Based on Publisher-Controlled Major Feature Film Intellectual Property SOFTWARE DEVELOPMENT AGREEMENT This Software Development Agreement (this “Agreement”) is entered into as of , 20__ (the “Effective Date”) by and between [NAME & ADDRESS OF DEVELOPER] (“Developer”), and [NAME & ADDRESS OF PUBLISHER] (“Publisher”) (Developer and Publisher shall be referred to collectively as the “Parties” and individually as a “Party”).
RECITALS A. Publisher is in the business of developing, manufacturing, publishing, licensing, distributing and selling interactive entertainment software and video game products.
B. Developer is in the business of developing interactive entertainment software products.
C. Publisher desires to engage the services of Developer to develop and produce for Publisher the Products (as defined in Section 1), and Developer desires to develop and produce the Products for Publisher.
NOW, THEREFORE, in consideration of the mutual representations, warranties and covenants set forth in this Agreement and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties to this Agreement agree as follows:
1.Products and Other Rights.
1.1The Product. Developer agrees to use diligent, good faith efforts on a first priority basis (for the team assigned to this project, as further defined herein) to develop an interactive entertainment software product based on the “[TITLE]” series of theatrical motion pictures(the “Property”), the rights to which are owned by [COMPANY](the “Licensor”), to be developed by Developer for operation on the Platforms (as defined in Section ) (the “Product”)
1.3Products Defined. The Product and the Converted Versions (as defined in Section 8.1) are collectively referred to, from time to time in this Agreement, as the “Products,” and each, individually is sometimes referred to as a “Product.”
2.Platforms and Formats.
Subject to the terms of this Agreement relating to the development of Converted Versions, Developer agrees to develop the Products to operate on and be fully compatible with the following platforms configured for the NTSC and PAL television/video system standards: Sony PlayStation 3, Nintendo Wii and Microsoft Xbox 360 (the “Platforms”).
3.1Intellectual Property Defined. For purposes of this Agreement, the term “Intellectual Property” means inventions, know-how, patents, patent rights, and registrations and applications, renewals and extensions therefor, copyrights, copyrightable works of art and works of authorship (including, but not limited to, titles, computer code, themes, objects, characters, character names, stories, dialog, catch phrases, locations, concepts, game play elements, artwork, animation, sounds, musical compositions, audio-visual effects and methods of operation and any related documentation and packaging), copyright registrations and applications, renewals and extensions therefor, trademarks, service marks, trade names, trademark registrations and applications, renewals and extensions therefor, rights in trade dress, rights of paternity, attribution, integrity and other similarly afforded “moral” rights, trade secrets and other intellectual property and proprietary rights recognized by United States law and applicable foreign and international laws, treaties and conventions.
3.2Underlying Properties. Subject to Section 3.5, Publisher or, as applicable, Licensor, shall retain and own all rights, title and interest in and to the Products, including, without limitation, design documents, materials, graphics, animation, music, game play elements, audio and visual assets and displays, and other Intellectual Property created by Developer under this Agreement, and the underlying properties (including the Property) upon which the Products are based (i.e., all aspects of a Product’s game universe, including, without limitation, all characters, settings, stories, story lines, titles, themes, objects, dialog, catch phrases, weapons, vehicles, locations, concepts, artistic representations, rules and methods of play, names, likenesses, designs and other elements, and all trademarks, trade names, trade dress and copyrights and other Intellectual Property rights relating to such universe and elements (collectively, the “Underlying Properties”)). Without limiting the foregoing, Publisher (or as applicable, Licensor) shall also own all trade dress rights throughout the world in the packaging and materials developed by Publisher for the Products, as well as all trademark rights throughout the world in the name that is actually used by Publisher to market and sell the Products, except for any trademarks owned or controlled by Developer.
3.3Developer-Created Assets. Subject to Section 3.5, the Products, the Underlying Properties and all other Intellectual Property Developer creates and/or develops in connection with the services provided by Developer under this Agreement shall be considered “work(s) made for hire” (as that term is commonly used under applicable copyright laws), and shall therefore be the sole and exclusive property of Publisher (or as applicable, Licensor) from the time of creation. In the event that for any reason anything Developer creates and/or develops in connection with the services performed pursuant to this Agreement or any rights to the Products, the Underlying Properties and related Intellectual Property are deemed not to be work(s) made for hire, or in the event that Developer should, by operation of law, be deemed to retain any rights in the Products, the Underlying Properties or to any other such Intellectual Property, except as expressly set forth in Section 3.5, Developer hereby agrees to irrevocably assign and does hereby irrevocably assign to Publisher, without any further consideration and regardless of any use by Publisher of the Products, all of Developer’s rights, title, and interest, if any, in and to the Products, the Underlying Properties or any other Intellectual Property created by Developer in connection with this Agreement. Developer also hereby grants Publisher a perpetual, worldwide, non exclusive, paid up and royalty free license to exercise any moral rights to any and all aspects of all materials created in connection with the development of the Products. Developer further agrees to execute one or more copyright assignments at Publisher’s request, the form of which is set forth on Exhibit C attached hereto, or any other subsequent document as further evidence of this assignment, and to cooperate with Publisher in perfecting the assignment of any rights to the Products and all Intellectual Property related thereto.
3.4Game Engine. Publisher shall own all right, title and interest in and to the computer engine contained in the Products, and any modification or improvements thereto (collectively, the “Engine”); provided, however, that if the Engine is properly identified as Background Materials (as defined in Section 3.5 below) and set forth in the attached Exhibit E hereto, such Engine (including any modification or improvements thereto), shall be considered Background Materials and, therefore, be subject to Section 3.5 below.
3.5Background Materials, Tools, Etc. Developer shall own all right, title and interest in and to all preexisting software code, utilities, editing/compiling tools, data formats or compression methods, algorithms and interface routine and general computer software design practices and proprietary development tools identified in the attached Exhibit E hereto, including all improvements thereof developed in connection with the development of the Products, (the “Background Materials”) which have been developed or are now being developed by Developer and/or its contractors and which will be included in or used in the creation of the Products. Developer hereby grants to Publisher a perpetual, worldwide, non-exclusive, paid-up and royalty-free license, including the right to sublicense, to use and exploit the Background Materials, including, without limitation, to modify, enhance, create derivatives of, advertise, promote, distribute, publicly perform and display and sell the Background Materials in all respects (but not as a stand-alone product) as needed for the sole purpose of allowing Publisher to develop, publish, market, advertise, distribute, sell and otherwise exploit the Products and any Converted Versions. If Developer licenses rights to use the Background Materials to any third parties, Developer agrees that such licenses, and Developer’s support thereof, will not interfere with Developer’s development of the Products as provided hereunder or any other development work for which Publisher has engaged the services of Developer. The Parties acknowledge and agree that the license granted to Publisher by Developer as set forth in this Section 3.5 is deemed to be an intellectual property license, is and will at all times be subject Section 365(n) of the United States Bankruptcy Code and, subject to Publisher’s compliance with the terms and conditions of this Agreement, will be subject to all applicable provisions thereof.