§ 5.26[B]	Form Agreement
VIDEO GAME LICENSE AGREEMENT: LICENSOR'S PERSPECTIVE (U.S. ONLY)
THIS AGREEMENT is entered into this [day] day of [month], [year] by and between [name of Licensor], a [state of incorporation of Licensor] corporation with offices at [address of Licensor] ("LICENSOR"), and [name of Licensee], a [state of incorporation of Licensee] corporation with offices at [address of Licensee] ("LICENSEE").
W I T N E S S E T H :
WHEREAS, LICENSOR is a sports league players association acting on behalf of the players of that certain sports league (the "Sports League") identified more fully in Schedule A attached hereto; and
WHEREAS, LICENSOR is the sole and exclusive owner of, or has acquired the rights to, certain trademarks, trade names and logos (the "Trademark" or "Trademarks"); and
WHEREAS, LICENSOR is the sole and exclusive owner of, or has acquired the rights to, certain intellectual property rights of the sports league players identified in Schedule A attached hereto (the "Players"), including, but not limited to, their names, likenesses (including uniform numbers), pictures, photographs, voices, facsimile signatures, professional statistics and/or biographical information, as more fully described in Schedule A (the "Property" or "Properties"); and
WHEREAS, LICENSOR has the power and authority to grant to LICENSEE the right, privilege and license to use, manufacture and sell those types of products that incorporate or are otherwise based on the Property; and
WHEREAS, LICENSEE seeks to utilize the Trademarks and/or Property in connection with video and computer sports games, as identified more fully in Schedule A attached hereto (the "Licensed Products"); and
WHEREAS, LICENSEE has represented that it has the ability to manufacture, market and distribute the Licensed Products in the Territory identified in Schedule A attached hereto (the "Territory") and to use the Trademarks and/or Property on or in association with the Licensed Products; and
WHEREAS, LICENSEE desires to obtain from LICENSOR a license to use, manufacture, have manufactured and sell Licensed Products in the Territory and to use the Trademarks and/or Property on or in association with the Licensed Products; and
WHEREAS, both LICENSEE and LICENSOR are in agreement with respect to the terms and conditions upon which LICENSEE shall use, manufacture, have manufactured and sell Licensed Products and to use the Trademarks and/or Property;
NOW, THEREFORE, in consideration of the promises and agreements set forth herein, the parties, each intending to be legally bound hereby, do promise and agree as follows.
1. LICENSE GRANT
A. LICENSOR hereby grants to LICENSEE, for the Term of this Agreement as recited in Schedule A attached hereto, the non-exclusive right and license to use, manufacture, have manufactured, sell, distribute, and advertise the Licensed Products in the Territory. The license includes, but is not limited to, a license under any and all trademarks and copyrights and any applications therefore which have been filed or may be filed in the future with respect to the Property. It is understood and agreed that this license shall pertain only to the Licensed Products and does not extend to any other product or service.
B. LICENSOR hereby grants to LICENSEE for the Term of this Agreement as recited in Schedule A attached hereto, a non-exclusive license to use the Trademarks and the Property on or in association with the Licensed Products in the Territory as well as on packaging, promotional and advertising material associated therewith; provided, however, that the specific manner in which the Trademarks and the Property are to be used in connection with the Licensed Products shall require the prior written consent of LICENSOR.
C. LICENSOR makes no representation that it has the authority to grant, nor does it grant herein, the right to utilize any trademarks, likenesses, symbols, insignias, logos, or other identifying names which are not specifically listed in Schedule A attached hereto. Accordingly, it is understood by the parties hereto that if any likenesses of Players are to be used by LICENSEE in conjunction with any symbols, insignia, or logos not listed in Schedule A attached hereto, it will be the responsibility of LICENSEE to obtain such permission as may be necessary for the use of such material. LICENSOR retains all rights not expressly and exclusively granted to LICENSEE herein.
D. The rights, licenses, and privileges granted by the LICENSOR herein shall not constitute or be used by LICENSEE as a testimonial or an endorsement of any product, service or event by LICENSOR, the Sports League and/or all or any of the Players. In the event LICENSEE is interested in securing an individual Player's personal endorsement, LICENSEE further agrees and acknowledges that such endorsement will require the personal approval of the individual Player, the approval of LICENSOR and a separate payment to LICENSOR. All contact with such Player or Player's agent shall be made exclusively by LICENSOR.
E. LICENSEE agrees and acknowledges that any Player who is committed individually by contract for products or services competitive with those of LICENSEE may be required to cease from further inclusion in this agreement.
F. This license grant only applies to the manufacture and distribution of Licensed Products for retail and wholesale sale (including without limitation, sales directly to consumers over the Internet via streaming, download or otherwise), and shall not permit the use of Licensed Products as "premium items" to be included with non-licensed products, services or events to promote the sale of non-licensed products, services or events; provided, however, that LICENSEE, in LICENSOR's sole discretion, may be permitted to promote the sale of Licensed Products in accordance with any applicable agreements between LICENSOR and the Players.
G. LICENSEE may not grant any sublicenses to any third party without the prior express written consent of the LICENSOR which may be withheld for any reason.
H. LICENSEE shall not make or authorize any use, direct or indirect, of the Licensed Products, like or similar, outside the Territory and will not knowingly sell the Licensed Products to persons who intend or are likely to resell them outside the Territory.
2. TERM OF THE AGREEMENT
This Agreement and the provisions hereof, except as otherwise provided, shall be in full force and effect commencing on the date of execution by both parties and shall extend for a Term as recited in Schedule A attached hereto (the "Term").
3. COMPENSATION
A. In consideration for the licenses granted hereunder, LICENSEE agrees to pay to LICENSOR during the Term of this Agreement, a royalty in the amount recited in Schedule A attached hereto (the "Royalty") based on LICENSEE's Net Sales of Licensed Products.
B. In the event that LICENSEE grants any previously approved sub-licenses for the use of the Property outside the Territory, LICENSEE shall pay LICENSOR FIFTY PERCENT (50%) of the gross income received by LICENSEE from such sub-licensees.
C. The Royalty owed LICENSOR shall be calculated on a quarterly calendar basis (the "Royalty Period") and shall be payable no later than thirty (30) days after the termination of the preceding full calendar quarter, i.e., commencing on the first (1st) day of January, April, July, and October with the exception of the first and last calendar quarters which may be "short" depending upon the effective date of this Agreement.
D. With each Royalty Payment, LICENSEE shall provide LICENSOR with a written royalty statement in a form acceptable to LICENSOR. Such royalty statement shall be certified as accurate by a duly authorized officer of LICENSEE, reciting the stock number, item, units sold, description, quantity shipped, gross invoice, amount billed customers less discounts, allowances, returns and reportable sales for each Licensed Product. Such statements shall be furnished to LICENSOR whether or not any Licensed Products were sold during the Royalty Period.
E. LICENSEE agrees to pay to LICENSOR a Guaranteed Minimum Royalty in accordance with the terms of Schedule A attached hereto (the "Guaranteed Minimum Royalty"). As recited in Schedule A, a portion of the Guaranteed Minimum Royalty for the first year shall be payable as an Advance against royalties (the "Advance"). The actual royalty payments shall reflect the amount of all Guaranteed Minimum Royalty payments including any Advances made.
F. "Net Sales" shall mean LICENSEE's gross sales (the gross invoice amount billed customers) of Licensed Products, less discounts and allowances actually shown on the invoice (except cash discounts not deductible in the calculation of Royalty) and, further, less any bona fide returns (net of all returns actually made or allowed as supported by credit memoranda actually issued to the customers). No other costs incurred in the manufacturing, selling, advertising, and distribution of the Licensed Products shall be deducted nor shall any deduction be allowed for any uncollectible accounts or allowances.
G. A Royalty obligation shall accrue upon the sale of the Licensed Products regardless of the time of collection by LICENSEE. For purposes of this Agreement, a Licensed Product shall be considered "sold" upon the date when such Licensed Product is billed, invoiced, shipped, or paid for, whichever event occurs first.
H. If LICENSEE sells any Licensed Products to any party affiliated with LICENSEE, or in any way directly or indirectly related to or under the common control with LICENSEE, at a price less than the regular price charged to other parties, the Royalty payable LICENSOR shall be computed on the basis of the regular price charged to other parties.
I. The receipt or acceptance by LICENSOR of any royalty statement, or the receipt or acceptance of any royalty payment made, shall not prevent LICENSOR from subsequently challenging the validity or accuracy of such statement or payment.
J. Upon expiration or termination of this Agreement, all Royalty obligations, including any unpaid portions of the Guaranteed Minimum Royalty, shall be accelerated and shall immediately become due and payable.
K. LICENSEE's obligations for the payment of a Royalty and the Guaranteed Minimum Royalty shall survive expiration or termination of this Agreement and will continue for so long as LICENSEE continues to manufacture, sell or otherwise market the Licensed Products.
L. All payments due hereunder shall be made in United States currency drawn on a United States bank, unless otherwise specified between the parties.
M. Late payments shall incur interest at the rate of ONE PERCENT (1%) per month from the date such payments were originally due.
4. AUDIT
A. LICENSOR shall have the right, upon at least five (5) days written notice and no more than once per calendar year, to inspect LICENSEE's books and records and all other documents and material in the possession of or under the control of LICENSEE with respect to the subject matter of this Agreement at the place or places where such records are normally retained by LICENSEE. LICENSOR shall have free and full access thereto for such purposes and shall be permitted to make copies thereof and extracts therefrom.
B. In the event that such inspection reveals a discrepancy in the amount of Royalty owed LICENSOR from what was actually paid, LICENSEE shall pay such discrepancy, plus interest, calculated at the rate of ONE AND ONE-HALF PERCENT (11/2%) per month. In the event that such discrepancy is in excess of ONE THOUSAND UNITED STATES DOLLARS ($1,000.00), LICENSEE shall also reimburse LICENSOR for the cost of such inspection including any attorney's fees incurred in connection therewith.
C. All books and records relative to LICENSEE's obligations hereunder shall be maintained and kept accessible and available to LICENSOR for inspection for at least three (3) years after termination of this Agreement.
D. In the event that an investigation of LICENSEE's books and records is made, certain confidential and proprietary business information of LICENSEE may necessarily be made available to the person or persons conducting such investigation. It is agreed that such confidential and proprietary business information shall be retained in confidence by LICENSOR and shall not be used by LICENSOR or disclosed to any third party for a period of two (2) years from the date of disclosure, or without the prior express written permission of LICENSEE unless required by law. It is understood and agreed, however, that such information may be used in any proceeding based on LICENSEE's failure to pay its actual Royalty obligation.
5. WARRANTIES AND OBLIGATIONS
A. LICENSOR represents and warrants that it has the right and power to grant the licenses granted herein and that there are no other agreements with any other party in conflict herewith.
B. LICENSOR represents and warrants that it has been duly appointed and is acting on behalf of the Players of the Sports League whose identities are listed in Schedule A attached hereto and who have entered into a group licensing authorization with LICENSOR, and that in such capacity LICENSOR has the right to grant the licenses described herein.
C. LICENSOR further represents and warrants that the Property and Trademark do not infringe any valid right of any third party.
D. LICENSOR makes no representation that it has the authority to grant, nor does it grant herein, the right to utilize any symbols, insignias, logos, or other identifying names or marks of the Sports League and/or any of its member clubs. Accordingly, it is understood by the parties hereto that if the Property is to be used by LICENSEE in conjunction with any symbols, insignia, or logos of the Sports League or any of its member clubs, in the exercise of the license granted hereunder, it will be the responsibility of the LICENSEE to obtain such permission as may be necessary for the use of such material from the Sports League or member clubs.
E. LICENSEE agrees and acknowledges that it shall not secure or seek to secure, directly from any Player who is under contract with a member club of the Sports League or seeking to become under contract with a member club of the Sports League or at any time in the past was under contract to a member club of the Sports League, or from such Player's agent, permission or authorization for the use of such Player's name, facsimile signature, image, likeness, photograph, biography or other Property in connection with the Licensed Products.
F. LICENSEE represents and warrants that it will use its best efforts to promote, market, sell, and distribute the Licensed Products.
G. LICENSEE shall be solely responsible for the manufacture, production, sale, and distribution of the Licensed Products and will bear all related costs associated therewith.
H. It is the intention of the parties that LICENSEE shall introduce the Licensed Products in the Territory on or before the Product Introduction Date recited in Schedule A and commence shipment of Licensed Products in the Territory on or before the Initial Shipment Date recited in Schedule A. Failure to meet either the Product Introduction Date or the Initial Shipment Date shall constitute grounds for immediate termination of this Agreement by LICENSOR.
6. NOTICES, QUALITY CONTROL AND SAMPLES
A. The licenses granted hereunder are conditioned upon LICENSEE's full and complete compliance with the marking provisions of the patent, trademark and copyright laws of the United States.
B. The Licensed Products, as well as all promotional, packaging and advertising material relative thereto, shall include all appropriate legal notices as required by LICENSOR.
C. The Licensed Products shall be of a high quality which is at least equal to comparable products manufactured and marketed by LICENSEE and in conformity with a standard sample approved by LICENSOR.
D. If the quality of a class of the Licensed Products falls below such a production-run quality, as previously approved by LICENSOR, LICENSEE shall use its best efforts to restore such quality. In the event that LICENSEE has not taken appropriate steps to restore such quality within thirty (30) days after notification by LICENSOR, LICENSOR shall have the right to terminate this Agreement.
E. Prior to the commencement of manufacture and sale of the Licensed Products, LICENSEE shall submit to LICENSOR, at no cost to LICENSOR and for approval as to quality, six (6) sets of samples of all Licensed Products which LICENSEE intends to manufacture and sell and one (1) complete set of all promotional and advertising material associated therewith. Failure of LICENSOR to approve such samples within ten (10) working days after receipt hereof will be deemed approval. If LICENSOR should disapprove any sample, it shall provide specific reasons for such disapproval. Once such samples have been approved by LICENSOR, LICENSEE shall not materially depart therefrom without LICENSOR's prior express written consent, which shall not be unreasonably withheld.
F. At least once during each calendar year, LICENSEE shall submit to LICENSOR, for approval, an additional twelve (12) sets of samples.
G. The LICENSEE agrees to permit LICENSOR or its representative to inspect the facilities where the Licensed Products are being manufactured and packaged.
H. LICENSEE shall comply with LICENSOR's mandatory "Official Licensed Product" identification system or such other shipment tracking, identification and anti-counterfeiting systems and labeling requirements that LICENSOR may establish from time to time, which may include the obligation, at LICENSEE's sole cost and expense, to use product authentication hand tags, stickers or other devices previously approved by LICENSOR, and to affix such hand tags, stickers or devices on each Licensed Product before sale or distribution, to the extent commercially reasonable. LICENSEE shall at all times conduct all aspects of its business in compliance with all shipment tracking, identification and anti-counterfeiting systems and labeling requirements that LICENSOR may establish from time to time. LICENSEE shall use commercially reasonable efforts to ensure that all retailers and authorized distributors purchasing Licensed Products comply with LICENSOR's anti-counterfeiting systems and labeling requirements.
7. APPROVALS
A. Upon request, LICENSOR shall make available to LICENSEE a list of all Players for whom LICENSOR has group licensing authorization.
B. Annually by [Date] of each calendar year during the Term of this Agreement, LICENSEE shall submit to LICENSOR a proposed list of Players for inclusion in the Licensed Product for the upcoming sports season. Within thirty (30) days thereafter, LICENSOR shall respond in writing to LICENSEE, indicating, at LICENSOR's sole discretion, approval or disapproval in the case of each Player requested. LICENSEE may submit requests in writing for additions, deletions or substitutions of Players and LICENSOR shall respond to such requests within a reasonable period of time.
C. With regard to uniform numbers for active Players, it shall be LICENSEE's sole responsibility to cross-reference its list of Players and their corresponding uniform numbers against team rosters maintained by the Sports League. If applicable, uniform numbers for retired Players must be submitted to LICENSOR for approval.
8. PROMOTIONAL APPEARANCES
A. LICENSEE may choose to use Player names and/or likenesses to promote Licensed Product(s) on or in radio or television commercials, any material pertaining to packaging, hangtags, wrapping material, print ads, flyers, point-of-purchase displays, press releases, catalogues, trade show booths and exhibits, sales catalogues and other sales/marketing materials, or any other written material or medium, including but not limited to electronic or interactive use; provided, however, that such use shall require the prior written approval of LICENSOR and may require additional payment to LICENSOR separate from and in addition to any Minimum Guaranteed Royalty or royalty payments contained in this Agreement. The amount of such payment, if any at LICENSOR's sole discretion, shall be subject to and set forth in a separate written agreement between LICENSOR and LICENSEE. All contacts with Players or their agents shall be made by LICENSOR. LICENSEE agrees to furnish LICENSOR with copies of all scripts and story boards for proposed commercials for any medium in connection with the promotion of the Licensed Product(s), and the content of such scripts and story boards shall require the prior written approval of LICENSOR before any commercials shall be made or shall be contracted for by LICENSEE.
B. In the event LICENSEE wishes to secure an individual Player to make appearances to promote Licensed Product(s) or to autograph Licensed Product(s), the selection of such Player and the separate fee to LICENSOR for such services shall be subject to and set forth in a separate written agreement between LICENSOR and LICENSEE. All contact with the requested Player or his agents shall be made exclusively by LICENSOR. Once the Player has made the appearance or performed the autograph service, payment shall be made to LICENSOR. All such payments shall be separate from and in addition to any royalties paid by LICENSEE under this Agreement. Once the selection of such Player and such separate fee have been agreed upon by LICENSEE and LICENSOR, in the event of cancellation of such appearance or autographing (other than by the Player, LICENSOR or due to a circumstance beyond LICENSEE's control), LICENSEE shall nevertheless be obligated to make such fee payment to LICENSOR.
C. LICENSEE agrees to spend no less per calendar year than the amount set forth in Schedule A hereto on activities which stimulate and promote the market for Licensed Product(s) through Player appearances, autographing or endorsements, and/or LICENSOR branded programs, properties, or events, subject to prior written approval by LICENSOR. Such activities shall not include standard and customary industry trade advertising and sales materials. At the end of each calendar year, if LICENSEE has not spent the required amount, a payment equal to the amount of the difference shall be made by LICENSEE to LICENSOR no later than thirty (30) days following the end of such calendar year. LICENSEE shall provide documentation that such approved expenditures have been made. The expenditure documentation shall be provided on a quarterly basis and shall be certified by an authorized representative of LICENSEE. Such documentation shall be subject to inspection and audit by LICENSOR on the same basis as LICENSEE's books and records.
9. NON-INTERFERENCE
LICENSEE agrees and acknowledges that it shall not secure or seek to secure, directly from any Player who is under contract to LICENSOR, is seeking to become under contract to LICENSOR or at any time in the past was under contract to LICENSOR, or from such Player's agent, permission or authorization for the use of such Player's name, facsimile signature, image, likeness (including, without limitation, uniform number), photograph or biography in conjunction with the Licensed Product(s).
10. NOTICE AND PAYMENT
A. Any notice required to be given pursuant to this Agreement shall be in writing and delivered personally to the other designated party at the above stated address or mailed by certified or registered mail, return receipt requested or delivered by a recognized national overnight courier service.
B. Either party may change the address to which notice or payment is to be sent by written notice to the other in accordance with the provisions of this paragraph.
11. PATENTS, TRADEMARKS AND COPYRIGHTS
A. LICENSOR shall seek, obtain and, during the Term of this Agreement, maintain in its own name and at its own expense, appropriate patent, trademark or copyright protection for the Property and Trademark.
B. In the event that LICENSEE requests that LICENSOR obtain patent, trademark or copyright protection for a particular item for which LICENSOR had not, heretofore, obtained such protection, LICENSOR agrees to take reasonable steps to obtain such protection, provided, however, that LICENSEE shall be obligated to reimburse LICENSOR for the cost of filing, prosecuting and maintaining same.
C. It is understood and agreed that LICENSOR shall retain all right, title and interest in the original Property as well as in any modifications or improvements made to the Property by LICENSEE.
D. The parties agree to execute any documents reasonably requested by the other party to effect any of the above provisions.
E. LICENSEE acknowledges LICENSOR's exclusive rights in the Property and, further, acknowledges that the Property and/or the Trademark are unique and original to LICENSOR and that LICENSOR is the owner thereof. LICENSEE shall not, at any time during or after the effective Term of the Agreement, dispute or contest, directly or indirectly, LICENSOR's exclusive right and title to the Property and/or the Trademark or the validity thereof. LICENSOR, however, makes no representation or warranty with respect to the validity of any patent, trademark or copyright which may issue or be granted therefrom.
F. LICENSEE acknowledges that the Property and/or the Trademark have acquired secondary meaning.
G. LICENSEE agrees that its use of the Property and/or the Trademark inures to the benefit of LICENSOR and that the LICENSEE shall not acquire any rights in the Property and/or the Trademark.
12. TERMINATION
The following termination rights are in addition to the termination rights provided elsewhere in this Agreement:
A. Immediate Right of Termination. LICENSOR shall have the right to immediately terminate this Agreement by giving written notice to LICENSEE in the event that LICENSEE does any of the following:
(1) fails to meet the Product Introduction Date or the Initial Shipment Date as specified in Schedule A; or
(2) after having commenced sale of the Licensed Products, fails to continuously sell Licensed Products for three (3) consecutive Royalty Periods; or
(3) fails to obtain or maintain product liability insurance in the amount and of the type provided for herein; or
(4) files a petition in bankruptcy or is adjudicated a bankrupt or insolvent, or makes an assignment for the benefit of creditors, or an arrangement pursuant to any bankruptcy law, or if the LICENSEE discontinues its business or a receiver is appointed for the LICENSEE or for the LICENSEE's business and such receiver is not discharged within thirty (30) days; or
(5) breaches any of the provisions of this Agreement relating to the unauthorized assertion of rights in the Property and/or the Trademark; or
(6) fails, after receipt of written notice from LICENSOR, to immediately discontinue the distribution or sale of the Licensed Products or the use of any packaging or promotional material which does not contain the requisite legal legends; or
(7) fails to make timely payment of Royalties when due two or more times during any twelve-month period.
B. Immediate Right to Terminate a Portion. LICENSOR shall have the right to immediately terminate the portion(s) of the Agreement relating to any Property and/or Licensed Product(s) in the Territory if LICENSEE, for any reason, fails to meet the Product Introduction Dates or the Initial Shipment Dates specified in Schedule A or, after the commencement of manufacture and sale of a particular Licensed Product, ceases to sell commercial quantities of such Licensed Product for three (3) consecutive Royalty Periods.
C. Right to Terminate on Notice. This Agreement may be terminated by either party upon thirty (30) days written notice to the other party in the event of a breach of a material provision of this Agreement by the other party, provided that, during the thirty (30) day period, the breaching party fails to cure such breach.
D. LICENSEE shall have the right to terminate this Agreement at any time on sixty (60) days written notice to LICENSOR. In such event, all moneys paid to LICENSOR shall be deemed non-refundable and LICENSEE's obligation to pay any guaranteed moneys, including the Guaranteed Minimum Royalty, shall be accelerated and any yet unpaid guaranteed moneys shall become immediately due and payable.
13. POST-TERMINATION RIGHTS
A. Not less than thirty (30) days prior to the expiration of this Agreement or immediately upon termination thereof, LICENSEE shall provide LICENSOR with a complete schedule of all inventory of Licensed Products then on-hand (the "Inventory").
B. Upon expiration or termination of this Agreement, except for reason of a breach of LICENSEE's duty to comply with the quality control or legal notice marking requirements, LICENSEE shall be entitled, for an additional period of three (3) months and on a nonexclusive basis, to continue to sell such Inventory. Such sales shall be made subject to all of the provisions of this Agreement and to an accounting for and the payment of a Royalty thereon. Such accounting and payment shall be due and paid within thirty (30) days after the close of the said three (3) month period.
C. Upon the expiration or termination of this Agreement, all of the rights of LICENSEE under this Agreement shall forthwith terminate and immediately revert to LICENSOR and LICENSEE shall immediately discontinue all use of the Property and the like, at no cost whatsoever to LICENSOR.
D. Upon termination of this Agreement for any reasons whatsoever, LICENSEE agrees to immediately return to LICENSOR all material relating to the Property including, but not limited to, all artwork, color separations, prototypes and the like, as well as any market studies or other tests or studies conducted by LICENSEE with respect to the Property, at no cost whatsoever to LICENSOR.
14. GOOD WILL
LICENSEE recognizes the value of the good will associated with the Property and acknowledges that the Property and all rights therein including the good will pertaining thereto, belong exclusively to LICENSOR.
15. INFRINGEMENTS
A. LICENSEE shall have the right, in its discretion, to institute and prosecute lawsuits against third persons for infringement of the rights licensed in this Agreement.
B. If LICENSEE does not institute an infringement suit within ninety (90) days after LICENSOR's written request that it do so, LICENSOR may institute and prosecute such lawsuit. Any lawsuit shall be prosecuted solely at the cost and expense of the party bringing suit and all sums recovered in any such lawsuits, whether by judgment, settlement or otherwise, in excess of the amount of reasonable attorneys' fees and other out of pocket expenses of such suit, shall be divided equally between the parties.
C. Upon request of the party bringing the lawsuit, the other party shall execute all papers, testify on all matters, and otherwise cooperate in every way necessary and desirable for the prosecution of any such lawsuit. The party bringing suit shall reimburse the other party for the expenses incurred as a result of such cooperation.
16. INDEMNITY
A. LICENSEE agrees to defend and indemnify LICENSOR, its officers, directors, agents, and employees, against all costs, expenses and losses (including reasonable attorneys' fees and costs) incurred through claims of third parties against LICENSOR based on the manufacture or sale of the Licensed Products including, but not limited to, actions founded on product liability.
B. LICENSOR agrees to defend and indemnify LICENSEE, its officers, directors, agents, and employees, against all costs, expenses and losses (including reasonable attorneys' fees and costs) incurred through claims of third parties against LICENSEE challenging the authenticity of the originally submitted Property provided, however, that such indemnity shall only be applicable in the event of a final decision by a court of competent jurisdiction from which no appeal of right exists and shall be limited up to the amount of the actual moneys received by LICENSOR under this Agreement. Further, this indemnity does not cover any modifications or changes made to the Property by LICENSEE.
17. INSURANCE
LICENSEE shall, throughout the Term of the Agreement, obtain and maintain at its own cost and expense from a qualified insurance company licensed to do business in [State], standard Product Liability Insurance naming LICENSOR as an additional named insured. Such policy shall provide protection against any and all claims, demands and causes of action arising out of any defects or failure to perform, alleged or otherwise, of the Licensed Products or any material used in connection therewith or any use thereof. The amount of coverage shall be as specified in Schedule A attached hereto. The policy shall provide for ten (10) days' notice to LICENSOR from the insurer by Registered or Certified Mail, return receipt requested, in the event of any modification, cancellation or termination thereof. LICENSEE agrees to furnish LICENSOR a certificate of insurance evidencing same within thirty (30) days after execution of this Agreement and, in no event shall LICENSEE manufacture, distribute or sell the Licensed Products prior to receipt by LICENSOR of such evidence of insurance.
18. JURISDICTION AND DISPUTES
A. This Agreement shall be governed in accordance with the laws of the State of [State].
B. All disputes under this Agreement shall be resolved by the courts of the State of [State] including the United States District Court for the [district] of [State], and the parties all consent to the jurisdiction of such courts, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to it.
19. AGREEMENT BINDING ON SUCCESSORS
The provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto, their heirs, administrators, successors, and assigns.
20. WAIVER
No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same or other provisions of this Agreement.
21. SEVERABILITY
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
22. NO JOINT VENTURE
Nothing contained herein shall constitute this arrangement to be employment, a joint venture or a partnership.
23. ASSIGNABILITY
The license granted hereunder is personal to LICENSEE and shall not be assigned by any act of LICENSEE or by operation of law unless in connection with a transfer of substantially all of the assets of LICENSEE or with the consent of LICENSOR.
24. INTEGRATION
This Agreement constitutes the entire understanding of the parties, and revokes and supersedes all prior agreements between the parties, including any option agreements which may have been entered into between the parties, and is intended as a final expression of their Agreement. It shall not be modified or amended except in writing signed by the parties hereto and specifically referring to this Agreement. This Agreement shall take precedence over any other documents which may be in conflict with said Agreement.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have each caused to be affixed hereto its or his/her hand and seal the day indicated.
[Name of Licensor]	[Name of Licensee]	

By:	By:	
Title:	Title:	
Date:	Date:	
SCHEDULE A
1. Licensed Properties
The following Licensed Properties form part of this Agreement:
2. Licensed Trademarks
The following Licensed Trademarks form part of this Agreement:
3. Licensed Products
The following Licensed Products form part of this Agreement:
[e.g., video and computer sports games for the [name of specific operating system] platforms and any substantially similar or successor platforms; sports games for handheld wireless devices; mobile games for use exclusively on wireless devices and a companion Web site]
4. Identification of Sports League and Players
The following shall constitute the Sports League:
The following shall constitute the Players:
5. Territory
The following shall constitute the Territory:
6. Term
This Agreement shall commence on the date executed by both parties and shall extend for an initial Term of: [number] ([#]) YEARS
LICENSOR hereby grants LICENSEE two (2) separately exercisable options (the "Options") to renew this Agreement for additional two (2) year extended Terms on the same terms and conditions provided for herein, provided: a) LICENSEE provides written notice of its intention to exercise this Option within sixty (60) days prior to expiration of the then in-effect Term; and b) LICENSEE shall have paid LICENSOR total royalty income of at least [number] UNITED STATES DOLLARS ($[#]) during the then in-effect Term.
7. Royalty Rate
LICENSEE shall pay the following royalty rate: [number] PERCENT ([#]%).
8. Guaranteed Minimum Royalty & Advance
LICENSEE agrees to pay LICENSOR an Advance of [number] UNITED STATES DOLLARS ($[#]) upon execution of this Agreement.
LICENSEE agrees to and will pay LICENSOR a Guaranteed Minimum Royalty of [number] UNITED STATES DOLLARS ($[#]) for each calendar year during the Term of this Agreement.
9. Product Liability Insurance
[number] Million Dollars ($[#]) combined single limit, with a deductible amount not to exceed [number] Dollars ($[#]), for each single occurrence for bodily injury and/or for property damage.
10. Promotional Expenditures
LICENSEE agrees to and will spend no less than [number] UNITED STATES DOLLARS ($[#]) during each calendar year during the Term of this Agreement on activities which stimulate and promote the market for Licensed Products.
11. Product Introduction/Initial Shipment
The Product Introduction Date for all Licensed Products in the Territory shall be [insert date].
The Initial Shipment Date for all Licensed Products in the Territory shall be [insert date].