11.b(iii)(F)(1) By Marvel During Picture Release Windows.
11.b(iii)(F)(1)(x) Free to the Consumer Exploitation by Marvel. During each Picture Release Window, in order to reduce conflicts with SPE’s use of free-to-the-consumer Interactive Applications and Alternative Reality Games for advertising and promotion of Pictures and in connection and Picture-Related Co-Promotions, Marvel may not exploit and/or license any form of Interactive Application or Alternative Reality Game on any free-to-the-consumer or promotional basis (or in connection with any Co-Promotion), except (I) as specifically permitted in Sections 5.g(ii)(A),11.b.(iii)(F), 11A.b(iv) or 11A.b(v) of this Agreement, (II) as provided for (as of the Amendment Effective Date) in the existing third party licenses (“Grandfathered Agreements“) listed on Schedule 20 (which shall not be amended or extended after the Amendment Effective Date in any way which would increase or extend the licensee’s rights with respect to Interactive Applications or Alternative Reality Games relating to the Property beyond what would be permitted under this Agreement in the absence of this clause (II)), and/or (III) by way of Interactive Applications (but not Alternative Reality Games) that feature Prominent In-Game Advertising (as defined below), provided that (a) there is no In-Game Advertising (other than advertising purchased by SPE pursuant to SPE’s Ad-Buy Right) for any live-action or animated theatrical motion picture or live-action television program or other live-action linear audio-visual work (it being understood that nothing contained herein shall limit Marvel’s rights to exploit In-Game Advertising intended to promote publishing or non-linear applications such as video and/or computer games) featuring any superhero, which is initially released or scheduled to be initially released (either in theaters, by broadcast or in the home entertainment market) at any time during the applicable Picture Release Window (a “Defined Production“), and (b) Marvel complies with SPE’s Ad-Buy Right (as defined below). For the avoidance of doubt, this Agreement’s limitations on Marvel’s exploitation of Alternative Reality Games shall not prohibit Marvel from including in Interactive Applications elements that may also be found within Alternative Reality Games including, without limitation, location based gaming (e.g., Check-in services/games (Foursquare, SCVGR, Sony’s Near, GPS, theme park check-in games), audiovisual check-in services (e.g., GetGlue), providing codes to promote games or other products, collect digital points/currency in exchange for real world prizes, augmented reality, etc., so long as the relevant Interactive Application and all related elements, taken as a whole, do not (I) violate any of the ARG Protection Limitations, and/or (II) constitute, in the reasonable opinion of consumers, an alternative reality game.
11.b(iii)(F)(1)
Consumer-Pay Business Models. Marvel shall have the right during each Picture Release Window to exploit Interactive Applications on any basis, using any business or economic model of any nature, which seeks to collect revenue directly from consumers for the privilege of playing or using the Interactive Application, including without limitation the following: (I) any business model in which the consumer is required to pay a fee to purchase, download, license or otherwise play the applicable Interactive Application, (II) using a “freemium“ model, under which the consumer is permitted to play a limited number of basic levels of the Interactive Application for free in order to induce the consumer to pay a fee to purchase, download, license or otherwise play additional levels of the applicable Interactive Application, (III) free-to-play games that derive revenue by explicitly prompting the consumer to pay for in-game commercial features (e.g., micro-transactions such as virtual property transactions for real money), and/or (IV) subscription services which charge the consumer a periodic fee for the right to play one or more interactive applications including Interactive Applications. During each Picture Release Window, no Interactive Application conducted or authorized by Marvel, and all related elements, taken as a whole, may (I) violate any of the ARG Protection Limitations, and/or (II) constitute, in the reasonable opinion of consumers, an alternative reality game provided however, that the forgoing limitations shall not apply to any Qualifying Subscription ARG, Qualifying Marvel Family ARG or Grandfathered Agreement. As used herein, “Qualifying Subscription ARG“ shall mean an Alternative Reality Game relating to the Property where the consumer pays a material subscription fee of not less than the greater of (i) $5 per month (excluding non-public beta testing and limited-time free trials not to exceed two [2] months in duration; provided that Marvel may not offer free trials during the six [6] month period prior to then-targeted initial theatrical release date of the applicable Picture in the applicable territory) or (ii) the customary subscription fee in the industry at the time for high-quality subscription-model massively multi-player on-line games.
11.b(iii)(F)(2) By Marvel Outside of Picture Release Windows. Outside of Picture Release Windows Marvel shall have the right to monetize Interactive Applications and/or Alternative Reality Games using any and all business models and methods in Marvel’s sole discretion (including for pay exploitation, ad-supported applications, in-game advertising, etc.) subject to the “Mix and Match” limitations on combining Picture-Related or Series-Related Elements with Classic or non-Property-related elements set forth in Section 11.b(iii)(G) and the limitations on Co-Promotions provided for in Section 11A.
11.b(iii)(F)(3) By SPE. Notwithstanding any contrary provision of this Agreement, SPE shall not have any right to exploit Interactive Applications or Alternative Reality Games at any time except for use in advertising and promotion of Productions and/or Co-Promotions in which no fee is charged to any consumer at any time (unless the Interactive Application is provided as a premium and applicable law requires that there be a charge, in which event SPE may charge the minimum amount permitted by applicable law).
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