request
as reasonably necessary to the action.
11. TERM AND TERMINATION: SURVIVAL
11.1 Bases for Termination.
(a) Material Breach. Either party may terminate this Agreement
immediately if the other party commits a material breach of this
Agreement and fails to remedy the breach within sixty (60) days
after written notice of such breach is given by the first party,
specifying in writing such breach and, if possible, detailing
steps necessary to cure the breach.
(b) Bankruptcy/Insolvency. If either party becomes insolvent, files a
voluntary petition for bankruptcy or ceases to do business, the
other party, at its option, may terminate this Agreement upon
thirty (30) days' notice.
(c) Discontinuance of Distributions. This Agreement shall terminate
automatically twelve (12) months after Licensee and its
Sublicensees have discontinued distribution of the Adapted Game.
11.2 Licensed Properties. Upon the expiration or termination of this
Agreement, Licensee:
(a) Will cease all use of the Licensed Properties;
(b) Will not disclose to any third party any aspects of the licensed
Properties not publicly known or available to third parties; and
(c) Will return, without making any copies, any and all writings,
drawings, models, data and other materials and things to Licensor
that constitute or relate to or disclose any aspects of the
Licensed Properties that are not publicly known and that were
provided by Licensor directly or indirectly to Licensee.
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However, Licensee may continue to use the Licensed Properties in
connection with the sale of Adapted Games on hand at the
expiration or termination of this Agreement as specified in
Section 12.2.
11.3 Survival of Certain Provisions. Paragraphs 8, 10 and 11 of Cover
Sheet, and Sections 4, 5, 8, 9, 10, 11, 12, 13 and 14 shall, in
accordance with their terms, survive the termination of this
Agreement.
12. DISPOSAL OF INVENTORY
12.1 Inventory Report. Upon the expiration or termination of this
Agreement, Licensee shall provide Licensor within thirty (30) days
thereof an itemized statement specifying the quantity of Adapted Games
on hand.
12.2 Inventory Disposal. Upon the expiration or termination of this
Agreement, other than by default by Licensee, Licensee shall have a
period of one hundred eighty (180) days ("Initial Inventory Disposal
Period") following such expiration to sell any unsold Adapted Games.
Within thirty (30) days after the end of such Initial Inventory
Disposal Period, Licensee shall provide Licensor with a second,
itemized statement specifying the quantity of unsold Adapted Games
still on hand. Within thirty (30) days after receipt of such second
report, Licensor shall notify Licensee of its desired disposition of
the Adapted Games still on hand, which shall be one of the following:
(a) that the Adapted Games are to be destroyed by Licensee within
thirty (30) days of such notification; or (b) that Licensee shall be
given an additional ninety (90) days ("Final Inventory Disposal
Period") in which to sell such Adapted Games still on hand. If any
Adapted Games still remain on hand at the end of such additional
ninety (90) day period, such Adapted Games shall be destroyed by
Licensee within thirty (30) days of the end of such Final Inventory
Disposal Period. All provisions of this Agreement shall apply to the
Adapted Games sold during the Initial and Final Inventory Disposal
Periods.
12.3 Continuation of Agreement. Except to permit the sale of Adapted Games
on hand at the expiration or termination of this Agreement, the
Initial and Final Inventory Disposal Periods are not to be considered
as extensions of the term of this Agreement. However, as set forth in
Sections 11.3, 12.1 and 12.2 herein, Licensee may continue to use the
Licensed Properties in connection with the sale of the Adapted Games
during the Initial and Final Inventory Disposal Periods.
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13. PROPRIETARY INFORMATION
13.1 Proprietary Information. Licensor and Licensee acknowledge that all
the following information constitutes confidential and proprietary
information of the party who discloses it ("Proprietary Information"):
(a) Any information disclosing any of the business practices of the
disclosing party, including, without limitation, customer lists,
pricing and marketing practices, licensing revenue, and
relationships with customers;
(b) Any information embodied in software code, which is delivered by
one party to the other in connection with this Agreement;
(c) The Licensed Properties, to the extent not publicly known; and
(d) All of the terms and conditions of this Agreement.
13.2 Confidentiality. Each party acknowledges that the Proprietary
Information has been delivered to it by the disclosing party only for
the limited purposes set forth hereunder, and that the unauthorized
disclosure of any of the Proprietary Information will harm the
disclosing party. Each party will keep all Proprietary Information
confidential, will not disclose it or permit it to be disclosed in any
form to any person or entity other than as permitted hereunder, and
will use every reasonable effort to ensure that its employees, agents
and other third parties to whom access to the Proprietary Information
is given respect the obligations of confidentiality set forth herein.
All obligations of confidentiality will survive the expiration or
termination of this Agreement. Upon expiration or termination of this
Agreement, and upon written request by the disclosing party, the
receiving party will return to the disclosing party all writings,
drawings, models, data and other materials, constituting or relating
to the Proprietary Information obtained from said disclosing party.
This does not apply to information otherwise publicly available or
obtained independently of the relationship created by this Agreement.
13.3 Remedies. Each party acknowledges and agrees that disclosure or
unauthorized use of the Proprietary Information of the disclosing
party by the receiving party, its employees, agents and contractors,
would cause the disclosing party irreparable harm for which its
remedies at law will be inadequate; and the disclosing party will have
the right, in addition to any other remedies available to it, to seek
immediate injunctive relief to enjoin any breach or threatened breach
of the receiving party's obligations of confidentiality set forth in
this Section 13.
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14. GENERAL PROVISIONS
14.1 Governing Law. This Agreement shall be governed by, subject to and
construed under the laws of the State of New York, USA, without regard
to such state's conflicts of laws rules. Unless waived by Licensor in
writing for the particular instance, the sole jurisdiction and venue
for actions related to the subject matter hereof shall be the U.S.
Federal District Court for the Eastern District of New York.
14.2 Damage Limitation. Neither party shall be liable to the other for any
indirect, special, consequential or incidental damages, whether such
claims arise in tort or contract, even if such party shall have been
advised of the possibility of such damages.
14.3 Waiver. No waiver of any right, obligation or default shall be
implied, but must be in writing, signed by the party against whom the
waiver is sought to be enforced. One or more waivers of any right,
obligation or default shall not be construed as a waiver of any
subsequent right, obligation or default.
14.4 Entire Agreement. This Agreement constitutes the entire Agreement
between the parties relating to the subject matter thereof. All prior
negotiations, representations, agreements and understandings are
superseded by this Agreement. Neither party shall be bound by any
definition, condition, warranty, representation, modification, consent
or waiver other than as expressly stated herein unless it is set forth
in writing executed by the party to be bound.
14.5 Assignment. It is expressly understood that this Agreement shall be
freely assignable and transferable by Licensor subject to written
notification to Licensee of such assignment or transfer. It is further
understood that the license granted herein is personal in nature and,
without the written consent of Licensor, shall not be assignable to a
third party by any action of Licensee or by operation of law, and any
attempt by Licensee to so assign this Agreement without such consent
shall be null and void and shall terminate this Agreement.
14.6 Force Majeure. The obligations of Licensee and Licensor hereunder,
except for the payment of royalties, are subject to and contingent
upon the absence of interferences or interruptions, such as strikes,
riots, war, invasion, fire, explosion, accident, earthquakes, delays
in carriers, acts of God and all other delays beyond the parties'
reasonable control, and any interference with an obligation of either
of the parties by any such reason shall not be deemed a breach
thereof.
14.7 No Joint Venture. The parties, by this Agreement, do not intend to
create a partnership, principal/agent, master/servant or joint venture
relationship, and nothing in this Agreement shall be construed as
creating such a relationship between the parties. Neither party nor
its agents or employees are the representatives of the other
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party for any purpose except as expressly set forth in this Agreement,
and neither party has the power or authority as agent, employee or any
other capacity to represent, act for, bind or otherwise create or
assume any obligation on behalf of the other party for any purpose
whatsoever.
IN WITNESS WHEREOF, this Agreement was executed by the parties as of
the day and year first above written.
THE TETRIS COMPANY, L.L.C. (Licensor)
By: /s/
-------------------------------
Maryann S. Huhs
Managing Director
ISES CORPORATION (Licensee)
By: /s/
-------------------------------
Dean R. Grewell III
President
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APPENDIX A
The full Copyright and Trademark Notice for In-Flight Tetris:
Tetris(R); (C)Elorg 1987
In-Flight Tetris(TM); (C)Elorg 1999
Tetris Logo by Roger Dean; (C)The Tetris Company 1997
All Rights Reserved
Original Concept & Design by Alexey Pajitnov
Tetris(R) and In-Flight Tetris(TM) licensed to The Tetris Company and
sublicensed to ISES Corporation
The short Copyright and Trademark notice for In-Flight Tetris:
Tetris(R); (C)Elorg 1987. In-Flight Tetris(TM); (C)Elorg 1999
Tetris Logo by Roger Dean; (C)The Tetris Company 1997
All Rights Reserved
In addition, Licensee shall ensure that the Tetris logo, which logo shall
be provided by Licensor to Licensee separately, appears in a prominent
place on all packaging for the Adapted Game.
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