Tom: Similar restrictions are placed on the entire “Development Team,” also listed in Exhibit B (5.2). They are also required to work on the initial two games exclusively and not work on any other games after the first two are finished that can interfere with their work on Game three. The Developer also has to provide weekly progress reports to Activision and allow Activision access to the development team throughout the development (5.3, below) and provide periodic builds of the games (5.4).

Chris & Dave: The agreement does not specifically prohibit the parties from soliciting or hiring each other’s employees. If it did, it would have helped Spark’s case against Activision.

Tom: Milestone deliverables, as set out in Exhibit A, are due in accordance with the delivery schedule in Exhibit A with a written notice of delivery is required and, if the deliverable is late, a written notice is still required. Seven days late and Activision can terminate the contract for cause.

Chris & Dave: Typically a developer will want an exception for late milestone delivery caused by the publisher. This exception isn’t in the Spark contract, so Spark is required to deliver on time even if Activision caused development delays. Section 6.2 does deal with Activision’s delays, but it only applies to delays which occur after a milestone has been delivered.

Tom: Fortunately, the delivery schedule can be modified by a subsequent written agreement between Activision and Spark (6.1). Activision has ten days to accept or reject the deliverable.

Chris & Dave: Activision can reject a milestone if the milestone doesn’t conform to the specifications, or if it is “unacceptable for some other reason” (section 6.2(c)). In effect, this means that Activision can re-write the specifications throughout the development process. Publishers generally given themselves this ability to ensure they get the game they want. The problem for developers is that changing specifications can cause delays and can add expenses, so a fair “change order” process should be included in the agreement to deal with this.