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SOFTWARE DEVELOPMENT AND 
PUBLISHING AGREEMENT



This Software Development and Publishing Agreement (the Agreement) is effective [DATE],


BETWEEN:   [YOUR COMPANY NAME] (the "Company"), a company organized and existing under the laws of the [State/Province] of [STATE/PROVINCE], with its head office located at:

      [YOUR COMPLETE ADDRESS]


AND:  [COMPANY NAME] (the "Developer"), a company organized and existing under the laws of the [State/Province] of [STATE/PROVINCE], with its head office located at:

      [COMPLETE ADDRESS]


RECITALS

Company is in the business of developing and publishing multimedia software programs and desires to have Developer develop a multimedia software program for Company to publish;

Developer is skilled in the development of multimedia software programs and desires to develop a multimedia software program for Company and to have Company publish such program;

THEREFORE, Company and Developer agree as follows:


AGREEMENT

Definitions

As used in this Agreement, the following terms shall have the following meanings:

"Work" shall mean the multimedia software program known as [SPECIFY], and its documentation and related items as more fully described in Exhibit [SPECIFY] hereto.

"Specifications" shall mean the description of the Work as set forth in Exhibit [SPECIFY] hereto.

"Derivative Work" shall mean any computer software program, board game or electronic game which either (i) constitutes a derivative work of the Work within the meaning of that term under the [COUNTRY] copyright law or (ii) produces audiovisual effects which would infringe the copyright in the audiovisual effects contained in the Work.

"Derivative Products" shall mean any product or medium other than a computer program, board game or electronic game which is based on or derived from the Work or any audiovisual effects produced by the Work or any characters or themes therein. Derivative Products include, without limitation, [SPECIFY].

"Net Receipts" shall mean Company's gross receipts (exclusive of sales, use, excise and other taxes reimbursed by customers, interest, finance charges, insurance and shipping costs) from all sales, licenses or other transactions described in Section 8.1 below, less (a) sales commissions paid to independent sales representatives; (b) the amount of any credits or refunds for returns; (c) any credits, discounts, rebates and promotional allowances to customers; and (d) the amount of any sales or use taxes required to be paid or withheld by Company with respect to the payments due Developer hereunder. The amounts deducted under items (a) through (d) above shall be reasonable and consistent with the amounts customarily paid in the industry for such items.

"Errors" shall mean any deviations from the Specifications and any deviations from commonly accepted standards for normal and correct operation of computer programs, even if not explicitly mentioned in the Specifications, such as any cases where the Work or a Derivative Work abnormally ceases functioning, produces incorrect or misleading information or erroneously interprets information given to it, and similar deviations. 

"Subsidiary" shall mean any company, which is controlled, directly or indirectly, by Company.

"Affiliate" shall mean any company, which controls, is controlled by or is under common control with Company.

"Control" shall mean possession of more than [PERCENTAGE %] of the equity interest or voting power of Company.


DEVELOPMENT OF WORK FOR [COMPANY NAME]

Developer shall develop the Work for Company as a custom program. The operation, capabilities and performance of the Work shall be as described in the Specifications. 


LICENSE OF WORK

Upon acceptance of the Work, Company shall have and Developer hereby grants to Company the exclusive, worldwide rights and license to (a) prepare Derivative Works and Derivative Products based on the Work and license others to do so, and (b) copy, edit, publish, sell, license and distribute, with full rights to sublicense others to copy, edit, publish, sell, license and distribute, the Work and all Derivative Works and Derivative Products.


DEVELOPER'S WARRANTIES AND INDEMNITIES

Representations

Developer represents and warrants to Company that (i) the Work, and all Derivative Works developed by Developer, will be original and will not infringe upon any patent, copyright, trade secret or other proprietary rights of others; (ii) Developer is the sole and exclusive owner of all rights in the Work subject only to the rights herein granted to Company; (iii) Developer has not previously granted and will not grant any rights in the Work to any third party which are inconsistent with the rights granted to Company herein; and (iv) Developer has full power to enter into this Agreement, to carry out its obligations herein contained and to grant the rights herein granted to Company.
Indemnification

4.2.1.  Developer shall indemnify Company and its customers and sublicensees for, and hold them harmless from, any loss, expense (including reasonable attorneys' fees), damage or liability arising out of any claim, demand or suit resulting from a breach of any of the foregoing warranties, but Developer shall have no liability under this indemnity where it is determined that Developer has not breached any of such warranties. Company shall promptly inform Developer in writing of any such claim, demand or suit and Developer shall fully cooperate in the defense thereof.

4.2.2.  From the date of such written notice, Company shall have the right to withhold from any payments due Developer under the terms of this Agreement, and deposit in an interest-bearing escrow account with a commercial bank, reasonable amounts as security for Developer's obligations under this paragraph, unless Developer posts other security reasonably acceptable to Company. Upon resolution of the claim, the amounts in escrow including accrued interest thereon shall be distributed to Developer after deductions of the amounts required to be paid to Company or its customers or licensees under this indemnity. 

4.2.3.  Company shall not agree to the settlement of any such claim, demand or suit prior to a final judgment thereon without the consent of Developer, whose consent shall not be unreasonably withheld. Company and Developer shall bear equally the costs of any such settlement.

Scope and Survival

Company shall have the right to extend Developer's representations, warranties and indemnities contained herein to Company's customers and sublicenses and Developer shall be liable to the same extent as if such representations and warranties were made by Developer directly to such customers and sublicenses. The representations, warranties and indemnities stated in this paragraph shall survive the expiration or termination of this Agreement.


DELIVERY AND ADVANCE PAYMENTS

Deliverable Items

Developer shall deliver the Work to Company in accordance with the Specifications, and Developer shall test the Work and all deliverable items thoroughly as set forth in the Specifications prior to delivery to Company. The Work shall include the following items:

Complete source code listing of the program(s) comprising the Work with explanatory comments and a description of the operation of the program(s) all in the English language and in machine-readable form.

Such user instructions, development aids, materials, know-how and instructions as set forth in the Specifications.

Any other deliverable items set forth in Exhibit [SPECIFY].

Manner of Delivery

All deliverable items shall be transmitted by Developer or Developer's agent to Company electronically via telephone at Developer's expense or such other means as Company shall designate at Company's expense. DEVELOPER SHALL NOT DELIVER ANY OF THE DELIVERABLE ITEMS IN ANY TANGIBLE MEDIUM UNLESS SPECIFICALLY AGREED BY PUBLISHER. 

Upon either party's reasonable request, Developer and Company shall execute such certificates or other documents as Company may request attesting that such items were transmitted electronically as specified herein. Developer shall give Company written notice of each delivery identifying the deliverable item, and delivery shall not be considered complete until Company has received such notice.

Schedule of Milestones and Advance Payments

Developer shall deliver the deliverable items to Company in conformance with the Specifications and in accordance with the schedule set forth in Exhibit [SPECIFY]. Company shall make advance payments to Developer as specified in Exhibit [SPECIFY] upon verification of such deliveries. In addition to the advances set forth in Exhibit [SPECIFY], Company shall provide Developer with the assistance and equipment described in Exhibit [SPECIFY], and the value of such assistance and equipment as set forth in Exhibit [SPECIFY] shall be considered to be an advance payment. The advance payments shall not be refundable and shall be recovered by Company only from amounts payable to Developer under Section 7 of this Agreement.

Failure to Deliver

If Developer fails to deliver any deliverable item by its specified delivery date or fails to deliver the completed Work in conformance with the Specifications by its specified delivery date, Company shall have the option, by giving Developer written notice within [NUMBER] days thereafter, either 

to terminate this Agreement upon notice to Developer or 

to supply, correct or complete the Work and deduct an amount equal to Company's costs thereof (including royalties, if any, paid to others) from any payments due Developer under this Agreement.


ACCEPTANCE OF WORK

The Work and each Derivative Work developed by Developer shall be deemed accepted by Company, unless within [NUMBER] days after delivery of the completed Work or Derivative Work (and written notice thereof) to Company, Company gives Developer written notice either that the Work or any Derivative Work does not conform to its specifications or that in Company's subjective judgment the Work or any Derivative Work is not marketable as submitted. In such event, Developer shall have [NUMBER] days from receipt of such notice to make and submit to Company such changes as shall be reasonably required to correct the deficiencies set forth in the notice. In the event that such changes are submitted to Company by Developer, Company shall have an additional [NUMBER] day period in which to reexamine and retest the Work or such Derivative Work. 

If no changes are submitted, or the changes submitted do not correct the deficiencies, then Company may terminate this Agreement by written notice to Developer, or, at its option, Company may, after written notice to Developer, correct or complete the Work or such Derivative Work and deduct an amount equal to the sum of Company's costs thereof (including royalties, if any, paid to others) from any payments due Developer under this Agreement. The [NUMBER] day acceptance periods specified in this paragraph shall be extended by any delay caused by Developer or by any other cause beyond Company's control.

MARKETING

Commencement of Marketing

Company shall commence marketing of the Work within [NUMBER] months after its acceptance or completion of the Work and Company will make a reasonable effort to distribute the Work through sales and/or licenses. Company and Developer shall cooperate to permit Company to commence marketing as set forth above, and the time for Company to commence marketing shall be extended by any delay caused by Developer or by any other cause beyond Company's control. Company makes no representations or warranties, however, that the Work or any Derivative Work will be successfully marketed or that any minimum level of sales or licensing will be achieved.

Marketing Rights

Company shall have the right to prepare, copy, edit, publish, sell, distribute and license the Work and all Derivative Works and Derivative Products throughout the world 

in any form, including, without limitation, human- and machine-readable forms, source and object code forms, magnetically recorded forms such as cassettes, tapes and disks, and solid state forms such as read-only memories, 

by any methods, including, without limitation, distribution of copies (either separately or with other works), licensing or sublicensing and offering the use of the Work and Derivative Works through a time-sharing or videotext service and 

for use with any computer, videogame, board game, coin-operated game or other medium. All aspects of the distribution and marketing of the Work, Derivative Works and Derivative Products shall be in Company's sole control, including, without limitation, determining which Derivative Works and Derivative Products, if any, to be prepared and marketed, the methods of marketing, pricing, naming, packaging, labeling and identification, protection, advertising, terms and conditions of sale and/or license, collection of customers' names and use of warranty or user registration procedures.

Cooperation by Developer

Company shall have the right to use, publish and permit others to use and publish Developer's name (including any professional name adopted by Developer), likeness, voice, biographical material, or any reproduction or simulation thereof in connection with the marketing, sale, advertising, distribution, exploitation, production and manufacture of the Work, Derivative Works and Derivative Products. Company agrees to place the name of Developer, as set forth in Exhibit [SPECIFY], on the exterior of the package in which the Work is distributed. Developer will from time-to-time, at Company's request and subject to Developer's consent which will not be unreasonably withheld whenever the same will not unreasonably interfere with Developer's other professional engagements: 

appear for photography, artwork and similar reasons under the direction of Company or its authorized agent; 

appear for interviews which Company may arrange and confer and consult with Company concerning the promotion of the Work; 

appear on radio, television and elsewhere; and 

record taped interviews, spot announcements and electrical transcriptions for the purpose of advertising, promoting, publicizing and exploiting the Work, Derivative Works and Derivative Products. 

Company shall consult with Developer and Developer shall have the right to reasonably approve all photographs of and biographical material concerning Developer not furnished by Developer, provided: 

once Developer has approved any particular photograph or biographical material, Developer shall be deemed to have approved such photograph or material for all subsequent uses unless Developer timely notifies Company in writing to the contrary and 

upon written request by Company, Developer shall have [NUMBER] calendar days to approve or disapprove a particular photograph or biographical material, it being agreed that Developer shall be deemed to have approved a photograph or biographical material if within such [NUMBER]-day period Developer fails to approve it or supply an acceptable substitute photograph or substitute biographical material.

Termination of Marketing Efforts

Notwithstanding paragraph 7.1 above, if Company determines that due to changes in market conditions or for any other reason Company will not market or will not continue to market or distribute the Work or any Derivative Work, Company shall have the right, without further liability to Developer except as specified below, to terminate this Agreement by giving written notice to Developer. If Company removes from its published price lists the Work and all Derivative Works and makes no further effort to market the Work or any Derivative Works, Developer may terminate this Agreement by giving written notice to Company, unless within [NUMBER] after such notice, Company restores the Work or at least one Derivative Work to Company's price lists or otherwise commences marketing efforts. Upon termination of this Agreement under this Paragraph, Developer shall retain all advances paid by Company hereunder, and Company and Developer shall have the rights set forth in Section 18 below.


ROYALTY PAYMENTS TO DEVELOPER

Royalties

Company shall, except as described in this Section 7, credit against any advance payments made to Developer under Section 4 hereof and against any reimbursable costs incurred under Sections 4, 5 or 9 hereof, and, after such amounts have been fully reimbursed, pay to Developer royalties equal to the percentages specified in Exhibit D of the "Net Receipts" actually received by Company with respect to all sales, licenses or other transactions pursuant to which customers are permitted to use or market the Work, Derivative Works or Derivative Products.

Combination with Other Works

If the Work, any Derivative Work or Derivative Product is sold or licensed with other works in a package or on a single medium for a single price, the Net Receipts attributable to the Work, Derivative Work or Derivative Product shall be determined by prorating the receipts from the package or medium according to the suggested retail prices or values established by Company for the separate works contained in the package or on the medium whether or not such works are sold separately, provided that such prices or values are reasonably related to the values or sales potentials of the separate works and are consistent with prices customarily charged in the industry.

Replacement and Promotional Copies

Net Receipts shall not include any receipts from copies of the Work, Derivative Work or Derivative Product which are distributed by Company to existing customers as back-up, replacement or corrected copies whether provided to such customers under a back-up, warranty or maintenance policy or otherwise, and no amount shall be credited or paid to Developer with respect to any receipts from copies supplied for promotional purposes to the press, trade, sales representatives or potential customers.

Deposits or Advances

Any amounts received by Company as deposits or advances shall not be deemed to have been received until deliveries have been made against such deposits or advances. In the event of a partial payment of an invoice which includes the Work or a Derivative Work or Derivative Product and other items, Company shall calculate its Net Receipts by prorating the payment received over the invoiced amounts for the Work, Derivative Work or Derivative Product and the other items. 

Foreign currencies

Amounts received by Company in foreign currencies shall be deemed converted into [COUNTRY] [CURRENCY] at the average exchange rates used by Company in its financial statements for the month of receipt, except that "blocked funds" which cannot be remitted to the [COUNTRY] in [CURRENCY] shall not be deemed received until they can be so remitted, provided that, at Developer's request and if reasonably practicable, Company shall deposit in a foreign bank account established by Developer the amount in the foreign currency of the royalties that would be due Developer with respect to such blocked funds.


PAYMENTS; REPORTS; INSPECTION

Payments

Payments due Developer under Section 7 hereof shall be calculated on a calendar quarter, and shall be made within [NUMBER] days after the close of each calendar quarter to Developer at the address listed above or such other address as Developer may direct in writing.

Reports

At the time of payment Company shall deliver to Developer a report, which shall provide all reasonably necessary information for computation of the payments, if any, due or credited to the Developer for such period, together with any adjustments in payments due Developer with respect to such period.

Inspection and Audit

A certified public accountant, retained by Developer and reasonably acceptable to Company may, upon reasonable notice and during normal business hours, inspect the records of Company on which such reports are based no more often than once per year, provided that such accountant shall hold such records in strict confidence except as necessary to report to Developer and Company on the accuracy of Company's reports.


DERIVATIVE WORKS AND DERIVATIVE PRODUCTS

Development by Developer

Company shall have the exclusive rights set forth in Section 2 hereof with respect to any Derivative Works or Derivative Products that are developed, or the rights to which are acquired, by Developer during the term of this Agreement. Developer shall promptly inform Company of any Derivative Works and Derivative Products which are developed, or the rights to which are acquired, by Developer during the term of this Agreement, and Developer shall deliver copies thereof to Company upon Company's request.

Development at Company Request

If Company desires to prepare or have a third party prepare a Derivative Work, Company shall first give Developer written notice and give Developer the opportunity to prepare the Derivative Work. If Developer does not agree within [NUMBER] days to prepare the Derivative Work, if Developer and Company do not agree within [NUMBER] days to specifications and a delivery schedule for the Derivative Work, or if Developer fails to prepare the Derivative Work in accordance with the mutually agreed upon specifications and delivery schedule, then Company shall have the right, after giving Developer written notice, to prepare or cause a third party to prepare the Derivative Work. If Developer prepares the Derivative Work, Company shall pay Developer the normal royalties specified in Exhibit [SPECIFY]. If Company prepares the Derivative Work, Company shall pay Developer the reduced royalty rate specified in Exhibit [SPECIFY] for Derivative Works prepared by Company.

Derivative Products

During the term of this Agreement, Company shall have the unrestricted right to develop or have third parties develop Derivative Products and shall have all ownership and marketing rights with respect to such Derivative Products subject to the terms and conditions of this Agreement.

Development Aids

During the term of this Agreement, Developer shall provide to Company promptly upon Company's request, at no charge except for reasonable duplication costs, copies of all documents, development aids and information which Developer has the legal right to provide to Company and are necessary or useful to enable Company to develop Derivative Works and Derivative Products as contemplated herein. Company shall not, without Developer's permission, use such development aids for any purpose other than preparing Derivative Works or Derivative Products.

Consulting services

Within one year after Company's acceptance of the Work, Developer shall provide to Company's designated personnel, at times and places mutually agreed upon by Developer and Company, up to [NUMBER] person-hours of training in the use, operation and modification of the Work. Such training shall be provided at no charge except for reasonable travel, food and lodging expenses incurred by Developer and approved in advance by Company. In addition, if requested by Company, Developer shall render up to one hundred [NUMBER] additional person-hours of consulting services to Company to assist Company to develop Derivative Works and Derivative Products. Such consulting services shall be provided at Developer's standard hourly consulting rate not to exceed [AMOUNT] per hour, plus reasonable travel, food and lodging expenses incurred by Developer and approved in advance by Company, and the amounts paid for such services shall not be deducted from royalties that accrue under this Agreement.


MAINTENANCE

Developer shall promptly deliver to Company, at no charge to Company, all corrections or modifications necessary to correct any Errors in the Work or Derivative Works developed by Developer, of which errors Company notifies Developer during the period while payments are accruing to Developer hereunder. Developer and Company agree that, due to the nature of complex computer programs such as the Work, Developer cannot warrant the Work to be completely free of errors at present or in the future.


PROTECTION OF PROPRIETARY RIGHTS

Developer and Company acknowledge that the Work is of a character which is or may be protectable by patent, trade secrecy and/or copyright under the [YOUR COUNTRY LAW] of [COUNTRY] and other countries. Company shall use reasonable efforts to obtain and maintain proprietary protection for the Work consistent with Company's ability to effectively market the Work in each country in which the Work is distributed. Developer agrees to cooperate with Company, at Company's expense, in obtaining patent, copyright or other statutory protections for the Work, Derivative Works and Derivative Products in each country in which they are sold, distributed or sublicensed, and Developer hereby authorizes Company to execute and prosecute in Developer's name as author or inventor and/or Company's name as exclusive licensee an application for patent or copyright registration of the Work, Derivative Works or Derivative Products developed by Developer. Developer agrees to execute such other documents of registration and recordation as may be necessary to perfect in Company, or protect, the exclusive rights granted Company hereunder in each country in which such items are sold or distributed. Company shall place or cause to be placed in and on each copy that is distributed an appropriate copyright notice in the following form:

In the case of the Work or any Derivative Work or Derivative Product developed by Developer:

Copyright ([NUMBER])  [Developer]

In the case of any Derivative Work or Derivative Product developed by Company :

Copyright [NUMBER]   [Developer and Company]

Company shall be the owner of the copyright and all other proprietary rights in all Derivative Works and Derivative Products developed by Company, subject to Developer's copyright in the original Work.


NONDISCLOSURE

Developer agrees that the trade secrets and technology embodied in the Work and any Derivative Work or Derivative Product to which Company acquires the exclusive rights hereunder, any information disclosed by Company to Developer or Developer's accountants or attorneys under Section 9, and any other information concerning Company's marketing plans, Company's existing or future products (including the Work and Derivative Works or Derivative Products), the existing or future products of hardware manufacturers, any methods of protection employed by Company or such manufacturers to prevent unauthorized duplication of software programs, the terms of this Agreement, and any other confidential business or technical information disclosed by Company to Developer in the furtherance of this Agreement shall be held in strict confidence and shall not be disseminated or disclosed to any other party without the express written consent of Company. The obligations of this Paragraph shall survive the expiration or termination of this Agreement. This Paragraph shall not apply to algorithms or programming techniques of general applicability, which were developed by Developer prior to entering into this Agreement.


TRADEMARKS

Any trademarks used by Developer specifically to identify the Work are hereby assigned by Developer to Company. Any trademarks adopted and used by Company in the marketing of the Work, Derivative Works or Derivative Products shall be the sole property of the Company. Company shall have the sole responsibility for ensuring that any such trademarks do not infringe the rights of third parties. Developer understands and agrees that it may not use the trademarks of Company in any way without permission of Company.


INFRINGEMENT BY OTHERS

Notification

Each party will notify the other of any infringements of rights in the Work, Derivative Works or Derivative Products that come to such party's attention. 

First Option Rights of Company 

In the event of any infringement of any rights granted to Company hereunder, Company shall have the first option to bring any action for such infringement on behalf of itself and Developer, and Developer shall cooperate fully with Company in such action; and in such event Company shall bear the expenses of the action and shall recover its expenses from any sums recovered in the action. The balance of the proceeds of such action shall be deemed to be Net Receipts and shall be divided between Company and Developer according to the percentages specified in Exhibit [SPECIFY]. 

Rights of Developer

If Company declines in writing to bring any such action, Developer may proceed and shall bear all expenses of the action, and shall recover its expenses from any sums recovered in the action. The balance of such recovery, if any, shall be deemed to be Net Receipts and shall be divided as provided above.


TERM

The term of this Agreement shall commence on the date hereof and shall continue until terminated in accordance with the provisions of this Agreement.


BREACH BY [COMPANY NAME]

Triggering Events

In the event of the bankruptcy of Company or a material breach of a material provision hereof by Company prior to the payment of the Maximum Amount specified in Section 8 herein, which breach is not cured within ([NUMBER]) days after written notice thereof by Developer, Developer may, effective ([NUMBER]) days after written notice thereof to Company, terminate this Agreement, and all rights granted to Company hereunder shall thereupon automatically revert to Developer as provided below in this Paragraph. 

Good Fair Dispute

A good faith dispute as to the determination or calculation of payments due Developer hereunder shall not be considered a breach of this Agreement provided that Company deposits the disputed amount in an interest bearing escrow account with a commercial bank and offers to arbitrate the dispute in accordance with the Commercial Rules of the [SPECIFY CODE/RULE] in [COUNTRY/STATE/PROVINCE]. 

Additional Rights

In addition to or in lieu of its rights to terminate this Agreement upon a material breach by Company, Developer shall have the right to pursue any remedies Developer may have at law or in equity, provided that in no event will Company be liable to Developer for incidental or consequential damages or the loss of anticipated profits arising from any breach of this Agreement by Company.


BREACH BY DEVELOPER

In the event of a material breach by Developer of a material provision hereof, which breach is not cured within ([NUMBER]) days after written notice thereof by Company, then Company may, effective ([NUMBER]) days after written notice thereof to Developer, terminate this Agreement, and the rights granted to Company hereunder shall revert to Developer as provided in Section 19 hereof. In addition to or in lieu of its rights to terminate this Agreement upon a material breach by Developer, Company shall have the right to pursue any remedies at [YOUR COUNTRY LAW] or equity, and Company may pay into an interest bearing escrow account with a commercial bank any payments due Developer hereunder as security for payment of any damages arising from any material breach by Developer of any provision of this Agreement. Upon resolution of the claim, the amounts in escrow including interest thereon shall be distributed to Developer after deduction of the amounts, if any, required to be paid to Company. Except as provided in Section 4, Developer shall not be liable to Company for incidental or consequential damages or the loss of anticipated profits arising from any breach of this Agreement by Developer.


EFFECT OF TERMINATION

Upon termination of this Agreement:

The licenses granted in Section 2 shall terminate and Company shall promptly return to Developer copies of the Work and all Derivative Works and Derivative Products developed by Developer, including all master copies, and production materials relating thereto in Company's possession;

Company shall promptly execute and deliver to Developer all documents necessary to assign to Developer Company's interest in any patent and copyright in such works as originally delivered to Company by Developer;

Developer shall have no rights to any Derivative Works or Derivative Products developed by Company;

All rights and licenses granted by Company to third parties shall continue in full force and effect;

Company shall in any event have the right to retain copies of any version of the Work for Company's own use and for the purpose of providing support to its then existing customers; 

and Company's obligation to pay Developer royalties then due or which may thereafter become due under Section 8 with respect to Net Receipts received by Company shall continue.


OPTIONS FOR OTHER WORKS

Developer hereby grants Company the first option and right of first refusal set forth below to copy, edit, sell, publish, market and distribute, as set forth in Section 2, all computer software programs (other than the Work and Derivative Works and Derivative Products thereof) which Developer develops and seeks to market within ([NUMBER]) years after the date of this Agreement.

First Option

Developer shall promptly inform Company of each computer software program on which Developer intends to develop for sale or licensing within such period and Developer shall give Company a written notice setting forth the specifications for each such program. Developer shall offer Company the right to market each such program and shall negotiate the terms and conditions of such marketing in good faith. If Company and Developer are unable to agree upon the terms and conditions within ([NUMBER]) days of Developer's written notice, then Developer shall be free to market the program directly to end-users, but prior to granting any marketing rights to such program to any distributor, publisher or other party other than a retail dealer, Developer shall offer such rights to Company as set forth in subparagraph 20.2 below.

Right of First Refusal

Prior to entering into any agreement with any distributor, publisher or other party for the sale or licensing of the rights to market any program which Company has previously declined to market pursuant to subparagraph 20.1 above, Developer shall give Company written notice setting forth the specifications and terms and conditions under which such rights are proposed to be sold or licensed and the name and address of the party to whom such rights are to be offered. Company shall then have ([NUMBER]) days in which to review the specifications for the work and the terms of the proposed sale or license and to exercise a right of first refusal to accept or reject the offer.
If, during such thirty-day period, Company gives Developer written notice that Company accepts such offer, Developer shall promptly execute an agreement granting to Company. the rights set forth in the notice on the terms and conditions set forth therein. If Company rejects such offer, then Developer shall be free for a period of ([NUMBER]) days thereafter to enter into an agreement with the party named in the notice for the sale or licensing of such rights on the same terms and conditions as set forth in the notice to Company. If Developer changes the terms and conditions or the party to whom the rights are offered, or if Developer proposes to offer the same terms and conditions after ([NUMBER]) days have elapsed, Developer shall again offer such rights to Company as set forth in this subparagraph 20.2.

No Waiver

Company's failure to exercise any of its rights under this Section 20 shall not operate as a waiver of any other rights Company may subsequently have under this Section 20.

GENERAL

Entire Agreement

This Agreement, including Exhibits [SPECIFY], states the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, understandings and agreements between the parties hereto concerning the subject matter hereof. No amendment or modification of this Agreement shall be made except by an instrument in writing signed by both parties.

Independent Contractors

Developer shall be deemed to have the status of an independent contractor, and nothing in this Agreement shall be deemed to place the parties in the relationship of employer-employee, principal-agent, partners or joint venturers. Developer shall be responsible for any withholding taxes, payroll taxes, disability insurance payments, unemployment taxes and other similar taxes or charges on the payments received by Developer hereunder.

Equitable Relief

Developer acknowledges that the performance of Developer's obligations hereunder and the rights and licenses granted to Company hereunder are of a special, unique, unusual, extraordinary and intellectual character which gives them a peculiar value, the loss of which cannot be reasonably or adequately compensated in damages in an action at [YOUR COUNTRY LAW], that a material breach by Developer of this Agreement will cause Company great and irreparable injury and damage and, therefore, that Company shall be entitled to injunctive relief to prevent such injury and damage.

Force Majeure

Neither party shall be deemed in default of this Agreement to the extent that performance of their obligations or attempts to cure any breach or delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, shortages of material or supplies or any other cause beyond the control of such party, provided that such party gives the other party written notice thereof promptly and, in any event, within ([NUMBER]) days of discovery thereof. In such an event, the time for performance or cure shall be extended for a period equal to the duration of the event, but not in excess of ([NUMBER]) months.

Assignment

This Agreement may not be assigned in whole or in part by either party without consent of the other, which consent shall not be unreasonably withheld, except that Developer may assign (subject to any rights of Company Developer's interest in all or part of the payments due Developer hereunder upon notice in writing to Company and Company may assign (subject to any rights of Developer) any or all of Company's rights under this Agreement to any subsidiary or affiliate of Company or to any third party which succeeds by operation of [YOUR COUNTRY LAW] to, purchases or otherwise acquires substantially all of the assets of Company or a subsidiary or affiliate of Company and assumes Company's obligations hereunder, upon written notice to Developer. A sublicense of substantially all rights to the Work shall be considered to be an assignment.

Governing Law

This Agreement shall be governed and interpreted in accordance with the substantive [YOUR COUNTRY LAW] of the State of [STATE/PROVINCE]. The parties agree that any dispute arising under this Agreement shall be resolved in the state or federal courts within the State of [STATE/PROVINCE] and Developer expressly consents to jurisdiction therein.

Severability

Should any provision of this Agreement be held to be void, invalid or inoperative, the remaining provisions of this Agreement shall not be affected and shall continue in effect as though such provisions were deleted.

Notices

Any notice required or permitted to be sent hereunder shall be deemed delivered if hand delivered or if mailed, postage prepaid, by registered or certified mail, return receipt requested, to either party at the address listed above, or such other addresses which either party may so notify the other.


IN WITNESS WHEREOF, each party to this agreement has caused it to be executed at [PLACE OF EXECUTION] on the date indicated above.


COMPANY            DEVELOPER


                          
Authorized Signature          Authorized Signature


                          
Print Name and Title          Print Name and Title

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