270 Legal [Sample Agreements]

“OFFICIAL PLAYSTATION MAGAZINE”
PUBLISHING LICENSE AGREEMENT
This Official PlayStation Magazine Publishing License Agreement (“Agreement”) is effective as of the ___day of ___, 2005 and is entered into by and between SONY COMPUTER ENTERTAINMENT AMERICA INC., (“SCEA”), a Delaware corporation with its principal place of business at 919 E. Hillsdale Boulevard, Foster City CA 94404, and ZIFF DAVIS MEDIA INC., a Delaware corporation with its principal place of business at 28 East 28th Street, New York, New York 10016 (“Ziff Davis”).
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1. GRANT OF RIGHTS
(a) SCEA hereby grants to Ziff Davis (i) the exclusive right to publish and distribute and title a magazine the “Official U.S. PlayStation Magazine” (“Publication”), in print format, or by another name as may be mutually agreed upon by the parties, and (ii) the non-exclusive right to use the Trademarks identified in Schedule A in conjunction with the Publication pursuant to the PlayStation Trademark Guidelines attached in Schedule B, within the territories of the United States, Canada and Central America (“Licensed Territories”). The Publication shall be exclusive at it relates to the Platforms. The Publication may provide content on the PlayStation Portable Game Console (“PSP”) and the next generation console (“PS 3”) but SCEA retains the rights to publish or have another party publish an official magazine for the PSP and/or the PS 3.
As used herein, the Licensed Territories shall include United States military bases, U.S. possessions and territories, Canada and Central America. The parties will discuss, in good faith, the addition of new territories, if and when SCEA begins distributing the Platform in those territories and if SCEA desires distribution of the Publication in those territories. The rights granted above shall be defined as the “Publication Rights” and shall include ancillary promotional rights to create, publish, distribute and authorize reuse of materials using the Trademarks designed to promote or market the Publication (“Ancillary Promotional Rights”). Such materials shall include, but not be limited to, sell sheets, merchandising flyers, reprints, quotes and the “Official U.S. PlayStation Magazine” website. Nothing in this Agreement shall grant to Ziff Davis any rights to use SCEA Trademarks, except as expressly set forth in this Agreement.
(b) During the term of this Agreement, SCEA shall not grant any of the rights set forth above, or endorse or otherwise sponsor any other video game magazines or other publications (or sections therein) published by competitors of Ziff Davis. In addition, SCEA shall not use or grant the right to use, the “Official PlayStation Magazine” as part of the title of a magazine or other printed publication, or in a manner that is likely to create confusion in relation to the Publication, subject to SCEA’s retained rights as described herein.
(c) SCEA shall retain all rights, other than those rights expressly granted herein. Moreover, nothing contained herein shall be construed as affecting SCEA’s right to publish CD-ROMs, DVDs, or web sites related to or about the Platforms, PSP or PS 3, or magazines as it relates to the PSP and/or PS3 (except as provided in Section 1(d)), or other materials which are not competitive with the Publication and which do not use the “Official PlayStation Magazine” or “Official U.S. PlayStation Magazine” mark. SCEA will give Ziff Davis ninety (90) days notice before commencing newsstand distribution of any PlayStation-related materials.
(d) As of the date this Agreement is executed by SCEA, SCEA has not entered into an agreement to grant a third party a license to publish an “official” magazine in the Licensed Territories related to the PSP and/or the PS3. If, during the Term, SCEA decides to enter into an agreement to grant a third party a license to publish an “official” magazine in the Licensed Territories related to the PSP and/or the PS3, and so long as Ziff Davis (i) is not in material breach of this Agreement; (ii) is still in business; and (iii) has not filed for bankruptcy protection, then SCEA shall, prior to entering into discussions with any third party related to the potential grant of a license for such third party to publish such “official” magazine: (i) notify Ziff Davis and afford Ziff Davis the opportunity to respond to a request for proposal from potential licensees for such “official” magazine or otherwise communicate to SCEA terms on which Ziff Davis may propose the become the licensee for such “official” magazine, and (ii) evaluate any such proposal from Ziff Davis in good faith.
2. MAGAZINE DISCS — FORMAT, PRODUCTION, CONTENT AND INTERACTION WITH UNDERGROUND MEMBERS
(a) The Publication shall include an exclusive Platform formatted DVD on a monthly basis, supplied by SCEA, which shall contain interactive samples of games, compilations and/or greatest hits (which shall generally be samples from unreleased or recently released games) for the Platforms developed by SCEA and/or third party developers (“Magazine Disc”).
(b) SCEA shall provide the Magazine Disc on a spindle from Sony Disc Management, replicate the Magazine Disc, perform quality assurance on the Magazine Disc and press the necessary number of Magazine Discs, and deliver the Magazine Discs to Ziff Davis at least seven (7) calendar days before the Publication’s print date. Ziff Davis shall notify SCEA of each Publication’s print date at least sixty (60) calendar days in advance thereof.
(c) Ziff Davis shall purchase the Magazine Discs from SCEA on a monthly basis for inclusion in the Publication, as set forth below. In the event that SCEA is unable to provide the Magazine Disc at the Delivery Date (as defined below), SCEA shall provide one of the following: (i) a previously produced disc product which has not been previously provided to Ziff Davis and that is reasonably acceptable to Ziff Davis (“Previously Produced Disc”); or (ii) a Platform compatible DVD game or sampler disc from an SCEA licensed third party Platform publisher that is reasonably acceptable to Ziff Davis (“Third Party Disc”) (collectively “Substitute Disc”).
(d) SCEA shall provide the Magazine Disc or Substitute Disc to Ziff Davis on a date at least (10) days before the Publication’s print date (“Delivery Date”). SCEA shall be notified of each Publication’s print date at least sixty (60) days in advance. Notwithstanding the foregoing, if SCEA is unable to provide the Magazine Disc to Ziff Davis at the Delivery Date, then SCEA shall notify Ziff Davis of such at least twenty one (21) days prior to the Delivery Date at which time SCEA will propose a Substitute Disc to be mutually agreed upon by the parties.
(e) SCEA shall replicate the Magazine Disc or Substitute Disc pursuant to the terms and conditions hereunder. Ziff Davis shall be responsible for packaging the Magazine Discs with Disc and sleeve art approved by SCEA and co-branded with the PlayStation Magazine and the PlayStation Underground trademarks (in a mutually agreeable fashion) for the Publication at Ziff Davis’ cost.
(f) SCEA shall have complete discretion to coordinate the design, format, and number of titles and specific titles to be included on the Magazine Discs. Notwithstanding the foregoing, Ziff Davis will have input into the content of the Magazine Discs to coordinate the content of the Magazine Disc with the content of the Publication. SCEA shall keep Ziff Davis’ production manager advised of production schedules and content for all Magazine Discs. Ziff Davis shall use the Magazine Discs in the sequentially marked order provided by SCEA unless SCEA provides a substitute out of sequence. SCEA shall make reasonable efforts to notify Ziff Davis, as early as possible, of any changes in the content of Magazine Discs during production. The content and format of the Magazine Discs shall not be subject to change without prior notification to Ziff Davis.
3. PURCHASE OF MAGAZINE DISCS BY ZIFF DAVIS, MARKETING AND DISTRIBUTION FEE, ADVERTISEMENTS ON MAGAZINE DISCS AND USE BY SCEA
(a) Ziff Davis shall place a purchase order for quantities of Magazine Discs required for each Publication at least thirty-five (35) days prior to each Publication’s monthly print date by fax or e-mail. Purchase orders shall be in writing and shall not be deemed accepted until approved in writing by SCEA. The purchase order shall be deemed approved in five (5) business days after receipt of the purchase order unless otherwise disapproved in writing by SCEA. SCEA shall not unreasonably disapprove a purchase order. All purchases shall be governed by this Agreement and not superseded by any terms and conditions set out on the purchase order.
(b) Ziff Davis’ purchase of Magazine Discs, commencing with the Magazine Discs for the June 2005 issue of the Publication, is subject to the following terms:
  (i) Price: Per unit for Magazine Discs, FOB SCEA’s designated warehouse and based upon the number of Magazine Discs purchased, up to one hundred and ten percent (110%) of the print order of the applicable issue of the Publication: seventy-five cents ($0.75) per Magazine Disc.
  (ii) Purchase orders shall be placed for a minimum of one hundred fifty thousand (150,000) Magazine Discs. Ziff Davis may order a maximum of 10% more Magazine Discs than the total distribution of the Publication, on a monthly basis, at the cost identified in 3(b)(i).
  (iii) The terms for payment on each purchase order shall be net 45 days from Ziff Davis’ receipt of Magazine Discs.
  (iv) Ziff Davis shall pay all applicable sales taxes.
  (v) Ziff Davis shall meet SCEA’s general standards for credit approval. SCEA acknowledges that Ziff Davis meets such credit standards at the execution of this Agreement. No shipments shall be made if Ziff Davis’ account is in arrears unless the amount is disputed in good faith and Ziff Davis promptly pays all undisputed amounts.
  (vi) Ziff Davis’ purchase of Magazine Discs hereunder shall be exclusively for the purpose of promoting the Publication and shall not be sold in any retail channel, nor used in conjunction with any of Ziff Davis’ other publications. The Magazine Discs offered hereunder shall not be applicable to any other Ziff Davis programs or publications.
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