Software License and Co-Marketing Agreement - 3dfx Interactive Inc. and Electronic Arts Inc.
[ELECTRONIC ARTS LETTERHEAD]
SOFTWARE LICENSE
AND CO-MARKETING AGREEMENT
This Agreement is made as of June__, 1997 (the "Effective Date") by and between
ELECTRONIC ARTS INC., a Delaware corporation with offices at 1450 Fashion Island
Boulevard, San Mateo, California 94404 ("EA") and 3DFX INTERACTIVE, INC., a
California corporation with offices at 415 Clyde Avenue, Suite 105, Mountain
View, CA 94043 ("3DFX").
RECITALS
A. EA designs, develops, publishes and distributes interactive software
entertainment products.
B. 3DFX develops, manufactures and distributes 3D graphics accelerator
technology (the "3DFX Technology"), and develops and distributes software
for incorporation in entertainment software products which is designed to
facilitate compatibility between such software products and the 3DFX
Technology.
C. 3DFX desires to have EA incorporate its software into EA's software
products in order to increase the base of software products compatible
with the 3DFX Technology and thereby facilitate 3DFX's efforts to market
such 3DFX Technology.
D. EA desires to incorporate software of 3DFX in EA's software products, in
order to establish compatibility between such products and the 3DFX
Technology.
NOW, THEREFORE, the parties agree as follows:
1. DEFINITIONS
1.1 "Software" means the software product distributed by 3DFX
under the current title "Glide" as part of the 3DFX
Interactive, Inc. Software Development Kit, including any
updates, enhancements, revised versions, corrections and
fixes thereto, in both source and object code forms.
1.2 "EA Product" means any software product developed or
distributed by EA and/or under any trademark or logo of EA
[*]
[*]
1.4 "Intellectual Property Rights" means any and all rights
existing from time to time in any jurisdiction under patent
law, copyright law, moral rights law, trade secret law,
trademark law, unfair competition law or other similar
rights existing anywhere in the world.
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1.5 "Trademarks" means the trademarks of 3DFX as set forth on
Exhibit A hereto.
1.6 "Advertising Materials" shall have the meaning set forth in
Exhibit B hereto.
2. LICENSE
2.1 General. 3DFX hereby grants to EA a perpetual fully paid,
royalty free, world-wide, non-exclusive, transferable,
irrevocable, license, with right to sublicense, to do any
and all of the following: use, modify, localize, prepare
derivative works of, copy and reproduce, make and have made,
perform and display (publicly or otherwise) distribute and
sell the Software as part of any EA Product in any manner
and embodied in any medium currently existing or hereafter
conceived.
2.2 Moral Rights. For purposes of this subsection, "Moral
Rights" means any rights of paternity or integrity, any
right to claim authorship of the Software, to object to any
distortion, mutilation or other modification of, or other
derogatory action in relation to, any Software, whether or
not such would be prejudicial to 3DFX honor or reputation,
and any similar rights existing under judicial or statutory
law of any country in the world, or under any treaty,
regardless whether or not such right is denominated or
generally referred to as a "moral" right. 3DFX hereby agrees
not to assert against EA or any EA licensee or customer any
and all Moral Rights that 3DFX may have in the Software.
2.3 Execution of Documents. 3DFX will cooperate with EA, at EA's
expense, in obtaining patent, copyright, trademark or other
statutory protection for any EA Product which incorporates
the Software, in each country in which EA Products
incorporating the Software are sold, distributed or licensed
and in taking any enforcement action, including any public
or private prosecution, to protect EA's intellectual
property rights in or to all EA Products which incorporate
the Software; provided, however, that any invention in the
Software and any resulting patent application shall belong
exclusively to 3DFX, and that any copyright registration by
EA in any EA Product incorporating the Software shall
reflect 3DFX as owner of the Software and any trademark
right or other intellectual property right in the Software
shall belong exclusively to 3DFX. Each party agrees to
cooperate with the other in executing and filing applicable
registrations and recordations by the other party to protect
such other party's rights and, to the extent needed, to
assist in bringing enforcement actions initiated by the
other party to protect such other party's rights.
2.4 Trademark License. 3DFX grants EA a non-exclusive,
royalty-free, sublicensable, irrevocable right and license,
with right to sublicense, to use and reproduce the
Trademarks on and in the EA Products and in any reasonable
manner in connection with the advertising, promotion and
marketing thereof; provided that EA's use thereof complies
with the restrictions set forth in the 3DFX Style Guide as
such style guide may be reasonably amended from time to time
by 3DFX.
2.5 Ownership. As between EA and 3DFX, EA is the sole and
exclusive owner of any and all EA Products and all
Intellectual Property Rights contained therein. As between
EA and 3DFX, 3DFX is the sole and exclusive owner of the
Software, the Trademarks and all Intellectual Property
Rights contained therein. To the extent that EA creates any
modifications to the Software, which modifications are not
particular to all or any of the EA Products, EA shall grant
3DFX a non-exclusive, perpetual worldwide license to use,
reproduce, make, sell and distribute such modifications.
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2.6 Restrictions. Notwithstanding anything to the contrary in
this Agreement, EA have no right to sell, market or
distribute the source code to the Software.
3. OBLIGATIONS OF EA
[**]
(a) EA shall exercise commercially reasonable efforts
to incorporate the Glide 2.3 version of the
Software (or such other version of the Software as
EA deems appropriate in its sole discretion) into
[*]. Although EA will exercise reasonable efforts
to activate the Software features appropriate [*],
EA makes no representation or warranty as to the
specific features which will be activated [*]. EA
makes no representation or warranty that EA will
successfully incorporate the Software into any of
the EA products, or that the EA products, with
incorporated 3DFX software, will be compatible with
the 3DFX Technology.
(b) The parties acknowledge that, where it is not
commercially practicable for EA to complete
incorporation of the Software [*], EA may issue a
"patch" or a "silent revision" following commercial
release, [*].
Prior to commercial release [*], EA will exercise
reasonable efforts to arrange a meeting between
representatives of 3DFX and the development teams
[*]. During such meetings, 3DFX shall advise the
development teams on optimum use of the Software
and the features of the Software which 3DFX
recommends activating in the context of a
particular product.
3.2 Additional Products. EA may, in its sole discretion,
incorporate the Software into additional EA Products. In
addition, EA may, in its sole discretion, issue "patches" or
"silent revisions" for additional EA Products following the
commercial release of such additional Products. If
practicable, as determined by EA in its sole discretion, EA
will exercise reasonable efforts to arrange a meeting
between representatives of 3DFX and the development teams
creating each of such additional EA Products. During such
meetings, 3DFX shall advise the development teams on optimum
use of the Software and the features of the Software which
3DFX recommends activating in the context of a particular
product.
3.3 Marketing Services. EA shall perform the marketing services
as specified on Exhibit B under the heading "EA Marketing
Services", at the times and in the manner specified therein.
3.4 Disclaimer of Warranties. EA MAKES NO REPRESENTATIONS OR
WARRANTIES AS TO THE PERFORMANCE [*] (OR ANY OTHER EA
PRODUCT), INCLUDING, WITHOUT LIMITATION, AS TO THE
COMPATIBILITY OF SUCH PRODUCTS WITH THE TECHNOLOGY. EA
EXPRESSLY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES,
INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE.
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3.5 Restrictions. EA agrees that it will not prior to March 31,
1998 enter into a co-marketing arrangement with a third
party developer of graphics accelerator chips on terms and
conditions similar to those contained in this Agreements,
and including marketing obligations of a scope similar to
those contained herein. Notwithstanding the foregoing,
nothing in this Agreement shall preclude EA from including
software in all or any of its Products which is designed to
facilitate compatibility with graphics accelerator chips of
any third parties, or engaging in any marketing services on
behalf of such third party which are similar to the services
set forth in Exhibit A (including, without limitation,
including the trademark of such third party on the packaging
of a Product), so long as the aggregate scope of such
services does not rise to the level of the aggregate scope
of services set forth herein.
4. OBLIGATIONS OF 3DFX
[*]
4.2 Cooperation. 3DFX agrees to use good faith and diligent
efforts to consult with and aid EA in connection with EA's
fulfillment of its obligations pursuant to Section 3.
4.3 Marketing Services. 3DFX shall perform the marketing
services as specified on Exhibit B under the heading "3DFX
Marketing Services", at the times and in the manner
specified therein.
4.4 New Software; New Technology.
(a) All improvements, modifications and enhancements to
the Software that are developed by 3DFX for a
period of two years following execution of this
Agreement shall be provided to EA at no cost.
(b) 3DFX shall provide notice to EA as far as
reasonably possible in advance prior to the
marketing and distribution of new 3DFX Technology.
Such notice will include information on the revised
features of such technology, and the impact on the
EA Products which have incorporated existing
versions of the Software. Until EA has fulfilled
its obligations under Section 3 of this Agreement,
future versions of the 3DFX Technology, will be
generally backward compatible with software
designed for previous versions of 3DFX Technology.
Thereafter, 3DFX will exercise reasonable efforts
to ensure that future versions of the 3DFX
Technology continues to be generally backward
compatible with software designed for previous
versions of 3DFX Technology; provided that 3DFX
makes no representation or warranty that such
future versions of the 3DFX Technology (distributed
after EA has fulfilled its obligations under
Section 3 of this Agreement) will be backward
compatible with such previous versions of the
Software.
(c) 3DFX will communicate and provide EA with
reasonable assistance, with respect to the
incorporation of future versions of the Software
into EA Products for the purpose of optimizing
compatibility between the EA Products and future
3DFX Technology.
5. CONFIDENTIALITY
5.1 Definitions.
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(a) "Confidential Information" means the terms and
conditions (but not the existence) of this Agreement, the
Confidential Information of 3DFX and the Confidential
Information of EA, except to the extent any of the following
may be included therein: (i) information that becomes known
to the general public without breach of the nondisclosure
obligations of this Agreement; (ii) information that is
obtained from a third party or independently developed
without breach of a nondisclosure obligation and without
restriction on disclosure; and (iii) information that is
required to be disclosed in connection with any suit, action
or other dispute related to this Agreement, provided that
the receiving party shall notify the disclosing party prior
to making such disclosure and shall take all reasonable
measures to obtain confidential treatment.
(b) "Confidential Information of 3DFX" means: (i) the
concepts and source code of the Software; (ii) any
information regarding existing or future products of 3DFX;
and (iii) any other information of 3DFX designated in
writing as "confidential" or "proprietary" by 3DFX.
(c) "Confidential Information of EA" means: (i) any
information concerning the EA Products or EA's use of the
Software in the EA Products, (ii) any information concerning
existing or future products of hardware manufacturers other
than Licensee; and (iii) any additional information
designated orally or in writing as confidential or
proprietary by EA or its Affiliates.
5.2 Protection of Confidential Information. Each party agrees to
hold in confidence, and not to use except as expressly
authorized in this Agreement, all Confidential Information
of the other party and to use at least the same degree of
care that it uses to protect its own Confidential
Information of like importance, but in no event less than
reasonable care, to prevent the unauthorized disclosure or
use of the other party's Confidential Information, both
during and for two (2) years after the term of this
Agreement. Each party agrees it will not make any public
statement or comment on the existence or provisions of this
Agreement, without the written consent of the other, except
as may be required by the reasonable opinion of its legal
counsel.
5.3 Use, Development and Marketing of Similar Programs. Nothing
in this Agreement will impair the right of either party to
use, develop or market ideas or programs similar to the
Software so long as such use, development or marketing does
not infringe on the copyright, trademark, patent, license or
other rights of the other party.
6. REPRESENTATIONS AND WARRANTIES
6.1 3DFX Representations. 3DFX represents and warrants to and
agrees with EA that:
(a) The Software is the original work of 3DFX and the
Software and the use, modification, reproduction and
distribution thereof by EA pursuant to this Agreement, do
not and will not infringe upon any Intellectual Property
Rights of third parties;
(b) 3DFX is the sole and exclusive owner or valid licensee
of all Intellectual Property Rights in the Software, the
Trademarks, the 3DFX Technology and the Advertising
Materials;
(c) 3DFX has not granted and will not grant any rights in
the Software, the 3DFX Technology, the Trademarks or the
Advertising Materials to any third party which are
inconsistent with the rights assigned to EA herein;
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(d) 3DFX has full power to enter into this Agreement, to
carry out its obligations hereunder and to grant the rights
herein granted to EA; and
(e) The Software and the 3DFX Technology (i) are and will
comply materially with the description of the Software and
the 3DFX Technology included in any documentation
distributed by 3DFX in connection with the Software or the
advertising or marketing thereof, (ii) are and will be free
of defect in material and workmanship, and (iii) are and
will be of high quality in all respects.
6.2 EA's Representations. EA represents and warrants to and
agrees with 3DFX that: EA has full power to enter into this
Agreement and to carry out its obligations hereunder.
7. INDEMNIFICATION
Each party will indemnify the other party and its customers and
sublicensees for, and hold them harmless from, any loss, expense
(including reasonable fees of attorneys and other professionals),
damage or liability arising out of any claim, demand or suit
resulting from an alleged breach of any of the warranties of the
indemnifying party in Section 6 hereof. In addition, EA will
indemnify 3DFX and its customers and sublicensees for, and hold them
harmless from, any loss, expense (including reasonable fees of
attorneys and other professionals), damage or liability arising out
of any claim, demand or suit resulting from an allegation by a third
party [*] infringe the Intellectual Property rights of such third
party. As a condition to indemnification, the indemnified party will
promptly inform the indemnifying party in writing of any such claim,
demand or suit and the indemnified party will fully cooperate in the
defense thereof. As a condition to indemnification, the indemnified
party will not agree to the settlement of any such claim, demand or
suit prior to a final judgment thereon without the consent of the
indemnifying party, which consent will not be unreasonably withheld.
8. TECHNICAL SUPPORT
8.1 EA Support of Customers. Except as limited elsewhere in this
Agreement, EA will be responsible for providing product
support to end users solely with respect to gameplay [*]. EA
will provide such support in accordance with its standard
user support policies which include an EA toll telephone
number for customers to call during EA's normal business
hours with technical questions about the EA Products. EA
will not provide support for any component to the 3DFX
Technology or the Software.
8.2 3DFX Support of Customers. 3DFX will provide warranty and
post warranty service for the 3DFX Technology and the
software at least in accordance with generally accepted
industry standards. 3DFX shall in all events be solely
responsible to its customers for support, warranty and
post-warranty service for the 3DFX Technology and the
Software and will hold EA harmless from all claims made
under such warranties.
9. GENERAL TERMS
9.1 Amendment. No amendment or modification of this Agreement
will be made except by an instrument in writing signed by
both parties.
9.2 Independent Contractors. 3DFX is an independent contractor,
and nothing in this Agreement will be deemed to place the
parties in the relationship of employer-employee,
principal-agent, partners or joint venturers.
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9.3 Limitation of Damages. IN NO EVENT SHALL EITHER PARTY BE
LIABLE FOR INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL
DAMAGES OF ANY KIND OR THE LOSS OF ANTICIPATED PROFITS
ARISING FROM ANY BREACH OF THIS AGREEMENT EVEN IF THE OTHER
PARTY IS NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES AND
REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF
ITS ESSENTIAL PURPOSE.
9.4 Force Majeure. Neither party will be deemed in default of
this Agreement to the extent that performance of its
obligations or attempts to cure any breach are delayed or
prevented by reason of any act of God, fire, natural
disaster, accident, act of government, shortages of material
or supplies or any other cause reasonably beyond the control
of such party ("Force Majeure"), provided that such party
gives the other party written notice thereof promptly and,
in any event, within fifteen (15) days of discovery thereof,
and uses its diligent, good faith efforts to cure the
breach. In the event of such a Force Majeure, the time for
performance or cure will be extended for a period equal to
the duration of the Force Majeure but not in excess of six
(6) months.
9.5 Governing Law; Forum. This Agreement will be deemed entered
into in San Mateo County, California and will be governed by
and interpreted in accordance with the substantive laws of
the State of California. The parties agree that any dispute
arising under this Agreement will be resolved in the state
or federal courts within the Northern District of California
and 3DFX expressly consents to jurisdiction therein.
9.6 Severability. Should any provision of this Agreement be held
to be void, invalid or inoperative, such provision will be
enforced to the extent permissible and the remaining
provisions of this Agreement will not be affected.
9.7 Notices. Any notice required or permitted to be sent
hereunder will be given by hand delivery, by registered,
express or certified mail, return receipt requested, postage
prepaid, or by nationally-recognized private express courier
or by facsimile to either party at the address listed above,
or to such other addresses of which either party may so
notify the other. Notices will be deemed given when hand
delivered if by hand delivery, or when sent if by any other
authorized method.
9.8 Complete Agreement. This Agreement constitutes the entire
agreement between the parties and supersedes all prior
negotiations, understandings, correspondence and agreements
with respect to the same subject matter between the parties,
including without limitation any License Agreement included
with the packaging of the Software.
ELECTRONIC ARTS INC. 3DFX
By: /s/ Nancy L. Smith By: /s/ Andy Keane
------------------------- --------------------
Name: Nancy L. Smith Name: Andy Keane
------------------------- --------------------
Date: 6/6/97 Date: 6/18/97
------------------------- --------------------
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EXHIBIT A
TRADEMARKS
3Dfx Interactive
Voodoo Graphics
Voodoo Rush
Voodoo
Glide
NOTICES
(C)1997 3Dfx Interactive, Inc. The 3Dfx Interactive logo and Voodoo Graphics are
a trademark of 3Dfx Interactive, Inc.
[*]
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[*]
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[*]
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EXHIBIT B
MARKETING SERVICES
EA Marketing Services
[*]
Trade Show Support
At trade shows attended by EA (including E3), EA will demonstrate [*], and will
represent to attendees that such [*] have been enhanced for 3DFX. At such
tradeshows, EA will reasonably display the 3DFX logos.
Web Site Coverage/Hypertext Links
EA will place hypertext links on the sites of [*]. Where reasonably appropriate,
EA will upload patches for enhancements or updates to the Software, and, where
appropriate, EA will include the posting of upgrade patches and technology
information. In addition, on such sites, EA will represent the fact that such
[*] have been enhanced for the 3DFX Technology.
Press Releases
In press releases [*], EA will announce that such products have been enhanced
for the 3DFX Software.
[*]
[*]
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Print Advertisements.
Subject to the approval of any League or other EA licensor with trademark
approval, EA shall, as EA deems appropriate in its sole discretion, include the
Trademarks on print advertising, sell sheets, catalogues, and other similar
materials concerning [*] and which is fully compatible with the 3DFX technology.
Retail Promotions
Retail Marketing.
Subject to the approval of any League or other EA licensor with trademark
approval, EA shall, as EA deems appropriate in its sole discretion, exercise
reasonable efforts to include [*], in co-marketing programs at retail, including
but not limited to encaps, retail advertising and other special offers.
3DFX Marketing Services
[*]
Trade Show Support
At tradeshows attended by 3Dfx, 3Dfx will demonstrate (as appropriate to release
and timing and whether EA can provide an appropriate demo) EA Products, in which
EA has successfully incorporated the Software and which is fully compatible with
the 3DFX technology. At such tradeshows, 3Dfx will display the EA logos with
reasonable prominence in connection with the EA Products.
WEB Site
3Dfx will place hypertext links to the EA web site. 3Dfx will offer the
opportunity to EA as appropriate for other promotional activities and
representations on the 3Dfx web site to represent EA Products, in which EA has
successfully incorporated the Software and which is fully compatible with the
3Dfx technology.
Press Releases
3Dfx will include EA in press releases as appropriate for EA Products, in which
EA has successfully incorporated the Software and which is fully compatible with
the 3Dfx technology.
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