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Development And Publishing Agreement

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Sectors: Computer Software and Services
Governing Law: New York, View New York State Laws
Effective Date: February 16, 2000
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DEVELOPMENT AND PUBLISHING AGREEMENT


This Agreement is entered into as of February 10, 2000 , by and between Take-Two Interactive Software, Inc., a Delaware corporation, located at 575 Broadway, New York, NY 10012 ("Publisher") and VIS Interactive p/c, a corporation organized under the laws of Scotland, located at The VIS Building, Izatt Avenue, DunFermline Scotland, KY11 3BZ ("Developer").


WHEREAS, Publisher and Developer wish to enter into a Publishing Agreement whereby Developer shall create and develop State of Emergency (the "Product") and Publisher shall publish the Product on the terms and conditions set forth herein;


NOW, THEREFORE, the parties agree as follows:


1. GRANT OF LICENSE


Developer grants to Publisher the exclusive right during the Term (as hereinafter defined) and throughout the world (the "Territory") to produce, reproduce, perform, promote, advertise, export, import, rent, license, sublicense, translate, localize, manufacture, package, market, merchandise, distribute (through any channels, including electronic distribution by download), display, sell, lease and otherwise exploit the Product, including products without original narrative or interactive elements designed to support and/or promote the product using the names, renderings, dialog, sound effects or screen shots from the Product (including, without limitation, clothing, posters, novelties and strategy guides of every kind and nature whatsoever) (hereinafter referred to as "Ancillary Products") on the Platform (as hereinafter defined). Developer also hereby grants to Publisher the non-exclusive right throughout the Territory to use and reproduce the object code and an exclusive right to use the name of the Product (and any trademarks which may be applied for by Developer at Developer's sole cost and expense) in accordance with the provisions of this Agreement. Developer shall not exercise the exclusive rights granted to Publisher during the Term and throughout the Territory. Developer shall retain all copyrights and all other intellectual property rights in and to the Product, including all original elements of design and game software, and all rights in all source code, tools, technology, and other development aids embodied in and used in connection with the development of the Product. Any rights not explicitly granted to Publisher hereunder are reserved by Developer.


VIS Definitive Agreement


2. MARKETING


Publisher shall determine, in its sole discretion, the manner and method of marketing and distribution of the Product, including, but not limited to, marketing expenditures, advertising and promotion, packaging, channels of distribution and the price of the Product, provided however, that Publisher shall use commercially reasonable efforts to cause the Product to be released within nine (9) months of the date the Product is approved by Sony Corporation of America ("Sony") and shall spend at least $500,000 on advertising. Neither party makes any guarantee of success with respect to revenue to be achieved or royalties to be earned from the Product.


3. COMPETING PRODUCTS


Developer shall not, directly or indirectly, develop, manufacture or distribute a product of the same genre (i.e., third-person urban conflict simulation similar in theme, look and feel) as the Product for any party other than Publisher until the date two (2) years following the initial release of the Product. The parties acknowledge and agree that the foregoing restriction is of the essence of this Agreement and is necessary for the protection of Publisher's ongoing business.


During the Term and following the commercial release of the Product, Publisher shall have a right of first and last refusal for the exclusive, worldwide publishing rights to sequels, add-ons, mission packs and other platform versions of the Product. Any refusal right must be exercised in writing within fifteen (15) days of receipt of written notice by Developer of a bona fide third-party offer.


4. DEVELOPMENT


(a) Within thirty (30) days following the date hereof, Developer shall submit to Publisher for Publisher's acceptance design specifications ("Design Specifications") for the Product. Publisher shall, within fifteen (15) business days of submission of the Design Specifications, review the Design Specifications and shall notify Developer, in writing, indicating either acceptance or rejection of the Design Specifications, and, if rejection, the specific reasons therefor. Upon rejection of the Design Specifications, Developer shall have fifteen (15) business days from Publisher's notice to revise the Design Specifications and resubmit the Design Specifications for acceptance. Should Developer fail, to the reasonable satisfaction of Publisher, to deliver satisfactory Design Specifications, Publisher may terminate this Agreement by written notice to Developer and all amounts paid by the Publisher in connection with the Product shall be fully refundable.


(b) Developer shall develop the Product for the Sony Playstation 2 (the "Platform") in accordance with the approved Design Specifications, the development schedule annexed hereto as Exhibit A (the "Development Schedule) and the terms and conditions of this Agreement. Material changes to the Design Specifications shall be mutually agreed to in good faith by the parties.


(c) Publisher shall have the right to request translations/localization of the Product by providing written notice to Developer. Publisher shall pay to Developer the reasonable costs incurred by Developer set forth in an approved budget for each localization, such costs to be deemed an advance hereunder and shall be payable 50% upon commencement of development of additional language(s), and 50% upon Publisher's acceptance of the gold master of the localized version.


(d) Approval. After delivery to Publisher by Developer of each deliverable pursuant to the milestones identified in the Development Schedule (collectively, "Unapproved Deliverables"), Publisher will have thirty (30) calendar days to examine and test such Unapproved Deliverable to determine whether it conforms in all material respects to the approved design specifications and whether it is complete and free from material error (the "Acceptance Criteria"). On or before the thirtieth day after delivery, Publisher will notify Developer in writing of Publisher's acceptance or rejection of the Unapproved Deliverable based upon the Acceptance Criteria and, in case of any rejection, will provide Developer with a reasonably detailed list of deficiencies in the Unapproved Deliverable. In the event that Publisher fails to provide Developer with such written notification within thirty days of the date of delivery of an Unapproved Deliverable, Publisher shall be deemed to have accepted such Unapproved Deliverable. In the event of a rejection, Developer will use its good faith, best efforts to correct the deficiencies (including, without limitation, any material bugs and deficiencies that affect game play and/or compatibility) and will resubmit such Unapproved Deliverable, as corrected, as soon as reasonably practicable following Publisher's rejection. Publisher will either accept or reject the corrected Unapproved Deliverables based upon the Acceptance Criteria. This procedure will continue until Publisher either (i) accepts the Unapproved Deliverable or (ii) elects to terminate this Agreement for material breach after the Cure Period (as defined herein) pursuant to Section 14(b)(ii).


5. DELIVERY


Developer shall deliver to Publisher four (4) copies of the fully functional gold master for the Product (in executable object code form), on the Platform in electronic format, Bug (as hereinafter defined) free, and from which Publisher can create copies of the Product. Timely delivery in accordance with the Development Schedule is of the essence of this Agreement. In the event Developer fails to deliver the gold master for the Product by March 31, 2001 (the "Gold Master Delivery Date") unless such delivery date is extended by mutual agreement of Publisher and Developer, Developer shall be deemed to be in material breach of this Agreement. For the avoidance of doubt, the Cure Period (as hereinafter defined) shall not apply to any termination by Publisher pursuant to this Section. If Publisher terminates this Agreement pursuant to this section, all amounts paid by Publisher in connection with the Product shall be fully refundable in accordance with Section 14(b)(ii). "Bug" means any deviation from the commonly accepted standards for normal operation of games or any material error including, without limitation, an abnormal cessation of functioning of the Product.


6. CREDITS


Developer shall submit on-screen credits for the Product to Publisher for Publisher's approval, which approval shall not be unreasonably withheld. Publisher shall accord credit to Developer as developer with reasonable prominence on all printed materials related to the product, including without limitation, on front of the package, in the manual and advertising materials which shall contain Developer's logo. Developer's website address shall be displayed on the back of the package. The Product, user manual and Ancillary Products shall contain the following legal: (C) VIS Interactive plc 2000 or such other legal as may be provided by Developer.


7. DEVELOPER SUPPORT


During the three months following the initial release of the Product, at Publisher's request, Developer shall provide reasonable telephone support to Publisher's designated employees in connection with the technical support of users of the Product. Publisher shall reimburse Developer its reasonable pre-approved out-of-pocket expenses (as documented) in connection with rendering telephone support and training services.


8. ADVANCE


Provided Developer has performed in accordance with the terms hereof, Publisher shall pay to Developer a fully recoupable advance in the a
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