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diff --git a/WinQuake/data/COMEXP.TXT b/WinQuake/data/COMEXP.TXT index 06bc4af..9965b0f 100644 --- a/WinQuake/data/COMEXP.TXT +++ b/WinQuake/data/COMEXP.TXT @@ -1,487 +1,487 @@ - COMMERCIAL EXPLOITATION LICENSE AGREEMENT FOR QUAKE - - This Commercial Exploitation License Agreement for QUAKE -(the "Agreement") is between Id Software, Inc., a Texas -Corporation, (hereinafter "Id Software") and Licensee (as described -on the signature page hereof) and is made effective beginning on -the date of last signature hereto (the "Effective Date"). - - R E C I T A L S - - WHEREAS, Id Software is the owner and developer of the -computer software game entitled QUAKE; - - WHEREAS, Id Software desires to license certain -non-exclusive rights regarding QUAKE to Licensee; and - - WHEREAS, Licensee desires to receive a license for such -rights. - - T E R M S A N D C O N D I T I O N S - - NOW, THEREFORE, for and in consideration of the mutual -premises contained herein and for other good and valuable -consideration, the receipt and sufficiency of which is hereby -acknowledged, the undersigned parties do hereby agree as follows: - - 1. DEFINITIONS. As used in this Agreement, the parties -hereto agree the words set forth below shall have the specified -meanings: - - a. "Authorized Copy" shall mean one (1) copy of the - Subject Game actually purchased by Licensee from an - Id Software approved retailer; and - - b. "Subject Game" shall mean the full registered - version of QUAKE on a CD-ROM and shall not mean the - shareware or any other version. - - 2. GRANT OF RIGHTS. Id Software hereby grants to -Licensee and Licensee hereby accepts, subject to the provisions and -conditions hereof, a world-wide (except as otherwise provided -herein), non-exclusive, non-transferable, and non-assignable -license to: - - a. publicly display an Authorized Copy in exchange for - rental payment; - - b. run the Authorized Copy so that it will accept - network/modem connections in exchange for payments - from end-users who also must have actually purchased - an Authorized Copy; and - - c. otherwise commercially exploit an Authorized Copy, - except that Licensee shall not copy, reproduce, - manufacture or distribute the Authorized Copy. - - 3. RESERVATION OF RIGHTS AND PROHIBITIONS. Id Software -expressly reserves all rights not granted herein. Under no -circumstances shall Licensee copy, reproduce, manufacture or -distribute (free of charge or otherwise) the Authorized Copy or the -Subject Game. Licensee shall not reverse engineer, decompile, -disassemble, modify or alter the Authorized Copy. Licensee is not -receiving any rights hereunder regarding the Trademark or any -artwork, sound, music or other element of the Subject Game. - - 4. OWNERSHIP. Title to and all ownership rights in and -to the Subject Game, and the QUAKE Trademark (the "Trademark") and -the copyrights, trademarks, patents and other intellectual property -rights related thereto shall remain with Id Software which shall have -the exclusive right to protect the same by copyright or otherwise. -Licensee shall have no ownership rights in or to the Subject Game or -the Trademark and Licensee shall not own any intellectual property -rights regarding the Authorized Copy, including, without limitation, -the copyright regarding the Authorized Copy. Licensee acknowledges -that it only has a limited license to use the Authorized Copy, as -specified in that certain QUAKE Enduser License contained within the -Authorized Copy and as specified in this Agreement. - - 5. TERM AND TERMINATION. - - a. The term of this Agreement and the license granted -herein begins on the Effective Date and shall expire on a date one -(1) calendar year from the Effective Date. - - b. Either party may terminate this Agreement, for any -reason or no reason, on thirty (30) days written notice to the -other party. Termination will be effective on the thirtieth (30th) -day following delivery of the described notice. Notwithstanding -anything to the contrary herein, this Agreement shall immediately -terminate, without the requirement of any notice from Id Software -to Licensee, upon the occurrence of any of the following: (a) if -Licensee shall file a petition in bankruptcy or make an assignment -for the benefit of creditors, or if any bankruptcy proceeding or -assignment for benefit of creditors, shall be commenced against -Licensee and not be dismissed within sixty (60) days after the date -of its commencement; (b) the insolvency of Licensee; (c) the -cessation by Licensee of its business; or (d) the cessation by -Licensee, without the prior written consent of Id Software of the -distribution, manufacture, and sale responsibilities embodied -herein. Further, Id Software may elect to terminate this Agreement -upon the occurrence of any of the following: (1) if Licensee's -business operations are interrupted for forty (40) consecutive -calendar days; or (2) if each of two Id Software audit inspections -during any eighteen (18) month period demonstrates an -understatement by Licensee of Royalty payments due Id Software for -the six (6) month period immediately preceding each such inspection -of five percent (5%) or more. Upon the occurrence of such -terminating event, and the election of Id Software, if necessary, -to cause such termination, this Agreement and any and all rights -thereunder shall terminate without prejudice to any rights or -claims Id Software may have, and all rights hereunder shall -thereupon terminate, revert to and be vested in Id Software. - - 6. EFFECT OF TERMINATION OR EXPIRATION. Termination or -expiration of this Agreement, either by Id Software or -automatically, shall not create any liability against Id Software. -Upon expiration or earlier termination of this Agreement, Licensee -shall have no further right to exercise the rights licensed -hereunder or otherwise acquired in relation to this Agreement. - - 7. INDEMNIFICATION. Licensee hereby agrees to -indemnify, hold harmless and defend Id Software and Id Software's -predecessors, successors, assigns, officers, directors, -shareholders, employees, agents, representatives, licensees, -sublicensees, distributors, attorneys and accountants -(collectively, the "Id Related Parties") from and against any and -all damages, claims, losses, causes of action, liabilities, -lawsuits, judgments and expenses (including, without limitation, -reasonable attorneys' fees and expenses) arising from, relating to -or in connection with a breach of this Agreement by Licensee and -arising from, relating to or in connection with the Licensee's use -or non-use of the Authorized Copy (collectively, the "Claims"). Id -Software agrees to notify Licensee of any such Claims within a -reasonable time after Id Software learns of same. Licensee, at its -own expense, shall defend Id Software and the Id Related Parties -from any and all Claims. Id Software and the Id Related Parties -reserve the right to participate in any defense of the Claims with -counsel of their choice, and at their own expense. In the event -Licensee fails to provide a defense, then Licensee shall be -responsible for paying the attorneys' fees and expenses incurred by -Id Software and the Id Related Parties regarding the defense of the -Claims. Id Software and the Id Related Parties, as applicable, -agree to reasonably assist in the defense of the Claims. No -settlement by Licensee of any Claims shall be valid unless Licensee -receives the prior written consent of Id Software and the Id -Related Parties, as applicable, to any such settlement. - - 8. CONFIDENTIALITY. It is understood and agreed that -any proprietary information of Id Software that may from time to -time be made available or become known to Licensee is to be treated -as confidential, is to be used solely in connection with Licensee's -performance under this Agreement, and is to be disclosed only to -employees of Licensee who have a need for access. Such proprietary -information shall include, but not be limited to, trade secrets, -release information, financial information, personnel information, -and the like. Reasonable measures shall be taken by Licensee to -protect the confidentiality of Id Software's proprietary -information and any memoranda or papers containing proprietary -information of Id Software's that Licensee may receive are to be -returned to Id Software upon request. Licensee's obligations and -duties under this paragraph shall survive expiration or earlier -termination of this Agreement. Licensee shall obtain from its -employees an undertaking in a form which may be supplied by Id -Software, and which is subject to Id Software's prior written -approval, not to use or disclose to any third party any information -or knowledge concerning the business of Id Software which may be -communicated to such employees. - - 9. LIMITATION OF LIABILITY. ID SOFTWARE EXPRESSLY -DISCLAIMS ALL WARRANTIES NOT PROVIDED BY ID SOFTWARE HEREUNDER. -UNDER NO CIRCUMSTANCES SHALL ID SOFTWARE BE LIABLE TO LICENSEE FOR -ACTUAL, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR -ANY OTHER DAMAGES, WHETHER OR NOT ID SOFTWARE RECEIVES NOTICE OF -ANY SUCH DAMAGES. - - 10. COMPLIANCE WITH APPLICABLE LAWS. In performing -under this Agreement, Licensee agrees to comply with all applicable -laws, [including, without limitation, 22 U.S.C., 2778 and 22 -U.S.C. C.F.R. Parts 120-130 (1995)] regulations, ordinances and -statutes, including, but not limited to, the import/export laws and -regulations of the United States and its governmental and -regulatory agencies (including, without limitation, the Bureau of -Export Administration and the U.S. Department of Commerce) and all -applicable international treaties and laws. Further, Licensee -shall defend, indemnify and hold harmless Id Software from any and -all sales tax, tariffs and/or duties in connection with Licensee's -performance hereunder. - - 11. SPECIFIC UNDERTAKINGS BY LICENSEE. In addition to -the obligations of Licensee otherwise set forth in this Agreement, -during the term of this Agreement, and thereafter where specified, -Licensee agrees that: - - a. It will not attack the title of Id Software to the -Subject Game or the Trademark and any copyright, patent or -trademark or other intellectual property right related thereto and -it will not attack the validity of the license granted hereunder -during the term hereof or thereafter; and - - b. It will promptly inform Id Software of any -unauthorized use of the Authorized Copy, the Subject Game and the -Trademark and any portions thereof and reasonably assist Id -Software in the enforcement of any rights Id Software may have -against such unauthorized users. - - 12. FINANCIAL OBLIGATIONS AND ACCOUNTING. - - a. Payment of Royalties. Licensee agrees to pay Id -Software a royalty ("Royalty") at the rate of twelve and one-half -percent (12.5%) of Net Income. The term "Net Income" shall mean -all revenue received by Licensee from the commercial use of the -Authorized Copy, less only Licensee's actual, documented costs -relating directly to such use. A Royalty shall only be due for -those months in which Licensee's gross revenue from QUAKE -distribution exceeds U.S. Five Thousand Dollars ($5,000.00) and in -such months Licensee shall pay a full Royalty on all revenue -received. - - b. Rendition of Statements. Licensee shall account to -Id Software with regard to transactions hereunder within forty-five -(45) days following the conclusion of each calendar quarter. -Licensee hereby represents and warrants that such statements of -account to be prepared shall be true and correct. The accounts -shall show in summary form the appropriate calculations relating to -the computation of Royalties, if any. The statements shall also -show the gross revenue received by Licensee per month. The -Royalties payable to Id Software hereunder shall be remitted with -the particular statement indicating such amount to be due. All -statements hereunder shall be deemed rendered when deposited, -postage prepaid, in the United States mail, addressed to Id -Software at Id Software's address set forth on the signature page -hereof. - - c. Books of Account and Audits. Licensee shall keep -books of account relating to the commercial use of the Authorized -Copy on the basis of generally accepted accounting principles and -shall maintain such books of account for a period of at least two -(2) years after the expiration or earlier termination of this -Agreement; provided, however, that Licensee shall not be required -to keep such records longer than seven (7) years from their date of -origination. Id Software may, upon reasonable notice and at its -own expense, audit the applicable records at Licensee's office, in -order to verify statements rendered hereunder. Any such audit -shall take place during reasonable business hours and in such -manner so as not to interfere with Licensee's normal business -activities. Id Software agrees that such information inspected -and/or copied on behalf of Id Software hereunder shall be used only -for the purpose of determining the accuracy of the statements, and -shall be revealed only to such officers, directors, employees, -agents and/or representatives of Id Software as necessary to verify -the accuracy of the statements. If in an audit of Licensee's books -and records it is determined that there is a short fall of ten -percent (10%) or more in Royalties reported for any calendar -quarter, in addition to payment of such short fall and interest as -may be due, as provided herein, Licensee shall reimburse Id -Software for the full out-of-pocket costs of the audit including -reasonable travel costs and expenses; provided, however, that the -amount of reimbursement paid by Licensee shall not exceed U.S. -Fifteen Thousand Dollars ($15,000.00) for any audit. - - d. Payment of the Royalty. Licensee assumes all risks -associated with fluctuations in foreign currency exchange rates. -Licensee shall pay and agrees to pay all sums due Id Software in -United States Dollars. With respect to Royalties due for -commercial use outside the United States, other currencies shall be -exchanged at the expense of Licensee into United States Dollars -using the bid price quoted at the Citibank, N.A. of New York, New -York, for the purchase of United States Dollars at the close of -business on the last day of the calendar quarter during which any -amounts accrue. Payment of the Royalties shall be made in Dallas -County, Texas. - - e. Interest. If Id Software does not receive the -applicable Royalty payment on or before the due date of such -payment, Licensee agrees to pay and shall pay interest on Royalties -owed to Id Software from such date as specified in the following -sentence at a rate per annum equal to the Index Rate. For purposes -of clarification, the interest will begin to accrue on the first -(1st) day following the due date of the Royalty payment, unless the -Royalty payment is paid timely. The "Index Rate" shall be the -prime rate as published in The Wall Street Journal's "Money Rates" -table. If multiple prime rates are quoted in the table, then the -highest prime rate will be the Index Rate. In the event that the -prime rate is no longer published in the "Money Rates" table, then -Id Software will choose a substitute Index Rate which is based upon -comparable information. The applicable interest rate will be -determined and take effect on the first day of each month. - - NOTHING HEREIN SHALL BE CONSTRUED AS A REQUEST OR DEMAND BY -ID SOFTWARE OF INTEREST AT A RATE HIGHER THAN ALLOWED BY APPLICABLE -LAW. IT IS THE INTENT OF THE PARTIES HERETO THAT NO INTEREST BE -CHARGED HEREUNDER WHICH EXCEEDS THE MAXIMUM RATE ALLOWED BY -APPLICABLE LAW. IF THE RATE REFERENCED ABOVE EXCEEDS THE MAXIMUM -RATE ALLOWED BY APPLICABLE LAW, THEN THE INTEREST RATE MADE -APPLICABLE HEREIN SHALL BE THE MAXIMUM RATE ALLOWED BY APPLICABLE -LAW. - - 13. SUBLICENSE. Licensee shall not be entitled to -sublicense any of its rights under this Agreement. - - 14. GOODWILL. Licensee recognizes the great value of -the goodwill associated with the Subject Game and the Trademark, -and acknowledges that such goodwill, now existing and hereafter -created, exclusively belongs to Id Software and that the Trademark -has acquired a secondary meaning in the mind of the public. - - 15. REMEDIES. In the event of a breach of this -Agreement by Id Software, Licensee's sole remedy shall be to -terminate this Agreement. In the event of a breach by Licensee of -this Agreement, Id Software may pursue the remedies to which it is -entitled under applicable law, including, but not limited to, -termination of this Agreement. Licensee agrees that its failure to -comply with the terms of this Agreement upon expiration or earlier -termination hereof or Licensee's unauthorized use of the Authorized -Copy may result in immediate and irreparable damage to Id Software -for which there is no adequate remedy at law, and in the event of -such failure by Licensee, Id Software shall be entitled to -injunctive relief. Pursuit of any remedy by Id Software shall not -constitute a waiver of any other right or remedy of Id Software -under this Agreement or under applicable law. Termination of this -Agreement shall not be a pre-condition to Id Software pursuing its -other remedies for breach. - - 16. LICENSEE'S WARRANTIES. Licensee warrants and -represents that it has full legal rights to enter into this -Agreement and to perform its obligations hereunder and that it will -comply, at all times during the terms of this Agreement, with all -applicable laws, as set forth hereinabove. - - 17. BANKRUPTCY. If Licensee's liabilities exceed its -assets, or if Licensee becomes unable to pay its debts as they -become due or if Licensee files for voluntary bankruptcy, or is -placed in bankruptcy which is not dissolved or dismissed after -thirty (30) days from the petition filing date, or if Licensee -becomes insolvent, or makes an assignment for the benefit of its -creditors or an arrangement pursuant to any bankruptcy laws or if -Licensee discontinues its business or if a receiver is appointed -for its business, this Agreement shall automatically terminate, -without notice, and become null and void; provided, however, all -duties of Licensee upon termination or expiration of this Agreement -shall continue in full force and effect. - - 18. ENTIRE AGREEMENT AND ASSIGNMENT. This Agreement -constitutes the entire understanding between Licensee and Id -Software regarding the Subject Game. Each and every clause of this -Agreement is severable from the whole and shall survive unless the -entire Agreement is declared unenforceable. No prior or present -agreements or representations shall be binding upon any of the -parties hereto unless incorporated in this Agreement. No -modification or change in this Agreement shall be valid or binding -upon the parties unless in writing, executed by the parties to be -bound thereby. This Agreement shall bind and inure to the benefit -of Id Software, its successors and assigns, and Id Software may -assign its rights hereunder, in Id Software's sole discretion. -This Agreement is personal to Licensee, and Licensee shall not -sublicense, assign, transfer, convey nor franchise its rights -granted hereunder. - - 19. CHOICE OF LAW, VENUE AND SERVICE OF PROCESS. This -Agreement shall be construed in accordance with the laws of the -State of Texas and applicable U.S. federal law and all claims -and/or lawsuits in connection with this Agreement must be brought -in Dallas County, Texas. Licensee hereby agrees that service of -process by certified mail to the address set forth below, with -return receipt requested, shall constitute valid service of process -upon Licensee. If for any reason Licensee has moved or cannot be -validly served, then Licensee appoints the Secretary of State of -the state of Texas to accept service of process on Licensee's -behalf. - - 20. EXCUSED PERFORMANCE. Neither party shall be deemed -to be in default of any provision of this Agreement nor be liable -for any delay, failure in performance or interruption of service, -resulting directly or indirectly from acts of God, civil or -military authority, civil disturbance, military action, war, -strikes, other catastrophes or any other similar cause beyond its -reasonable control. Written notice to the non-affected party of any -such condition shall be given by the affected party within ten (10) -days of the event. - - 21. DELIVERY OF NOTICES, AND DELIVERY OF PAYMENTS. -Unless otherwise directed in writing by the parties, all notices -given hereunder and all payments made hereunder shall be sent to -the addresses set forth on the signature page hereof. All -notices, requests, consents and other communications under this -Agreement shall be in writing and shall be deemed to have been -delivered on the date personally delivered or on the date deposited -in the United States Postal Service, postage prepaid, by certified -mail, return receipt requested, or telegraphed and confirmed, or -delivered by electronic facsimile and confirmed. Any notice to Id -Software shall also be sent to its counsel: D. Wade Cloud, Jr., -Hiersche, Martens, Hayward, Drakeley & Urbach, P.C., 15303 Dallas -Parkway, Suite 700, LB 17, Dallas, Texas 75248. - - 22. NO PARTNERSHIP, ETC. This Agreement does not -constitute and shall not be construed as constituting a partnership -or joint venture between Id Software and Licensee. Neither party -shall have any right to obligate or bind the other party in any -manner whatsoever, and nothing herein contained shall give, or is -intended to give, any rights of any kind to any third persons. - - 23. COUNTERPARTS. This Agreement may be executed in -several counterparts, each of which will be deemed to be an -original, and each of which alone and all of which together, shall -constitute one and the same instrument, but in making proof of this -Agreement it shall not be necessary to produce or account for each -copy of any counterpart other than the counterpart signed by the -party against whom this Agreement is to be enforced. This -Agreement may be transmitted by facsimile, and it is the intent of -the parties for the facsimile of any autograph printed by a -receiving facsimile machine to be an original signature and for the -facsimile and any complete photocopy of the Agreement to be deemed -an original counterpart. - - 24. MEDIATION. If a dispute arises out of or relates to -this Agreement, or a breach of this Agreement, and if the dispute -cannot be settled through direct discussion, then the parties agree -to endeavor to settle the dispute in an amicable manner by -mediation, under the applicable provisions of Section 154.00 et -seq., Texas Civil Practices and Remedies Code, as supplemented by -the rules of the Association of Attorney Mediators. - - 25. SURVIVAL. The following provisions shall survive -the expiration or earlier termination of this Agreement: -paragraphs 4., 7., 8., and the audit rights of Id Software in -paragraph 12.c. - - 26. MISCELLANEOUS. - - a. All captions in this Agreement are intended solely -for the convenience of the parties, and none shall effect the -meaning or construction of any provision. - - b. The terms and conditions of this Agreement have been -negotiated fully and freely among the parties. Accordingly, the -preparation of this Agreement by counsel for a given party will not -be material to the construction hereof, and the terms of this -Agreement shall not be strictly construed against such party. - - By signing in the spaces provided below, the parties have -agreed to all of the terms and conditions set forth in this -Agreement. - - -AGREED: - -LICENSEE: - - -Signed:_______________________________ -Printed Name:_________________________ -Title:________________________________ -Address:______________________________ -______________________________________ -______________________________________ -Telephone #: _________________________ -Fax #:________________________________ -E-Mail Address:_______________________ -Date: ________________________________ - - -AGREED: - -ID SOFTWARE, INC. - - -Signed:_______________________________ -Printed Name:_________________________ -Title:________________________________ -Address:______________________________ -______________________________________ -______________________________________ -Telephone #: _________________________ -Fax #:________________________________ -E-Mail Address:_______________________ -Date: ________________________________ - - - -June 10, 1996 - - - -COMMERCIAL EXPLOITATION LICENSE AGREEMENT FOR QUAKE -(DWC:dw:3406.0299:dwc\doc:5017) - - + COMMERCIAL EXPLOITATION LICENSE AGREEMENT FOR QUAKE
+
+ This Commercial Exploitation License Agreement for QUAKE
+(the "Agreement") is between Id Software, Inc., a Texas
+Corporation, (hereinafter "Id Software") and Licensee (as described
+on the signature page hereof) and is made effective beginning on
+the date of last signature hereto (the "Effective Date").
+
+ R E C I T A L S
+
+ WHEREAS, Id Software is the owner and developer of the
+computer software game entitled QUAKE;
+
+ WHEREAS, Id Software desires to license certain
+non-exclusive rights regarding QUAKE to Licensee; and
+
+ WHEREAS, Licensee desires to receive a license for such
+rights.
+
+ T E R M S A N D C O N D I T I O N S
+
+ NOW, THEREFORE, for and in consideration of the mutual
+premises contained herein and for other good and valuable
+consideration, the receipt and sufficiency of which is hereby
+acknowledged, the undersigned parties do hereby agree as follows:
+
+ 1. DEFINITIONS. As used in this Agreement, the parties
+hereto agree the words set forth below shall have the specified
+meanings:
+
+ a. "Authorized Copy" shall mean one (1) copy of the
+ Subject Game actually purchased by Licensee from an
+ Id Software approved retailer; and
+
+ b. "Subject Game" shall mean the full registered
+ version of QUAKE on a CD-ROM and shall not mean the
+ shareware or any other version.
+
+ 2. GRANT OF RIGHTS. Id Software hereby grants to
+Licensee and Licensee hereby accepts, subject to the provisions and
+conditions hereof, a world-wide (except as otherwise provided
+herein), non-exclusive, non-transferable, and non-assignable
+license to:
+
+ a. publicly display an Authorized Copy in exchange for
+ rental payment;
+
+ b. run the Authorized Copy so that it will accept
+ network/modem connections in exchange for payments
+ from end-users who also must have actually purchased
+ an Authorized Copy; and
+
+ c. otherwise commercially exploit an Authorized Copy,
+ except that Licensee shall not copy, reproduce,
+ manufacture or distribute the Authorized Copy.
+
+ 3. RESERVATION OF RIGHTS AND PROHIBITIONS. Id Software
+expressly reserves all rights not granted herein. Under no
+circumstances shall Licensee copy, reproduce, manufacture or
+distribute (free of charge or otherwise) the Authorized Copy or the
+Subject Game. Licensee shall not reverse engineer, decompile,
+disassemble, modify or alter the Authorized Copy. Licensee is not
+receiving any rights hereunder regarding the Trademark or any
+artwork, sound, music or other element of the Subject Game.
+
+ 4. OWNERSHIP. Title to and all ownership rights in and
+to the Subject Game, and the QUAKE Trademark (the "Trademark") and
+the copyrights, trademarks, patents and other intellectual property
+rights related thereto shall remain with Id Software which shall have
+the exclusive right to protect the same by copyright or otherwise.
+Licensee shall have no ownership rights in or to the Subject Game or
+the Trademark and Licensee shall not own any intellectual property
+rights regarding the Authorized Copy, including, without limitation,
+the copyright regarding the Authorized Copy. Licensee acknowledges
+that it only has a limited license to use the Authorized Copy, as
+specified in that certain QUAKE Enduser License contained within the
+Authorized Copy and as specified in this Agreement.
+
+ 5. TERM AND TERMINATION.
+
+ a. The term of this Agreement and the license granted
+herein begins on the Effective Date and shall expire on a date one
+(1) calendar year from the Effective Date.
+
+ b. Either party may terminate this Agreement, for any
+reason or no reason, on thirty (30) days written notice to the
+other party. Termination will be effective on the thirtieth (30th)
+day following delivery of the described notice. Notwithstanding
+anything to the contrary herein, this Agreement shall immediately
+terminate, without the requirement of any notice from Id Software
+to Licensee, upon the occurrence of any of the following: (a) if
+Licensee shall file a petition in bankruptcy or make an assignment
+for the benefit of creditors, or if any bankruptcy proceeding or
+assignment for benefit of creditors, shall be commenced against
+Licensee and not be dismissed within sixty (60) days after the date
+of its commencement; (b) the insolvency of Licensee; (c) the
+cessation by Licensee of its business; or (d) the cessation by
+Licensee, without the prior written consent of Id Software of the
+distribution, manufacture, and sale responsibilities embodied
+herein. Further, Id Software may elect to terminate this Agreement
+upon the occurrence of any of the following: (1) if Licensee's
+business operations are interrupted for forty (40) consecutive
+calendar days; or (2) if each of two Id Software audit inspections
+during any eighteen (18) month period demonstrates an
+understatement by Licensee of Royalty payments due Id Software for
+the six (6) month period immediately preceding each such inspection
+of five percent (5%) or more. Upon the occurrence of such
+terminating event, and the election of Id Software, if necessary,
+to cause such termination, this Agreement and any and all rights
+thereunder shall terminate without prejudice to any rights or
+claims Id Software may have, and all rights hereunder shall
+thereupon terminate, revert to and be vested in Id Software.
+
+ 6. EFFECT OF TERMINATION OR EXPIRATION. Termination or
+expiration of this Agreement, either by Id Software or
+automatically, shall not create any liability against Id Software.
+Upon expiration or earlier termination of this Agreement, Licensee
+shall have no further right to exercise the rights licensed
+hereunder or otherwise acquired in relation to this Agreement.
+
+ 7. INDEMNIFICATION. Licensee hereby agrees to
+indemnify, hold harmless and defend Id Software and Id Software's
+predecessors, successors, assigns, officers, directors,
+shareholders, employees, agents, representatives, licensees,
+sublicensees, distributors, attorneys and accountants
+(collectively, the "Id Related Parties") from and against any and
+all damages, claims, losses, causes of action, liabilities,
+lawsuits, judgments and expenses (including, without limitation,
+reasonable attorneys' fees and expenses) arising from, relating to
+or in connection with a breach of this Agreement by Licensee and
+arising from, relating to or in connection with the Licensee's use
+or non-use of the Authorized Copy (collectively, the "Claims"). Id
+Software agrees to notify Licensee of any such Claims within a
+reasonable time after Id Software learns of same. Licensee, at its
+own expense, shall defend Id Software and the Id Related Parties
+from any and all Claims. Id Software and the Id Related Parties
+reserve the right to participate in any defense of the Claims with
+counsel of their choice, and at their own expense. In the event
+Licensee fails to provide a defense, then Licensee shall be
+responsible for paying the attorneys' fees and expenses incurred by
+Id Software and the Id Related Parties regarding the defense of the
+Claims. Id Software and the Id Related Parties, as applicable,
+agree to reasonably assist in the defense of the Claims. No
+settlement by Licensee of any Claims shall be valid unless Licensee
+receives the prior written consent of Id Software and the Id
+Related Parties, as applicable, to any such settlement.
+
+ 8. CONFIDENTIALITY. It is understood and agreed that
+any proprietary information of Id Software that may from time to
+time be made available or become known to Licensee is to be treated
+as confidential, is to be used solely in connection with Licensee's
+performance under this Agreement, and is to be disclosed only to
+employees of Licensee who have a need for access. Such proprietary
+information shall include, but not be limited to, trade secrets,
+release information, financial information, personnel information,
+and the like. Reasonable measures shall be taken by Licensee to
+protect the confidentiality of Id Software's proprietary
+information and any memoranda or papers containing proprietary
+information of Id Software's that Licensee may receive are to be
+returned to Id Software upon request. Licensee's obligations and
+duties under this paragraph shall survive expiration or earlier
+termination of this Agreement. Licensee shall obtain from its
+employees an undertaking in a form which may be supplied by Id
+Software, and which is subject to Id Software's prior written
+approval, not to use or disclose to any third party any information
+or knowledge concerning the business of Id Software which may be
+communicated to such employees.
+
+ 9. LIMITATION OF LIABILITY. ID SOFTWARE EXPRESSLY
+DISCLAIMS ALL WARRANTIES NOT PROVIDED BY ID SOFTWARE HEREUNDER.
+UNDER NO CIRCUMSTANCES SHALL ID SOFTWARE BE LIABLE TO LICENSEE FOR
+ACTUAL, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR
+ANY OTHER DAMAGES, WHETHER OR NOT ID SOFTWARE RECEIVES NOTICE OF
+ANY SUCH DAMAGES.
+
+ 10. COMPLIANCE WITH APPLICABLE LAWS. In performing
+under this Agreement, Licensee agrees to comply with all applicable
+laws, [including, without limitation, 22 U.S.C., 2778 and 22
+U.S.C. C.F.R. Parts 120-130 (1995)] regulations, ordinances and
+statutes, including, but not limited to, the import/export laws and
+regulations of the United States and its governmental and
+regulatory agencies (including, without limitation, the Bureau of
+Export Administration and the U.S. Department of Commerce) and all
+applicable international treaties and laws. Further, Licensee
+shall defend, indemnify and hold harmless Id Software from any and
+all sales tax, tariffs and/or duties in connection with Licensee's
+performance hereunder.
+
+ 11. SPECIFIC UNDERTAKINGS BY LICENSEE. In addition to
+the obligations of Licensee otherwise set forth in this Agreement,
+during the term of this Agreement, and thereafter where specified,
+Licensee agrees that:
+
+ a. It will not attack the title of Id Software to the
+Subject Game or the Trademark and any copyright, patent or
+trademark or other intellectual property right related thereto and
+it will not attack the validity of the license granted hereunder
+during the term hereof or thereafter; and
+
+ b. It will promptly inform Id Software of any
+unauthorized use of the Authorized Copy, the Subject Game and the
+Trademark and any portions thereof and reasonably assist Id
+Software in the enforcement of any rights Id Software may have
+against such unauthorized users.
+
+ 12. FINANCIAL OBLIGATIONS AND ACCOUNTING.
+
+ a. Payment of Royalties. Licensee agrees to pay Id
+Software a royalty ("Royalty") at the rate of twelve and one-half
+percent (12.5%) of Net Income. The term "Net Income" shall mean
+all revenue received by Licensee from the commercial use of the
+Authorized Copy, less only Licensee's actual, documented costs
+relating directly to such use. A Royalty shall only be due for
+those months in which Licensee's gross revenue from QUAKE
+distribution exceeds U.S. Five Thousand Dollars ($5,000.00) and in
+such months Licensee shall pay a full Royalty on all revenue
+received.
+
+ b. Rendition of Statements. Licensee shall account to
+Id Software with regard to transactions hereunder within forty-five
+(45) days following the conclusion of each calendar quarter.
+Licensee hereby represents and warrants that such statements of
+account to be prepared shall be true and correct. The accounts
+shall show in summary form the appropriate calculations relating to
+the computation of Royalties, if any. The statements shall also
+show the gross revenue received by Licensee per month. The
+Royalties payable to Id Software hereunder shall be remitted with
+the particular statement indicating such amount to be due. All
+statements hereunder shall be deemed rendered when deposited,
+postage prepaid, in the United States mail, addressed to Id
+Software at Id Software's address set forth on the signature page
+hereof.
+
+ c. Books of Account and Audits. Licensee shall keep
+books of account relating to the commercial use of the Authorized
+Copy on the basis of generally accepted accounting principles and
+shall maintain such books of account for a period of at least two
+(2) years after the expiration or earlier termination of this
+Agreement; provided, however, that Licensee shall not be required
+to keep such records longer than seven (7) years from their date of
+origination. Id Software may, upon reasonable notice and at its
+own expense, audit the applicable records at Licensee's office, in
+order to verify statements rendered hereunder. Any such audit
+shall take place during reasonable business hours and in such
+manner so as not to interfere with Licensee's normal business
+activities. Id Software agrees that such information inspected
+and/or copied on behalf of Id Software hereunder shall be used only
+for the purpose of determining the accuracy of the statements, and
+shall be revealed only to such officers, directors, employees,
+agents and/or representatives of Id Software as necessary to verify
+the accuracy of the statements. If in an audit of Licensee's books
+and records it is determined that there is a short fall of ten
+percent (10%) or more in Royalties reported for any calendar
+quarter, in addition to payment of such short fall and interest as
+may be due, as provided herein, Licensee shall reimburse Id
+Software for the full out-of-pocket costs of the audit including
+reasonable travel costs and expenses; provided, however, that the
+amount of reimbursement paid by Licensee shall not exceed U.S.
+Fifteen Thousand Dollars ($15,000.00) for any audit.
+
+ d. Payment of the Royalty. Licensee assumes all risks
+associated with fluctuations in foreign currency exchange rates.
+Licensee shall pay and agrees to pay all sums due Id Software in
+United States Dollars. With respect to Royalties due for
+commercial use outside the United States, other currencies shall be
+exchanged at the expense of Licensee into United States Dollars
+using the bid price quoted at the Citibank, N.A. of New York, New
+York, for the purchase of United States Dollars at the close of
+business on the last day of the calendar quarter during which any
+amounts accrue. Payment of the Royalties shall be made in Dallas
+County, Texas.
+
+ e. Interest. If Id Software does not receive the
+applicable Royalty payment on or before the due date of such
+payment, Licensee agrees to pay and shall pay interest on Royalties
+owed to Id Software from such date as specified in the following
+sentence at a rate per annum equal to the Index Rate. For purposes
+of clarification, the interest will begin to accrue on the first
+(1st) day following the due date of the Royalty payment, unless the
+Royalty payment is paid timely. The "Index Rate" shall be the
+prime rate as published in The Wall Street Journal's "Money Rates"
+table. If multiple prime rates are quoted in the table, then the
+highest prime rate will be the Index Rate. In the event that the
+prime rate is no longer published in the "Money Rates" table, then
+Id Software will choose a substitute Index Rate which is based upon
+comparable information. The applicable interest rate will be
+determined and take effect on the first day of each month.
+
+ NOTHING HEREIN SHALL BE CONSTRUED AS A REQUEST OR DEMAND BY
+ID SOFTWARE OF INTEREST AT A RATE HIGHER THAN ALLOWED BY APPLICABLE
+LAW. IT IS THE INTENT OF THE PARTIES HERETO THAT NO INTEREST BE
+CHARGED HEREUNDER WHICH EXCEEDS THE MAXIMUM RATE ALLOWED BY
+APPLICABLE LAW. IF THE RATE REFERENCED ABOVE EXCEEDS THE MAXIMUM
+RATE ALLOWED BY APPLICABLE LAW, THEN THE INTEREST RATE MADE
+APPLICABLE HEREIN SHALL BE THE MAXIMUM RATE ALLOWED BY APPLICABLE
+LAW.
+
+ 13. SUBLICENSE. Licensee shall not be entitled to
+sublicense any of its rights under this Agreement.
+
+ 14. GOODWILL. Licensee recognizes the great value of
+the goodwill associated with the Subject Game and the Trademark,
+and acknowledges that such goodwill, now existing and hereafter
+created, exclusively belongs to Id Software and that the Trademark
+has acquired a secondary meaning in the mind of the public.
+
+ 15. REMEDIES. In the event of a breach of this
+Agreement by Id Software, Licensee's sole remedy shall be to
+terminate this Agreement. In the event of a breach by Licensee of
+this Agreement, Id Software may pursue the remedies to which it is
+entitled under applicable law, including, but not limited to,
+termination of this Agreement. Licensee agrees that its failure to
+comply with the terms of this Agreement upon expiration or earlier
+termination hereof or Licensee's unauthorized use of the Authorized
+Copy may result in immediate and irreparable damage to Id Software
+for which there is no adequate remedy at law, and in the event of
+such failure by Licensee, Id Software shall be entitled to
+injunctive relief. Pursuit of any remedy by Id Software shall not
+constitute a waiver of any other right or remedy of Id Software
+under this Agreement or under applicable law. Termination of this
+Agreement shall not be a pre-condition to Id Software pursuing its
+other remedies for breach.
+
+ 16. LICENSEE'S WARRANTIES. Licensee warrants and
+represents that it has full legal rights to enter into this
+Agreement and to perform its obligations hereunder and that it will
+comply, at all times during the terms of this Agreement, with all
+applicable laws, as set forth hereinabove.
+
+ 17. BANKRUPTCY. If Licensee's liabilities exceed its
+assets, or if Licensee becomes unable to pay its debts as they
+become due or if Licensee files for voluntary bankruptcy, or is
+placed in bankruptcy which is not dissolved or dismissed after
+thirty (30) days from the petition filing date, or if Licensee
+becomes insolvent, or makes an assignment for the benefit of its
+creditors or an arrangement pursuant to any bankruptcy laws or if
+Licensee discontinues its business or if a receiver is appointed
+for its business, this Agreement shall automatically terminate,
+without notice, and become null and void; provided, however, all
+duties of Licensee upon termination or expiration of this Agreement
+shall continue in full force and effect.
+
+ 18. ENTIRE AGREEMENT AND ASSIGNMENT. This Agreement
+constitutes the entire understanding between Licensee and Id
+Software regarding the Subject Game. Each and every clause of this
+Agreement is severable from the whole and shall survive unless the
+entire Agreement is declared unenforceable. No prior or present
+agreements or representations shall be binding upon any of the
+parties hereto unless incorporated in this Agreement. No
+modification or change in this Agreement shall be valid or binding
+upon the parties unless in writing, executed by the parties to be
+bound thereby. This Agreement shall bind and inure to the benefit
+of Id Software, its successors and assigns, and Id Software may
+assign its rights hereunder, in Id Software's sole discretion.
+This Agreement is personal to Licensee, and Licensee shall not
+sublicense, assign, transfer, convey nor franchise its rights
+granted hereunder.
+
+ 19. CHOICE OF LAW, VENUE AND SERVICE OF PROCESS. This
+Agreement shall be construed in accordance with the laws of the
+State of Texas and applicable U.S. federal law and all claims
+and/or lawsuits in connection with this Agreement must be brought
+in Dallas County, Texas. Licensee hereby agrees that service of
+process by certified mail to the address set forth below, with
+return receipt requested, shall constitute valid service of process
+upon Licensee. If for any reason Licensee has moved or cannot be
+validly served, then Licensee appoints the Secretary of State of
+the state of Texas to accept service of process on Licensee's
+behalf.
+
+ 20. EXCUSED PERFORMANCE. Neither party shall be deemed
+to be in default of any provision of this Agreement nor be liable
+for any delay, failure in performance or interruption of service,
+resulting directly or indirectly from acts of God, civil or
+military authority, civil disturbance, military action, war,
+strikes, other catastrophes or any other similar cause beyond its
+reasonable control. Written notice to the non-affected party of any
+such condition shall be given by the affected party within ten (10)
+days of the event.
+
+ 21. DELIVERY OF NOTICES, AND DELIVERY OF PAYMENTS.
+Unless otherwise directed in writing by the parties, all notices
+given hereunder and all payments made hereunder shall be sent to
+the addresses set forth on the signature page hereof. All
+notices, requests, consents and other communications under this
+Agreement shall be in writing and shall be deemed to have been
+delivered on the date personally delivered or on the date deposited
+in the United States Postal Service, postage prepaid, by certified
+mail, return receipt requested, or telegraphed and confirmed, or
+delivered by electronic facsimile and confirmed. Any notice to Id
+Software shall also be sent to its counsel: D. Wade Cloud, Jr.,
+Hiersche, Martens, Hayward, Drakeley & Urbach, P.C., 15303 Dallas
+Parkway, Suite 700, LB 17, Dallas, Texas 75248.
+
+ 22. NO PARTNERSHIP, ETC. This Agreement does not
+constitute and shall not be construed as constituting a partnership
+or joint venture between Id Software and Licensee. Neither party
+shall have any right to obligate or bind the other party in any
+manner whatsoever, and nothing herein contained shall give, or is
+intended to give, any rights of any kind to any third persons.
+
+ 23. COUNTERPARTS. This Agreement may be executed in
+several counterparts, each of which will be deemed to be an
+original, and each of which alone and all of which together, shall
+constitute one and the same instrument, but in making proof of this
+Agreement it shall not be necessary to produce or account for each
+copy of any counterpart other than the counterpart signed by the
+party against whom this Agreement is to be enforced. This
+Agreement may be transmitted by facsimile, and it is the intent of
+the parties for the facsimile of any autograph printed by a
+receiving facsimile machine to be an original signature and for the
+facsimile and any complete photocopy of the Agreement to be deemed
+an original counterpart.
+
+ 24. MEDIATION. If a dispute arises out of or relates to
+this Agreement, or a breach of this Agreement, and if the dispute
+cannot be settled through direct discussion, then the parties agree
+to endeavor to settle the dispute in an amicable manner by
+mediation, under the applicable provisions of Section 154.00 et
+seq., Texas Civil Practices and Remedies Code, as supplemented by
+the rules of the Association of Attorney Mediators.
+
+ 25. SURVIVAL. The following provisions shall survive
+the expiration or earlier termination of this Agreement:
+paragraphs 4., 7., 8., and the audit rights of Id Software in
+paragraph 12.c.
+
+ 26. MISCELLANEOUS.
+
+ a. All captions in this Agreement are intended solely
+for the convenience of the parties, and none shall effect the
+meaning or construction of any provision.
+
+ b. The terms and conditions of this Agreement have been
+negotiated fully and freely among the parties. Accordingly, the
+preparation of this Agreement by counsel for a given party will not
+be material to the construction hereof, and the terms of this
+Agreement shall not be strictly construed against such party.
+
+ By signing in the spaces provided below, the parties have
+agreed to all of the terms and conditions set forth in this
+Agreement.
+
+
+AGREED:
+
+LICENSEE:
+
+
+Signed:_______________________________
+Printed Name:_________________________
+Title:________________________________
+Address:______________________________
+______________________________________
+______________________________________
+Telephone #: _________________________
+Fax #:________________________________
+E-Mail Address:_______________________
+Date: ________________________________
+
+
+AGREED:
+
+ID SOFTWARE, INC.
+
+
+Signed:_______________________________
+Printed Name:_________________________
+Title:________________________________
+Address:______________________________
+______________________________________
+______________________________________
+Telephone #: _________________________
+Fax #:________________________________
+E-Mail Address:_______________________
+Date: ________________________________
+
+
+
+June 10, 1996
+
+
+
+COMMERCIAL EXPLOITATION LICENSE AGREEMENT FOR QUAKE
+(DWC:dw:3406.0299:dwc\doc:5017)
+
+
|