License and Programming Agreement - ASF Software Inc. and Poker.com Inc.
LICENSE AND PROGRAMMING AGREEMENT
THIS AGREEMENT, (hereinafter, "the Agreement") is made on this 10/th/ day of
August,1999, (the "Effective Date"), by and between ASF Software Inc. .a
corporation organized and existing under the Belize International Business
Companies Act 1990, Central America, and having its principal place of business
at Island Galleria, Coconut Drive, Ambergris Cay, San and Poker.com Inc. with
its head office at Suite 1502- 1166 Alberni Street, Vancouver, British Columbia,
Canada.
WHEREAS, the Company has experience in the development of software for Internet
gaming.
WHEREAS, the Site desires to license from the Company and operate the Company's
Software for all internet gaining site as further described herein.
Now, therefore, in consideration of tile mutual covenants and promises set forth
herein, the parties hereto agree as follows:
1. Entire Agreement
This Agreement, including all appendixes and referenced attachments, constitutes
the entire agreement between Site and Company and supersedes .111 proposals,
agreements, oral and written, between the parties on the subject matter.
2. Software License and Other Services
The Company herewith agrees to provide the following services (including tile
software licenses as set forth below, the "Services") oil a non-exclusive basis
and subject to these terms and conditions.
a. License
The Company shall provide a software license, subject to the provisions of
sub paragraph 2(c). below, (hereinafter referred to as the "License") for
use of the Company's current version of its Back End Management System
which includes a Communications Server Program, a Player Database System
using MS SQL and the capability to interface the Player Database System to
UniClicck Check, Master merchant Credit Card processing system, hereinafter
referred to as the ("Software"). Furthermore, the Company shall provide
from time to time as the Company deems necessary, updates or enhancements
to the current features provided in the Software free of charge.
b. Hardware Compatibility
The Company agrees the Software as delivered shall load and operate on a
minimum computer equipment configuration as listed herein below:
Data Server: A Duct Pentium Pro 333 Mhz computer with a 16
gigabyte SCSI RAID hard disk and 512K RAM.
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Game Server: A Pentium 300 Mhz computer with a 2 gigabyte hard disk and
256K RAM.
The Site shall provide its own hardware meeting or exceeding these
requirements-
Network and Database. The network software must be Microsoft Windows NT
version as directed by the Company and using a Microsoft SQL database.
c. Usage and Distribution
The Company shall grant usage and distribution rights to the Site on an
non-exclusive basis as follows:
1) The rights to use a copy of the Software utilizing a URLs in a
legal jurisdiction for the Site.
2) The unlimited right to use, distribute, or sub-license the Client
Games.
Except as specifically set forth above, the Site shall not copy or
distribute or cause to be copied or distributed the Software for any other
purpose except as provided herein without the written consent of the
Company.
3. Performance of Services
The Services provided herein and the manner in which the Services am to be
performed and the specific hours to be worked by the Company shall be determined
by the Company. The Site shall rely on the Company to work as many hours as may
be reasonably necessary to fulfill the scheduling obligations under this
Agreement.
4. Delivery and Installation
Both parties understand time is of the essence and shall make their best efforts
to expedite the delivery of the Software as follows:
a. Delivery Schedule
The Company shall deliver or cause to be delivered the Company's current
Client Server program upon die receipt of the 501A License payment due upon
signing of this Agreement.
b. Site Preparation and Installation
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The Company shall load and certify the installation of the Software on
hardware provided by the Site. The Site shall reimburse the Company for any
out-of-pocket expenses associated with travel and subsistence for this
effort.
5. Acceptance
Acceptance of the Software shall occur upon delivery of the Software as set
forth in paragraph 4(a).
6. Limited Warranty and Legality
Upon delivery, the Company acknowledges to the best of its ability that the
Software is free of defects or imperfections for a period of ninety days from
delivery. Any errors that create on screen error messages and which can be
reproduced by the Site on the Company's or mutually agreeable test computer
system that are found in the delivered Software during the warranty period shall
be corrected in a reasonable time frame, as determined by industry standards, at
the Company's expense. Furthermore, the Company warrants & represents that the
games are based on standard random number generation and that the Software has
not been modified to the favor of any specific player or the Site. At the Site's
option and sole expense the Site may select an Internationally recognized
Accounting & Consulting firm to view the Software Source Code and verify the
randomness of the random number generators at the offices of the Company.
The Company shall only be responsible for errors that are reproducible in the
Software as delivered by the Company, and not for any errors created because Of
Other programs, hardware, or changes not made by the Company.
Company hereby disclaims all other warranties of any kind as to the Software
whether stated or implied, including any warranty of merchantability or fitness
for a Particular purpose, even if the Company has been advised of that purpose.
The Site has conducted an independent investigation into the legality of the
intended use of the Software and hereby releases Company from any responsibility
with respect to any Present or intervening illegality of such use.
Site shall indemnify and hold Company harmless Company and all claims, liability
or damage arising from or related to any alleged or actual illegal use of the
Software. In the event of any such illegality, Site shall not be excused from
its obligations to the Company hereunder.
7. Payment to Company.
All Payments shall be made by the Site to the Company as provided herein below:
a. Software License
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1) The License price for the Software, hardware and Client Games shall be
One Hundred and Thirty Five Thousand U.S. Dollars payable as follows;
Fifty percent upon the Signing of this Agreement Twenty-five percent
within 14 day of the Effective Date and Twenty-five percent to be paid
----
within 30 days from the Effective Date.
2) A continuing license fee equal to twenty percent of all revenues
derived from the use of the Software at the Site less payments to
customers shall be paid to the Company for ongoing Software support
and upgrades to the existing Software.
b. Payments After Termination
Upon termination of this Agreement for any reason other than the default of
the Company, the Company shall be entitled to payments and Partial Payments
that occurred prior to the date of termination and for which the Company
has not yet been paid.
Furthermore, all Services and Schedules provided herein by the Company shall be
suspended if any payments, fees or invoices are in arrears and shall remain
suspended until such time the arrears have been paid or until the Company elects
to continue working with the Site.
8. Expenses of Company
The Company "I be entitled to reimbursement from the Site for reasonable and
mutually agreeable travel expenses, if any, that relate to this Agreement.
9. Term/Termination
a. Term
The Term hereunder shall begin upon the Effective Date and shall continue
for a period of one year, and automatically be renewed annually unless
terminated in writing by either party giving the other party 90 days
notice, and for as long as either party is not in default of this
Agreement. Both parties agree that the License and Confidentiality
provisions of this Agreement shall remain in full force and effect after
the termination of this Agreement.
b. Default
Either party has the right to terminate this Agreement if the other party
breaches or is in default of its obligations hereunder and such default is
incapable of cure or which, being capable of cure, has not been cured
within thirty (30) days after receipt of notice of such default (or such
additional cure period as the non-defaulting party may authorize).
c. Acts of Insolvency
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The Company may terminate this Agreement by written notice to the Site if
the Site becomes insolvent, suffers or permits the appointment of a
receiver for its business or assets, becomes subject to any proceeding
under any bankruptcy or insolvency law whether domestic or foreign, or has
wound up or liquidated, voluntarily or otherwise. If Company becomes
insolvent, is placed in receivership, or in Bankruptcy, this Agreement will
terminate but Site may without further compensation retain the License and
distribution rights granted herein to the Software.
d. Force Majeure Event
In the event that either party is unable to perform any of its obligations
under this Agreement, or to enjoy any of its benefits because of natural
disasters; or communications line failure not the fault of the affected
party (hereinafter referred to as a "Force Majeure Event"), the party who
has been so affected shall immediately give notice to the other party and
shall do everything possible to resume performance. Upon receipt of such
notice, all obligations under this Agreement shall be immediately
suspended. If the period of nonperformance exceeds fifteen (15) days from
the receipt of notice of the Force Majeure Event, the party whose ability
to perform, has not been affected may, by giving written notice, terminate
this Agreement.
However, delays in delivery due to Force Majeure Events shall automatically
extend the delivery date for a period equal to the duration Of such Events;
any warranty period affected by a Force Majeure Event shall likewise be
extended for a period equal to the duration of such Event.
e. Return of Software
Should this Agreement be terminated by Company on account of Site's default
pursuant to this Agreement, the Company may repossess any and all the
Services by directing Site in writing to deliver all records, notes, data,
memoranda, of any nature that am in their possession or under their control
within thirty (30) days to the Company and at Site's expense to the nearest
convenient location of the Company.
10. Relationship of Parties
11 is understood by the Parties that the Company is an independent contractor
with respect to the Site, and not an employee of the Site. The Site shall not
provide fringe benefits, including health insurance benefits, paid vacation, or
any other employee benefits for the benefit Of the Company. Furthermore, it is
understood and agreed by the parties that for a period of two years the Site
shall not hire, or contract with or in any manner have any of the Company's
employees work for the Site without prior written approval of the Company.
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11. Consequential Damages
In no event shall either party be liable for consequential damages caused by the
other party unless there is negligence by either party.
12. Intellectual Property
Except as otherwise provided for herein, the following provisions shall apply
with respect to copyrightable works, ideas, discoveries, inventions,
applications for patents, and patents (collectively, "Intellectual Property"):
a. Site's Intellectual Property
The Site shall not hold any interest in any Intellectual Property except
for Copyrights of the site for Graphic or Graphics Design created by or for
the Site.
b. Development of Intellectual property
Any items of Intellectual Property discovered or developed by the Company
(or the Company's employees) for the benefit of the Site during the term of
this Agreement shall automatically become the property of the Company.
Furthermore, software features specifically developed by the Company for
and paid by the Site shall be deemed the intellectual property of the
Company, however, if there are to be any exclusivity and royalty conditions
regarding such features, those conditions shall be mutually agreed in
writing before such development begins.
13. Confidential and Proprietary information
Both parties recognize that they have and/or shall have copyrights, products,
costs. business affairs, trade secrets, technical information, product design
information, and other Proprietary information (collectively, "Information'
which are valuable, special and unique assets.
a. Site's Business information
The Company agrees that the Company shall not knowingly distribute, either
orally or written, any Information of the Site, including specific
operational statistics or results, to a third party without the prior
written approval of the Site.
b. Company's Intellectual property
The Site agrees that the Software provided by the Company to the Site are
the sole Property of the Company regardless of any payments, fees or other
considerations made to the Company by the Site.
c. Unauthorized Disclosure of Information
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If it appears that either party has disclosed (or has threatened to
disclose) Information in violation of this Agreement, the other party shall
be entitled to an injunction to restrain the other party from disclosing,
in whole or in part, such Information, or from providing any Services to
any party to whom such Information has been disclosed or may be disclosed
pending resolution for any arbitration filed to resolve a dispute as it
relates to this Agreement. Neither party shall be prohibited by this
provision from pursuing other remedies, including a claim for losses and
damages.
d. Confidentiality After Termination of Agreement
The confidentiality provisions of this Agreement shall remain in M force
and effect after the termination of this Agreement A violation of sub-
paragraphs 13(a). or 13(b). above shall be a material violation of this
Agreement.
14. Return of Records
Upon termination of this Agreement, both Party's shall deliver all records,
notes, data, memoranda, of any nature that am in their possession or under their
control and that are the other Party's property or relate to the other Party's
business operations.
15. Notices
All notices required or permitted under this Agreement shall be in writing and
shall be deemed delivered when delivered in person or deposited in the United
States mail, postage prepaid, addressed as follows:
Attn: Ramon Nunez
Company: ASF Software
Island Galleria, Coconut Drive
Ambergris Cay, San Jose, Belize, Central America
Attn: Nancy Ross
Site: Antico Holdings AVV
c/o First independent Trust (Aruba) AVV
Sun Plaza, L.G. Smith Blvd. 160
Oranjestad. Aruba
Such addresses may be changed from time to time by either party providing
written notice in the manner set forth above.
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16. Amendment
This Agreement may be modified or amended, if the amendment is made in writing
and is signed by both parties.
17. Severability
If any provision of this Agreement shall be held to be invalid or unenforceable
for any reason, the remaining provisions shall continue to be valid and
enforceable. If arbitration finds that any provision of this Agreement is
invalid or unenforceable, but that by limiting such provision it would become
valid and enforceable, then such provision shall be deemed to be written,
construed, and enforced as so limited.
18. Waiver
The Failure of either party to enforce any provision of this Agreement shall not
be construed as a waiver or limitation of that party's right to subsequently
enforce and compel strict compliance with every provision of this Agreement.
No term or provision hereof shall be deemed waived and no breach excused unless
such waiver or consent shall be in writing and signed by the party claimed to
have waived or consented.
19. No Contingencies or Changes
It is agreed by the Company that tile Software has been created and is not
contingent upon uncertain events or engineering which shall not have occurred
until after the contract is awarded. This does not include changes requested by
the Site or other factors that are not under the Company's direct control.
20. Taxes
Site shall pay all taxes arising from the sale of the Software, except for any
tax based on Company's income.
21. Assignment
Neither party shall assign or subcontract its obligations under this Agreement,
in whole or in part, or any interest therein, without the other party's written
consent Such consent shall not be unreasonably withheld.
22. Miscellaneous
a. Applicable Law
This Agreement shall be governed by the laws of the Country of Belize.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement and do each
hereby warrant and represent that their respective signatory whose
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signature appears below has been and is on the date of the Agreement duly
authorized by all necessary and appropriate corporate action to execute this
Agreement and have caused this Agreement to become effective as of the date
first above written.
ASF Software, Inc. of Belize
By: /s/ Ramon Nunez
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Ramon Nunez,
Title: President
Attest: /s/ Jose Sosa
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Name: Jose Sosa
Title:
By: /s/ Michael Jackson
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Name: Michael Jackson
Title: Director
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