Master License Agreement - Fairwind Technologies Inc. and Blackstone Holdings Corp.
MASTER LICENSE AGREEMENT
This Agreement made as of the 21 day of August, 2001
BETWEEN:
FAIRWIND TECHNOLOGIES INC a body corporate with offices at
#205 - 3997 Henning Drive, Burnaby, British Columbia, Canada
(hereinafter referred to as the "Licensor" or "Fairwind")
OF THE FIRST PART
AND
Blackstone Holdings Corporation a Neveda Corporation with
offices at 16747 Foxtrail Lane, Loxahatchee, FL 33470
(hereinafter referred to as the "Master Licensee")
OF THE SECOND PART
WHEREAS Licensor is in the gaming software licensing business.
AND WHEREAS Master Licensee is in the business of selling software
gaming licenses and wishes to enter into a Master License Agreement to
purchase a Master License and sell Master Licenses and sub-licenses to third
parties
AND WHEREAS Licensor has the licensing rights to certain interactive
gaming software more fully described in Schedule "A" developed by software
programmers in Korea, and Vancouver
AND WHEREAS Licensor is willing to grant Master Licensee a non exclusive,
non transferable license to the object code for such gaming software for
subsequent sale of sub-licenses and sale of Master Licenses to other third
parties in those territories described in Schedule "A"
AND WHEREAS Licensor is willing to grant Master Licensee this license
subject to the terms and conditions set out in this agreement;
NOW THEREFORE, in consideration of the mutual promises, covenants and
obligations contained herein, the parties agree as follows:
1. INTERPRETATION
1.1. Words and phrases used herein have the following meaning:
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1.1.1. "Agreement" means this Master License Agreement, including Schedules
attached hereto.
1.1.2. "Business" means the operation and management of an online Internet
entertainment and game playing website for fun and for money wagering
utilizing the Software.
1.1.3. "Client Software" means the user interface portion of the Software.
1.1.4 1.1.4 "Dollar" or "$" means United States dollars.
1.1.5 1.1.5 "Electronic Distribution" means the electronic delivery of
computer software using on-line services, the Internet, phone lines,
cable systems, servers, satellite or other public or private access
network or electronic communication mediums.
1.1.6 1.1.6 "End User" means an individual whom the Master Licensee or
sub-licensee permits to access and utilize, but not to further
distribute, the Software.
1.1.7 1.1.7 "Gross Revenues" means gross income which is received by the
Master Licensee or any sub-licensee, affiliate or associate of the
Master Licensee in connection with the Business utilizing the
Software, which shall be calculated as the total dollars wagered on
all games less all payments to players and charge backs, but before
any operating, administrative or other expenses, governmental sales,
excises or other taxes or tariffs imposed on the use of the Software.
1.1.8 1.1.8 "Master License" Means this agreement enabling the Master
Licensee to use and sell Master Licenses and sub Licenses.
1.1.9 1.1.9 "License Fees" means the fees payable by the Master Licensee.
1.1.10 1.1.10 "Royalty Fees" shall mean the monthly percentage fees earned
by the Licensor from Revenue generated from the Master Licensees and
Sub-Licensees operations.
1.1.11 1.1.11 "Software" means the object code versions of the computer
software described in Schedule "C" herein.
1.1.12 1.1.12 "Sub-Licensee" shall mean a third party operating a
sub-license acquired from the Master Licensee
1.2 Currency
Unless otherwise indicated, all dollar amounts referred to in this
Agreement are expressed in United States Dollars.
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1.3. Sections and Headings
The division of this Agreement into sections and the insertion of
headings are for convenience of reference only and shall not affect
the interpretation of this Agreement. Unless otherwise indicated,
any reference in this Agreement to a section or a Schedule refers to
the specified section of or Schedule to this Agreement.
1.4. Number, Gender and Persons
In this Agreement, words importing the singular number only shall
include the plural and vice versa, words importing gender shall
include all genders and words importing persons shall include
individuals, corporations, partnerships, associations, trusts,
unincorporated organizations, governmental bodies and other legal or
business entities.
1.5. Accounting Principles
Any reference in this Agreement to generally accepted accounting
principles refers to generally accepted accounting principles as
approved from time to time by the Canadian Institute of Chartered
Accountants or any successor institute. This reference shall not be
construed so as to imply any attornment to Canadian jurisdiction or
laws.
1.6. Time of Essence
Time shall be of the essence of this Agreement.
1.7. Severability
If any provision of this Agreement is determined by a court of
competent jurisdiction to be invalid, illegal or unenforceable in any
respect, such determination shall not impair or affect the validity,
legality or enforceability of the remaining provisions hereof, and
each provision is hereby declared to be separate, severable and
distinct.
1.8. Successors and Assigns
This Agreement shall enure to the benefit of and shall be binding on
and enforceable by the parties and, where the context so permits,
their respective successors and permitted assigns.
1.9. Amendment and Waivers
No amendment or waiver of any provision of this Agreement shall be
binding on any party unless consented to in writing by such party.
No waiver of any provision of this Agreement shall constitute a
waiver of any other provision, nor shall any waiver constitute a
continuing waiver unless otherwise expressly provided.
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2. GRANT OF LICENSE AND SELLING RIGHTS
2.1. License: Subject to the terms and conditions hereof Licensor hereby
grants to the Master Licensee and the Master Licensee accepts from
Licensor: (i) non-exclusive, non-transferable license to use the
Software only in connection with the Business and to transmit the
Client Software directly or assign the rights to use the software to
(your company name) sub-licensee only in object code form to End
Users by means of Electronic Distribution; and (ii) a non-exclusive ,
non-transferable license to sell to third parties located in North
and South America as well as those third parties using International
Business Corporations in the West Indies,, the Caribbean, including
Bahamas, St Kitts, Antigua, Belize, Costa Rica, Panama, Nevis and
such other jurisdictions with approval from Fairwind, not to be
unreasonably withheld.a sub-license and/or a Master License ( iii)
a non-exclusive, non-transferable license to use and to grant to End
Users the right to use the Client Software in object code form, only
while connected to a server on which the server component of the
Software is installed.
2.2 Sale of Master Licenses: Master Licensee is hereby granted the
rights to sell Master Licenses under such terms as described in
Schedule "D" and paragraph 5
Sale of Sub-Licenses : Master Licensee is hereby granted the rights
to sell sub-licenses under such terms as described in paragraph 5.
Licensor and Licensee recognizes that there are a category of web
masters who have substantial traffic and who would not pay for a
gaming sub-license based on the potential royalty earnings that they
could generate. Licensor grants Licensee the right to sell for
$30,000.00 a sub-license in the event a sub-licensee qualifies under
this category subject to Licensor's written consent on a deal by deal
basis.
2.3 Restrictions: The Master Licensee shall not, and shall not authorize
any third party to, reverse engineer, de-compile or disassemble the
Software or to attempt to do the same. If the Master Licensee
becomes aware of the source code of the Software it shall not make
use of or disclose the same to any party.
2.4 Sub-Licenses: The Master Licensee shall have the right to
sub-license or otherwise make available the rights granted to the
Master Licensee in Clause 2.1 to any third party (related or
otherwise) and such rights shall only be used by the Master Licensee
or its assignee in connection with its operation of the Business
which shall be comprised of the installation of the Software on a
server and the maintenance of the data base.
2.5 Hosting Server : Licensor shall provide Master Licensee and their
sub-licensees with games and a back-end administrative system from
Licensors servers located in Costa Rica on the condition that Master
licensee or Sublicensee pay their webhosting fee.
2.6 Server: The Licensor shall be responsible for the proper
configuration, custody, maintenance and control of the server upon
which the Software is installed and in respect of all third party
software installed thereon. Licensor shall provide the servers and
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sufficient bandwidth to service the Master Licensees customers. In
the event the Licensors servers are shut down or confiscated ,
Licensor shall be required to replace the service in another
jurisdiction within 20 business days.
2.7 Web Sites : Licensor shall provide all websites for Master licensee
and Sublicensee on the condition that Licensee pay the web
construction fee and hosting fee.
3. GOVERNMENT APPROVALS
3.1. The Master Licensee warrants and represents that it has or will have
obtained prior to commencing the Business, all required government
approvals and permits in order to use the Software in its Business
and to operate its Business, including an Internet gaming license if
required, and that it will maintain such approval and permits
throughout the term of this Agreement and obtain any government
approvals and permits that subsequently become required during the
term of this Agreement or any extensions thereof.
3.2. The Master Licensee shall take such actions as it deems necessary in
order to prohibit participation in the activities and games of the
Software where prohibited by law.
4. OWNERSHIP
4.1. Software: Fairwind retains all right, title and interest, including
intellectual property rights, in and to the Software.
4.2. Proprietary Rights Notices: The Master Licensee shall not remove any
copyright or other proprietary rights notices contained within the
Software.
5. FEES, PAYMENTS AND RIGHTS TO SELL
5.1.1 Master License Fee ; In consideration of the rights granted by
Licensor to the Master Licensee hereunder, the Master Licensee shall
pay Licensor the sum of $250,000 as follows;
a) $10,000 upon signing of the agreement as a non refundable deposit
(Bank Draft or Cashier's Check Only).
b) A further sum of $115,000 will be paid within 180 days after
signing on this agreement by Master Licensee
c) A final sum of $125,000 will be paid within 60 days after second
payment .
5.1.2 Royalty Fees: As further consideration of the rights granted by
Licensor to the Master Licensee hereunder, the Master Licensee shall
pay to the Licensor monthly Royalty Fee calculated as 35% of Rake
revenue generated by the Master Licensee for the entire term
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of this Agreement and any extensions thereof. This will be negotiate
again when Licensee fully pay Master License Fee.
5.13 Payment of Royalty Fees: The Master Licensee shall pay the Royalty
Fees to the Licensor under Clause 5.1.2 on a monthly .
5.13.1 Sale of Master Licenses : Licensor has granted Licensee the right
to sell a Master License at a price set out in Schedule " ____ ".
Fairwind agrees that the License fee paid by a purchaser of a
Master License shall be shared between Fairwind (70%) and
Blackstone Holdings Corporation(30%).
5.13.2 Sale of Sub-Licenses ; Master Licensee shall pay Fairwind 50% of
the entire fee that Master Licensee is paid by a third party sub-
Licensee .
5.13.3 Time for Payment of Licensing Fees : All fees payable to Fairwind
for a sale of a sub-license or a Master License shall be paid
within 5 days of receipt by the Master Licensee. In the event a
Purchaser pays the licensing fee in installments, Licensor shall
be paid pro rata.
6. SUPPORT
6.1. Upgrades: Provided that the Master Licensee is not then in default
hereunder, during the term of this Agreement Licensor shall provide
certain upgrades to the Software, designated as such by Licensor, to
the Master Licensee at actual cost occurred. All upgrades to the
Software shall be considered Software for the purposes of this
Agreement. Upgrades to the Software shall consist of new games and
language localization, as designated as such from time to time by
Licensor.
6.2. Other Services: If services beyond Licensor's warranty obligations
are requested by the Master Licensee and if Licensor elects to
provide such service, the Master Licensee shall be required to pay
additional fees for such services on the basis of the applicable
rates then in effect for Licensor, but Licensor shall be entitled to
terminate such service at any time, without notice. Any work
performed outside of normal business hours shall be charged at the
applicable overtime rates.
7. LICENSOR'S WARRANTIES, REPRESENTATIONS AND COVENANTS
Licensor warrants, represents and covenants to the Master Licensee
that:
7.1. Capacity: It has the necessary capacity and authority to enter into
this Agreement and is in good standing with its software suppliers
and software programmers
7.2. No Infringement: To the best of its knowledge, information and
belief, the license of the Software to the Master Licensee as
contemplated herein will not infringe upon any patents or copyrights
of any third party.
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7.3. Program Error: Licensor warrants that if program errors (defects in
the Software which prevent substantial conformance to the Software
Specifications set out in Schedule "C" hereto) occur during the term
of this Agreement then, provided that:
i. the Master Licensee provides prompt notice to Licensor of such
program error;
ii the Master Licensee provides a full and complete disclosure of
the program error and any input or output necessary to assess
the same;
iii this sub-license remains in effect and the Master Licensee is
not then in default hereunder;
v the Software or the server on which the Software was
originally installed has not been modified by the Master
Licensee or any third party; and
vi provided the program error can be reproduced on Licensor's
current Software.
Licensor will use their best efforts to correct such errors within 48 hours
following receipt of notice from the Master Licensee of such defects.
7.4. Upgrades: During the term of this Agreement Licensor shall provide
the Master Licensee with upgrades as provided in Clause 6.2.
7.5. Non-Warranty Items: Examples of service not covered by Licensor's
warranty include, but are not limited to:
1. service required due to unauthorized modification to the
Software;
2. service required due to improper installation of Software, if the
Software has not been installed by Licensor;
3. interference of third party software, installed on the server, on
the functionality of the Software;
4. failure of software other than the Software as defined hereunder;
5. force majure;
6. default or negligence of the Master Licensee;
7. providing operating services, accessories or supplies.
7.6. Limitation: EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT THE SOFTWARE
IS PROVIDED AND LICENSED "AS IS" AND THERE ARE NO WARRANTIES,
REPRESENTATIONS OR CONDITIONS, EXPRESSED OR IMPLIED, WRITTEN OR ORAL,
ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING, USAGE OF
TRADE, COURSE OF PERFORMANCE OR SERVICE PROVIDED HEREUNDER OR IN
CONNECTION HEREWITH BY THE LICENSOR OR ANY THIRD PARTY. EXCEPT AS
EXPRESSLY PROVIDED HEREIN LICENSOR DISCLAIMS ANY IMPLIED WARRANTY OR
CONDITION OF MERCHANTABLE QUALITY, NON-INFRINGEMENT, MERCHANTABILITY,
DURABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO REPRESENTATION OR
OTHER AFFIRMATION OF FACT, INCLUDING BUT NOT LIMITED TO STATEMENTS
REGARDING PERFORMANCE OF THE SOFTWARE,
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WHICH IS NOT CONTAINED IN THIS AGREEMENT, SHALL BE DEEMED TO BE A
WARRANTY BY LICENSOR.
8. THE MASTER LICENSEE'S WARRANTIES, REPRESENTATIONS, COVENANTS AND
RESPONSIBILITIES
The Master Licensee warrants, represents and covenants to Licensor as
follows and acknowledges that Licensor is relying on such warranties,
representations and covenants in entering into this Agreement and the
transactions contemplated in this Agreement:
8.1. Capacity: The Master Licensee has the necessary capacity to enter
into this Agreement and shall use the Software only in accordance
with in compliance with the laws of the jurisdiction in which the
Business in conducted and in accordance with generally accepted
gaming industry standards and practices.
8.2. Unauthorized Use: Master Licensee will not permit any third party
other than a sub-licensee and an End User, to use the Software for
any purpose
8.3 Master Licensees Use of Software: The Master Licensee shall assign
the rights to use the Licensed software and operate a Fairwind's to
__________.
8.4 Records: The Master Licensee will maintain, in accordance with
generally accepted accounting principles complete and accurate books
and records in respect of its operation of the Business and the Gross
Revenue and other amounts received in connection therewith and all
License Fees due or paid hereunder.
8.6 Audit: The Licensor shall have the right, on reasonable notice to the
Master Licensee, no more often than once in any twelve (12) month
period, to appoint an independent third party to examine the Master
Licensee's books and records, during regular business hours, in order
to verify the Master Licensee's compliance with the terms of this
Agreement. Any such audit shall be at the expense of the party
initiating the audit unless the audit reveals an underpayment of
greater than five (5%) percent in which case the audit shall be at
the expense of the party initiating the audit. The Master Licensee
shall forthwith pay to the Licensor, the amount of any deficiency
identified by the audit licensee.
9. INFRINGEMENT
9.1. Defense and Settlement: If notified promptly and in writing of any
action (and all prior related claims) brought against the Master
Licensee alleging that the Master Licensee's use of the Software
under this Agreement infringes any valid Canadian or United States
patent or copyright, Licensor may, subject as provided below, defend
and settle that action at its expense and may, subject as provided
below, pay the costs and damages of any type finally awarded against
the Master Licensee in the action, but is not obligated to do so, and
provided that (i) Licensor shall have sole control of the defense of
any such
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action and all negotiations for its settlement or
compromise; and (ii) the Master Licensee and where applicable those
for whom the Master Licensee is responsible, cooperates fully with
Licensor in its defense of the action. If the Master Licensee
receives notice of a valid claim or demand regarding infringement, or
if the use of the Software shall be prevented by injunction, Licensor
shall, at its option and expense either (i) procure for the Master
Licensee the right to continued use of the Software as provided
hereunder, (ii)modify the Software so that it is no longer
infringing, (iii)replace the Software with computer software of equal
capability, or (iv) terminate this Agreement as to the infringing
Software; provided that Licensor agrees that it will exercise any of
the options (i) to (iii) prior to exercising option (iv) if, in
Licensor's opinion, such options are commercially feasible to
Licensor. The foregoing indemnification does not extend to any
claim arising out of a modification to the Software by any party
other than Licensor to the extent such claim would not have arisen
had such modification not been made, any combination of the Software
with any other software or hardware to the extent such claim would
not have arisen had such combination not been made, or the use or
distribution of the Software other than as permitted under this
Agreement and the Master Licensee shall indemnify and hold Licensor
harmless from any infringement arising therefrom. THE FOREGOING
STATES THE ENTIRE LIABILITY AND OBLIGATIONS OF LICENSOR AND THE
EXCLUSIVE REMEDY OF THE MASTER LICENSEE WITH RESPECT TO ANY ALLEGED
INTELLECTUAL PROPERTY INFRINGEMENT. actually made to Licensor for
Licensing fees plus cash payouts made by a sub-licensee to the Master
Licensee for purchase of a sub-license.,
11. THE MASTER LICENSEE INDEMNIFICATION
11.1. Indemnification: The Master Licensee agrees to indemnity and save the
Licensor, the owner of the Software and their associates, affiliates,
parent or subsidiary corporations harmless from and against any and
all claims, demands, costs and liabilities (including all reasonable
legal and attorney fees and expenses) of any kind whatsoever, arising
directly or indirectly out of claims brought by End Users or any
third party, and/or brought under any law, including without
limitation any government department or agency as a result of (i) the
Master Licensee's combination or use of the Software with any other
software, hardware or other material, (ii) the Master Licensee's
transmission of the Client Software or the use of the Client Software
by an End User, (iii) breach of Section 8 warranties; (iv) the
Master Licensee's operation and management of the Business; or (v)
any act or omission by the Master Licensee regarding the use of the
Software except in accordance with Section 2.
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12. CONFIDENTIALITY
12.1. Proprietary Information: Documentation and information (including
electronically, orally or visually disclosed information) are
confidential and "Proprietary Information" for the purposes of this
Section 12 if (a) it is designated as confidential or proprietary, by
letter, stamp or legend (b) it would be apparent to a reasonable
person, familiar with the disclosing party's business or the industry
in which it operates, that such information is of a confidential or
proprietary nature, or the disclosing party, within ten (10) days of
disclosure, indicates to the receiving party that such disclosure
is confidential. Proprietary Information shall not include
information defined as Proprietary Information above which the
receiving party can conclusively establish (i) was in the possession
of the receiving party at the time of disclosure; (ii) prior to or
after the time of disclosure becomes part of the public domain
without the act or omission of the party to whom it was disclosed;
(iii) is disclosed to the receiving party by a third party under no
legal obligation to maintain the confidentiality of such information;
or (iv) was independently developed by the receiving party. All such
Proprietary Information shall be treated confidentially by the
receiving party and its employees, contractors and agents and shall
not be disclosed by the receiving party without the disclosing
party's prior written consent. However, the receiving party may
disclose Proprietary Information of the disclosing party in
accordance with judicial or other governmental order, provided that
receiving party shall give the disclosing party reasonable notice
prior to such disclosure and shall comply with any applicable
protective order or equivalent.
12.2. Treatment of Proprietary Information: Neither party shall in any way
duplicate all nor any part of the other party's Proprietary
Information, except in accordance with the terms and conditions of
this Agreement. Each party shall have an appropriate agreement with
each of its employees, contractors and agents having access to the
other party's Proprietary Information sufficient to enable that party
to comply with all the terms of this Agreement. Each party agrees to
protect the other's Proprietary Information with the same standard of
care and procedures which it uses to protect its own trade secrets
and confidential or proprietary information of like importance and,
in any event, shall adopt or maintain procedures reasonably
calculated to protect such Proprietary Information.
12.3. Further Treatment of Proprietary Information: Each party agrees to
hold the other party's Proprietary Information in trust and
confidence for such party and not to use the same other than as
expressly authorized under this Agreement. Each party agrees not to
disclose any such Proprietary Information without the prior written
consent of the other, to anyone other than that party's employees,
contractors and agents who have a need to know same to carry out the
rights granted hereunder.
12.4. Action to Protect: Each party shall promptly report to the other any
actual or suspected violation of the terms of this Section 12, and
shall take all reasonable steps to prevent, control or remedy such
violation.
12.5. Equitable Relief: In recognition of the unique and proprietary nature
of the information disclosed by the parties, it is agreed that each
party's remedies for a breach by the other
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of its obligations under this Section 12 shall be inadequate and the
disclosing party shall, in the event of such breach be entitled to
equitable relief, including without limitation, injunctive relief and
specific performance, in addition to any other remedies provided
hereunder or available at law.
12.6 Proprietary Information: For the purposes of this Agreement the
Software, and all upgrades or modifications and all materials related
thereto shall be treated as Proprietary Information of Licensor
disclosed to the Master Licensee.
13. TERMINATION
13.1. Term: The initial term of this Agreement will be for a period of two
(2) years. Provided that the Master Licensee is not in default under
the terms of this Agreement at the end of a current two year term and
has not been in default hereunder for a period of sixty (60) or more
days, on a cumulative not consecutive basis, during the current term,
the Master Licensee will have the option of renewing this Agreement
60 days prior to the end of the initial term, for an additional one
(1) year term on the same terms provided herein except that there
shall be no license fee applicable to the renewal terms.
13.2 Termination : This Agreement may be terminated by either party in the
event of any material breach by the other party hereto which
continues after thirty (30) days written notice of said breach (which
notice shall, in reasonable detail, specify the nature of the breach)
by the non-defaulting party to the defaulting party
13.3 Effect of Termination: Upon the termination of this Agreement the
rights and licenses granted to the Master Licensee by Licensor
hereunder shall terminate immediately and the Master Licensee shall
cease all use of the Software and shall, at the option of Licensor,
return to Licensor or destroy all copies of the Software in the
possession of the Master Licensee and Licensor shall be entitled to
unilaterally take any and all steps or actions they may deem
necessary to enforce this Clause
In the event the Licensee's Master License is terminated for cause
the Master Licensee shall assign the sub-licences to the Licensor
13.4. License Fees: No termination of this Agreement shall release the
Master Licensee from its obligations to pay Licensor any License Fees
which accrued prior to such termination or which shall accrue after
the effective date of such termination as a result of the Master
Licensee's use of the Software after the termination of this
Agreement, nor shall any termination have the effect of releasing the
Master Licensee from the provisions of Section 12 which provisions
shall survive the termination of this Agreement.
13.5 Non Payment: Notwithstanding anything contained herein, non payment
by the Master Licensee of any License Fees provided for herein, at
the times specified herein, shall entitle Fairwind and the Licensor
after the default remedy period to immediately terminate this
Agreement and in such event Fairwind and the Licensor shall be
entitled to take any and all such actions it may deem necessary to
prevent the continued use of the
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Software.
13.6. Termination of Master License: Notwithstanding any other provision
hereof the Licensor acknowledges that the rights of Master Licensee
to sub license the Software is described under the terms of this
Master License Agreement made between the Licensee and Fairwind and
that a default by the Licensee under the terms of the Master License
Agreement may result in the termination of a Sub License. In the
event of such termination Fairwind is given the right, which right is
hereby recognized and confirmed by the Master Licensee, to take any
and all such steps as Fairwind may determine necessary to prevent the
continued use the Software by the Master Licensee. In event of the
termination of this Agreement by virtue of the termination of the
Master Agreement, sub-licensees shall be entitled to contact
Fairwind directly and negotiate any continued use of the Software on
such terms as may be negotiated, without compensation to the Master
Licensee and similarly, in such circumstances, Fairwind shall be
entitled to contact the Sub-licensee or otherwise negotiate with the
sub-Licensee with respect to continued use of the Software, without
interference by the Master Licenseer or compensation of any nature to
the Master Licensee.
13.7. Default : If Licensor has violated or breached any of the terms of
this agreement.
14. LICENSOR REMEDIES
14.1. If the Master Licensee breaches any of its obligations hereunder, the
Licensor shall be entitled to seek equitable relief to protect their
interests herein and in the Software including but not limited to
injunctive or other equitable relief, it being acknowledged by the
Master Licensee that the Licensor would suffer irreparable harm and
that damages do not form an adequate remedy.
14.2. If the Master Licensee fails to completely abide by any term,
condition or covenant of this Agreement or otherwise commits a breach
of this Agreement, then Licensor may, at its option, terminate this
Agreement by providing written notice as such to the Master Licensee.
14.3. If the Master Licensee becomes insolvent or files a petition in
Bankruptcy, has filed against it an involuntary petition in
Bankruptcy or a Receiver is appointed over the assets of the Master
Licensee, or the Master Licensee commits an act of Bankruptcy, then
Licensor may, at its option, immediately terminate this Agreement by
written notice as such to the Master Licensee.
14.4. If this Agreement is terminated in accordance with the provisions
hereof the License Fees as provided for in Clause 5.1 will be deemed
to have been paid for the use of the Software during the time it was
in the possession of the Master Licensee and as a result, in such
event, the Master Licensee will not be entitled to any refund of the
Set Up Fee or any License Fees, or any portion thereof.
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15. NOTICES
15.1. Notices: Any notice required or permitted to be given under the
terms of this Agreement shall be in writing and given by personal
delivery or sent by registered mail, postage prepaid, or by fax,
Master Licensee to 16747 Foxtrail Lane, Loxahatchee, FL 33470 and in
the case of the Licensor at the following address:205-3997 Henning
Dr Burnaby BC V5C 6N5. Either party may change its address for
notice by notice to the other party in the manner prescribed above.
Any notice given pursuant to this Section shall be deemed to have
been received on the date actually received.
16. GENERAL
16.1. Applicable Law: This Agreement shall be governed by and construed in
accordance with the laws of Costa Rica and the parties attorn to the
courts of Costa Riac in respect of the enforcement or interpretation
of this Agreement.
16.2. Enforceability: If any provision of this Agreement is declared by a
court of competent jurisdiction to be invalid, illegal or
unenforceable, such provision or part thereof which is necessary to
render the provision valid, legal and enforceable, shall be severed
from the agreement and the other provisions and the remaining part
thereof of that provision shall remain in full force and effect.
16.4. Further Assurances: The parties agree to do all such things and to
execute such further documents as may reasonably be required to give
full effect to this Agreement.
16.5. Entire Agreement: This Agreement constitutes the entire agreement
between the parties concerning the subject matter hereof and cancels
and supersedes any prior understandings and agreements between the
parties hereto with respect thereto. There are no representations,
warranties, terms, conditions, undertakings or collateral agreements,
expressed, implied or statutory, between the parties other than as
expressly set forth in this Agreement.
16.6. Remedies: The remedies expressly stated in this Agreement shall be in
addition to and not in substitution for those generally available at
law or in equity.
16.7. Waiver: No waiver of any provision of this agreement by a party
shall be enforceable against that party unless it is in writing and
signed by an authorized officer of that party.
16.8. Assignment: Neither party may assign this Agreement nor the rights
granted hereunder without the prior written consent of the other
which consent shall not be unreasonably withheld; provided that
either party may assign this Agreement to a successor corporation in
the event of a merger or other reorganization in which it is not the
surviving entity; and provided further that Licensor may assign all
or any part of its rights under this Agreement to a parent, affiliate
or wholly-owned subsidiary; provided that any such organization is
able to perform under this Agreement and agrees to be bound by the
terms hereof.
<PAGE>
16.9. Counterparts: This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed to be an original
and all of which together shall constitute one and the same
instrument.
16.10. Independent Contractors: The parties to this Agreement are
independent contractors. No relationships of principal to an agent,
master to a servant, employer to employee, franchiser to franchisee,
partner or joint venturers is established hereby between the parties.
Neither party has the authority to bind the other nor incur any
obligation on its behalf. Licensor shall not take part in, have any
control over or participate in the Business, it being the express
intention and understanding of the parties that the Master Licensee
shall conduct the Business and that Licensor supply the Software only
as described herein. The payment by the Master Licensee of License
Fees as provided in Clause 5.2 shall not, and the parties hereto
confirm and agree that the same shall not constitute any nor be
construed as any participation in the business of the Master Licensee
by Licensor.
16.12. Force Majeure: Notwithstanding anything to the contrary contained in
this Agreement, the failure or delay in performance by either
Licensor or the Master Licensee, other than the performance of
payment obligations, shall be excused to the extent it is caused by
an event beyond the party's control, provided that the party
prevented from or delayed in rendering performance notifies the other
party immediately and in detail of the commencement and nature of
such cause, and provided further that such party uses its best
efforts to render performance in a timely manner, utilizing to such
ends all resources reasonably required in the circumstances. If such
event continues beyond sixty (60) days, either party may terminate
this Agreement.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the
date first above written.
BLACKSTONE HOLDING CORP.
/S/ FRANK R. BAUER
Per:_______________________________
Name: FRANK R. BAUER
Title: PRESIDENT
FAIRWIND TECHNOLOGIES LTD
/S/ THOMAS KEI
Per:_______________________________
Name: THOMAS KEI
Title: PRESIDENT AND CEO
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SCHEDULE "A"
The software is a Java based virtual Poker Card Room Service identified as a
package called www.newpoker.com which resides on a Fairwind server located
at San Jose, Costa Rica