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Intel - Sony: Development, Support, License & Revenue-Sharing Agreement Intel Confidential

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DEVELOPMENT, SUPPORT, LICENSE & REVENUE-SHARING AGREEMENT This Development, Support, License & Revenue-Sharing Agreement (“Agreement”) is entered into as of September 10, 2013 (the “Effective Date”) between Intel Corporation, a Delaware corporation having a principal place of business at 2200 Mission College Blvd., Santa Clara, CA 95054 (“Intel”), and Sony Pictures Television Networks Games Inc., a Delaware corporation having a principal place of business at 10202 W. Washington Blvd., Culver City, CA 90232 (“Sony”). Intel and Sony may be referred to in this Agreement individually as a “Party” and collectively as “Parties.” For good and valuable consideration (including, without limitation, the mutual covenants contained in this Agreement), the receipt and sufficiency of which is acknowledged, and intending to be legally bound, the Parties agree as follows: 1.0 BACKGROUND

Intel is paying Sony to develop and support the game “Wheel of Fortune” to run on Windows 8 Metro optimized for Intel’s “portable All-in-One” computing products, and the Parties will share revenue on distribution of the Application, in accordance with this Agreement.

2.0 DEFINITIONS

2.1 “pAIO” means Intel’s portable All-in-One category of personal computing products which integrate the processors into the monitors and include multi-touch, multi-user capable displays that may detach from the base and lay flat upon a surface.

2.2 “Application” means the (i) machine-readable object code and associated documentation and materials (whether provided in hard copy or electronic form) for the Sony Windows 8 Metro application “Wheel of Fortune” optimized for Intel’s pAIO products in accordance with the SOW attached as Exhibit A, and (ii) any updates, enhancements, modifications or error corrections thereto supplied to Intel during the course of this Agreement.

2.3 “Background Intellectual Property Right(s)” means all Intellectual Property Rights (defined below) belonging to, controlled, or licensed by either Party that are (i) developed, conceived, obtained, licensed, or acquired prior to the Effective Date of this Agreement, or (ii) developed, conceived, obtained, licensed, or acquired independently of this Agreement.

2.4 “CNDA” means the Parties’ Corporate Non-Disclosure Agreement No. 36495840.


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2.5 “Copyright(s)” means copyrights, copyright application, copyright registrations, and all analogous rights in foreign jurisdictions.

2.6 “Deliverable(s)” means the Application and other items to be delivered to Intel by Sony in accordance with the SOW.

2.7 “Feedback” means any input, comments, responses, modifications,

improvements, opinions, corrections, bug reports, suggestions, or other information a Party provides to the other Party, whether orally or in writing, regarding technical requirements, the Application or the other Party’s products (including their definition, design or validation).

2.8 “Intellectual Property Right(s)” means the following worldwide intellectual

property rights arising under statutory or common law: Copyrights, Mask Works, Patents and Patent Rights, Trademarks and Trademark Rights, and all intellectual property rights relating to trade secrets (and similar concepts) and confidential information.

2.9 “Mask Works” means mask work rights, mask work registrations, and all

analogous rights in foreign jurisdictions. 2.10 “Patents” and “Patent Rights” mean inventions, discoveries, and rights

arising from or related to all classes or types of patents and design patents (including, without limitation, originals, divisions, continuations, continuations-in-part, renewals, extensions, or reissues) issued or issue-able thereon, whether now existing or hereafter filed, issued, or acquired, and application for these classes or types of patent rights. “Patents” and “Patent Rights” include all analogous rights in foreign jurisdictions.

2.11 “SOW” means the Statement of Work attached to this Agreement as

Exhibit A. 2.12 “Trademarks” and “Trademark Rights” mean all worldwide corporate

names, trade names, logos, icons, trademarks, service marks, trade dress, and analogous corporate or product identifiers and other indicators of brand, affiliation or origin (including without limitation, rights under application and extensions), now existing, or hereafter filed or acquired.


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3.0 SERVICES; ACCEPTANCE AND DELIVERY

3.1 Sony will perform the development, maintenance and support services described in the SOW in accordance with the milestones schedule and other terms of the SOW. Sony acknowledges that time is of the essence for this Agreement with respect to the development work, and will use commercially reasonable efforts to complete the services and provide the Deliverables in accordance with this Agreement.

3.2 Payment for each Deliverable (other than the payment upon execution of

this Agreement) will not be due until such Deliverable is formally accepted by Intel in writing, or deemed accepted by Intel, in accordance with the SOW (“Accept” “Accepted” or “Acceptance”). Final payment will not be due until the Application is made available to end users for download on Microsoft’s Windows 8 Marketplace app store.

3.3 Sony will include with every copy of the Application, its own End User

License Agreement. 3.4 Intel will either Accept or reject in good faith each Deliverable (in writing)

within five (5) business days after Intel receives each Deliverable (each an “Acceptance Period”). Any rejection must be based upon failure of the Deliverable to meet Intel’s reasonable requirements as described (and reasonably implied) in Exhibit A. If Intel fails to Accept or reject any Deliverable within the Acceptance Period, Intel will be deemed to have Accepted that Deliverable. If Intel rejects a Deliverable, Intel will provide a written description of all the issues that fail to meet the requirements reflected in Exhibit A and the corrections required, and the Acceptance process outlined in this Section 3.4 will be repeated for each Deliverable until Accepted. In the event Intel rejects a Deliverable two or more times, Intel may in its sole discretion terminate this Agreement immediately upon written notice and without any opportunity to cure.

4.0 LICENSES

4.1 Object Code Licenses from Sony to Intel.


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(a) Subject to the terms and conditions of this Agreement (including the revenue-sharing terms in Exhibit B of the SOW), Sony grants to Intel (including its majority-owned affiliates) a non-exclusive, irrevocable (except for termination in accordance with Section 8.2), worldwide, fully paid-up license under Sony’s Intellectual Property Rights to use, disclose, reproduce, display publicly and perform publicly the Application solely for purposes of evaluation, demonstration and internal use. (b) Should Intel choose to purchase bulk licenses at a price set by Sony to the Application from Sony, and subject to the terms and conditions of this Agreement (including the revenue-sharing terms in Exhibit B of the SOW), Sony grants to Intel (including its majority-owned affiliates) for a reasonable license fee, a non-exclusive, irrevocable (except for termination in accordance with Section 8.2), worldwide, fully paid-up license under Sony’s Intellectual Property Rights to distribute, offer for sale, and export and import the Application solely through its business channel partners (including without limitation for pre-installation by OEMs), but specifically excluding directly to consumers. (c) Subject to Sony’s prior written approval, Sony grants to Intel a non-exclusive, revocable, worldwide, royalty-free license under Sony’s Trademark Rights to use the Sony Trademarks solely in connection with Intel’s marketing activities relating to the license of the Application and in connection with the following industry events: Consumer Electronics Show, Intel Developer Forum (in all geographic locations), Game Developer’s Conference, CeBIT and IFA Berlin, as set forth in this Agreement, provided that once approved, no additional approval is required for a substantially similar use.

4.2 Feedback License. This Agreement does NOT obligate either Party to

provide the other Party with Feedback. However, should either Party provide the other Party with Feedback (the “Providing Party”), in writing, clearly marked as Feedback, the Party receiving the Feedback (the "Receiving Party") will be free, in its sole discretion, to: (a) use and disclose the Feedback under the Providing Party’s trade secret rights embodied in the Feedback (as provided by the Providing Party) only; and (b) reproduce, perform, display, create derivative works of and distribute the Feedback, all under Providing Party’s copyrights embodied in the Feedback (as provided by the Providing Party) only.

Nothing in this Section 4.2 creates a license to any Intel Intellectual Property Rights for use in the development, manufacture or sale of semiconductor products (including memory products), processors or the emulation of processor instructions. Neither Party grants to the other Party any license


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or right under any of such Party’s Patent Rights or Trademark Rights, whether expressly, by implication, estoppel, statute or otherwise, under this Agreement; the Copyright and trade secret licenses in this Section 4.2 as to Feedback and the Trademark license in Section 4.1(b) are the only licenses or rights granted by each Party. Sony must not use any Intel Trademarks for any purpose without Intel’s prior written permission.

5.0 IP OWNERSHIP

5.1 Background IP. This Agreement does not change the Parties’ ownership of their respective Background Intellectual Property Rights.

5.2 The Deliverables. The Application, title to the Deliverables and any

Intellectual Property Rights (except for any of Intel’s Background Intellectual Property Rights) embodied in the Application or the Deliverables will remain with Sony and its licensors.

6.0 CONFIDENTIALITY; PUBLICITY

The Parties’ CNDA governs all exchanges of Confidential Information (as defined in the CNDA) between the Parties in connection with this Agreement. The existence of, and terms and conditions of, this Agreement are considered Confidential Information. Subject to the express requirements of this Agreement and the CNDA, however, each Party may: (a) have similar agreements with others; (b) independently design, develop, manufacture, acquire or market technology, products or services similar to or competitive with the Deliverables or the other Party; and (c) conduct its business in whatever way it chooses.

Neither Party will publish any press release, client listing or analogous public reference to this project or the Parties’ relationship under this Agreement, without the other Party’s prior written consent. Subject to Section 4.1(c), listing the Applications on Intel’s websites is hereby approved by Sony and not subject to this consent requirement.

7.0 FINANCIAL TERMS 7.1 Development Services & Deliverables. When Sony believes it has

completed a milestone for which Intel owes a payment under this Agreement, Sony must submit an invoice to Intel that sets forth in reasonable detail a description of the milestone(s) achieved. As part of Sony’s compensation for performance of the development services, if the milestone has been satisfied, Intel will pay Sony the corresponding amount


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on the Payment Schedule set forth in the attached Exhibit A. All payments are subject to the payment and tax set forth in Sections 7.2 and 7.3 below. No other compensation to Sony is contemplated under this Agreement.

7.2 Payment. Intel will pay Sony in United States Dollars the amount properly

due and payable under each of Sony’s invoices within thirty (30) days of written Acceptance by Intel of the milestone completed. All payments by Intel to Sony must be made in accordance with the following instructions: Crackle, Inc. BOA Acct. #: 12570-44002

Wiring Instructions ABA: 026009593 Acct. #12570-44002 Name: SPT Games Any payment which is due under the terms of this Agreement on a day which is not legally a business day will be payable on the next business day. The total amount of development services funds will not exceed $140,000.00 (USD).

7.3 Taxes. Each party will pay, collect and remit any taxes as may be imposed

with respect to any compensation or transactions under this Agreement in accordance with applicable laws, rules, regulations and orders of governmental authority having jurisdiction. If Intel is prohibited by law from making payments to Sony unless Intel deducts or withholds taxes therefrom and remits taxes to the local taxing jurisdiction, then Intel will (i) duly withhold applicable taxes, (ii) will pay to Sony the remaining net amount after the taxes have been withheld, and (iii) within 30 days of payment, deliver to Sony original documentation or a certified copy evidencing such remittance (a “Withholding Tax Receipt”). In the event Intel does not provide a Withholding Tax Receipt in accordance with the preceding sentence, Intel shall be liable to and shall reimburse Sony for the withholding taxes deducted from the payment. Each party is responsible for its own respective income taxes or taxes based on gross revenues, including but not limited to business and occupation taxes.

7.4 Revenue-Sharing & Distribution. The Parties will distribute and share

revenue with respect to the Application in accordance with Exhibit B to this Agreement. Within thirty (30) days after Intel Accepts the Production Quality versions of the Application, Sony will submit the Application to the Microsoft Windows 8 Metro App Store for certification, and upon Microsoft’s approval, distribute the Application via the Microsoft Windows 8 Metro App Store. For the avoidance of doubt, Sony will also be permitted to distribute the


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Production Quality version of the Application Accepted by Intel through other commercially reasonable channels, subject to the terms and conditions of this Agreement.

7.5 Audits. Each Party will create, and maintain for two (2) years after the

termination or expiration of this Agreement, commercially reasonable books and records regarding its compliance with the Revenue-Share obligation of Section 7.4 and Exhibit B of this Agreement. Each Party will have the right, not more than once every twelve (12) months, to appoint an independent auditor (acceptable to the other Party) at its own expense to examine those books and records during the audited Party’s normal business hours, at a mutually agreed time/place, to verify the other Party’s compliance. If any such audit discloses material non-compliance (including, without limitation, underpayment of the revenue share pursuant to Exhibit B of more than five percent (5%) during the audited time period), the audited Party will reimburse the other Party for the reasonable costs of such audit.

7.6 Miscellaneous. Sony must send all invoices under this Agreement to the

billing contact identified in the SOW. Sony will bear the cost of shipping and the risk of loss of all Deliverables while in transit. Except as expressly provided for in the SOW, each Party is responsible for its own expenses, charges and costs under this Agreement.

8.0 TERM AND TERMINATION

8.1 Term. Subject to Section 8.3, the term of this Agreement will commence on the Effective Date and will continue for three (3) years or until terminated by either Party in accordance with Section 8.2.

8.2 Termination. Either Party may terminate this Agreement if the other Party

breaches any material term of this Agreement and does not cure the breach within ten (10) business days after receiving written notice of breach. Intel may also terminate this Agreement upon written notice if (a) Intel terminates the Agreement pursuant to Section 3.4 herein or (b) if within thirty (30) days after Intel Accepts the Production Quality versions of the Application and Sony fails to distribute an Accepted Application through the Windows 8 Metro App Store after Microsoft has certified the Application for distribution in the Windows 8 Metro App Store. Either Party may also terminate this Agreement in accordance with Section 11.3. Sony may also terminate this Agreement for convenience upon sixty (60) days written notice to Intel, but solely after Intel reaches the 100% Point defined in Exhibit B. Either Party may terminate this Agreement upon written notice in the event a Party has a receiver or similar party appointed for its property, becomes insolvent,


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acknowledges its insolvency in any manner, ceases to do business, makes an assignment for the benefit of its creditors, or files a petition in bankruptcy.

8.3 Effect of Expiration/Termination. Upon any expiration or termination of

this Agreement:

a. Intel will pay to Sony all sums actually due Sony by Intel through the termination effective date as set forth in Section 7 “Payment Terms” of Exhibit A;

b. each Party will promptly destroy all originals and copies of the other Party’s tangible Confidential Information in its possession or control; and

c. Exhibit B and the Parties’ rights and obligations under Exhibit B will survive, except if the Agreement has been terminated by Sony for Intel’s material breach pursuant to Section 8.2. Additionally, upon any expiration or termination of this Agreement, all other provisions of this Agreement that by their nature and surrounding circumstances reasonably should survive the expiration or termination of this Agreement will survive, including without limitation, Articles 2.0 (Definitions), , 4.2 (Feedback License), 5.0 (IP Ownership), 6.0 (Confidentiality; Publicity), 7.0 (Financial terms) but solely as such financial terms relate to the 100% Point defined in Exhibit B, 8.3 (Effect of Expiration / Termination), 9.0 (Open Source and Limited Warranties), 10.0 (Warranty Disclaimer), 11.0 (Indemnity), 12.0 (Limitation of Liability) and 13.0 (Miscellaneous).

9.0 OPEN SOURCE AND LIMITED WARRANTIES

9.1 General Warranties. Each Party represents and warrants that: (a) it has the legal capacity and authority to enter into this Agreement, to perform the obligations and to consummate the transactions contemplated under this Agreement; (b) this Agreement is valid and binding upon and enforceable against it; (c) its execution and performance of this Agreement will not result in the violation of any provision of any other agreement or applicable law or any judgment or decree binding upon it; and (d) it is not the subject of any pending or, to the best of its knowledge, threatened claim, action, judgment, order, or investigation that could adversely affect its ability to perform its obligations under this Agreement or the business reputation of the other Party.

Sony further represents and warrants that: (u) it will provide its services and the Deliverables under this Agreement in a professional and competent manner consistent with the standards in the technology industry; (v) for a period of ninety (90) days following Intel’s Acceptance of the final


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production-quality Application (“90-day Warranty Period”), the Application will perform in accordance with the SOW and will not contain any errors or bugs that would prevent its operation in conformance with Intel’s reasonable requirements or specifications; (x) it has the necessary right, title, and interest to provide the Deliverables to Intel in accordance with this Agreement; (y) the Deliverables will be free of liens and encumbrances and will not violate the rights of any third Parties; and (z) it will provide sufficient staffing, facilities and resources to complete the Deliverables and activities in accordance with the SOW and this Agreement.

9.2 Warranty Regarding Malicious Code. Sony further warrants that it runs the software portion of each version of the Deliverables through industry-standard anti-virus and anti-malware programs, and to Sony’s knowledge, the Deliverables do not contain any viruses, malware, trojan horses, time bombs, or other harmful or disabling code.

9.3 Warranty Regarding Open Source; Certificate of Originality. Sony acknowledges that Intel has certain corporate requirements that apply to distribution by Intel of software that is written for use with Linux and other open source software. Accordingly, Sony represents and warrants that any portion of the Deliverables that operates in Linux Kernel Space (defined below), including any drivers or Loadable Kernel Modules (defined below), or in User Space (defined below) that links to a module subject to the GNU General Public License version 2 or any later version of that license (the "GPL"), is licensed to Intel under terms that would allow Intel to distribute the Deliverables under the terms and conditions of the GPL. To the extent any questions are raised as to the conformance of any portion of the Deliverables to the terms of the GPL or other applicable licenses, or the representations of Sony set forth in this section, Sony agrees to promptly resolve such question.

Sony agrees that, as part of Intel’s Acceptance criteria for the Deliverables, Intel has the right to perform due diligence to verify that the Deliverables and any source code delivered by Sony are compliant with the applicable open source licenses, including use of automated code origin-scanning tools. At the time of delivery of each Deliverable by Sony, Sony must provide Intel a complete, executed certificate of originality (a/k/a bill of materials) in the form provided as Exhibit C to this Agreement for the Deliverable, listing, e.g., all modules and components in the Deliverable and the applicable licenses for each module and component. Sony also agrees to promptly answer questions Intel may have concerning the certificate of originality.


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Sony agrees that, for any portions of the Deliverables that are subject to an open source license requiring availability of source code (including but not limited to the GPL, Lesser GPL (LGPL), Eclipse Public License (EPL), or Common Development and Distribution License (CDDL)), Sony must promptly deliver to Intel the complete corresponding source code for such portions of the Deliverables. In addition, Sony agrees that, for any portions of the Deliverables that are subject to GPL version 3 or LGPL version 3, or that are described in the first paragraph of this section, Sony will provide the “Installation Information” as defined in GPL version 3.

“Kernel Space” means that portion of virtual memory strictly reserved for running the kernel, kernel extensions and certain device drivers.

“Loadable Kernel Modules” means object code files that contain code to extend the running kernel of an operating system, and that can be unloaded in order to free virtual memory when the functionality of such object code files is no longer required.

“User Space” means the portion of virtual memory where all user mode Application work and that can be swapped out when necessary.

In the event of any breach of its warranties in this Article 9.0, Sony will promptly repair or replace the relevant Deliverables at no additional cost to Intel. If Sony is unable to repair the relevant Deliverable within a reasonable timeframe acceptable to Intel, Sony will promptly refund the amount paid for or reasonably attributable to such Deliverable.

10.0 WARRANTY DISCLAIMER NEITHER PARTY MAKES ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND UNDER THIS AGREEMENT, EXPRESS OR IMPLIED, OTHER THAN AS EXPRESSLY SET FORTH IN ARTICLE 9.0. EACH PARTY SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY AGAINST INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT OF ANY THIRD PARTY.

11.0 INDEMNITY

11.1 Sony will defend, indemnify and hold harmless Intel and Intel’s majority-owned subsidiaries, affiliates and any of its licensees (collectively, the “Indemnitees”) from and against any costs, expenses (including


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reasonable attorneys’ fees), claims, demands, losses, damages, or liabilities (collectively, “Claims”) arising out of, or incurred as a result of or in connection with, (a) breach by Sony of the warranties in Sections 9.1(x), 9.1(y), 9.2 or 9.3 (subject to Section 11.2), (b) actual or alleged infringement or misappropriation by Sony of any third party Patent, Copyright, trade secret, Trademark, Mask Work or other intellectual property rights related to any of the Deliverables, alone or in combination with any other product (subject to Section 11.2), (c) any gross negligence or willful or intentional misconduct by Sony, or (d) any act or omission by Sony that results in personal injury or death, or damage to property.

11.2 Sony will not be liable to the Indemnitees under Section 11.1(a) or

Section 11.1(b) to the extent a Claim arises out of (i) post-delivery modifications by the Indemnitees or another third party without Sony’s prior written consent, (ii) Sony’s compliance with Intel instructions, designs or specifications not included in the SOW, or (iii) combination, operation or use of the Deliverables with any devices, programs, data, methods or specifications that (x) are not described in the SOW and (y) are not provided by Sony, to the extent infringement would not have occurred but for such combination, operation or use.

11.3 In the event Section 11.1(a) or Section 11.1(b) applies, Sony will use

commercially reasonable efforts, at its sole expense, to:

(a) procure for the Indemnitees the right to continue using the Deliverables;

(b) replace the Deliverables with non-infringing Deliverables; or (c) modify the Deliverables so they become non-infringing. If Sony’s efforts under Sections 11.3(a), 11.3(b) and 11.3(c) are unsuccessful or if the aforementioned alternatives are not reasonably available, either Party may terminate this Agreement upon thirty (30) days advance written notice to the other Party, and Sony will refund to Intel all amounts paid by Intel for the relevant Deliverable(s).

11.4 Sony has the right to control the defense of Claims that are subject to indemnification under this Article 11.0, at its own expense, except that: (1) the Indemnitees in their sole discretion may have their own counsel consult with Sony regarding the defense of the Claim (and Sony will cooperate with them in connection with this consultation) without the Indemnitees waiving, forfeiting or in any manner losing any of their rights under Article 11.0; (2) Sony will not undertake any liabilities or make any


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admissions on behalf of any of the Indemnitees or in their name when entering any settlement or compromise concerning any Claim that is subject to indemnification under this Article 11.0; and (3) Sony must provide prior written notice to the Indemnitees within a reasonable time (but in any event no less than seven (7) business days) before any settlement is reached or entered into and provide a detailed summary of all material aspects of the settlement.

Except to the extent expressly provided in this Agreement, Sony will not be obligated to pay any damages or costs resulting from a Claim under this Article 11.0. This Agreement does not create any third party beneficiaries, and confers no rights or remedies to any person or entity against Sony, other than the Indemnitees.

The Indemnitees will promptly notify Sony of any Claim that is subject to indemnification under Article 11.0. For the sake of clarity, Sony will not be relieved of its obligations under Article 11.0 if the Indemnitees fail to provide such notice, except to the extent Sony’s ability to effectively defend a Claim is materially hampered as the proximate result of such a failure.

12.0 LIMITATION OF LIABILITY

IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF USE OR LOSS OF BUSINESS, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES ACKNOWLEDGE THAT THESE LIMITATIONS ON POTENTIAL LIABILITIES ARE AN ESSENTIAL ELEMENT IN THIS AGREEMENT. EXCEPT FOR (A) SONY’S INDEMNITY OBLIGATIONS UNDER ARTICLE 11.0, (B) INTEL’S BREACH OF THE LICENSE GRANTS UNDER ARTICLE 4.0, (C) EACH PARTY’S LIABILITY FOR BREACH OF THE CNDA OR (D) FRAUD OR, GROSS NEGLIGENCE, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED $2,000,000.00.

13.0 MISCELLANEOUS

13.1 Governing Law; Venue; Jurisdiction. All matters arising out of or related to this Agreement, including without limitation all matters connected with its performance, will be construed, interpreted, applied and governed in all


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respects in accordance with the laws of the State of New York, without reference to conflict of laws principles. The United Nations Convention on Contracts for the Sale of Goods does not apply to this Agreement. The Parties agree that any disputes and litigation regarding this Agreement will be subject to the exclusive jurisdiction of the courts of the State of New York, or of the Federal courts sitting in York, and each Party hereby irrevocably submits to the jurisdiction of those courts.

. 13.2 Dispute Resolution; Prevailing Party Fees and Costs. In the event of any

dispute relating to this Agreement, the senior management of each Party will meet to resolve the dispute. If the dispute is not resolved by senior management within thirty (30) days after the dispute is escalated to such senior management, either Party may make a written demand for formal dispute resolution and specify therein the scope of the dispute. Within thirty (30) days after such written notification, the Parties will meet for one day with an impartial mediator and consider dispute resolution alternatives other than litigation. If an alternative method of dispute resolution is not agreed upon within thirty (30) days after the 1-day non-binding mediation, either Party may commence litigation proceedings. Notwithstanding the foregoing, neither Party will be precluded at any time from seeking an injunction against the other Party for intellectual property infringement. In the event any legal proceedings or lawsuits are brought by Intel or Sony in connection with this Agreement, the prevailing Party in such proceedings will be entitled to recover from the losing Party its costs, expert witness fees and reasonable attorneys’ fees, including costs and fees on appeal.

13.3 Notices. All notices permitted or required under this Agreement must be

in writing and delivered by prepaid personal delivery, certified or registered mail, or commercial delivery service, return receipt requested, and will be deemed given upon receipt. Notices must be sent to the Parties’ addresses indicated on the first page of this Agreement and marked as follows : For Intel, “Attention Legal Department,” For Sony, “Attention EVP, Legal Affairs” with a copy to “c/o Sony Pictures Television, Attention General Counsel.”

13.4 No Agency. The Parties are independent contractors. Nothing contained

herein may be construed as creating any agency, employment relationship, franchisee, partnership, principal-agent or other form of joint enterprise between the Parties. Each Party is solely responsible for its respective taxes, withholdings, and other statutory or contractual obligations of any sort, including, but not limited to, Workers’ Compensation Insurance. Sony agrees to defend, indemnify and hold Intel


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and its majority-owned subsidiaries and affiliates harmless from any and all Claims on account of (i) an alleged failure by Sony to satisfy any such obligations or any other obligation directly related to its obligations as an independent employer (under this Agreement or otherwise) or (ii) any other action or inaction of Sony directly related to its obligations as an independent employer.

13.5 Assignment. Neither party may transfer or assign this Agreement or any

portion hereof, by operation of law or otherwise, to any third party without the other Party’s prior written consent (any attempt to do so will be null and void).

13.6 Severability. If any provision of this Agreement is unenforceable or invalid

under any applicable law or so held by applicable court decision, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions. Additionally, the rights and remedies of the Parties under this Agreement are in addition to any other rights and remedies that may be available at law or in equity.

13.7 Waiver. The failure of either Party to require performance by the other

Party of any provision hereof will not affect the full right to require such performance at any time thereafter; nor will the waiver by either Party of a breach of any provision of this Agreement be taken or held to be a waiver of the provision itself.

13.8 Headings. The section headings appearing in this Agreement are inserted

only as a matter of convenience and in no way define, limit, construe, or describe the scope or extent of such section or in any way affect this Agreement.

13.9 No Rule of Strict Construction. Each Party has had a reasonable

opportunity to consult its own counsel and to participate in the drafting of this Agreement. Accordingly, regardless of the Parties’ respective roles in drafting this Agreement, no rule of strict construction may be applied against either Party.

13.10 Force Majeure. Neither Party will be responsible for its failure to perform

due to causes beyond its reasonable control such as acts of God, fire, theft, war, riot, incidents of terrorism, labor disputes, carrier issues, utility issues, embargoes, or acts of civil or military authorities. The applicable


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Party’s performance will be excused during any period of delay caused by the foregoing events.

13.11 Electronic Signatures; Counterparts. This Agreement may be executed by

facsimile, scanned .pdf signature, or other electronic means of accurately transmitting an image (“Faxed”) signature. Each Party agrees that it will not contest the validity of the execution of this Agreement solely on the basis of a Faxed signature. Faxed copies of this Agreement, including the signature pages, will be deemed originals. The Parties will deliver original execution copies of this Agreement to one another as soon as practicable following execution. This Agreement may be executed simultaneously in two or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument.

13.12 Entire Agreement; Modification. This Agreement, including its exhibits, and

the CNDA constitutes the entire agreement between Sony, and Intel and supersedes any and all oral or written agreements previously existing between Sony and Intel, with respect to the subject matter of this Agreement and the CNDA. This Agreement may only be amended or supplemented by a writing that refers explicitly to this Agreement and is signed by duly authorized representatives of Sony and Intel. In the event of a conflict between this Agreement and any of its exhibits, the terms and conditions of this Agreement will take precedence and control.

In witness whereof, the Parties’ authorized representatives have executed this Agreement effective as of the Effective Date.

INTEL CORPORATION By: Printed Name: ________________________________________________

Title:

SONY PICTURES TELEVISION NETWORKS GAMES INC. By: Printed Name: ________________________________________________

Title:


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EXHIBIT A

STATEMENT OF WORK (SOW)

This SOW is Exhibit A to the Development, Support, License & Revenue-Sharing Agreement (“Agreement”) between Intel Corporation and Sony Pictures Television Networks Games Inc. All capitalized terms not defined in this SOW have the meanings specified in the Agreement.

1. Project Description

Intel is looking for existing multi-user and multi-touch Application to port on their new platform called portable All In One (“pAIO”) with a quick turnaround. pAIO is a new kind of computing for multi-touch, multi-user Application that may detach from the base and lay flat upon a surface. Sony is proposing to develop one (1) application to the pAIO. This Application will be enhanced to provide a better experience for the consumer market that Intel is targeting (enhancements detailed below). If Intel requests a change in scope to this SOW, the Parties will negotiate in good faith any change to the fees that will be due to Sony and to the time and/or materials required for Sony to accommodate the change in scope.

2. Deliverables

The Application must function in Windows 8 “Metro” mode, support 10 touch points be multi-player (1-2-3 users) capable, contain no open priority 1 or showstopper bugs as defined by Intel, and contain all enhancements described in this SOW. The Application will be titled “Wheel of Fortune.” The Application will include the following features:

Optimized for 18”-27” form factor, supporting 16:9 aspect ratio and an HD

resolution of 1920x1080) Allow for multi-player play on the same device Include license terms that establish the license permissions directly between

Sony and the End User All features outlined in Section 3 of this Exhibit

The Manufacturer’s Suggested Retail Price for each Application is $2.99.


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3. Application Features and Design The Application will be based upon the television game show “Wheel of Fortune” and mimic the look and feel of the game show. The Application may be played locally or online. Solo and multiplayer play will be available in both versions. The online version will require a sign in via Facebook, Twitter, or user e-mail. The Application will include the follow features:

Feature Name Definition

Windows 8 Support

Windows 8 application will be created to support the Intel portable All-in-One

Input Devices Application will be updated to support Keyboard and pointer input. Either the on-screen keyboard or an external keyboard will be supported for screens with text input.

Feature Parity The application will include feature parity with the 1.2 or later feature set as seen in the iOS version of the application.

Local mode Ability to play application without connection to the internet No internet log in via Facebook, Twitter, or any other website is required for play

IAP In App purchasing will be supported via the Windows Store

Notifications Notifications will be implemented via Facebook notifications and Windows Live Tile. For example, in the online multiplayer game, users will be notified that it is their turn.

Facebook The application will be updated to support a native Facebook authentication and integration framework. Facebook sign in will not be required for local play.

Twitter The application will be updated to support a native Twitter authentication and integration framework. Twitter sign in will not be required for local play.

Mode Windows 8 “Metro” Languages English


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4. Application Look and Feel The Application will be modified from the Android and iOS versions to make use of the unique features of the pAIO. Key pAIO Application features include:

Orientation – The game board should be oriented so that the players can sit on three sides of the screen. The middle player should be located on the longer side of the screen with the other two players sitting on the shorter ends of the screen. As the game play continues the board should rotate to show a different view from the contestant’s perspective to spin the wheel and watch the wheel spin.

Ability for user to spin the wheel via the touch screen using a side-to-side swiping motion

Increased wheel dimensions to utilize larger pAIO screen, must be scalable to various screen sizes and resolutions

Increased puzzle dimensions to utilize larger pAIO screen, must be scalable to various screen sizes and resolutions

Simultaneous Multi user interaction – 1 to 3 players Local mode player option – ability to play offline without any internet connectivity

or website log in Option for asynchronous online play and in app purchases Five theme packs will come standard with base game: Today, Millennium,

Nineties, Eighties, Premier Five theme packs are available for purchase through the in application store:

School Time, Monster Pack, Hero Pack, Night on the Town, and Tropical Vacation

At least 1,000 puzzles will come standard with the base game


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5. Maintenance and Support

Maintenance: Sony will provide commercially reasonable maintenance services (e.g., bug fixes and error corrections) for the Application, free of any additional charge, during the 90-day Warranty Period (defined in Section 9.1(v) of the Agreement). After that 90-day Warranty Period expires, subject to payment of the Maintenance Fee (defined below), Sony will provide commercially reasonable bug fixes, error corrections and other maintenance services for the Application during the term of the Agreement.

Support: Commencing upon Intel’s Acceptance of the final production version of the Application, and continuing for the term of the Agreement, Sony will provide FAQ access and Virtual Tier One Customer Support for the Application as follows:

Sony will provide end users who download the Application a valid email address

that Sony controls for customer support inquiries and complaints. Sony will respond to correspondence in a reasonably timely manner and use commercially


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reasonable efforts to resolve any dispute with end users of the Application in a reasonable timely manner. Solely with respect to the Application, Intel is not obligated to provide any support to end user customers under the Agreement.

6. Project Schedule/Deliverables

Delivery Date Deliverable October 10, 2013 User Acceptance Testing

Alpha-Quality Version in executable file or Windows 8 Metro executable equivalent

October 31, 2013 Beta-Quality Version executable file or Windows 8 Metro executable equivalent

December 2, 2013 Final Production Quality version executable file or Windows 8 Metro executable equivalent

Executed Certificate of Originality High Resolution Sony and Wheel of

Fortune logos to be used at press events, OEM discussions, and keynote speech slides at industry show

Application submitted to Microsoft’s Windows 8 Marketplace app store

7. Payment Terms

Intel will pay Sony a Development Fee of $140,000 in accordance with the following milestone schedule:

Upon the Effective Date of the Agreement: $70,000. Upon Intel Acceptance of the Beta Quality version of the Application and

associated Deliverables: $21,000. Upon Intel Acceptance of the Production Quality version of the Application

and associated Deliverables: $49,000. With respect to the Beta Quality Version, the following applies to Intel’s payment obligation:


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If Sony delivers the first Beta Quality Version on or within 10 business days of the Delivery Date and Intel Accepts it, Intel will pay Sony the full Development Fee amount of $21,000.

Intel will Accept or reject the Beta Quality Version pursuant to the terms set forth in Section 3.4 of the Agreement.

With respect to the Production Quality Version, the following applies to Intel’s payment obligation:

If Sony delivers the first Production Quality Version on or within 20 business days of the Delivery Date and Intel Accepts it, Intel will pay Sony the full Development Fee amount of $49,000.

If Sony delivers first Production Quality Version more than 20 business days after the Delivery Date but less than 30 business days after the Delivery Date, and Intel Accepts it, the total amount of Development Fees for this milestone due to Sony will be $35,000.

If Sony delivers the first Production Quality Version more than 30 business

days after the Delivery Date, Intel will have the right to terminate this SOW and the Agreement, and upon such termination, Sony will refund to Intel the amount of $49,000 in Development Fees. However, if Intel chooses to Accept the Production Quality Version of the Application more than 30 days after the Delivery Date, Intel shall not have the right to terminate this SOW and the Agreement, yet Intel’s payment obligation will be reduced to $ 21,000. Final payment will not be due until the Application is made available to end users for download on Microsoft’s Windows 8 Marketplace app store pursuant to Section 3.2 of this Agreement. For purposes of clarity, in the event of the foregoing, all the terms under this SOW and the Agreement shall remain in effect until termination or expiration of the SOW or the Agreement pursuant to their terms.

Intel will accept or reject the Production Quality Version pursuant to the terms

set forth in Section 3.4 of the Agreement.

Sony may invoice Intel upon each milestone event, and Intel will pay each such amount within thirty (30) days following Intel’s receipt of invoice. For any Maintenance, as defined in Section 5 of this Exhibit, provided by Sony after the 90-day Warranty Period as described in Section 5 of this SOW, Intel will pay


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Sony on a time-and-materials basis at the rate of USD $300 per hour (“Maintenance Fee”).

8. Unity Game Engine Intel may approve, at its own discretion, up to $20,000 in additional financial support to Sony to be used for the creation of a new version of the Unity Game Engine. The following requirements must be met before Intel will approve the additional funding:

Sony must demonstrate to Intel that a new version of the Unity Game Engine is required for the Application to meet the requirements stated in this Statement of Work; and

Sony must demonstrate to Intel that a new version of the Unity Game Engine is required for the Application to be approved for distribution in the Microsoft Windows 8 Metro Store.

Additional Unity funding will be paid on the following schedule: $10,000 due within 30 days following receipt of invoice after Intel approves

the additional support for the development for the Unity Game Engine $10,000 due within 30 days following receipt of invoice after Intel Accepts the

Production Quality version of the Application and associated Deliverables.

9. Key Contacts

Intel: Sarah Bienvenue [email protected] Software Innovation Manager Sony Pictures Television Networks Games Inc.: Name: Young Song Title: Manager, Digital Distribution

10. Locations / Billing Contacts

Company Address/Contact

Sony Pictures Television Networks Games Inc.

10202 W. Washington Blvd. Culver City, CA 90232 Attn: Winnie Man [email protected]


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Intel Intel Corporation Post Contract Management 1900 Prairie City Rd Folsom CA 95630

Attn: Janice Austin FM3-78

[email protected]


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EXHIBIT B

REVENUE-SHARING

This is Exhibit B to the Development, Support, License & Revenue-Sharing Agreement (“Agreement”) between Intel and Sony. All capitalized terms not defined in this Exhibit B have the meanings specified in either the Agreement or the SOW or both.

1. Definitions.

For purposes of this Exhibit B, the following additional definition applies: “Customer Transaction” means (i) each instance in which a customer is authorized to receive, decrypt and play a copy of the Application via the Microsoft Windows 8 Metro App Store on the pAIO in exchange for payment of a license fee to Sony and (ii) each instance in which a customer initiates and authorizes an “in-app purchase” within the Application via the Microsoft Windows 8 Metro App Store on the pAIO in exchange for payment of a license fee to Sony.

2. Revenue Share Fees.

Solely until the 100% Point (as defined below) is reached, Sony will pay revenue-sharing fees (“Revenue-Share Fees”) to Intel, which will be a percentage of net revenue actually received by Sony from customers for Customer Transactions, less amounts paid to the storefront, customer returns and point of sale taxes (“Net Revenue”). The Revenue-Share Fees payable by Sony to Intel for each Customer Transaction will be as follows: A. Sony will pay to Intel thirty percent (30%) of the Net Revenues received by Sony

for each Customer Transaction until Intel recovers one hundred percent (100%) of all costs paid to Sony under this Agreement, (i.e., $140,000 if Intel makes all the payments contemplated under this SOW) (the “100% Point”);

B. Neither Party will owe any Revenue-Share Fees to the other for free, time-limited (not to exceed 45 days) copies of the Application that are licensed solely for evaluation or demonstration.

3. OEM / ODM Pricing.

Sony and Intel will consult in good faith on pricing for the Application for (a) sales to Intel’s Original Equipment Manufacturer partners (“OEMs”) (b) sales to Intel’s Original Device Manufacturer partners (“ODMs”) and (c) sales to Intel’s consumer electronics retail partners.


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Sony will set the pricing for units of the Application that it distributes, though it will provide commercially reasonable volume discounts to the OEMs, ODMs, and Intel’s consumer electronics retail partners discussed above.

4. Reports and Payments.

Revenue-Share Fees will be paid on a quarterly basis. Within fifteen (15) days of each calendar quarter-end, Sony will provide to Intel a fee statement (hereinafter the “Fee Statement”, as further described below) indicating the Revenue-Share Fees payable for that quarter, as well as reasonable supporting details. Intel will then invoice Sony for the amount due (as specified in the Fee Statement) within forty-five (45) days after receipt of each Fee Statement. Sony will not be obligated to pay any amount not invoiced within such time period. Sony will have thirty (30) days to submit payment by wire transfer (for Intel, to Citibank, New York, New York, General Account Number 38385954; or to such other account as Intel may indicate in writing). All payments will be in US dollars, and Intel will be responsible for the wire transfer fee. If the Revenue-Share Fees due in any quarter are insufficient to justify the wire transfer fee (e.g., if they are less than $500), then upon mutual written agreement by the Parties (email is sufficient), the Parties may agree to postpone the wire transfer until the following quarter or such other time as the Parties may agree. The Fee Statement will be in a mutually acceptable format and will show (a) the number of Customer Transactions during the relevant quarter, and (b) the amount of Revenue-Sharing Fees due under this Agreement for Customer Transactions. Fee Statements will be sent to the following: To Intel at: Intel Corporation MS FM6-78 1900 Prairie City Rd Folsom, CA 95630 Attn: Post-Contract Management / Janice Austin [email protected]


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EXHIBIT C

CERTIFICATE OF ORIGINALITY

1. Name of the software material (provide complete identification, including version,

release and modification numbers for programs and documentation): _______________

2. Was the software material or any portion thereof written by any person or entity

other than you, or your employees working within their job assignment? Yes ______ No ______ If Yes, provide the following information: (a) Indicate if the whole of the software material or only a portion thereof was written

by such person or entity, and identify such portion: _________________________________

(b) Specify for each involved person or entity: (i) Name: _____________________________

(iii) Address: _____________________________ (iv) How did the person or entity acquire title to the software material (e.g.,

software material was written by a person or by an entity 's employees as part of their job assignment)?

(v) If the person or entity is an individual, did s/he create the software material while employed by or under contractual relationship with another person or entity? Yes _____ No _____

If Yes, provide name and address of the other person or entity and explain the nature of the obligations: ____________________________

(c) How did you acquire tittle to the software material written by the other person or entity?______

3. Was the software material or any portion thereof derived from any third party's pre-

existing material(s)? Yes ______ No ______ If Yes, provide the following information for each of the

pre-existing materials: (a) Name of the materials: _________________________________________ (b) Owner: _____________________________________________________ (c) How did you get the right to use the pre-existing material (s)____________


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4. Identify below, or in an attachment, any other circumstances that might affect Intel's ability to reproduce and market this software product, including:

(a) Confidentiality or trade secrecy of pre-existing materials: ________________ (b) own or possible royalty obligations to others: _________________________

(c) Pre-existing material developed for another party or customer (including government) where you may not have retained full rights to the material: ______________

(d) Materials acquired from a person or entity possibly not having title to them:____ (e) Other circumstances: _____________________________________________

Sony Signature: ______________________________ Printed Name: __________________________ Title: __________________________________

Date: _________________________________

agreement effective date intel sony party parties · intel is paying sony to develop and support...

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