TERMS & CONDITIONS AGREEMENT

Game Title:
___________________________________________

Signatory: ________________________________________
(Company making the representations directly below)

Date: ______________________________________________
By signing below the Signatory has caused this Agreement to be
executed by a duly authorized representative and delivered as of
the Date above.
Signed: ____________________________________________
Print Name: ________________________________________
Title: ______________________________________________
Address: ___________________________________________
___________________________________________
Phone: ____________________________________________
Facsimile: __________________________________________
Email: ______________________________________________

This Terms and Conditions Agreement (Agreement) is made and entered into as of the Effective Date above, by
and between the Entertainment Software Association, through the Entertainment Software Rating Board, located
at 317 Madison Avenue, New York, NY 10017 (collectively, ESRB) and the company whose name appears in
the box above (Signatory). By signing this Agreement, Signatory represents and acknowledges that it is
the entity controlling marketing and distribution of the Product (as defined below); that it shall be
responsible for apprising its co-publishers, licensees or agents that their actions in connection with the
marketing and/or distribution of the Product must comply with this Agreement; and that it shall be
responsible for taking or causing its co-publishers, licensees or agents to take any corrective actions
required by the ESRB pursuant to an enforcement action or a Consent Agreement (as provided for in the
ESS), including corrective actions in connection with the Product, its packaging, marketing, advertising
and promotion. As used herein, Product means the Game Title identified on the ESRB Submission Form
completed by Signatory (whether Long Form or Short Form) and intended for use on those platforms and
via those method(s) of distribution selected by Signatory on said Submission Form. The Rating assigned
by ESRB and reflected on the rating certificate (Certificate) provided by ESRB to Signatory may be
utilized solely on those platforms and via the method of distribution (if any) noted on the Certificate.
ESRB is the owner of the ESRB rating icons (EC, E, E10+, T, M, AO, RP) and various content descriptors
(collectively, the Ratings). Signatory requests that ESRB assign a Rating to the Product for Signatorys use in
connection with the Product and, in consideration therefore, Signatory agrees that, once a rating has been
assigned to its Product by ESRB, Signatory shall not market, distribute or sell, or authorize the marketing,
distribution or sale of the Product in the U.S. or Canada absent display of the applicable Rating assigned by
ESRB. In consideration for the rights granted herein by ESRB to use the Ratings in connection with the Product,
as well as for other good and valuable consideration the receipt and sufficiency of which are hereby
acknowledged, Signatory and ESRB agree as follows:

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Article I of this Agreement (Paragraphs numbered 1 7) shall be applicable to Signatories completing a

Long Form Submission;
Article II of this Agreement (Paragraphs numbered 8 14) shall be applicable to Signatories completing a
Short Form Submission; and
Article III of this Agreement (Paragraphs numbered 15 28) shall be applicable to all Signatories.

ARTICLE I
1.
Signatory agrees that it shall comply with all written requirements and procedures established by the
ESRB (as they may be amended from time to time) relating to the advertising and display of the Product and use
of the Ratings, including the following documents, incorporated herein by reference (ESRB Requirements),
which are available in the Publisher Section of the ESRB web site at www.esrb.org:
(a)

The Rules and Regulations of the ESRB (ESRB Rules);

(b)

The ESRB Advertising Review Councils ARC Manual (ARC Manual);

(c)

The ESRB Enforcement System Summary ("ESS");

(d)

The ESRB Arbitration Agreement (Arbitration Agreement); and

(e)

The ESRB Submission Guide.

2.
Signatory represents and warrants that the information and materials submitted to the ESRB for the rating
of the Product (Submission Materials) are complete, accurate, and fully disclose all Pertinent Content in the
Product (as Pertinent Content is defined in the ESRB Submission Guide). Signatory acknowledges and agrees
that the failure to disclose Pertinent Content may result in an inaccurate rating of the Product by ESRB; may
cause consumer confusion regarding the Product; and may damage the integrity of the rating system.
3.
Signatory represents and warrants that all versions of the Product released or distributed by Signatory or
any authorized third party to consumers shall be consistent with the Submission Materials. Signatory agrees to
resubmit Submission Materials before distributing updates, patches, expansions, modifications, conversions, or
other changes to the Product that alter the Pertinent Content of the Product (Modified Versions). Once
resubmitted, Signatory agrees not to release Modified Versions in the United States or Canada until rated by
ESRB.
4.
(a)
No more than fifteen (15) days after the date of shipping or distribution of the Product, Signatory
will provide ESRB with three (3) copies of the Product for each platform on which the Product is distributed at
retail, including any custom peripherals required to play the Product. If Signatory fails to do so, ESRB may
purchase these items at retail and bill Signatory for their cost. Signatorys payment shall be due within thirty (30)
days of receipt of ESRBs invoice. Late payments will accrue interest at a rate of 1.5% per month. Additionally,
Signatory shall provide cover art for any packaging which differs from that originally submitted with the Product
within fifteen (15) days of the distribution of such packaging.
(b)
Where Signatory has packaged the Product with a Premium (i.e., a separate item related to the
core game, such as a movie DVD, book or comic book), Signatory need only submit one (1) copy of this version
of the Product to ESRB no more than fifteen (15) days after its release.
(c)
For any Product that has no packaged retail component, Signatory must advise ESRB of such
Products release within fifteen (15) days of it being made available to consumers, and shall provide ESRB with
access to the Product at no cost to ESRB.
5.
Failure to disclose Pertinent Content, or failure to comply with ESRB Requirements may result in the
imposition of sanctions by the ESRB pursuant to the ESS, including but not limited to: revocation of the Rating,
requiring recall or relabeling of the Product by Signatory, suspension of rating services and/or the levying of fines
(which may be imposed or initiated without refund to Company of any submission fees). Signatory acknowledges
and agrees that the sanctions contained in the ESS shall be applicable to and enforceable against Signatory in
the event of any violation of ESRB Requirements with respect to the Product. Signatory further acknowledges
that, should ESRB marks be utilized in connection with any future product(s) of Signatory without the

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authorization or approval of ESRB, a Self-Application violation, as provided for in the ESS, may be issued to
Signatory.
6.
Signatory specifically agrees that final and binding arbitration, in accordance with the rules and
procedures described in the Alternative Dispute Resolution (ADR) Section of the ESS and in the Arbitration
Agreement, shall be Signatorys sole and exclusive remedy for challenging ESRBs finding of a violation or, where
permitted by such rules, the amount of a fine imposed by ESRB. Arbitration rulings shall not be subject to judicial
review. Except as provided in the ADR Section of the ESS, Signatory may not commence or maintain any lawsuit
or other cause of action against the ESRB which relates, in whole or in part, to the imposition of any sanction.
Signatory may challenge the rating assigned to the Product by ESRB through the appeals process described in
Paragraph 17, below.
7.
Where the methods of distribution/platforms selected by Signatory on the Long Form Submission include
download via a Hardware Device (as that term is defined in Paragraph 8 below), or where, in the future, Signatory
requests a Certificate reissue to cover subsequent distribution of the Product via download on a Hardware
Device, Signatory acknowledges that, should ESRB issue an enforcement action under the ESS for a failure
(egregious or otherwise) to disclose Pertinent Content (discovered after a Rating has been assigned), ESRB may,
in its discretion, communicate any re-rating of the Product to those entities who have made the Product available
for download on a Hardware Device, as contemplated by Paragraphs 13(b) and (c) below.

ARTICLE II
8.
By electing to obtain a Rating for the Product via the Short Form Submission, Signatory represents that,
when it executed this Agreement, its intent was to distribute the Product to consumers solely via download directly
from console or handheld devices manufactured by Microsoft, Nintendo, or Sony Computer Entertainment
America (collectively, Hardware Devices), which three entities shall hereafter be referred to collectively as First
Parties.
9.
Signatory agrees that it shall comply with all written requirements and procedures established by the
ESRB (as they may be amended from time to time) relating to the advertising and display of the Product and use
of the Ratings, including the following documents, incorporated herein by reference (ESRB Requirements),
which are available in the Publisher Section of the ESRB web site at www.esrb.org:
(a)

The Rules and Regulations of the ESRB (ESRB Rules);

(b)

The ESRB Advertising Review Councils ARC Manual (ARC Manual);

(c)

The ESRB Enforcement System Summary ("ESS"), with the specific understanding that those
1
sections of the ESS that pertain to content non-disclosure and ratings submission violations shall
not apply to Signatorys Product, and that ESRB will deal with any findings of content nondisclosure in connection with the Product in the manner described in Paragraph 13 below;

(d)

The ESRB Arbitration Agreement (Arbitration Agreement); and

(e)

The ESRB Submission Guide.

10.
(a)
Signatory represents and warrants that the responses it provides on the Short Form Submission
utilized for the rating of the Product (Responses) are complete, accurate, and take into account all content in
the Product. Signatory acknowledges and agrees that the failure to provide accurate Responses may result in an
inaccurate rating of the Product by ESRB; may cause consumer confusion regarding the Product; and may
damage the integrity of the ESRB.
(b)
The DVD supplied to ESRB pursuant to the ESRB Submission Guide (Submission DVD) shall
reflect the content from the Product that the ESRB Submission Guide requires to be disclosed.

Specifically: Class AAA Egregious Failure to Disclose Pertinent Content (discovered after a rating has been
assigned); Class A Failure to Disclose Pertinent Content (discovered after a rating has been assigned); Class C
Incomplete/Inaccurate/Inconsistent Content in Submission Materials (discovered during rating process); and
Class D Noncompliant Materials Submitted for Rating.
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(c)

The Responses and Submission DVD shall be referred to collectively as Submission Materials.

11.
Signatory agrees to resubmit to ESRB if it changes or modifies any content in the Product on which its
Responses were based or which might alter any of Responses (Modified Versions). Once resubmitted,
Signatory agrees not to release Modified Versions in the United States or Canada until rated by ESRB.
12.
Failure to provide full and accurate Responses may result in the imposition of sanctions by the ESRB
pursuant to Paragraph 13 hereof, including but not limited to: revocation of the Rating; relabeling of the Product
on the Hardware Devices; and First Parties immediate removal of the Product where ESRB identifies an instance
of egregious content non-disclosure by Signatory. Any failure to comply with ESRB Requirements, other than the
failure to provide full and accurate Responses, may result in the imposition of sanctions by the ESRB pursuant to
the ESS, and Signatory acknowledges and agrees that the sanctions contained in the ESS (save those
specifically applicable to the violations listed in footnote 1 hereof) shall be applicable to and enforceable against
Signatory in those circumstances. Signatory further acknowledges that, should ESRB marks be utilized in
connection with any future product(s) of Signatory without the authorization or approval of ESRB, a SelfApplication violation, as provided for in the ESS, may be issued to Signatory.
13.
(a)
To the extent there is a discrepancy between Signatorys Responses and ESRBs internal findings
from its testing of the Product post-launch, and such discrepancy warrants a change in the rating category and/or
content descriptor(s) assigned to the Product, ESRB staff will classify its finding either as a case of content nondisclosure or egregious content non-disclosure. This classification determination will be based on the following
factors: (i) the variance between the rating issued as a result of Signatorys Responses and the rating resulting
from ESRBs post-release testing of the Product; (ii) the magnitude of the harm resulting (e.g., to consumers, to
the integrity of the ESRB system); (iii) the restrictiveness of the new rating category assigned; and (iv) evidence of
intent on the part of Signatory to provide inaccurate Responses.
(b)
Where there is a finding of content non-disclosure, ESRB will send an email communication to
Signatory indicating its findings and the new rating assigned, and inquiring if there is any additional content
Signatory may have failed to disclose that could affect the rating of the Product. Signatory will have 5 business
days to respond. If Signatory confirms there is no additional undisclosed content that could affect the rating, a
formal Notice of Content Non-Disclosure will be issued along with an updated Certificate with the revised rating
information. The updated Certificate will be sent both to Signatory and to the appropriate First Parties. Should
Signatory fail to respond within the allotted five (5) business days to ESRBs initial communication alerting
Signatory to ESRBs finding of content non-disclosure, that finding will be reclassified as one of egregious content
non-disclosure and the process described below will commence.
(c)
Where ESRB determines that the content non-disclosure was egregious, ESRB will
simultaneously contact, via email, both Signatory and the appropriate First Parties indicating the nature of the
non-disclosure discovered. Upon receipt of this email, each First Party will immediately remove the Product and
all associated marketing or promotion from all storefronts, menus or other publicly-accessible locations on its
system. Signatory will be required to amend its Short Form Submission and pay a reprocessing fee to ESRB to
obtain a new rating. Once the Short Form Submission has been amended and submitted and the reprocessing
fee paid, ESRB will issue, both to Signatory and the appropriate First Parties, an updated rating certificate with
the revised rating information.
14.
(a)
For purposes of clarity, Signatory acknowledges that all ESRB findings of content non-disclosure
(whether or not egregious) will be dealt with outside the parameters of the ESS and pursuant to the processes
described in Paragraph 13 above. Given that no violations, points and/or fines will be issued in connection with
the content disclosure on Short Form Submissions, the ADR Section of the ESS and the Arbitration Agreement
will be inapplicable and may not be invoked.
(b)
With respect to violations and fines issued pursuant to the ESS, Signatory specifically agrees that
final and binding arbitration, in accordance with the rules and procedures described in the ADR Section of the
ESS and in the Arbitration Agreement, shall be Signatorys sole and exclusive remedy for challenging ESRBs
finding of a violation or, where permitted by such rules, the amount of a fine imposed by ESRB. Arbitration rulings
shall not be subject to judicial review. Except as provided in the ADR Section of the ESS, Signatory may not
commence or maintain any lawsuit or other cause of action against the ESRB which relates, in whole or in part, to
the imposition of any sanction. Signatory may challenge the rating assigned to the Product by ESRB through the
appeals process described in Paragraph 17, below.

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ARTICLE III
15.
After receipt of its Certificate, should Signatory wish to distribute the Product via platforms not reflected
on the Certificate, or transfer or assign the Rating to another entity, or change the title of the Product, or, for Short
Form Submissions only, offer the Product via a method of distribution different from that (i.e., download) reflected
on the Certificate, a new or amended Rating certificate, as required by the ESRB, will be necessary.
16.
(a)
Signatory understands and agrees that the Ratings and any other icons that may be introduced
by the ESRB and any associated logos are the sole property of ESRB, and that the Ratings may only be used
with the permission and authority of the ESRB for the life of the Product. Signatory is granted a world-wide, nontransferable, non-assignable, non-exclusive, limited license, without the right to grant sublicenses, to use and
display the assigned Rating in connection with the advertising, promotion, and sale of the Product, in accordance
with ESRB Requirements. Notwithstanding the foregoing: (i) any use outside the United States, its territories and
possessions, and Canada shall be at Company's own risk with respect to any third party claims, and (ii) third
parties engaged in the advertising, promotion, distribution and/or sale of the Product may use and display the
assigned Rating in connection with such endeavors on behalf of the Product. Upon material breach of this
Agreement by Signatory, this license may be revoked without refund of any fees paid to ESRB.
(b)
The ESRB reserves and retains any and all rights not expressly granted by this Agreement.
Signatory agrees that its use of the Ratings and the value of the goodwill associated therewith inures to the
benefit of the ESRB, and that Signatory shall not at any time acquire any rights in the Ratings nor attempt to
register the Ratings in any jurisdiction. The ESRB shall have the right to require that all materials and publications
bearing the Ratings be marked with the appropriate trademark markings (such as or ). Signatory reserves
and retains all intellectual property rights in the Product apart from the Ratings.
(c)
Signatory agrees that it will not take any actions that would harm the goodwill and good
reputation of the ESRB or the Ratings, and Signatory agrees not to challenge or dispute the ESRBs rights in the
Ratings or the validity of the license granted herein. ESRB at all times reserves the unconditional right to revoke
a Rating. Any unauthorized use of a Rating by Signatory may result in the commencement of litigation by ESRB
in connection with the unauthorized use of its trademarks.
(d)
THE ESRB MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE
RATINGS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF EXCLUSIVE RIGHTS IN THE RATINGS
OR ANY WARRANTY OF VALIDITY OF ANY REGISTRATION THEREFOR.
17.
Signatory acknowledges and agrees that the appeals process described in the ESRB Rules is the sole
and exclusive remedy available to Signatory if it takes issue with the rating category or the content descriptors
assigned to the Product by ESRB. Where, however, a new Rating is assigned to the Product as a result of either:
(a) Signatorys non-disclosure of Pertinent Content, in the context of an ESRB enforcement action under the ESS,
or (b) a finding of content non-disclosure in Signatorys Responses on the Short Form Submission, no appeal may
be taken. Signatory may not seek judicial review of any Rating issued by the ESRB nor commence or maintain
any lawsuit or other cause of action against the ESRB based in whole or in part on any Rating issued; with the
exception, however, that Signatories filing a Long Form Submission may seek arbitration in connection with a
violation and/or fine issued in connection with the non-disclosure of Pertinent Content in the Product, as provided
in the ADR Section of the ESS.
18.
Signatory acknowledges that its material breach of this Agreement may cause irreparable harm to the
ESRB, for which there is no adequate remedy at law. In the event of a material breach of this Agreement by
Signatory, the ESRB may obtain, in addition to other remedies to which it may be entitled, such equitable relief as
may be appropriate, including but not limited to injunctive relief. Signatory agrees that no bond shall be required
in such action or, if required by operation of law, a nominal bond shall be sufficient to support injunctive relief.
ESRBs right to obtain equitable relief shall not be affected or superseded by Signatorys right to demand
arbitration or the pendency of an arbitration proceeding.
19.
The terms of this Agreement shall be kept strictly confidential by Signatory and the ESRB. Signatory
further agrees to keep confidential materials provided by ESRB, including but not limited to the documents listed
in Paragraphs 1 and 9, above, unless Signatory is under a legal obligation to disclose such documents, in which
event Signatory shall notify ESRB of its intent to disclose and provide ESRB with an opportunity to intervene or

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otherwise seek redress prior to Signatorys disclosure. ESRB agrees to keep Signatorys Submission Materials
strictly confidential and will not disclose them to any third party, except as required in the context of: (i) an ESRB
finding of egregious content non-disclosure by a Signatory to the Short Form Submission (and only to First
Parties); (ii) an arbitration proceeding between a Signatory to the Long Form Submission and ESRB; (iii) an
appeal by Signatory to the Rating Appeals Board; (iv) an ESRB investigation in connection with the Product
necessitating the use of outside counsel and/or consultants (who shall be required to sign a confidentiality
agreement); (v) a response to inquiries from regulatory agencies or federal, state, or local government authorities;
or (vi) a legal obligation to disclose such Submission Materials; provided, however, that before disclosing such
Submission Materials pursuant to (v) or (vi) above, ESRB shall notify Signatory of its intent to disclose such
materials and provide Signatory with the opportunity to intervene or otherwise seek redress prior to ESRBs
disclosure.
20.
Signatory agrees to indemnify and hold harmless ESRB, its affiliates, members, full and part-time
employees, officers, directors, attorneys, agents, successors and assigns, from and against any and all claims,
demands, causes of action, judgments, liabilities, damages (including consequential damages) and expenses
(including reasonable fees for attorneys and other professionals), arising out of any claim, demand, suit, action,
arbitration, investigation or proceeding initiated by any third party that is based in whole or in part upon:
(a) Signatorys breach or alleged breach of this Agreement;
(b) Signatorys alleged violation of any regulation, statute, law, ordinance or governmental directive;
(c) the Rating assigned to the Product or sanctions imposed by ESRB in connection with the Product if
Signatory did not fully disclose to ESRB, where required, all Pertinent Content or did not provide
accurate Responses on the Short Form Submission;
(d) the content or effect of the Product;
(e) the distribution or marketing of the Product;
(f) claims with respect to the intellectual property or other rights in or to the Product other than ESRBs
marks;
(g) alleged anticompetitive conduct or activities on the part of Signatory; or
(h) use of the Ratings outside of the United States, its territories and possessions, and Canada.
21.
THE ESRBS LIABILITY FOR DIRECT DAMAGES RELATING TO CAUSES OF ACTION ARISING
FROM THIS AGREEMENT BETWEEN THE PARTIES HERETO, SHALL NOT, IN ANY EVENT, EXCEED THE
VALUE OF THE FEES PAID BY THE SIGNATORY UNDER THIS AGREEMENT; PROVIDED, HOWEVER,
THAT THIS LIMITATION ON LIABILITY SHALL NOT APPLY: (1) TO ACTUAL DAMAGES SUFFERED BY
SIGNATORY AS A CONSEQUENCE OF ESRBS BREACH OF PARAGRAPH 19 HEREOF, OR (2) WHERE A
COURT OF COMPETENT JURISDICTION HAS RENDERED A MONETARY JUDGMENT AGAINST
SIGNATORY AS A RESULT OF ESRBS BREACH OF ITS REPRESENTATION WITH RESPECT TO
OWNERSHIP OF THE RATINGS IN PARAGRAPH 16 HEREOF. IN NO EVENT SHALL EITHER PARTY BE
LIABLE FOR ANY CLAIM FOR PUNITIVE, EXEMPLARY, OR AGGRAVATED DAMAGES, DAMAGES FOR
LOSS OF PROFITS OR REVENUE OR BUSINESS OPPORTUNITY OR INCIDENTAL, INDIRECT, OR
CONSEQUENTIAL DAMAGES, EXCEPT AS PROVIDED IN PARAGRAPH 20 HEREOF.
22.
This Agreement shall be governed by and construed in accordance with the laws of the State of New
York without reference to the principles of conflicts of laws.
23.
This Agreement is binding upon, and shall inure to the benefit of, the parties and their permitted heirs,
executors, administrators, successors and assigns.
24.
This Agreement, along with the documents incorporated by reference herein, constitutes the complete
understanding between the parties concerning the Product and supersedes any and all agreements,
understandings and discussions, whether written or oral, between the parties. No modifications to this
Agreement, nor any other promises, understandings or agreements shall be binding unless reflected in a written
instrument signed by all parties after the Effective Date hereof.
25.
If any provision of this Agreement is declared void or unenforceable by a court of competent jurisdiction,
all other provisions shall nonetheless remain in full force and effect.
26.
Any rights and obligations created by this Agreement and which by necessary implication continue after
its expiration or termination shall survive such expiration or termination.

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27.
The waiver by either party of a breach of any provision of this Agreement shall not be construed as a
waiver of any subsequent breach. The failure of a party to insist upon strict adherence to any provision of this
Agreement on one or more occasions shall not be considered a waiver or deprive that party of the right thereafter
to insist upon strict adherence to that provision or any other provision of this Agreement. No waiver shall be
effective unless made in writing and signed by an authorized representative of the waiving party.
28.
Any legal notices required by this Agreement shall be sent either by certified mail, return receipt
requested, or by facsimile or overnight mail, charges prepaid. Notices sent by certified mail shall be effective five
(5) days after mailing. Notices sent by overnight mail or facsimile shall be effective on the date received, provided
that any notice sent by facsimile shall also be sent by regular mail. The addresses for the parties shall be those
listed on the first page of this Agreement. Either party may change its address or contact person by notice
properly given in conformity with this paragraph.

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