Application Development Agreement Dated Nov. 9

EXHIBIT 10.9


Application Development Agreement


This application development agreement ("Agreement") by and between Intel Corporation, a Delaware corporation having a place of business at 2200 Mission College Blvd., Santa Clara, CA 95052 ("Intel") and Mpath Interactive, Inc. ("Developer"), a corporation having a place of business at 665 Clyde Avenue, Mountain View, CA 94043 is effective November 19, 1998 (the "Effective Date").


BACKGROUND


A. Intel is in the business of developing and marketing microprocessors and associated chipsets. In connection with the anticipated introduction of Intel's [XXXXX] and the capabilities enabled by [XXXXX], Intel desires to have certain Applications available for use in connection with its marketing efforts.


B. In exchange for certain marketing rights described in this Agreement, Intel is willing to sponsor Developer's creation of an application which will use and demonstrate the advantages of Intel's [XXXXX] and [XXXXX] features, all as described below.


AGREEMENT


Intel and Developer agree as follows:


1. DEVELOPER'S EFFORTS


1.1 DEFINITIONS:


1.1.1 THE APPLICATION. The title of the application is MPLAYER.COM. In this Agreement it is referred to as the "Application." A description of the Application is appended as Attachment A.

1.1.2 "[XXXXX] LAUNCH" means the day on which Intel formally announces and Original Equipment Manufacturers make available for sale, personal computer systems based on the [XXXXX]. The target date for the [XXXXX] Launch is [XXXXX].


1.2 DEVELOPMENT EFFORTS. Developer shall use commercially reasonable efforts to meet the Target Delivery Dates set out below and shall report to Intel on the progress of the Application's development at least biweekly. Intel may call periodic detailed design review meetings with Developer at reasonable intervals. Intel shall maintain Developer's confidential disclosures in confidence pursuant to CNDA #75561. The development plan is set out with greater detail in Attachment B.


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MILESTONE TARGET DELIVERY
DATE
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Execution of the Agreement [XXXXX]
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Functional and demonstrable incorporation of [XXXXX]* [XXXXX]
(Problem button cut into client)
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Functional and demonstrable incorporation of [XXXXX] into mplayer.com* [XXXXX]
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[XXXXX]-Only Protected Room incorporation live on mplayer.com [XXXXX]
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* Must be functional with [XXXXX] references in the mplayer.com QA lab but
no publicly visible [XXXXX] references may be made.


1.3 PRE-EXISTING WORKS AND LICENSES. Developer shall identify on Attachment A any preexisting works upon which the Application is based. Developer need not identify standard development tools which do not affect the right to distribute titles based on their use. Developer shall also identify any contractual or other known limitations on its rights to distribute or demonstrate the Application publicly or to license Intel or its licensees to do so.


1.4 PLATFORM DEPENDENCIES. The dates set out herein are based on certain anticipated introduction dates of certain Intel products. If such dates are extended by Intel in its sole discretion then Intel shall notify Developer of such extensions and the Target Delivery Dates and other dates related to them shall be extended by a like period.


1.5 APPLICATION OBLIGATIONS. Developer will offer users of its mplayer.com game service the Application for a period of at least [XXXXX] from initial [XXXXX] launch. Developer shall perform measurement as described in Attachment D.


2. TECHNICAL ASSISTANCE FROM INTEL


2.1 INTEL TECHNOLOGY. Intel shall provide Developer with the information, development software, and loaner hardware/systems identified on Attachment C ("Intel's Technical Assistance"), and may provide other similar items to Developer, (collectively "Intel Technology"). Intel Technology remains Intel's property and is deemed confidential information delivered under CNDA #75561 executed by and between the parties as of March 8, 1996.


2.2. INTEL CONSULTING. Depending on Developer's interest and needs and availability of Intel staff, Intel may provide consultation to Developer on methods to improve the Application to take advantage of [XXXXX], the [XXXXX], and on technical problems encountered in developing the Application.


2.3 AS IS. The Intel Technology, and any Intel consulting, is provided "AS IS" with no warranties.


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3. MARKETING RIGHTS; SPONSORSHIP PAYMENTS


3.1 DEMONSTRATION AND MARKETING RIGHTS. Unless and until Intel's rights are terminated under the terms of this Agreement, Intel shall have the following worldwide rights and licenses:


3.1.1 Intel may use and display the Application publicly and privately in displays, performances, and broadcasts for promotional purposes, including at trade shows, in customer visits, in advertisements, and by means of video or other electronic transmission of sounds, text and images. Intel may license other parties to exercise such rights in connection with the promotion and marketing of Intel products, but shall not license or distribute copies of the Application for end-user distribution except as expressly permitted in writing.


3.1.2 Intel may include copies of the sounds, text and images included in the Application (including software screen displays) in Intel's printed and digital publications for promotional purposes. This includes use in annual reports, corporate web site, advertising, and point-of-sale displays, all of which may be reproduced and distributed.


3.1.3 Except as provided in the following section, Developer may not, without prior written approval from Intel, display, perform publicly, or in any other way show the [XXXXX] to a third party until the [XXXXX] Launch. The parties agree to negotiate, in good faith, a written, mutually acceptable arrangement to use Developer's elite beta testing group to test the Application.


3.1.4 The Developer shall not use Intel's name, logos, or trademarks for marketing purposes without Intel's written permission.


3.15 Developer will designate Application-enabled game rooms with text or pictorials subject to Intel approval.


3.1.6 Intel may copy the Application as reasonably necessary to exercise the rights granted hereunder, provided that any copies of the Application provided to third parties permitted hereunder shall be under a commercially reasonable "shrink-wrap," "click-wrap," or similar license terms which prohibit reverse engineering, reverse compiling, reducing to human perceivable form, disassembling, copying and distribution not permitted hereunder.


3.2 SPONSORSHIP PAYMENTS. Intel shall make a first sponsorship fee payment of [XXXXX] upon execution hereof. Thereafter, within thirty days of Developer's completion and delivery of each of the following milestones (including as they may be further defined in this Agreement), Intel shall either notify Developer that it will pay Developer the sponsorship fee set out below or decline to do so. If Intel declines to pay the sponsorship fee, then Intel's license under Section 3.1 shall terminate, Intel must [XXXXX] and Intel shall discontinue all activities thereunder within sixty days from such delivery, otherwise, Intel shall pay the appropriate fee as set out below.


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